TERM LOAN AGREEMENT
Dated as of August 25, 1999
among
PALACE STATION HOTEL & CASINO, INC.
BOULDER STATION, INC.
TEXAS STATION, INC.
ST. XXXXXXX RIVERFRONT STATION, INC.
KANSAS CITY STATION CORPORATION
SUNSET STATION, INC.
THE LENDERS HEREIN NAMED
and
BANK OF AMERICA, N.A.
as Administrative Agent
TABLE OF CONTENTS
Page
----
Article 1
DEFINITIONS AND ACCOUNTING TERMS..............................................................................1
1.1 Defined Terms...............................................................................1
1.2 Use of Defined Terms.......................................................................31
1.3 Accounting Terms...........................................................................31
1.4 Rounding...................................................................................31
1.5 Exhibits and Schedules.....................................................................31
1.6 References to "Borrowers and their Subsidiaries"...........................................32
1.7 Miscellaneous Terms........................................................................32
Article 2
LOANS........................................................................................................33
2.1 Loans-General..............................................................................33
2.2 Designation of Interest Periods............................................................34
2.3 [Intentionally Omitted]....................................................................35
2.4 [Intentionally Omitted]....................................................................35
2.5 [Intentionally Omitted]....................................................................35
2.6 [Intentionally Omitted]....................................................................35
2.7 Optional Termination of Commitment.........................................................35
2.8 Administrative Agent's Right to Assume Funds Available for
Advances...................................................................................35
2.9 [Intentionally Omitted]....................................................................36
2.10 [Intentionally Omitted]....................................................................36
2.11 Collateral and Guaranty....................................................................36
2.12 Senior Indebtedness........................................................................36
Article 3
PAYMENTS AND FEES............................................................................................37
3.1 Principal and Interest.....................................................................37
3.2 Arrangement Fee............................................................................38
3.3 [Intentionally Omitted]....................................................................38
3.4 [Intentionally Omitted]....................................................................38
3.5 Agency Fee.................................................................................38
3.6 Increased Commitment Costs.................................................................38
-i-
3.7 Eurodollar Costs and Related Matters.......................................................39
3.8 Late Payments..............................................................................44
3.9 Computation of Interest and Fees...........................................................44
3.10 Non-Banking Days...........................................................................44
3.11 Manner and Treatment of Payments...........................................................44
3.12 Funding Sources............................................................................46
3.13 Failure to Charge Not Subsequent Waiver....................................................46
3.14 Administrative Agent's Right to Assume Payments Will be Made by Borrowers..................46
3.15 Fee Determination Detail...................................................................46
3.16 Survivability..............................................................................46
Article 4
REPRESENTATIONS AND WARRANTIES...............................................................................48
4.1 Existence and Qualification; Power; Compliance With Laws...................................48
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.....48
4.3 No Governmental Approvals Required.........................................................49
4.4 Subsidiaries...............................................................................49
4.5 Financial Statements.......................................................................50
4.6 No Other Liabilities; No Material Adverse Changes..........................................50
4.7 Title to Property..........................................................................50
4.8 Intangible Assets..........................................................................50
4.9 Public Utility Holding Company Act.........................................................51
4.10 Litigation.................................................................................51
4.11 Binding Obligations........................................................................51
4.12 No Default.................................................................................51
4.13 ERISA......................................................................................51
4.14 Regulation U; Investment Company Act.......................................................52
4.15 Disclosure.................................................................................52
4.16 Tax Liability..............................................................................52
4.17 Projections................................................................................52
4.18 Hazardous Materials........................................................................53
4.19 [Intentionally Deleted]....................................................................53
4.20 Gaming Laws................................................................................53
4.21 Security Interests.........................................................................53
-ii-
Article 5
BORROWERS AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)......................................................................................55
5.1 Payment of Taxes and Other Potential Liens.................................................55
5.2 Preservation of Existence..................................................................55
5.3 Maintenance of Properties..................................................................55
5.4 Maintenance of Insurance...................................................................55
5.5 Compliance With Laws.......................................................................56
5.6 Inspection Rights..........................................................................56
5.7 Keeping of Records and Books of Account....................................................56
5.8 Compliance With Agreements.................................................................56
5.9 Use of Proceeds............................................................................56
5.10 Hazardous Materials Laws...................................................................57
5.11 Additional Real Property...................................................................57
5.12 Additional Vessels.........................................................................57
5.13 [Intentionally Omitted]....................................................................58
5.14 Year 2000 Compliance.......................................................................58
5.15 Delivery of Documentation..................................................................58
Article 6
BORROWERS NEGATIVE COVENANTS.................................................................................59
6.1 Disposition of Property....................................................................59
6.2 Mergers....................................................................................59
6.3 Hostile Acquisitions.......................................................................59
6.4 ERISA......................................................................................59
6.5 Change in Nature of Business...............................................................59
6.6 Liens and Negative Pledges.................................................................60
6.7 Indebtedness and Guaranty Obligations......................................................60
6.8 Transactions with Affiliates...............................................................61
6.9 [Intentionally Omitted]....................................................................61
6.10 [Intentionally Omitted]....................................................................61
6.11 [Intentionally Omitted]....................................................................61
6.12 [Intentionally Omitted]....................................................................61
6.13 [Intentionally Omitted]....................................................................61
6.14 [Intentionally Omitted]....................................................................61
6.15 New Capital Stock..........................................................................61
6.16 Amendments and Refinancings of Revolver....................................................61
Article 7
[Intentionally Omitted]......................................................................................62
-iii-
Article 8
PARENT AFFIRMATIVE COVENANTS.................................................................................63
8.1 Article 5 Covenants........................................................................63
8.2 Additional Borrowers.......................................................................63
8.3 Additional Real Property...................................................................63
8.4 Additional Vessels.........................................................................63
8.5 Additional Capital Stock...................................................................63
8.6 Designated Senior Indebtedness.............................................................64
8.7 Pledge Agreement (Missouri)................................................................64
8.8 Pledge Agreement (Nevada)..................................................................64
Article 9
PARENT NEGATIVE COVENANTS....................................................................................65
9.1 Restricted Payments........................................................................65
9.2 Disposition of Property....................................................................66
9.3 Mergers....................................................................................66
9.4 Hostile Acquisitions.......................................................................67
9.5 [Intentionally Omitted]....................................................................67
9.6 ERISA......................................................................................67
9.7 Change in Nature of Business...............................................................67
9.8 Liens and Negative Pledges.................................................................67
9.9 Indebtedness and Guaranty Obligations......................................................68
9.10 Transactions with Affiliates...............................................................70
9.11 [Intentionally Omitted]....................................................................70
9.12 [Intentionally Omitted]....................................................................70
9.13 [Intentionally Omitted]....................................................................70
9.14 [Intentionally Omitted]....................................................................70
9.15 [Intentionally Omitted]....................................................................70
9.16 Amendments to Other Financial Instruments..................................................70
Article 10
INFORMATION AND REPORTING REQUIREMENTS.......................................................................71
10.1 Financial and Business Information.........................................................71
10.2 Compliance Certificates....................................................................74
-iv-
Article 11
CONDITIONS...................................................................................................75
11.1 Initial Advance............................................................................75
11.2 [Intentionally Omitted]....................................................................78
11.3 [Intentionally Omitted]....................................................................78
Article 12
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT......................................................................................................79
12.1 Events of Default..........................................................................79
12.2 Remedies Upon Event of Default.............................................................82
Article 13
THE ADMINISTRATIVE AGENT.....................................................................................85
13.1 Appointment and Authorization..............................................................85
13.2 Administrative Agent and Affiliates........................................................85
13.3 Proportionate Interest in any Collateral...................................................85
13.4 Lenders' Credit Decisions..................................................................86
13.5 Action by Administrative Agent.............................................................86
13.6 Liability of Administrative Agent..........................................................87
13.7 Indemnification............................................................................89
13.8 Successor Administrative Agent.............................................................89
13.9 Foreclosure on Collateral..................................................................90
13.10 No Obligations of Borrowers................................................................90
13.11 Authority Regarding Certain Documents......................................................90
Article 14
MISCELLANEOUS................................................................................................92
14.1 Cumulative Remedies; No Waiver.............................................................92
14.2 Amendments; Consents.......................................................................92
14.3 Costs, Expenses and Taxes..................................................................93
14.4 Nature of Lenders' Obligations.............................................................94
14.5 Survival of Representations and Warranties.................................................95
14.6 Notices....................................................................................95
14.7 Execution of Loan Documents................................................................95
14.8 Binding Effect; Assignment.................................................................95
14.9 Right of Setoff............................................................................99
-v-
14.10 Sharing of Setoffs.........................................................................99
14.11 Indemnity by Borrowers....................................................................100
14.12 Nonliability of the Lenders...............................................................101
14.13 No Third Parties Benefited................................................................102
14.14 Confidentiality...........................................................................102
14.15 Further Assurances........................................................................103
14.16 Integration...............................................................................103
14.17 Governing Law.............................................................................104
14.18 Severability of Provisions................................................................104
14.19 Headings..................................................................................104
14.20 Time of the Essence.......................................................................104
14.21 Foreign Lenders and Participants..........................................................104
14.22 Hazardous Material Indemnity..............................................................105
14.23 Gaming Boards.............................................................................106
14.24 Joint and Several.........................................................................106
14.25 Waiver of Right to Trial by Jury..........................................................107
14.26 Purported Oral Amendments.................................................................107
Exhibits
---------
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Deed of Trust Amendment
D - Intercreditor Agreement
E - Note
F - Omnibus Documents Amendment
G-1 - Opinion of Counsel
-vi-
G-2 - Opinion of Counsel
G-3 - Opinion of Counsel
G-4 - Opinion of Counsel
H - Pledge Agreement (Missouri)
I - Request for Loan
J - Request for Re-Pricing
K - Joint Borrower Provisions
Schedules
----------
1.1A Lender Commitments
1.1B Peripheral Assets
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.18 Hazardous Materials Matters
-vii-
TERM LOAN AGREEMENT
-------------------
Dated as of August 25, 1999
This TERM LOAN AGREEMENT is entered into by and among Palace
Station Hotel & Casino, Inc., a Nevada corporation ("Palace"), Boulder Station,
Inc., a Nevada corporation ("Boulder"), Texas Station, Inc., a Nevada
corporation ("Texas"), St. Xxxxxxx Riverfront Station, Inc., a Missouri
corporation ("St. Xxxxxxx"), Kansas City Station Corporation, a Missouri
corporation ("Kansas City") and Sunset Station, Inc., a Nevada Corporation
("Sunset" and, collectively with Palace, Boulder, Texas, St. Xxxxxxx and Kansas
City, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for the
purpose of making the covenants set forth in ARTICLES 8 and 9 hereof), each
lender whose name is set forth on the signature pages of this Agreement and each
lender which may hereafter become a party to this Agreement pursuant to Section
14.8 (collectively, the "Lenders" and individually, a "Lender"), and Bank of
America, N.A., as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ADMINISTRATIVE AGENT" means Bank of America, N.A., when acting
in its capacity as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrowers and the Lenders.
"ADVANCE" means any advance made or to be made by any Lender to
Borrowers as provided in ARTICLE 2.
"AFFILIATE" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or
is controlled by, such Person. As used in this definition, "control"
(and the correlative terms, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to
-1-
direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership
interests, by contract or otherwise); PROVIDED that, in any event, any
Person that owns, directly or indirectly, 10% or more of the
securities having ordinary voting power for the election of directors
or other governing body of a corporation that has more than 100 record
holders of such securities, or 10% or more of the partnership or other
ownership interests of any other Person that has more than 100 record
holders of such interests, will be deemed to be an Affiliate of such
corporation, partnership or other Person.
"AGREEMENT" means this Term Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"ALTERNATE BASE RATE" means, as of any date of determination, the
rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the HIGHER OF (a) the Reference Rate in effect on such
date and (b) the Federal Funds Rate in effect on such date plus 1/2 of
1% (50 basis points).
"ALTERNATE BASE RATE LOAN" means, under the circumstances
described in Section 3.7, a Loan that is converted to an Alternate
Base Rate Loan pursuant to Section 3.7.
"AMORTIZATION AMOUNT" means (a) for March 31, 2000 and each
Amortization Date thereafter through and including December 31, 2004,
$500,000 and (b) for each Amortization Date thereafter, $47,500,000.
"AMORTIZATION DATE" means March 31, 2000 and each Quarterly
Payment Date thereafter.
"AVERAGE LIFE" means, as of any date of determination, with
reference to any Indebtedness, the quotient obtained by dividing (a)
the SUM OF the products of the number of years from the date of
determination to the dates of each successive scheduled principal
payment of such Indebtedness multiplied by the amount of such
principal payment by (b) the SUM OF all such principal payments.
"BANKING DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday, OTHER THAN a day on which banks are authorized or required to
be closed in California, Nevada or New York.
"BORROWERS" has the meaning set forth in the preamble of this
Agreement.
"BOULDER" has the meaning set forth in the preamble to this
Agreement.
"BOULDER DEED OF TRUST" means the Deed of Trust (Fee) and/or a
Deed of Trust (Leasehold) executed by Boulder covering the real
property comprising the Boulder Station Hotel & Casino in Las Vegas,
-2-
Nevada.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with Generally Accepted Accounting Principles, is classified as a
capital lease.
"CASH" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with Generally Accepted Accounting Principles,
consistently applied.
"CERTIFICATE" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
"CHANGE IN CONTROL" means (a) any transaction or series of
related transactions in which any Unrelated Person or two or more
Unrelated Persons acting in concert acquire beneficial ownership
(within the meaning of Rule 13d-3(a)(1) under the Securities Exchange
Act of 1934, as amended), directly or indirectly, of 40% or more of
the outstanding Common Stock and at such time the Existing Equity
Holders together shall fail to beneficially own, directly or
indirectly, at least the same percentage of Common Stock as is
beneficially owned by such Unrelated Person, (b) Parent consolidates
with or merges into another Person or conveys, transfers or leases its
properties and assets substantially as an entirety to any Person or
any Person consolidates with or merges into Parent, in either event
pursuant to a transaction in which the outstanding Common Stock is
changed into or exchanged for cash, securities or other property, with
the effect that any Unrelated Person (OTHER THAN the Existing Equity
Holders) becomes the beneficial owner, directly or indirectly, of 40%
or more of Common Stock and at such time the Existing Equity Holders
together shall fail to beneficially own, directly or indirectly, at
least the same percentage of Common Stock as is beneficially owned by
such Unrelated Person or (c) during any period of 24 consecutive
months, individuals who at the beginning of such period constituted
the board of directors of Parent (together with any new or replacement
directors whose election by the board of directors, or whose
nomination for election, was approved by a vote of at least a majority
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
reelection was previously so approved) cease for any reason to
constitute a majority of the directors then in office. For purposes of
the foregoing, the term "UNRELATED PERSON" means any Person OTHER THAN
(i) a Subsidiary of Parent, (ii) an employee stock ownership plan or
other employee benefit plan covering the employees of Parent and its
Subsidiaries or (iii) any of the Existing Equity Holders, and the term
"EXISTING EQUITY HOLDERS" means Xxxxx X. Xxxxxxxx III, Xxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxxxx,
Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx and their executors,
administrators or the legal
-3-
representatives of their estates, their heirs, distributees and
beneficiaries, any trust as to which any of the foregoing is a settlor
co-settlor and any corporation, partnership or other entity which is
an Affiliate of any of the foregoing, and any lineal descendants of
such Persons, but only to the extent that the beneficial ownership of
Common Stock held by such lineal descendants was directly received (by
gift, trust or sale) from any such Person.
"CLOSING DATE" means the time and Banking Day on which the
conditions set forth in Section 11.1 are satisfied or waived. The
Administrative Agent shall notify Borrowers and the Lenders of the
date that is the Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by the
Collateral Documents.
"COLLATERAL AGENT" means Bank of America, N.A., as Collateral
Agent pursuant to the Intercreditor Agreement for the Lenders and the
Revolver Lenders.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Trademark Collateral Assignment, the Deeds of Trust,
the Preferred Ship Mortgages, as amended in each case by the Omnibus
Documents Amendment or the Deed of Trust Amendment, the Pledge
Agreement (Nevada), the Pledge Agreement (Missouri) (if and when
executed and delivered pursuant to SECTION 8.3) and any other security
agreement, pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and delivered by
Borrowers or any of the Guarantors to secure the Obligations.
"COMMITMENT" means $200,000,000. The respective Pro Rata Shares
of the Lenders with respect to the Commitment are set forth in
SCHEDULE 1.1.
"COMMITMENT ASSIGNMENT AND ACCEPTANCE" means a commitment
assignment and acceptance substantially in the form of EXHIBIT A.
"COMMON STOCK" means the common stock of Parent or its successor.
"COMPLETION GUARANTY AND KEEP-WELL AGREEMENT" means (a) the
guaranty by Parent, Borrowers or a Restricted Subsidiary of the
completion of the development, construction and opening of a new
gaming facility by an Affiliate of Parent, (b) the agreement by
Parent, Borrowers or a Restricted Subsidiary to advance funds,
property or services on behalf of an Affiliate of Parent in order to
maintain the financial condition of such Affiliate in connection with
the development, construction and operations of a new gaming facility
by such Affiliate and (c) performance bonds incurred in the ordinary
-4-
course of business; PROVIDED that, in the case of clauses (A) and (B)
above, such guaranty or agreement is entered into in connection with
obtaining financing for such gaming facility or is required by a
Gaming Board.
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B, properly completed and signed by a Senior Officer of
Borrowers.
"CONSOLIDATED COVERAGE RATIO" means, for any period, the ratio of
the aggregate amount of Operating Cash Flow for such period to the
aggregate amount of Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
interest expense of Parent, Borrowers and the consolidated Restricted
Subsidiaries including (a) interest expense attributable to Capital
Lease Obligations, (b) amortization of debt discount, (c) capitalized
interest, (d) cash and noncash interest payments, (e) commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing, (f) net costs under Swap
Agreements (including amortization of discount) and (g) interest
expense in respect of obligations of other Persons deemed to be
Indebtedness of Parent, Borrowers or the Restricted Subsidiaries under
clause (a) or (b) of the definition of Indebtedness.
"CONSOLIDATED NET INCOME" means, for any period, the net income
of Parent, Borrowers and the consolidated Restricted Subsidiaries
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles; PROVIDED, HOWEVER, that there shall
not be included in such Consolidated Net Income: (a) any net income
(loss) of any Person if such Person is not a Borrower or a Restricted
Subsidiary, EXCEPT THAT (A) Parent's equity in the net income of any
such Person (INCLUDING an Unrestricted New Venture Entity) for such
period shall be included in such Consolidated Net Income up to the
aggregate amount of Cash actually distributed by such Person during
such period to Parent, Borrowers or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution to Borrowers or a Restricted Subsidiary, to the
limitations contained in clause (c) below); and (B) Parent's equity in
the net loss of any such Person for such period shall be included in
determining such Consolidated Net Income (subject, with respect to the
net loss of an Unrestricted New Venture Entity, to clause (F) below);
(b) any net income (loss) of any Person acquired by Parent, Borrowers
or a Restricted Subsidiary in a pooling of interests transaction for
any period prior to the date of such acquisition; (c) any net income
(loss) of Borrowers or any Restricted Subsidiary if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Subsidiary, directly
or indirectly, to Parent, EXCEPT THAT (A) Parent's equity in the net
income of any such Subsidiary for such period shall be included in
such Consolidated Net Income up to the
-5-
aggregate amount of Cash which could have been distributed by such
Subsidiary during such period to Parent, Borrowers or another
Restricted Subsidiary as a dividend or other distribution (SUBJECT, in
the case of a dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause) unless at the
time of computation no Cash would be permitted to be distributed and
(B) Parent's equity in the net loss of Borrowers or any such
Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income; (d) any gain or loss realized upon the
sale or other disposition of any property, plant or equipment of
Parent, Borrowers or Parent's consolidated Restricted Subsidiaries
which is not sold or otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or other
disposition of any capital stock of any Person; (e) the cumulative
effect of a change in accounting principles; and (f) the net loss of
any Unrestricted New Venture Entity.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision
of any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party
or by which it or any of its Property is bound.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"DEED OF TRUST (FEE)" means a deed of trust in the form of
EXHIBIT C to the Predecessor Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"DEED OF TRUST (LEASEHOLD)" means a deed of trust in the form of
EXHIBIT D to the Predecessor Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"DEED OF TRUST AMENDMENT" means an amendment to each of the
Existing Deeds of Trust substantially in the form of EXHIBIT C.
"DEEDS OF TRUST" means the Existing Deeds of Trust and any other
deed of trust required to be provided to the Administrative Agent
pursuant to Section 5.11.
"DEFAULT" means any event that, with the giving of any applicable
notice or passage of time specified in Section 12.1, or both, would be
an Event of Default.
"DEFAULT RATE" means the interest rate prescribed in Section 3.8.
-6-
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Borrowers with Bank of America, N.A. or one of its
Affiliates, as from time to time designated by Borrowers by written
notification to the Administrative Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any
Eurodollar Rate Loan, (a) the London Eurodollar Market, (b) if prime
banks in the London Eurodollar Market are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent
determines in good faith that the London Eurodollar Market does not
represent at the relevant time the effective pricing to the Lenders
for deposits of Dollars in the London Eurodollar Market, the Cayman
Islands Eurodollar Market or (c) if prime banks in both the London and
Cayman Islands Eurodollar Markets are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent
determines in good faith that neither the London nor the Cayman
Islands Eurodollar Market represents at the relevant time the
effective pricing to the Lenders for deposits of Dollars in such
Eurodollar Market, such other Eurodollar Market as may from time to
time be selected by the Administrative Agent with the approval of
Borrowers and the Requisite Lenders.
"DEVELOPED PROPERTY" means, as of any date of determination, a
casino, hotel, casino/hotel, resort, casino/resort, riverboat casino,
dockside casino, excursion gambling boat, floating gaming facility,
golf course, entertainment center or similar facility owned by Parent
or any of its Subsidiaries (or owned by a Person in which Parent or
any of its Subsidiaries holds an Investment) and which is at such date
substantially complete and open for business.
"DISPOSITION" means the voluntary sale, transfer or other
disposition of any asset of Borrowers OTHER THAN (a) Cash, cash
equivalents, inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of Borrowers and (b)
equipment sold or otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been acquired, or
thereafter within 90 days is acquired, by Borrowers, or where
Borrowers determine in good faith that the failure to replace such
equipment will not be detrimental to the business of Borrowers.
"DOLLARS" or "$" means United States dollars.
"DOMESTIC REFERENCE LENDER" means Bank of America, N.A.
"ELIGIBLE ASSIGNEE" means (a) another Lender, (b) any Affiliate
or Related Fund of a Lender, (c) any commercial bank having a combined
capital and surplus of $100,000,000 or more, (d) any (i) savings bank,
savings and loan association or similar financial institution or (ii)
insurance company engaged in the business of writing insurance which,
in either case (A) has a net worth of $200,000,000 or more, (B) is
engaged in the business of lending money
-7-
and extending credit, or purchasing loans, under credit facilities
substantially similar to those extended under this Agreement and (C)
is operationally and procedurally able to meet the obligations of a
Lender hereunder to the same degree as a commercial bank and (e) any
other financial institution (INCLUDING a mutual fund or other fund)
having total assets of $250,000,000 or more which meets the
requirements set forth in subclauses (B) and (C) of clause (d) above;
PROVIDED that (I) each Eligible Assignee must either (a) be organized
under the Laws of the United States of America, any State thereof or
the District of Columbia or (b) be organized under the Laws of the
Cayman Islands or any country which is a member of the Organization
for Economic Cooperation and Development, or a political subdivision
of such a country, and (i) act hereunder through a branch, agency,
funding office or representative located in the United States of
America and (ii) be exempt from withholding of tax on interest and
deliver the documents related thereto pursuant to Section 11.21 and
(II) to the extent required under applicable Gaming Laws, each
Eligible Assignee must be registered with, approved by, or not
disapproved by (whichever may be required under applicable Gaming
Laws), all applicable Gaming Boards.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"EURODOLLAR BANKING DAY" means any Banking Day on which dealings
in Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its office
or branch so designated by written notice to Borrowers and the
Administrative Agent as its Eurodollar Lending Office. If no
Eurodollar Lending Office is designated by a Lender, its Eurodollar
Lending Office shall be its office at its address for purposes of
notices hereunder.
"EURODOLLAR MARKET" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any
Governmental Agency having jurisdiction over any Lender.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan, the
period commencing on the date specified by Borrowers pursuant to
Section 2.1(b) or Section 2.2 and ending 1, 2, 3 or 6 months (or, with
the written consent of all of the Lenders, any other period)
thereafter, as specified by Borrowers in the applicable Request for
Loan or Request for Pre-Pricing, as applicable; PROVIDED that:
(a) The first day of any Eurodollar Period shall be a
-8-
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the next
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day
falls in another calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking Day;
(c) Borrowers may not specify a Eurodollar Period that
extends beyond the next Amortization Date unless the aggregate
principal amount of the Loans having a Eurodollar Period ending after
such Amortization Date is equal to or less than the aggregate
principal Indebtedness evidenced by the Notes (after giving effect to
payment of the Amortization Amount scheduled to be made on such
Amortization Date pursuant to Section 3.1(c)(II)); and
(d) No Eurodollar Period shall extend beyond the Maturity
Date.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/100 of 1%) at which deposits in Dollars are
offered by the Eurodollar Reference Lender to prime banks in the
Designated Eurodollar Market at or about 11:00 a.m. local time in the
Designated Eurodollar Market, two (2) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period in an aggregate
amount approximately equal to the amount of the Advance made by the
Eurodollar Reference Lender with respect to such Eurodollar Rate Loan
and for a period of time comparable to the number of days in the
applicable Eurodollar Period.
"EURODOLLAR RATE ADVANCE" means, with respect to, any Lender and
with respect to any Eurodollar Rate Loan, the portion of such Loan
advanced by that Lender.
"EURODOLLAR RATE LOAN" means any Loan consisting of the group of
Advances made by the Lenders pursuant to Section 2.1(a), and any
portion thereof for which the Interest Period is subsequently
redesignated pursuant to Section 2.1(h).
"EURODOLLAR REFERENCE LENDER" means Bank of America, N.A.
"EVENT OF DEFAULT" shall have the meaning provided in Section
12.1.
"EXCHANGEABLE STOCK" means any capital stock of Parent that is
exchangeable or convertible into another security (OTHER THAN into
capital stock of Parent that is neither Exchangeable Stock nor
Redeemable Stock).
"EXISTING DEEDS OF TRUST" means the Palace Deed of Trust, the
Boulder Deed of Trust, the Texas Deed of Trust, the St. Xxxxxxx Deed
of Trust, the Kansas City Deeds of Trust and the Sunset Deed of
-9-
Trust.
"EXISTING LOAN AGREEMENT" means the Second Amended and Restated
Reducing Revolving and Term Loan Agreement dated as of November 6,
1998 among Borrowers, Parent (as covenantor but not as borrower), Bank
of America, N.A. (formerly known as "Bank of America National Trust
and Savings Association"), as administrative agent, and the lenders
party thereto.
"EXISTING SUBORDINATED DEBT" means (a) Parent's 9-3/4% senior
subordinated notes due 2007, (b) Parent's 10-l/8% senior subordinated
notes due 2006 and (c) Parent's 8 7/8% senior subordinated notes due
2008.
"FEDERAL FUNDS RATE" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such
date opposite the caption "Federal Funds (Effective)". If for any
relevant date such rate is not yet published in H.15(519), the rate
for such date will be the rate set forth in the daily statistical
release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the
"Composite 3:30 p.m. Quotation") for such date under the caption
"Federal Funds Effective Rate". If on any relevant date the
appropriate rate for such date is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such
date will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that date by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
For purposes of this Agreement, any change in the Alternate Base Rate
due to a change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such change.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as it may be amended from time to time.
"FISCAL QUARTER" means the fiscal quarter of Borrowers or Parent,
as applicable, ending on each March 31, June 30, September 30 and
December 31.
"FISCAL YEAR" means the fiscal year of Borrowers or Parent, as
applicable, ending on each December 31.
"GAMING BOARD" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the
Missouri Gaming Commission and (d) any other Governmental Agency that
holds regulatory, licensing or permit authority over gambling, gaming
or casino activities conducted by Borrowers within its jurisdiction.
-10-
"GAMING LAWS" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling,
gaming or casino activities conducted by Borrowers within its
jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any date
of determination, accounting principles (a) set forth as generally
accepted in then currently effective Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or
(c) that are then approved by such other entity as may be approved by
a significant segment of the accounting profession in the United
States of America. The term "CONSISTENTLY APPLIED," as used in
connection therewith, means that the accounting principles applied are
consistent in all material respects with those applied at prior dates
or for prior periods.
"GOVERNMENTAL AGENCY" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-governmental
agency, authority, board, bureau, commission, department,
instrumentality or public body (INCLUDING any Gaming Board), or (c)
any court or administrative tribunal of competent jurisdiction.
"GUARANTORS" means Parent and the Sibling Guarantors.
"GUARANTY OBLIGATION" means, as to any Person, any (a) guarantee
by that Person of Indebtedness of, or other obligation performable by,
any other Person or (b) assurance given by that Person to an obligee
of any other Person with respect to the performance of an obligation
by, or the financial condition of, such other Person, whether direct,
indirect or contingent, INCLUDING any purchase or repurchase agreement
covering such obligation or any collateral security therefor, any
agreement to provide funds (by means of loans, capital contributions
or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or
any "keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; PROVIDED, HOWEVER,
that the term Guaranty Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation in respect of
Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related Indebtedness (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in which case
to the extent of such amount) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith. The amount of any other
Guaranty Obligation shall be deemed to be zero unless and until the
amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5
-11-
should be) quantified and reflected in the consolidated balance sheet
of Borrowers.
"HAZARDOUS MATERIALS" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq., or as "hazardous", "toxic" or "pollutant" substances or as
"solid waste" pursuant to the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or as "friable
asbestos" pursuant to the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq. or any other applicable Hazardous Materials Law,
in each case as such Laws are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials
applicable to any of the Real Property.
"IMMATERIAL SUBSIDIARY" means, as of any date of determination,
(a) in the case of a Subsidiary of any of the Borrowers, a Subsidiary
that has on such date total assets with a book value or fair market
value (whichever is greater) less than $100,000 and (b) in the case of
a Subsidiary of Parent (OTHER THAN a Subsidiary of any of the
Borrowers), a Subsidiary that has on such date total assets with a
book value or fair market value (whichever is greater) less than
$3,500,000.
"INDEBTEDNESS" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (EXCLUDING trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms), INCLUDING any Guaranty Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (A)
that is non-recourse to the credit of such Person but is secured by
assets of such Person, to the extent of the fair market value of such
assets as determined in good faith by such Person, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising
under bankers' acceptance facilities or under facilities for the
discount of accounts receivable of such Person, (e) any direct or
contingent obligations of such Person under letters of credit issued
for the account of such Person and (f) any net obligations of such
Person under Swap Agreements; PROVIDED that in no event shall the
obligations of a Person under an operating lease (as such term is
defined under Generally Accepted Accounting Principles) be deemed
Indebtedness of that Person.
"INTANGIBLE ASSETS" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, INCLUDING
customer lists, goodwill, copyrights, trade names, trademarks and
patents.
"INTERCREDITOR AGREEMENT" means the Intercreditor and
-12-
Collateral Agency Agreement between the Collateral Agent, the
Administrative Agent (on behalf of the Lenders) and the Revolver Agent
(on behalf of the Revolver Lenders) substantially in the form of
EXHIBIT D, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplanted.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment of
a Eurodollar Rate Loan on a day other than the last day of the
applicable Interest Period and with respect to any failure to borrow a
Eurodollar Rate Loan on the date or in the amount specified in any
Request for Loan, (a) the Eurodollar Rate payable (or, with respect to
a failure to borrow, the Eurodollar Rate which would have been
payable) with respect to the Eurodollar Rate Loan MINUS (b) the
Eurodollar Rate on, or as near as practicable to the date of the
prepayment or failure to borrow for a Eurodollar Rate Loan with an
Interest Period commencing on such date and ending on the last day of
the Interest Period of the Eurodollar Rate Loan so prepaid or which
would have been borrowed on such date.
"INTEREST PERIOD" means, with respect to any Eurodollar Rate
Loan, the related Eurodollar Period.
"JOINDER AGREEMENT" means a joinder agreement to be executed and
delivered pursuant to Section 6.2 by Parent, or by an additional
Borrower pursuant to Section 8.2, substantially in the form of EXHIBIT
F to the Predecessor Loan Agreement, either as originally executed or
as it may from time to time be supplemented, modified, amended,
extended or supplanted.
"KANSAS CITY" has the meaning set forth in the preamble to this
Agreement.
"KANSAS CITY DEEDS OF TRUST" means (a) the Deed of Trust executed
by Kansas City covering (i) the leasehold estate in the real property
comprising the Kansas City Riverfront Station Casino dockside
facilities, (ii) the leasehold estate for pipeline purposes in the
adjacent river levee owned by the Birmingham Drainage District, (iii)
the fee simple estate in certain adjacent real property acquired from
Kansas City Power and Light Company and (iv) the leasehold estate in
certain adjacent real property commonly referred to as the "Western
Acreage" and (b) the Deed of Trust executed by Kansas City covering
the two adjacent parcels of wetlands mitigation property near "Jackass
Bend" in Xxxxxxx County, Missouri.
"KANSAS CITY LOCAL SHARES" means the shares of capital stock of
Kansas City that were or may be issued to certain Persons in
connection with development agreements entered between Kansas City and
Governmental
-13-
Agencies located in Kansas City, Missouri.
"LANDLORD CONSENT" means a landlord consent certificate executed
by each of the lessors with respect to a leasehold estate comprising
Collateral, substantially in the form of EXHIBIT G to the Predecessor
Loan Agreement, either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"LAWS" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents.
"LEAD ARRANGERS AND BOOK MANAGERS" means Banc of America
Securities LLC and CIBC World Markets, Inc.
"LENDER" has the meaning set forth in the preamble to this
Agreement.
"LICENSE REVOCATION" means the revocation, involuntary failure to
renew or suspension of, or the appointment of a receiver, supervisor
or similar official with respect to, any casino, gambling or gaming
license issued by any Gaming Board covering any casino or gaming
facility of Parent or any Subsidiary of Parent.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or
charge of any kind, whether voluntarily incurred or arising by
operation of Law or otherwise, affecting any Property, INCLUDING any
currently effective agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature of a security interest, and/or the filing of or currently
effective agreement to give any financing statement (OTHER THAN a
precautionary financing statement with respect to a lease that is not
in the nature of a security interest) under the Uniform Commercial
Code or comparable Law of any jurisdiction with respect to any
Property.
"LOAN" means the aggregate of the Advances made at any one time
by the Lenders pursuant to ARTICLE 2.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes,
the Parent Guaranty, the Sibling Guaranty, the Collateral Documents,
and any other agreements of any type or nature hereafter executed and
delivered by Borrowers
-14-
or the Guarantors to the Administrative Agent or any Lender in any way
relating to or in furtherance of this Agreement, in each case either
as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted
(INCLUDING pursuant to the Omnibus Documents Amendment).
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has had or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability
of any Loan Document (OTHER THAN as a result of any action or inaction
of the Administrative Agent, any Lender or any Affiliate of any
Lender), (b) has been or could reasonably be expected to be material
and adverse to the business or condition (financial or otherwise) of
Borrowers or (c) has materially impaired or could reasonably be
expected to materially impair the ability of Borrowers to perform the
Obligations.
"MATURITY DATE" means December 31, 2005.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrowers or any of
their ERISA Affiliates contribute or are obligated to contribute.
"NEGATIVE PLEDGE" means a Contractual Obligation that contains a
covenant binding on Borrowers or any of the Guarantors that prohibits
Liens on any of its or their Property, OTHER THAN (a) any such
covenant contained in a Contractual Obligation granting a Lien
permitted under SECTIONS 6.6 or 9.8 which affects only the Property
that is the subject of such permitted Lien and (b) any such covenant
that does not apply to Liens securing the Obligations.
"NET PROCEEDS" means, with respect to any issuance, sale or
contribution in respect of capital stock of Parent, the aggregate
proceeds of such issuance, sale or contribution, including the fair
market value (as determined by the Board of Directors of Parent and
net of any associated debt) of property other than Cash, received by
Parent, net of attorneys' fees, accountants' fees, underwriters' fees,
placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof;
PROVIDED, however, that
-15-
if such fair market value as determined by the Board of Directors of
Parent of property other than Cash is greater than $15,000,000, the
determination of fair market value thereof shall be based upon an
opinion from an independent nationally recognized firm experienced in
the appraisal of similar types of transactions.
"NEW VENTURE " means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, excursion gambling
boat, floating gaming facility, golf course, entertainment center or
similar facility (or any site or proposed site for any of the
foregoing) owned or to be owned by Parent or any of its Subsidiaries
(or owned or to be owned by a Person in which Parent or any of its
Subsidiaries or a New Venture Entity owned directly or indirectly by
Parent or any of its Subsidiaries holds an Investment) and which is
not at the Closing Date a Developed Property; PROVIDED that the
acquisition by St. Xxxxxxx of any TIF Real Property shall be
considered, in conjunction with its acquisition of all other TIF Real
Property, to be a New Venture.
"NEW VENTURE ENTITY" means (a) the Person that directly owns a
New Venture, and (b) any holding company for such a Person whose sole
assets consist (directly or indirectly through another New Venture
Entity) of Investments in that Person.
"NOTE" means any of the promissory notes made by Borrowers to a
Lender evidencing Advances under that Lender's Pro Rata Share of the
Commitment, substantially in the form of EXHIBIT E, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted
(INCLUDING pursuant to the Omnibus Documents Amendment).
"OBLIGATIONS" means all present and future obligations of every
kind or nature of Borrowers or the Guarantors at any time and from
time to time owed to the Administrative Agent or the Lenders or any
one or more of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, INCLUDING obligations of
performance as well as obligations of payment, and INCLUDING interest
that accrues after the commencement of any proceeding under any Debtor
Relief Law by or against Borrowers.
"OMNIBUS DOCUMENTS AMENDMENT" means the Third Omnibus Documents
Amendment and Collateral Assignment amending various Loan
-16-
Documents to be executed by Borrowers, the Administrative Agent and
the Collateral Agent, in the form of EXHIBIT F, as of the Closing
Date, together with all ancillary amendments to the Loan Documents
referred to therein.
"OPERATING CASH FLOW" means, for any period, for any Person, the
aggregate amount of Consolidated Net Income before interest expense,
income taxes, depreciation expense, amortization expense and any
noncash amortization of debt issuance cost. Notwithstanding the
foregoing, the interest expense, income taxes, depreciation expense,
amortization expense and any noncash amortization of debt issuance
cost of a Subsidiary of a Person shall be added to Consolidated Net
Income to compute Operating Cash Flow in the same proportion that the
net income of such Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"OPINIONS OF COUNSEL" means the favorable written legal opinions
of (a) Milbank, Tweed, Xxxxxx & XxXxxx, special counsel to Borrowers
and the Guarantors and (b) Xxxxxxx Xxxxxx, special Nevada counsel to
Borrowers and the Guarantors, (c) King, Hershey, Coleman, Xxxx &
Stone, special Missouri counsel to Kansas City and (d) Xxxxxxxx &
Xxxxxx, special Missouri counsel to St. Xxxxxxx, substantially in the
form of EXHIBITS G-1, G-2, G-3 and G-4, respectively.
"PALACE" has the meaning set forth in the preamble to this
Agreement.
"PALACE DEED OF TRUST" means the Deed of Trust (Fee) and/or Deed
of Trust (Leasehold) executed by Palace covering the real property
comprising the Palace Station Hotel & Casino in Las Vegas, Nevada.
"PALACE EVENT OF DEFAULT" shall have the meaning provided in
Section 12.3.
"PARENT" has the meaning set forth in the preamble to this
Agreement.
"PARENT GUARANTY" means the continuing guaranty of the
Obligations in the form of EXHIBIT I to the Existing Loan Agreement.
"PARTY" means any Person other than the Administrative Agent, the
Lenders and any Affiliate of any Lender, which now or hereafter is a
party to any of the Loan Documents.
-17-
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), OTHER THAN a Multiemployer
Plan, which is subject to Title IV of ERISA and is maintained by
Borrowers or to which Borrowers contributes or has an obligation to
contribute.
"PERIPHERAL ASSETS" means (a) the capital stock or assets of
Southwest Gaming Services, Inc., (b) the capital stock or assets of
Southwest Services, Inc., (c) the out-of-service riverboat commonly
known as "Casino St. Xxxxxxx" and (d) each other asset listed on
SCHEDULE 1.1B.
"PERMITTED ENCUMBRANCES" means:
(a) Inchoate Liens incident to construction on or
maintenance of Property; or Liens incident to construction on or
maintenance of Property now or hereafter filed of record for which
adequate reserves have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, PROVIDED
that, by reason of nonpayment of the obligations secured by such
Liens, no material Property is subject to a material impending risk of
loss or forfeiture;
(b) Liens for taxes and assessments on Property which are
not yet past due; or Liens for taxes and assessments on Property for
which adequate reserves have been set aside and are being contested in
good faith by appropriate proceedings and have not proceeded to
judgment, PROVIDED that, by reason of nonpayment of the obligations
secured by such Liens, no material Property is subject to a material
impending risk of loss or forfeiture;
(c) minor defects and irregularities in title to any
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is
or may reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire communication
lines, power lines and substations, streets, trails, walkways,
drainage, irrigation, water, and sewerage purposes, dikes, canals,
ditches, the removal of oil, gas, coal, or other minerals, and other
like purposes affecting Property which in the aggregate do not
materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be
expected to be held;
-18-
(e) easements, exceptions, reservations, or other agreements
for the purpose of facilitating the joint or common use of Property in
or adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or impair the fair
market value or use of such Property for the purposes for which it is
or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses
(A) or (B) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested
in good faith, PROVIDED that, if delinquent, adequate reserves have
been set aside with respect thereto and, by reason of nonpayment, no
material Property is subject to a material impending risk of loss or
forfeiture;
(j) covenants, conditions, and restrictions affecting the
use of Property which in the aggregate do not materially impair the
fair market value or use of the Property for the purposes for which it
is or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of
the Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, PROVIDED the aggregate value of all such
pledges and deposits in connection with any such lease does not at any
time exceed 20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure bids
made with respect to, or performance of, contracts (OTHER THAN
contracts creating or evidencing an extension of credit to the
-19-
depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrowers;
(q) Liens consisting of deposits of Property to secure (or
in lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or
legal proceeding in the ordinary course of business which is currently
being contested in good faith by appropriate proceedings, PROVIDED
that such Lien is junior to the Lien of the Collateral Documents,
adequate reserves have been set aside and no material Property is
subject to a material impending risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be
expected to be held.
"PERMITTED REFINANCING INDEBTEDNESS" means Indebtedness of
Parent, Borrowers or a Restricted Subsidiary (a) issued in exchange
for, or the proceeds from the issuance and sale or disbursement of
which are used to substantially concurrently repay, redeem, refund,
refinance, discharge or otherwise retire for value, in whole or in
part (collectively, "repay"), or (b) constituting an amendment,
modification or supplement to, or a deferral or renewal of
(collectively, an "amendment"), any Indebtedness of Parent, Borrowers
or a Restricted Subsidiary, as the case may be, (and any penalties,
fees and expenses actually incurred by Parent, Borrowers or such
Restricted Subsidiary, as the case may be, in connection with the
repayment or amendment thereof) existing immediately after the Closing
Date or incurred pursuant to clauses (F), (G) and (H) (subject to
proviso (C) below) of Section 9.9, in a principal amount (or, if such
Permitted Refinancing Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon the
acceleration thereof, with an original issue price) not in excess of
(1) the principal amount of the Indebtedness so refinanced (or, if
such Permitted Refinancing Indebtedness refinances Indebtedness under
an agreement providing a commitment for subsequent borrowings, with a
maximum commitment not to exceed the maximum commitment under such
agreement) plus (2) unpaid accrued interest on such Indebtedness plus
(3) penalties, fees and expenses actually
-20-
incurred by Parent, Borrowers or such Restricted Subsidiary, as the
case may be, in connection with the repayment or amendment thereof;
PROVIDED THAT (A) Permitted Refinancing Indebtedness of Parent that
repays or constitutes an amendment to Subordinated Obligations shall
not have an Average Life less than the Indebtedness to be so
refinanced at the time of such incurrence, and shall contain
subordination and default provisions no less favorable in any material
respect to the Lenders than those contained in such repaid or amended
Indebtedness, (B) notwithstanding the foregoing, any Permitted
Refinancing Indebtedness incurred to repay all of the Notes then
outstanding shall not be limited in principal amount or otherwise if
Parent, contemporaneously with such issuance, irrevocably deposits
with the Administrative Agent an amount of the proceeds of such
Permitted Refinancing Indebtedness sufficient to prepay each
installment of the outstanding principal amount of the Notes on, and
all interest accrued to, the date fixed for such prepayment, together
with irrevocable instructions to prepay the Notes on the prepayment
date and (C) to the extent that Permitted Refinancing Indebtedness
includes Indebtedness incurred in connection with the refinancing of
the Revolving Loan Agreement (whether or not such Indebtedness is
existing on or after the date of the Closing Date) and the managing
agent for the lenders under such refinancing Indebtedness is a Person
other than a banking institution with over $500 million in assets and
subject to supervision and examination by federal or state banking
authorities, the provisions of clause (H) of Section 9.9 shall
terminate and be of no further force and effect with respect to such
refinancing Indebtedness.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting of
(a) an interest (OTHER THAN a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a
ground lease), that does not materially impair the fair market value
or use of Property for the purposes for which it is or may reasonably
be expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Encumbrance, (c) the subordination of a lease or
sublease in favor of a financing entity and (d) a license, or similar
right, of or to Intangible Assets granted in the ordinary course of
business.
"PERMITTED SALE/LEASEBACK" means the sale to a Person not an
Affiliate of Parent, and subsequent leaseback, of any or all of the
currently incomplete vessels and related dockside facilities located
at St. Xxxxxxx, Missouri.
"PERSON" means any individual or entity, INCLUDING a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture or
Governmental Agency.
"PLEDGE AGREEMENT (MISSOURI)" means a pledge agreement
-21-
substantially in the form of EXHIBIT H, either as originally executed
or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"PLEDGE AGREEMENT (NEVADA)" means the Pledge Agreement executed
and delivered by Parent in connection with the Existing Loan Agreement
covering the Pledged Collateral (Nevada).
"PLEDGE AGREEMENTS" means the Pledge Agreement (Nevada) and the
Pledge Agreement (Missouri).
"PLEDGED COLLATERAL (MISSOURI)" means certificates evidencing
100% of the shares of St. Xxxxxxx and Kansas City (OTHER THAN any
Kansas City Local Shares).
"PLEDGED COLLATERAL (NEVADA)" means certificates evidencing 100%
of the shares of capital stock of (a) Palace, Boulder, Texas and
Sunset and (b) any additional Borrowers added pursuant to Section 8.2.
"PREDECESSOR LOAN AGREEMENT" means the Amended and Restated
Reducing Revolving Loan Agreement dated as of March 19, 1996, as
amended through November 5, 1998.
"PREFERRED SHIP MORTGAGE" means the preferred ship mortgage
executed and delivered by Kansas City in the form of EXHIBIT O to the
Predecessor Loan Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"PROJECTIONS" means the financial projections contained in the
Confidential Information Memorandum dated July 1999 distributed by or
on behalf of Borrowers to the Lenders.
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Commitment set forth opposite the name of that
Lender on SCHEDULE 1.1A, as such percentage may be increased or
decreased pursuant to a Commitment Assignment and Acceptance executed
in accordance with Section 14.8.
"QUARTERLY PAYMENT DATE" means each June 30, September 30,
December 31 and March 31.
"REAL PROPERTY" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by any of
Borrowers.
"REDEEMABLE STOCK" means any capital stock of Parent that by its
terms or otherwise (OTHER THAN in consideration of capital stock
-22-
that is not Redeemable Stock) is, or upon the happening of an event
would be, required to be redeemed or repurchased, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option
of the holder thereof, in whole or in part, at any time prior to the
first anniversary of the Maturity Date.
"REFERENCE RATE" means the rate of interest publicly announced
from time to time by the Domestic Reference Lender in Charlotte, North
Carolina (or other headquarters city of the Domestic Reference
Lender), as its "reference rate." It is a rate set by the Domestic
Reference Lender based upon various factors including the Domestic
Reference Lender's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the Reference Rate announced by the
Domestic Reference Lender shall take effect at the opening of business
on the day specified in the public announcement of such change.
"REGULATION D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"REGULATION U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other
regulations in substance substituted therefor.
"RELATED FUND" means, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans
and is exclusively managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"REQUEST FOR LOAN" means a written request for a Loan
substantially in the form of EXHIBIT I, signed by a Responsible
Official of any of Borrowers, on behalf of Borrowers, and properly
completed to provide all information required to be included therein.
"REQUEST FOR RE-PRICING" means a written request to designate an
Interest Period substantially in the form of EXHIBIT J, signed by a
Responsible Official of any of Borrowers, on behalf of Borrowers, and
properly completed to provide all information required to be included
therein.
"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"REQUISITE LENDERS" means (a) as of any date of determination if
the Commitment is then in effect, Lenders having in the aggregate
-23-
51% or more of the Commitment then in effect and (b) as of any date of
determination if the Commitment has then been terminated and there is
then any Indebtedness evidenced by the Notes, Lenders holding Notes
evidencing in the aggregate 51% or more of the aggregate Indebtedness
then evidenced by the Notes.
"RESPONSIBLE OFFICIAL" means (a) when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner of such Person, corporate officer of a corporate
general partner of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on
behalf thereof, and (b) when used with reference to a Person who is an
individual, such Person. The Lenders shall be entitled to conclusively
rely upon any document or certificate that is signed or executed by a
Responsible Official of Parent or any of its Subsidiaries as having
been authorized by all necessary corporate partnership and/or other
action on the part of Parent or such Subsidiary; PROVIDED that such
Responsible Official has been designated as a Responsible Official for
purposes of this Agreement in a written notice signed by a Senior
Officer and delivered to the Administrative Agent, which notice has
not been cancelled or superseded.
"RESTRICTED PAYMENT" means (a) declaration or payment of a
dividend on, or any distribution in respect of, or any purchase,
redemption or retirement for value of any capital stock of Parent,
Borrowers or any Restricted Subsidiary OTHER THAN (i) in the case of
Parent, through the issuance (as a dividend or stock split thereon or
in exchange therefor) solely of capital stock of Parent (EXCLUDING
Exchangeable Stock and Redeemable Stock) and (ii) in the case of
Borrowers or a Restricted Subsidiary, with respect to shares of the
capital stock thereof that are owned solely by Parent or a Restricted
Subsidiary that is a Wholly-Owned Subsidiary and (b) any principal
payment, or the redemption, repurchase, defeasance or other
acquisition or retirement for value prior to any scheduled principal
payment or maturity, of any Subordinated Obligation.
"RESTRICTED SUBSIDIARY" means, as of any date of determination,
all Subsidiaries of Parent OTHER THAN (a) the Borrowers and (b)
Unrestricted New Venture Entities.
"REVOLVER" means the $350,000,000 revolving loan facility made
available to Borrowers by the Revolver Lenders pursuant to the
Revolving Loan Agreement.
"REVOLVER AGENT" means Bank of America, N.A., in its capacity as
administrative agent under the Revolving Loan Agreement.
"REVOLVING LOAN AGREEMENT" means that certain Third Amended and
Restated Reducing Revolving Loan Agreement of even date herewith among
Borrowers, Parent (as a covenantor but not a borrower), the
-24-
Revolver Agent and the Revolver Lenders.
"REVOLVER LENDERS" means the lenders party to the Revolving Loan
Agreement.
"RIGHT OF OTHERS" means, as to any Property in which a Person has
an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, INCLUDING any option or
right to acquire a Lien; PROVIDED, however, that (a) no covenant
restricting the use or disposition of Property of such Person
contained in any Contractual Obligation of such Person and (b) no
provision contained in a contract creating a right of payment or
performance in favor of a Person that conditions, limits, restricts,
diminishes, transfers or terminates such right shall be deemed to
constitute a Right of Others.
"SECURITY AGREEMENT" means the security agreement executed and
delivered by Borrowers, in the form of EXHIBIT R to the Predecessor
Loan Agreement, either as originally executed or as it may from time
to time be supplemented, modified, amended, extended or supplanted.
"SENIOR OFFICER" means (a) the chief executive officer, (b) the
president, (c) any executive vice president, (d) any senior vice
president, (e) the chief financial officer, (f) the treasurer or (g)
any assistant treasurer, in each case of any of the Borrowers or
Parent, as applicable.
"SIBLING GUARANTORS" means (a) Southwest Gaming Services, Inc.,
(b) Southwest Services, Inc., (c) Green Valley Station, Inc., (d)
Tropicana Station, Inc., and (e) any other future Restricted
Subsidiary that (i) is a Wholly-Owned Subsidiary and (ii) is not an
Immaterial Subsidiary.
"SIBLING GUARANTY" means the continuing guaranty of the
Obligations in the form of EXHIBIT M to the Existing Loan Agreement.
"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or
adoption after the Closing Date of any Law or interpretation, or any
change therein or thereof, or any change in the interpretation or
administration thereof by any Governmental Agency, central bank or
comparable authority charged with the interpretation or administration
thereof, or compliance by any Lender or its Eurodollar Lending Office
with any request or directive (whether or not having the force of Law)
of any such Governmental Agency, central bank or comparable authority.
"ST. XXXXXXX" has the meaning set forth in the preamble to this
Agreement.
"ST. XXXXXXX DEED OF TRUST" means the Deed of Trust (Fee)
-25-
executed by St. Xxxxxxx covering (a) the fee simple real property
comprising the St. Xxxxxxx Riverfront Station in St. Xxxxxxx, Missouri
and (b) the other fee simple real property owned by St. Xxxxxxx
located in St. Xxxxxxx, Missouri consisting of approximately 16
parcels comprising approximately 294 acres in the aggregate.
"SUBORDINATED OBLIGATIONS" means any Indebtedness that is
subordinated by its terms to the Existing Subordinated Obligations.
"SUBSIDIARY" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in either case, characterized as such or
as a "joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability
company, of which a majority of the securities having ordinary voting
power for the election of directors or other governing body (other
than securities having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person and/or
one or more Subsidiaries of such Person, or (b) in the case of a
partnership, of which a majority of the partnership or other ownership
interests are at the time beneficially owned by such Person and/or one
or more of its Subsidiaries.
"SUNSET" has the meaning set forth in the preamble to this
Agreement.
"SUNSET DEED OF TRUST" means the Deed of Trust dated as of
September 25, 1996, as amended, executed by Sunset creating a Lien on
the real Property comprising the Sunset Station Casino Hotel in
Henderson, Nevada.
"SUNSET INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor Agreement, dated as of November 6, 1998 executed by the
Administrative Agent on behalf of the Lenders, and First Security
Trust Company of Nevada (the "Trustee"), on behalf of the holders (the
"Holders") party to that certain Participation Agreement dated as of
September 25, 1996, among the Trustee, Parent and the Holders.
"SWAP AGREEMENT" means a written agreement between Borrowers or
Parent (or all or any of them) and one or more financial institutions
providing for "swap", "cap", "collar" or other interest rate
protection with respect to any Indebtedness.
"TEXAS" has the meaning set forth in the preamble to this
Agreement.
"TEXAS DEED OF TRUST" means the Deed of Trust (Leasehold)
executed by Texas covering the Texas Gambling Hall & Hotel, located in
Las Vegas, Nevada, as amended, supplemented or otherwise modified from
time to time.
-26-
"TIF REAL PROPERTY" means any Real Property acquired by St.
Xxxxxxx pursuant to the exercise of eminent domain by the City of St.
Xxxxxxx.
"TITLE COMPANY" means Commonwealth Land Title Company, acting
through its representative, Nevada Title Insurance Company, or such
other title insurance company as is reasonably acceptable to the
Administrative Agent.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the
fact or situation described therein is known by the Person (or, in the
case of a Person other than a natural Person, known by a Responsible
Official of that Person) making the representation, warranty or other
statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known
by the Person (or, in the case of a Person other than a natural
Person, would have been known by a Responsible Official of that
Person).
"TRADEMARK COLLATERAL ASSIGNMENT" means the trademark collateral
assignment executed and delivered by Borrowers (and by Parent as
record owner of certain trademarks) in the form of EXHIBIT T to the
Existing Loan Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"TYPE", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Alternate Base Rate
Loan or Advance, or a Eurodollar Rate Loan or Advance.
"UNRESTRICTED NEW VENTURE ENTITY" means (a) any New Venture in
which any single Person OTHER THAN Parent and its Subsidiaries owns an
equity interest that is larger than the equity interest owned by
Parent and its Subsidiaries and (b) any other New Venture Entity
(EXCEPT a Restricted Subsidiary) designated by Parent to be an
Unrestricted New Venture Entity by a then effective written notice to
the Administrative Agent; PROVIDED that Parent may, by written notice
to the Administrative Agent, terminate any such designation if (i) the
aggregate Investments theretofore made by Parent in such New Venture
Entity does not exceed $10,000,000, (ii) such New Venture Entity is
either a Wholly-Owned Subsidiary or, if not, each other holder of an
equity interest in such New Venture Entity is reasonably acceptable to
the Requisite Lenders and (iii) no Default or Event of Default then
exists or would result therefrom, whereupon such New Venture Entity
shall become an additional borrower hereunder.
"VESSEL LIENOR CONSENT" means a vessel lienor consent certificate
executed by each holder of a Lien on the riverboat vessels owned by
St. Xxxxxxx that are part of the St. Xxxxxxx Riverfront Station,
substantially in the form of EXHIBIT U to the
-27-
Predecessor Loan Agreement, either as originally executed or as the
same may from time to time be supplemented, modified, amended,
renewed, extended or supplemented.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of Parent, 100% of
the capital stock of which is owned, directly or indirectly, by
Parent, EXCEPT for director's qualifying shares required by applicable
Laws.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, Generally Accepted Accounting Principles applied on a
consistent basis, EXCEPT as otherwise specifically prescribed herein. In the
event that Generally Accepted Accounting Principles change during the term of
this Agreement such that the covenants contained in Sections 9.1 and 9.9 would
then be calculated in a different manner or with different components, (a)
Parent, Borrowers and the Lenders agree to amend this Agreement in such respects
as are necessary to conform those covenants as criteria for evaluating Parent's
or Borrowers' financial condition to substantially the same criteria as were
effective prior to such change in Generally Accepted Accounting Principles and
(b) Parent and Borrowers shall be deemed to be in compliance with the covenants
contained in the aforesaid Sections if and to the extent that Parent and
Borrowers would have been in compliance therewith under Generally Accepted
Accounting Principles as in effect immediately prior to such change, but shall
have the obligation to deliver each of the materials described in ARTICLE 10 to
the Administrative Agent and the Lenders, on the dates therein specified, with
financial data presented in a manner which conforms with Generally Accepted
Accounting Principles as in effect immediately prior to such change.
1.4 ROUNDING. Any financial ratios required to be maintained by
Borrowers or Parent pursuant to this Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 REFERENCES TO "BORROWERS AND THEIR SUBSIDIARIES". Any
reference herein to "Borrowers and their Subsidiaries" or the like shall
-28-
refer solely to Borrowers during such times, if any, as Borrowers shall have no
Subsidiaries.
1.7 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
-29-
Article 2
LOANS
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this
Agreement on the Closing Date, each Lender shall, pro rata according
to that Lender's Pro Rata Share of the Commitment, make an Advance to
Borrowers under the Commitment in such amount as Borrowers may request
that does not result in the aggregate principal amount outstanding
under the Notes to exceed the Commitment. Borrowers may not borrow
under the Commitment subsequent to the Closing Date.
(b) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i)
date of such Loan, (ii) type of Loan, (iii) amount of such Loan, and
(iv) the Interest Period for such Loan. Unless the Administrative
Agent has notified, in its sole and absolute discretion, Borrowers to
the contrary, a Loan may be requested by telephone by a Responsible
Official of Borrowers, in which case Borrowers shall confirm such
request by promptly delivering a Request for Loan in person or by
telecopier conforming to the preceding sentence to the Administrative
Agent. Administrative Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic request for Loan purportedly
made by a Responsible Official of Borrowers, and Borrowers hereby
agree to indemnify the Administrative Agent from any loss, cost,
expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the applicable Interest Period, and
that Lender's Pro Rata Share of the Loan. Not later than 10:00 a.m.,
California time, on the date specified for any Loan (which must be a
Banking Day), each Lender shall make its Pro Rata Share of the Loan in
immediately available funds available to the Administrative Agent at
the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in ARTICLE 11, all Advances shall be
credited on that date in immediately available funds to the Designated
Deposit Account.
(d) Unless the Requisite Lenders otherwise consent, each Loan
shall be not less than $10,000,000 and, EXCEPT to the extent necessary
to permit a Loan to accommodate payment of an Amortization Amount
without incurring breakage costs under Section 3.7(E), in an integral
multiple of $1,000,000.
(e) The Advances made by each Lender under the Commitment shall
be evidenced by that Lender's Note.
-30-
(f) Subject to Sections 3.7(C) and (E), a Request for Loan shall
be irrevocable upon the Administrative Agent's first notification
thereof.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(B), if applicable)
has been made within the requisite notice periods set forth in Section
2.2 prior to the end of the Interest Period for any Eurodollar Rate
Loan, then on the last day of such Interest Period, such Eurodollar
Rate Loan shall be automatically converted into an Alternate Base Rate
Loan in the same amount.
(h) Borrowers may from time to time redesignate the Interest
Period applicable to a Eurodollar Rate Loan pursuant to a Request for
Re-Pricing, which shall specify the requested (i) date of designation,
(ii) amount of the Eurodollar Rate Loan to be redesignated and (iii)
Interest Period for such Eurodollar Rate Loan. A Request for
Re-Pricing shall be subject to the same requirements and other
provisions applicable to a Request for Loan set forth in this Section
applicable to a Request for Loan EXCEPT that during the period
commencing two (2) months prior to an Amortization Date, the minimum
amount of a Eurodollar Rate Loan shall not be greater than the
Amortization Amount for that Amortization Date.
2.2 DESIGNATION OF INTEREST PERIODS.
(a) Each request by Borrowers to redesignate an Interest Period
shall be made pursuant to a Request for Re-Pricing (or telephonic or
other request for re-pricing referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 9:00 a.m.,
California time, at least three (3) Eurodollar Banking Days before the
first day of the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period, the Administrative
Agent shall confirm its determination of the applicable Eurodollar
Rate (which determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same to
Borrowers and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than ten (10) Interest Periods shall be
outstanding at any one time.
(d) Nothing contained herein shall require any Lender to fund any
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.3 [INTENTIONALLY OMITTED].
-31-
2.4 [INTENTIONALLY OMITTED].
2.5 [INTENTIONALLY OMITTED].
2.6 [INTENTIONALLY OMITTED].
2.7 OPTIONAL TERMINATION OF COMMITMENT. Following the occurrence
of a Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the thirty (30) day period immediately subsequent to
the LATER OF (a) such occurrence or (b) the EARLIER of (i) receipt of Borrowers'
written notice to the Administrative Agent of such occurrence or (ii) if no such
notice has been received by the Administrative Agent, the date upon which the
Administrative Agent has actual knowledge thereof, to terminate the Commitment,
in which case the Commitment shall be terminated, and all Indebtedness then
evidenced by the Notes shall become due and payable, effective on the date which
is thirty (30) days subsequent to written notice from the Administrative Agent
to Borrowers thereof.
2.8 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Lender
no later than 11:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrowers a corresponding amount. If the Administrative Agent has made funds
available to Borrowers based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrowers and Borrowers shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to Borrowers to the date such corresponding amount
is recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its share of the Commitment or to prejudice any rights
which the Administrative Agent or Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
2.9 [INTENTIONALLY OMITTED].
2.10 [INTENTIONALLY OMITTED].
2.11 COLLATERAL AND GUARANTY. The Obligations shall be
-32-
secured by the Collateral pursuant to the Collateral Documents and be guaranteed
by Parent pursuant to the Parent Guaranty and by the Sibling Guarantors pursuant
to the Sibling Guaranty.
2.12 SENIOR INDEBTEDNESS. The Obligations shall be "Senior
Indebtedness" with respect to all Subordinated Obligations.
-33-
Article 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment
in full is made and shall accrue and be payable at the rates set forth
or provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Eurodollar Rate Loan which is for a
term of three months or less shall be due and payable on the last day
of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is
three months after the date such Eurodollar Rate Loan was made (and,
in the event that all of the Lenders have approved a Eurodollar Period
of longer than six months, every three months thereafter through the
last day of the Eurodollar Period) and on the last day of the related
Eurodollar Period. EXCEPT as otherwise provided in Section 3.8, the
unpaid principal amount of any Eurodollar Rate Loan shall bear
interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan PLUS 2.50% (250 basis points).
(c) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the amount, if any, by which the principal Indebtedness
evidenced by the Notes at any time exceeds the then applicable
Commitment shall be payable immediately;
(ii) the Notes shall be payable on each Amortization Date by
the related Amortization Amount; and
(iii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(d) The Notes may, at any time and from time to time, voluntarily
be paid or prepaid in whole or in part without premium or penalty,
EXCEPT that with respect to any voluntary prepayment under this
Section (i) any partial prepayment shall be not less than $5,000,000,
(ii) the Administrative Agent shall have received written notice of
any prepayment by 9:00 a.m. California time, three (3) Banking Days
before the date of prepayment, which notice shall identify the date
and amount of the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal shall be accompanied by payment of interest
accrued to the date of payment on the amount of principal paid, (iv)
any payment or prepayment of all or any part of
-34-
any Eurodollar Rate Loan on a day other than the last day of the
applicable Interest Period shall be subject to Section 3.7(E) and (v)
upon any partial prepayment of a Eurodollar Rate Loan that reduces it
below $10,000,000, the remaining portion thereof shall automatically
convert to an Alternate Base Rate Loan. Any voluntary prepayment of
the Notes shall be applied to the remaining Amortization Amounts in
reverse order of maturity.
3.2 ARRANGEMENT FEE. On the Closing Date, Borrowers shall pay to
the Administrative Agent the arrangement fee as heretofore agreed upon by letter
agreement between Borrowers and the Administrative Agent. Such arrangement fee
is for the services of the Bank of America N.A. and its Affiliates in arranging
the credit facilities under this Agreement and is fully earned when paid. The
arrangement fee paid to the Administrative Agent is solely for its own account
and is nonrefundable.
3.3 [INTENTIONALLY OMITTED]
3.4 [INTENTIONALLY OMITTED]
3.5 AGENCY FEE. Borrowers shall pay to the Administrative Agent
an agency fee in such amounts and at such times as heretofore agreed upon by
letter agreement between Borrowers and the Administrative Agent. The agency fee
is for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
3.6 INCREASED COMMITMENT COSTS. If any Lender shall determine
in good faith that the introduction after the Closing Date of any applicable
law, rule, regulation or guideline regarding capital adequacy, or any change
therein or any change in the interpretation or administration thereof by any
central bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar
Lending Office) or any corporation controlling the Lender, with any request,
guideline or directive regarding capital adequacy (whether or not having the
force of Law) of any such central bank or other authority not imposed as a
result of such Lender's or such corporation's failure to comply with any
other Laws, affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy and such Lender's desired return on
capital) determines in good faith that the amount of such capital is
increased, or the rate of return on capital is reduced, as a consequence of
its obligations under this Agreement, then, within ten (10) Banking Days
after demand of such Lender, Borrowers shall pay to such Lender, from time to
time as specified in good faith by such Lender, additional amounts sufficient
to compensate such Lender in light of such circumstances, to the extent
reasonably allocable to such obligations under this Agreement, PROVIDED that
Borrowers shall not be obligated to pay any such amount which arose prior to
the date which is ninety (90) days preceding the date of such demand or is
attributable to periods prior to
-35-
the date which is ninety (90) days preceding the date of such demand. Each
Lender's determination of such amounts shall be conclusive in the absence of
manifest error.
3.7 EURODOLLAR COSTS AND RELATED MATTERS.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (INCLUDING any emergency,
supplemental or other reserve) with respect to the Eurodollar
Obligations of that Lender, Borrowers shall pay that Lender within
five (5) Banking Days after demand all amounts necessary to compensate
such Lender (determined as though such Lender's Eurodollar Lending
Office had funded 100% of its Eurodollar Rate Advance in the
Designated Eurodollar Market) in respect of the imposition of such
reserve requirements (PROVIDED, that Borrowers shall not be obligated
to pay any such amount which arose prior to the date which is ninety
(90) days preceding the date of such demand or is attributable to
periods prior to the date which is ninety (90) days preceding the date
of such demand). The Lender's determination of such amount shall be
conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances, or shall change the basis of taxation of payments to
any Lender attributable to the principal of or interest on any
Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Advances (PROVIDED, that Borrowers shall not be
obligated to pay any such amount which arose prior to
the date which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which is
ninety (90) days preceding the date of such demand), EXCLUDING
(i) taxes imposed on or measured in whole or in part by
its overall net income by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is
"doing business" and (ii) any withholding taxes or other taxes
based on gross income imposed by the United States of America for
any period with respect to which it has failed to provide
Borrowers with the appropriate form or forms required by Section
14.21, to the extent such forms are then required by
applicable Laws;
(2) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof
-36-
(INCLUDING any reserve imposed by the Board of Governors of the
Federal Reserve System, special deposit, capital or similar
requirements against assets of, deposits with or for the account
of, or credit extended by, any Lender or its Eurodollar Lending
Office); or
(3) shall impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar
Lending Office of making or maintaining any Eurodollar Rate Advance or
in respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances or reduces the amount of any sum received or receivable by
such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Loans or its obligation to make Eurodollar Rate Advances (assuming
such Lender's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar Market), then,
within five (5) Banking Days after demand by such Bank (with a copy to
the Administrative Agent), Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market). A statement of any
Lender claiming compensation under this subsection shall be conclusive
in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates
based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar
Rate Advances shall be suspended for the duration of such illegality
or impossibility and the Administrative Agent forthwith shall give
notice thereof to the other Lenders and Borrowers. Upon receipt of
such notice, the outstanding principal amount of such Lender's
Eurodollar Rate Advances, together with accrued interest thereon,
automatically shall be converted to Alternate Base Rate Advances on
either (1) the last day of the Eurodollar Period(s) applicable to such
Eurodollar Rate Advances if such Lender may lawfully continue to
maintain and fund such Eurodollar Rate Advances to such day(s) or (2)
immediately if such
-37-
Lender may not lawfully continue to fund and maintain such Eurodollar
Rate Advances to such day(s), PROVIDED that in such event the
conversion shall not be subject to payment of a prepayment fee under
Section 3.7(E). Each Lender agrees to endeavor promptly to notify
Borrowers of any event of which it has actual knowledge, occurring
after the Closing Date, which will cause that Lender to notify the
Administrative Agent under this Section, and agrees to designate a
different Eurodollar Lending Office if such designation will avoid the
need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender. In the
event that any Lender is unable, for the reasons set forth above, to
make, maintain or fund its portion of any Eurodollar Rate Loan, such
Lender shall fund such amount as an Alternate Base Rate Advance for
the same period of time, and such amount shall be treated in all
respects as an Alternate Base Rate Advance. Any Lender whose
obligation to make Eurodollar Rate Advances has been suspended under
this Section shall promptly notify the Administrative Agent and
Borrowers of the cessation of the Special Eurodollar Circumstance
which gave rise to such suspension.
(d) Any Eurodollar Rate Loan, together with accrued interest
thereon, that is converted to an Alternate Base Rate Loan pursuant to
Sections 3.7(C) or 3.7(E), shall (A) bear interest at a rate per annum
equal to the Alternate Base Rate and (B) convert back to a Eurodollar
Rate Loan as soon as practicable following the cessation of the
Special Eurodollar Circumstance or the circumstances described in
clause (1) or (2) of Section 3.7(E), as applicable, which gave rise to
the conversion. If the amounts charged to Borrowers pursuant to
Sections 3.7(a) and 3.7(B) make it commercially unreasonable for
Borrowers to maintain such Eurodollar Rate Loan, Borrowers shall be
permitted to convert any Eurodollar Rate Loan to an Alternate Base
Rate Loan at any time thereafter upon notice to the Administrative
Agent (it being understood and agreed that Borrowers may so convert
such portions of any Loan as may be necessary to avoid breakage costs
under Section 3.7(F)). A Loan so converted shall bear interest as set
forth above and shall be re-converted to a Eurodollar Rate Loan upon
three (3) Eurodollar Banking Days' notice to the Administrative Agent
following the cessation of the Special Eurodollar Circumstance or the
circumstances described in Section 3.7(E) or the determination by the
Lender that it no longer chooses to require Borrowers to pay such
amounts.
(e) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar
Market generally that are beyond the reasonable control of the
Lenders, deposits in Dollars (in the applicable amounts) are not
being offered to any Lender in the Designated Eurodollar Market
for the applicable Eurodollar Period; or
-38-
(2) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate as determined by the Administrative
Agent (i) does not represent the effective pricing to such
Lenders for deposits in Dollars in the Designated Eurodollar
Market in the relevant amount for the applicable Eurodollar
Period, or (ii) will not adequately and fairly reflect the cost
to such Lenders of making the applicable Eurodollar Rate
Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrowers and the Lenders, whereupon until the Administrative Agent
notifies Borrowers that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to make any
future Eurodollar Rate Advances shall be suspended. Upon any such
suspension, the Eurodollar Rate Loans shall be converted to Alternate
Base Rate Loans in accordance with Section 3.7(D) as of the first day
of the Interest Period during which such circumstances arise.
(f) Upon payment or prepayment of any Eurodollar Rate Loan (OTHER
THAN as the result of a conversion required under Section 3.7(C)), on
a day other than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrowers (for a reason other than
the breach by a Lender of its obligation pursuant to Sections 2.1(A)
or 2.1(B) to make an Advance or the suspension of any Lender's
obligation to make or maintain Eurodollar Rate Loans under Section
3.7) to borrow on the date or in the amount specified for a Eurodollar
Rate Loan in any Request for Loan, Borrowers shall pay to the
appropriate Lender within ten (10) Banking Days after demand a
prepayment fee or failure to borrow fee, as the case may be
(determined as though 100% of the Eurodollar Rate Advance had been
funded in the Designated Eurodollar Market) equal to the SUM of:
(1) the principal amount of the Eurodollar Rate Loan prepaid
or not borrowed, as the case may be, TIMES [the number of days
from and including the date of prepayment or failure to borrow,
as applicable, to but excluding the last day in the applicable
Eurodollar Period], DIVIDED BY 360, TIMES the applicable Interest
Differential (PROVIDED that the product of the foregoing formula
must be a positive number); PLUS
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure
to borrow.
Each Lender's determination of the amount of any prepayment fee
payable under this Section shall be conclusive in the absence of
manifest error.
(g) Each Lender agrees to endeavor promptly to notify Borrowers
of any event of which it has actual knowledge, occurring after the
Closing Date, which will entitle such Lender to
-39-
compensation pursuant to clause (A) or clause (B) of this Section 3.7,
and agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for or reduce the amount of such
compensation and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender. Any request
for compensation by a Lender under this Section 3.7 shall set forth
the basis upon which it has been determined that such an amount is due
from Borrowers, a calculation of the amount due, and a certification
that the corresponding costs have been incurred by the Lender.
3.8 LATE PAYMENTS. If any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at an interest rate per annum at all times equal to the SUM OF the
then current Eurodollar Rate (for an Interest Period of six months) PLUS 4.5%
(450 basis points), to the fullest extent permitted by applicable Laws. Accrued
and unpaid interest on past due amounts (INCLUDING, without limitation, interest
on past due interest) shall be compounded monthly, on the last day of each
calendar month, to the fullest extent permitted by applicable Laws.
3.9 COMPUTATION OF INTEREST AND FEES. Computation of interest
and fees under this Agreement shall be calculated on the basis of a year of 360
days and the actual number of days elapsed. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid. Any
Loan that is repaid on the same day on which it is made shall bear interest for
one day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.10 NON-BANKING DAYS. If any payment to be made by Borrowers or
any other Party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.11 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments pursuant to
Sections 3.6, 3.7, 14.3, 14.11 and 14.22) or on the Notes or under
any other Loan Document shall be made to the Administrative Agent at
the Administrative Agent's Office for the account of the Lenders or
the Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. California time, on the day of payment
(which must be a Banking Day). All payments received after such time,
on any Banking Day, shall be deemed received on the next succeeding
Banking Day. The amount of all payments received by
-40-
the Administrative Agent for the account of each Lender shall be
immediately paid by the Administrative Agent to the applicable Lender
in immediately available funds and, if such payment was received by
the Administrative Agent by 11:00 a.m., California time, on a Banking
Day and not so made available to the account of a Lender on that
Banking Day, the Administrative Agent shall reimburse that Lender for
the cost to such Lender of funding the amount of such payment at the
Federal Funds Rate. All payments shall be made in lawful money of the
United States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record (in
writing or by an electronic data entry system) of Advances made by it
and payments received by it with respect to each of its Notes and,
subject to Section 13.6(G), such record shall, as against Borrowers,
be presumptive evidence of the amounts owing. Notwithstanding the
foregoing sentence, the failure by any Lender to keep such a record
shall not affect Borrowers' obligation to pay the Obligations.
(d) Each payment of any amount payable by Borrowers or any other
Party under this Agreement or any other Loan Document shall be made
free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency,
central bank or comparable authority, EXCLUDING (i) taxes imposed on
or measured in whole or in part by its overall net income by (A) any
jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business" and (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide
Borrowers with the appropriate form or forms required by Section
14.21, to the extent such forms are then required by applicable Laws
(all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrowers are
obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this
Agreement, Borrowers shall (i) make such deduction or withholding and
pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Tax amount equal to the amount to which
that Lender would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results
in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrowers.
3.12 FUNDING SOURCES. Nothing in this Agreement shall be
-41-
deemed to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.13 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest arising under Section 3.8), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (INCLUDING interest arising under Section 3.8), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.14 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE
BY BORROWERS. Unless the Administrative Agent shall have been notified by
Borrowers prior to the date on which any payment to be made by Borrowers
hereunder is due that Borrowers do not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that Borrowers have remitted
such payment when so due and the Administrative Agent may, in its discretion and
in reliance upon such assumption, make available to each Lender on such payment
date an amount equal to such Lender's share of such assumed payment. If
Borrowers have not in fact remitted such payment to the Administrative Agent,
each Lender shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent at the Federal Funds Rate.
3.15 FEE DETERMINATION DETAIL. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrowers regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under ARTICLE 3 has been determined, concurrently with demand for
such payment.
3.16 SURVIVABILITY. All of Borrowers' obligations under Sections
3.6 and 3.7 shall survive for the ninety (90) day period following the date on
which the Commitment is terminated and all Loans hereunder are fully paid, and
Borrowers shall remain obligated thereunder for all claims under such Sections
made by any Lender to Borrowers prior to the expiration of such period.
-42-
Article 4
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to the Lenders that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Each of Palace, Boulder, Texas, St. Xxxxxxx, Kansas City and Sunset is a
corporation duly formed, validly existing and in good standing under the Laws of
Nevada (in the case of Palace, Boulder, Texas and Sunset) and Missouri (in the
case of St. Xxxxxxx and Kansas City). Parent is a corporation duly formed,
validly existing and in good standing under the Laws of Nevada and each of the
Sibling Guarantors is a corporation duly formed, validly existing and in good
standing under the Laws of its state of incorporation. Each of Borrowers and the
Guarantors is duly qualified or registered to transact business and is in good
standing in each other jurisdiction in which the conduct of its business or the
ownership or leasing of its Properties makes such qualification or registration
necessary, EXCEPT where the failure so to qualify or register and to be in good
standing would not constitute a Material Adverse Effect. Each of Borrowers and
the Guarantors has all requisite corporate power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform its Obligations. The chief
executive offices of each of Borrowers is located in Nevada. All outstanding
shares of capital stock of Parent are duly authorized, validly issued, fully
paid and non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. Each of
Borrowers and the Guarantors is in compliance with all Laws and other legal
requirements applicable to its business, has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, EXCEPT where the failure so to comply, obtain
authorizations, etc., file, register, qualify or obtain exemptions does not
constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS
AND GOVERNMENT REGULATIONS. The execution, delivery and performance by each of
Borrowers and each of the Guarantors of the Loan Documents to which it is a
Party have been duly authorized by all necessary corporate action, and do not
and will not:
(a) Require any consent or approval not heretofore obtained of
any partner, director, stockholder, security holder or creditor of
such Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any Lien
or Right of Others upon or with respect to any Property now
-43-
owned or leased or hereafter acquired by such Party (OTHER THAN Liens
and Rights of Others created by the Loan Documents);
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in SCHEDULE 4.3;
(e) Result in a breach of or constitute a default under, or cause
or permit the acceleration of any obligation owed under, any
Contractual Obligation (OTHER THAN the Loan Documents) to which such
Party is a party or by which such Party or any of its Property is
bound or affected;
and none of Borrowers or any of the Guarantors is in violation of, or default
under, any Requirement of Law or Contractual Obligation, INCLUDING any
Contractual Obligation described in Section 4.2(E), in any respect that
constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as set forth in
SCHEDULE 4.3 or previously obtained or made, no authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by each
of the Borrowers and the Guarantors of the Loan Documents to which it is a
Party.
4.4 SUBSIDIARIES. None of Borrowers has any Subsidiaries, EXCEPT
that Kansas City owns 100% of the outstanding capital stock of Station Casino
Kansas City Restaurants, Inc. SCHEDULE 4.4 hereto correctly sets forth the
names, form of legal entity, number of shares of capital stock issued and
outstanding, and the record owner thereof and jurisdictions of organization of
all Subsidiaries of Parent and specifies, as of the Closing Date, which thereof
are Restricted Subsidiaries and which thereof are Immaterial Subsidiaries.
Unless otherwise indicated in SCHEDULE 4.4, all of the outstanding shares of
capital stock, or all of the units of equity interest, as the case may be, of
each Restricted Subsidiary are owned of record and beneficially by Parent, there
are no outstanding options, warrants or other rights to purchase capital stock
of any such Subsidiary, and all such shares or equity interests so owned are
duly authorized, validly issued, fully paid and non-assessable, and were issued
in compliance with all applicable state and federal securities and other Laws,
and are free and clear of all Liens and Rights of Others, EXCEPT for Permitted
Encumbrances and Permitted Rights of Others.
4.5 FINANCIAL STATEMENTS. Borrowers have furnished to the
Lenders (a) the audited consolidated financial statements of Parent and its
Subsidiaries for the Fiscal Year (consisting of three Fiscal Quarters) ended
December 31, 1998 and (b) the unaudited consolidated and consolidating balance
sheet and statement of operations of Parent and its Subsidiaries for the Fiscal
Quarter ended June 30, 1999. The financial statements described in clause (A)
fairly present in all material respects the financial condition, results of
operations and changes in financial
-44-
position, and the balance sheet and statement of operations described in clause
(B) fairly present the financial condition and results of operations of Parent
and its Subsidiaries as of such dates and for such periods in conformity with
Generally Accepted Accounting Principles, consistently applied.
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE CHANGES. As of the
Closing Date, Borrowers do not have any material liability or material
contingent liability required under Generally Accepted Accounting Principles to
be reflected or disclosed and not reflected or disclosed in the balance sheet
described in Section 4.5(B), other than liabilities and contingent liabilities
arising in the ordinary course of business since the date of such financial
statements. As of the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since June 30, 1999. As of any date
subsequent to the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since the Closing Date.
4.7 TITLE TO PROPERTY. As of the Closing Date, each Borrower has
valid title to its respective Property (OTHER THAN assets which are the subject
of a Capital Lease Obligation) reflected in the balance sheet described in
Section 4.5(B), other than items of Property or exceptions to title which are in
each case immaterial to Borrowers and Property subsequently sold or disposed of
in the ordinary course of business, free and clear of all Liens and Rights of
Others, OTHER THAN Liens or Rights of Others described in SCHEDULE 4.7,
Permitted Rights of Others or Liens permitted by Section 6.6.
4.8 INTANGIBLE ASSETS. Each Borrower owns, or possesses the
right to use to the extent necessary in its business, all material trademarks,
trade names, copyrights, patents, patent rights, computer software, licenses and
other Intangible Assets that are used in the conduct of its businesses as now
operated, and no such Intangible Asset, to the best knowledge of Borrowers,
conflicts with the valid trademark, trade name, copyright, patent, patent right
or Intangible Asset of any other Person to the extent that such conflict
constitutes a Material Adverse Effect. SCHEDULE 4.8 sets forth all trademarks,
trade names and trade styles used by Borrowers at any time within the five (5)
year period ending on the Closing Date and sets forth the owner of record of
each thereof.
4.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither any of Borrowers
nor any Guarantor is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 LITIGATION. EXCEPT for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Parent or any of its Subsidiaries of
less than $1,000,000, (c) matters of an adminis-
-45-
trative nature not involving a claim or charge against Parent or any of its
Subsidiaries and (d) matters set forth in SCHEDULE 4.10, there are no actions,
suits, proceedings or investigations pending as to which Parent or any of its
Subsidiaries have been served or have received notice or, to the best knowledge
of Borrowers, threatened against or affecting Parent or any of its Subsidiaries
or any Property of any of them before any Governmental Agency.
4.11 BINDING OBLIGATIONS. Each of the Loan Documents to which any
of Borrowers or the Guarantors is a Party will, when executed and delivered by
such Party, constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, EXCEPT as
enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.12 NO DEFAULT. No event has occurred and is continuing that is
a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that
could reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that could reasonably be expected to have a
Material Adverse Effect; and
(iv) none of Parent nor any of its Subsidiaries has engaged
in any non-exempt "prohibited transaction" (as defined in Section
4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect.
(b) None of Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
4.14 REGULATION U; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulation U. Neither Parent nor any of its Subsidiaries is or is
required to be registered as an "investment company"
-46-
under the Investment Company Act of 1940.
4.15 DISCLOSURE. No written statement made by a Senior Officer of
Parent to the Administrative Agent or any Lender in connection with this
Agreement, or in connection with any Loan, as of the date thereof contained any
untrue statement of a material fact or omitted a material fact necessary to make
the statement made not misleading in light of all the circumstances existing at
the date the statement was made.
4.16 TAX LIABILITY. Parent and its Subsidiaries have filed all
tax returns which are required to be filed, and have paid, or made provision for
the payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Parent or any
of its Subsidiaries, EXCEPT (a) such taxes, if any, as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
Property of Parent or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
4.17 PROJECTIONS. Borrowers have formulated the assumptions set
forth in the Projections based on their historical experience in the relevant
business or financial context, have adjusted such assumptions to take account of
what Borrowers believe to be current and projected business and financial
conditions and have performed what Borrowers believe is a reasonably thorough
due diligence process with respect to such assumptions. As of the Closing Date,
Borrowers believe that the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to Borrowers,
and that the Projections are reasonably based on such assumptions. Nothing in
this Section 4.17 shall be construed as a representation or covenant that the
Projections in fact will be achieved.
4.18 HAZARDOUS MATERIALS. Except as described in SCHEDULE 4.18,
as of the Closing Date (a) none of Borrowers at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under the Real Property in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b)
to the best knowledge of Borrowers, no condition exists that violates any
Hazardous Material Law affecting any Real Property except for such violations
that would not individually or in the aggregate constitute a Material Adverse
Effect, (c) no Real Property or any portion thereof is or has been utilized by
Borrowers as a site for the manufacture of any Hazardous Materials and (d) to
the extent that any Hazardous Materials are used, generated or stored by
Borrowers on any Real Property, or transported to or from such Real Property by
Borrowers, such use, generation, storage and transportation are in compliance
with all Hazardous Materials Laws except for such non-compliance that would not
constitute a Material Adverse Effect or be materially adverse to the interests
of the Lenders.
4.19 [INTENTIONALLY DELETED].
-47-
4.20 GAMING LAWS. Each Borrower is in compliance with all
applicable Gaming Laws except for such non-compliance that would not constitute
a Material Adverse Effect.
4.21 SECURITY INTERESTS. Upon the execution and delivery of the
Omnibus Documents Amendment, the Security Agreement will continue to create a
valid first priority security interest in the Collateral described therein
securing the Obligations (subject only to Permitted Encumbrances, Permitted
Rights of Others, Liens permitted under Section 6.6(E) and matters disclosed in
SCHEDULE 4.7 and to such qualifications and exceptions as are contained in the
Uniform Commercial Code with respect to the priority of security interests
perfected by means other than the filing of a financing statement or with
respect to the creation of security interests in Property to which Division 9 of
the Uniform Commercial Code does not apply) and all action necessary to perfect
the security interests so created, other than filing of the UCC-1 financing
statements delivered to the Administrative Agent pursuant to Section 11.1 with
the appropriate Governmental Agency have been taken and completed. Upon the
execution and delivery of the Omnibus Documents Amendment, the Trademark
Collateral Assignment will continue to create a valid first priority collateral
assignment of the Collateral described therein securing the Obligations (subject
to the matters disclosed in SCHEDULE 4.7) and all action necessary to perfect
the collateral assignment so created, other than the filing thereof with the
United States Patent and Trademark Office, will have been taken and completed.
Upon execution and delivery of the Pledge Agreement (Missouri), the Pledge
Agreement (Missouri) will create a valid first priority security interest in the
Pledged Collateral (Missouri) and upon delivery of the Pledged Collateral
(Missouri) to the Administrative Agent (or its designee) in the State of
Missouri, all action necessary to perfect the security interest so created will
have been taken and completed. Upon the execution and delivery of the Omnibus
Documents Amendment, the Pledge Agreement (Nevada) will continue to create a
valid first priority security interest in the Pledged Collateral (Nevada) and
upon delivery of the Pledged Collateral (Nevada) to the Administrative Agent (or
its designee) in the State of Nevada, all action necessary to perfect the
security interest so created has been taken and completed. Upon the execution
and delivery of the Deed of Trust Amendment with respect to each of the Deeds of
Trust, such Deed of Trust will continue to create a valid Lien in the Collateral
described therein securing the Obligations, OTHER THAN those arising under
Sections 4.18, 5.10 and 14.22, (subject only to Permitted Encumbrances,
Permitted Rights of Others and matters described in SCHEDULE 4.7), and all
action necessary to perfect the Lien so created, OTHER THAN recordation or
filing thereof with the appropriate Governmental Agencies, will have been taken
and completed. Upon the execution and delivery of the Omnibus Documents
Amendment, the Preferred Ship Mortgage will continue to create a valid Lien in
the Collateral described therein securing the Obligations (subject only to
Permitted Encumbrances and Permitted Rights of Others), and all action necessary
to perfect the Lien so created, OTHER THAN recordation or filing thereof with
the appropriate Governmental Agencies, will have been taken and completed.
-48-
Article 5
BORROWERS AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrowers
shall, unless the Administrative Agent (with the written approval of the
Requisite Lenders) otherwise consents:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof, EXCEPT that
Borrowers shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material Property of Borrowers is at material
risk of impending seizure, levy or forfeiture.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties EXCEPT where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect
all of their respective Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste of their
respective Properties, EXCEPT that the failure to maintain, preserve and protect
a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrowers and their Subsidiaries, taken as
a whole, shall not constitute a violation of this covenant.
5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrowers operate and, in any
event, such insurance as may be required under the Deeds of Trust.
5.5 COMPLIANCE WITH LAWS. Comply, within the time period, if
any, given for such compliance by the relevant Governmental Agency or
-49-
Agencies with enforcement authority, with all Requirements of Law noncompliance
with which constitutes a Material Adverse Effect, EXCEPT that Borrowers need not
comply with a Requirement of Law then being contested by any of them in good
faith by appropriate proceedings.
5.6 INSPECTION RIGHTS. Upon reasonable notice, at any time
during regular business hours and as often as reasonably requested (but not so
as to materially interfere with the business of Parent or any of its
Subsidiaries) permit the Administrative Agent or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies and
abstracts from the records and books of account of, and to visit and inspect the
Properties of, Parent and its Subsidiaries and to discuss the affairs, finances
and accounts of Parent and its Subsidiaries with any of their officers, key
employees or accountants.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate
records and books of account reflecting all financial transactions in conformity
with Generally Accepted Accounting Principles, consistently applied, and in
material conformity with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over Borrowers.
5.8 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with
all Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, whether such
material agreements, indentures, leases or instruments are with a Lender or
another Person, EXCEPT for any such Contractual Obligations (a) the performance
of which would cause a Default or (b) then being contested by any of them in
good faith by appropriate proceedings or if the failure to comply with such
agreements, indentures, leases or instruments does not constitute a Material
Adverse Effect.
5.9 USE OF PROCEEDS. Use the proceeds of Loans (a) to refinance
the Term Loan (as such term is defined in the Existing Loan Agreement) and (b)
for general corporate purposes.
5.10 HAZARDOUS MATERIALS LAWS. Keep and maintain all Real
Property and each portion thereof in compliance with all applicable Hazardous
Materials Laws (except for such non-compliance that would not constitute a
Material Adverse Effect or be materially adverse to the interests of the
Lenders) and promptly notify the Administrative Agent in writing (attaching a
copy of any pertinent written material) of (a) any and all material enforcement,
cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened in writing by a Governmental Agency pursuant to any
applicable Hazardous Materials Laws, (b) any and all material claims made or
threatened in writing by any Person against Borrowers relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Materials and (c) discovery by any Senior Officer of any of Borrowers
of any material occurrence or condition on any real Property adjoining or in the
vicinity of such Real Property that could reasonably be expected to cause such
Real Property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such Real Property under
-50-
any applicable Hazardous Materials Laws.
5.11 ADDITIONAL REAL PROPERTY. Upon the acquisition by any
Borrower after the Closing Date of any Real Property (OTHER THAN TIF Real
Property), promptly provide to the Administrative Agent such deeds of trust in
the form of the Deed of Trust (Fee) and/or Deed of Trust (Leasehold), as
applicable, covering such Real Property, together with such appraisals, title
insurance policies and environmental reports as the Administrative Agent or
Requisite Lenders may reasonably request. Upon the acquisition after the Closing
Date of any TIF Real Property, St. Xxxxxxx shall promptly (a) use its best
efforts to obtain any necessary approvals of the relevant Governmental Agency
and (b) subject to such approvals, provide to the Administrative Agent such
deeds of trust in the form of the Deed of Trust (Fee) covering such Real
Property, together with such appraisals, title insurance policies and
environmental reports as the Administrative Agent or the Requisite Lenders may
reasonably request; PROVIDED that (i) the Obligations secured by such a deed of
trust on a particular parcel of TIF Property shall not exceed the acquisition
cost to St. Xxxxxxx for such parcel and (ii) St. Xxxxxxx need not so provide
such a deed of trust with respect to any parcel of TIF Real Property if the
acquisition cost thereof to St. Xxxxxxx, when aggregated with the acquisition
costs of all other parcels of TIF Real Property previously acquired by St.
Xxxxxxx and not covered by a Deed of Trust theretofore provided to the
Administrative Agent, is less than $5,000,000.
5.12 ADDITIONAL VESSELS. Upon the acquisition by any Borrower
after the Closing Date of any vessel documented under the Laws of the United
States of America, promptly provide to the Administrative Agent a duly executed
preferred ship mortgage in the form of the Preferred Ship Mortgage covering such
vessel, and upon the acquisition after the Closing Date of any vessel that is
not so documented, promptly provide to the Administrative Agent such other
appropriate Collateral Documents with respect thereto as the Administrative
Agent may request, together in each case with such related legal opinions,
certificates and other documentation as the Administrative Agent or Requisite
Lenders may reasonably request.
5.13 [INTENTIONALLY OMITTED]
5.14 YEAR 2000 COMPLIANCE. (a) Take such steps as are reasonably
necessary to assure that, prior to November 1, 1999, Borrowers and the
Restricted Subsidiaries are Year 2000 Compliant and (b) with respect to all
vendors of Borrowers and the Restricted Subsidiaries that are material to the
business of Borrowers and whose ability to perform their business obligations to
Borrowers may be materially affected by their not being Year 2000 Compliant,
take such steps as are reasonably necessary to prevent a Material Adverse Effect
resulting from such non-compliance of any such vendor. The term AYear 2000
Compliant@ means, for purposes of the foregoing, that all hardware, software,
firmware, equipment, goods, and systems used by or on behalf of a Person to
perform date-sensitive functions, will properly perform such date-sensitive
functions on and after January 1, 2000.
-51-
5.15 DELIVERY OF DOCUMENTATION. Not later than one hundred twenty
(120) days following the Closing Date, Borrowers shall cause to be delivered to
the Administrative Agent, the Road Crossing License Consent and Agreement, dated
as of November 6, 1998, by the Missouri Department of Natural Resources, as
Licensor, and St. Xxxxxxx Riverfront Station, Inc., as Licensee, for the benefit
of Bank of America, N.A., as Administrative Agent, each duly executed by each
party thereto other than the Administrative Agent.
-52-
Article 6
BORROWERS NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrowers
shall not, unless the Administrative Agent (with the written approval of the
Requisite Lenders or, if required by Section 14.2, of all of the Lenders)
otherwise consents:
6.1 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired EXCEPT: (a) a Disposition to
another Borrower, (b) Dispositions of any of the Peripheral Assets to a Person
that is not an Affiliate of Parent, (c) a Disposition of assets included in any
Permitted Sale/ Leaseback, (d) Disposition of Investments (OTHER THAN
Investments in a Subsidiary of any Borrower that is not an Immaterial
Subsidiary) and (e) Dispositions of Property with an aggregate book value or
fair market value (whichever is greater) in any Fiscal Year not exceeding
$6,000,000.
6.2 MERGERS. Merge or consolidate with or into any Person,
EXCEPT (a) a merger or consolidation with another Borrower or (b) a merger or
consolidation of a Restricted Subsidiary with and into a Borrower or (c) a
merger or consolidation with or into Parent; PROVIDED that Parent concurrently
executes a Joinder Agreement.
6.3 HOSTILE ACQUISITIONS. Directly or indirectly use the
proceeds of any Loan in connection with the acquisition of part or all of a
voting interest of five percent (5%) or more in any corporation or other
business entity if such acquisition is opposed by the board of directors or
management of such corporation or business entity.
6.4 ERISA. (a) At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code), (ii) fail to comply with ERISA or any other applicable Laws, (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.5 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Borrowers.
6.6 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
-53-
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in SCHEDULE 4.7 and any renewals/extensions or amendments
thereof; PROVIDED that the obligations secured or benefited thereby
are not increased;
(d) Liens securing the Revolver that are pari-passu with the
Liens under the Collateral Documents, subject to the Intercreditor
Agreement, and Negative Pledges under the Revolving Loan Agreement;
(e) Liens on Property acquired by Borrowers that were in
existence at the time of the acquisition of such Property and were not
created in contemplation of such acquisition and Negative Pledges
limited to such Property;
(f) Liens securing Indebtedness permitted by Section 6.7 by
reason of Section 9.9(A) on and limited to the capital assets
acquired, constructed or financed with the proceeds of such
Indebtedness or with the proceeds of any Indebtedness directly or
indirectly refinanced by such Indebtedness and Negative Pledges
limited to such capital assets;
(g) Liens consisting of, or on assets owned by other Persons
which are leased to any Borrower under, an operating lease excluded
from the definition of Indebtedness and Negative Pledges limited to
such assets;
(h) Liens consisting of Cash deposits to secure obligations of
any Borrower under any operating lease of one or more aircraft
PROVIDED that the aggregate amount of such deposits does not exceed
$2,500,000; and
(i) any Permitted Sale/Leaseback.
6.7 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur or
assume any Indebtedness or Guaranty Obligation EXCEPT (a) Indebtedness under the
Revolving Loan Agreement and (b) other Indebtedness and Guaranty Obligations
permitted by Section 9.9.
6.8 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrowers OTHER THAN (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors of Parent and expressly authorized by a resolution of the
board of directors of Parent which is approved by a majority of the directors
not having an interest in the transaction, (c) transactions expressly permitted
by this Agreement, (d) transactions between Borrowers and any Guarantor and (e)
transactions on overall terms at least as favorable to Borrowers as would be the
case in
-54-
an arm's-length transaction between unrelated parties of equal bargaining power.
6.9 [INTENTIONALLY OMITTED].
6.10 [INTENTIONALLY OMITTED].
6.11 [INTENTIONALLY OMITTED].
6.12 [INTENTIONALLY OMITTED].
6.13 [INTENTIONALLY OMITTED].
6.14 [INTENTIONALLY OMITTED].
6.15 NEW CAPITAL STOCK. Issue any shares of capital stock to any
Person OTHER THAN Parent, EXCEPT for the Kansas City Local Shares.
6.16 AMENDMENTS AND REFINANCINGS OF REVOLVER. Consent to the
amendment of the Revolving Loan Agreement, or refinance the Revolver in whole or
in part, in a manner that would have the effect of (a) shortening the maturity
date of the Revolver, (b) accelerating the scheduled reductions of the Revolver
or (c) amending or adding any mandatory prepayment provision in or to the
Revolver. Subject to the limits set forth in the preceding sentence, Borrowers
may amend or refinance the Revolver without notice to, or approval of, the
Lenders; PROVIDED that Borrowers shall promptly thereafter furnish to the
Administrative Agent a copy of the amendment or refinancing documents.
-55-
Article 7
[INTENTIONALLY OMITTED]
-56-
Article 8
PARENT AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Parent shall,
and shall cause each of the Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
8.1 ARTICLE 5 COVENANTS. Comply with the affirmative covenants
contained in Sections 5.1 through 5.8, 5.10, 5.13 and 5.14, MUTATIS MUTANDIS.
8.2 ADDITIONAL BORROWERS. Upon the formation or acquisition by
Parent of any New Venture Entity (OTHER THAN an Immaterial Subsidiary or an
Unrestricted New Venture Entity), cause such New Venture Entity to execute and
deliver the Joinder Agreement and such Collateral Documents, agreements,
financing statements and documents as the Administrative Agent or the Requisite
Lenders may reasonably request and deliver the capital stock of such New Venture
Entity to the Administrative Agent as additional Pledged Collateral (Nevada)
under the Pledge Agreement (Nevada), subject to any necessary Gaming Board
approval (which Parent agrees to use its best efforts to obtain).
8.3 ADDITIONAL REAL PROPERTY. Upon the acquisition by Parent or
any Restricted Subsidiary after the Closing Date of any Real Property, promptly
provide to the Administrative Agent such deeds of trust in the form of the Deed
of Trust (Fee) and/or Deed of Trust (Leasehold), as applicable, covering such
Real Property, together with such appraisals, title insurance policies and
environmental reports as the Administrative Agent or Requisite Lenders may
reasonably request.
8.4 ADDITIONAL VESSELS. Upon the acquisition by Parent or any
Restricted Subsidiary after the Closing Date of any vessel documented under the
Laws of the United States of America, promptly provide to the Administrative
Agent a duly executed preferred ship mortgage in the form of the Preferred Ship
Mortgage covering such vessel, and upon the acquisition after the Closing Date
of any vessel that is not so documented, promptly provide to the Administrative
Agent such other appropriate Collateral Documents with respect thereto as the
Administrative Agent may request, together in each case with such related legal
opinions, certificates and other documentation as the Administrative Agent or
Requisite Lenders may reasonably request.
8.5 ADDITIONAL CAPITAL STOCK. Upon the acquisition by Parent of
any capital stock (or other equity interest, in the case of Person that is not a
corporation) in any New Venture Entity, deliver the certificates evidencing such
capital stock (or other equity interest) to the Administrative Agent in pledge
pursuant to a pledge agreement substantially identical to the Pledge Agreements,
subject to any required approval of a Gaming Board (which Parent agrees to use
its best efforts to obtain).
-57-
8.6 DESIGNATED SENIOR INDEBTEDNESS. Upon the issuance of any
Subordinated Obligations, deliver to the trustee under the related indenture a
written statement (in a form reasonably acceptable to the Administrative Agent)
designating the Obligations as "Designated Senior Indebtedness" thereunder.
8.7 PLEDGE AGREEMENT (MISSOURI). Use its best efforts to obtain,
and diligently pursue such best efforts until released from this covenant by the
Requisite Lenders, the approval of the Missouri Gaming Commission to the
execution and delivery by Parent of the Pledge Agreement (Missouri) and the
delivery to the Administrative Agent of the Pledged Collateral (Missouri), and
promptly following the obtaining of such approval, execute and deliver the
Pledge Agreement (Missouri) and deliver the Pledged Collateral (Missouri) to the
Administrative Agent, together with such related legal opinions, certificates
and other documentation as the Administrative Agent and the Requisite Lenders
may reasonably request.
8.8 PLEDGE AGREEMENT (NEVADA). Use its best efforts to obtain,
and diligently pursue such best efforts until released from this covenant by the
Requisite Lenders, the approval of the Nevada Gaming Commission to the execution
and delivery by Parent of an amendment to the Pledge Agreement (Nevada) to add
the Obligations as secured obligations thereunder, and promptly following the
obtaining of such approval, execute and deliver such amendment to the Pledge
Agreement (Nevada), together with such related legal opinions, certificates and
other documentation as the Administrative Agent and the Requisite Lenders may
reasonably request.
-58-
Article 9
PARENT NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Parent shall
not, and shall not permit any of the Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 14.2, of all of the Lenders) otherwise consents:
9.1 RESTRICTED PAYMENTS. Make any Restricted Payment, UNLESS:
(a) at the time of and after giving effect to the proposed
Restricted Payment, no Default or Event of Default shall have
occurred and be continuing; and
(b) at the time of and after giving effect to the
proposed Restricted Payment (the value of which, if in a form
other than Cash, shall be determined in good faith by the
Board of Directors of Parent, whose determination shall be
conclusive and evidenced by a board resolution), the aggregate
amount of all Restricted Payments declared or made after June
2, 1993, shall not exceed the sum of, without duplication, (i)
50% of the cumulative Consolidated Net Income (or if such
cumulative Consolidated Net Income shall be a loss, 100% of
such loss) accrued after June 2, 1993, less any negative
extraordinary charges not reflected in Consolidated Net
Income; (ii) an amount equal to the Net Proceeds received by
Parent from the issuance and sale (other than to a Subsidiary)
after June 2, 1993 of capital stock (EXCLUDING Exchangeable
Stock, Redeemable Stock and capital stock issued in exchange
for previously outstanding shares of capital stock if such
exchange did not constitute a Restricted Payment); (iii)
$15,000,000; and (iv) an amount equal to 50% of any dividends
received (to the extent not included in Consolidated Net
Income) by Parent, Borrowers or a Restricted Subsidiary that
is a Wholly-Owned Subsidiary after the date of this Agreement
from an Unrestricted New Venture Entity; PROVIDED, however,
that Net Proceeds received from the sale of the stock of
Borrowers and the Sibling Guarantors, or any successor or
assignee thereof, by Parent shall not be included in clause
(ii) above.
For purposes of any calculation pursuant to the preceding
sentence which is required to be made within 60 days after the declaration of a
dividend by Parent or any Subsidiary, such dividend shall be deemed to be paid
at the date of declaration, and the subsequent payment of such dividend during
such 60-day period shall not be treated as an additional Restricted Payment.
Notwithstanding the foregoing, the provisions of this Section 9.1
will not prevent the payment of any dividend within 60 days after the date
-59-
of its declaration if at the date of declaration such payment would be
permitted by this Section.
Prior to making any Restricted Payment, Parent will deliver to
the Administrative Agent an Officers' Certificate (dated the date of such
proposed payment) stating (a) that such proposed payment will be in compliance
with this Section and (b) no Default or Event of Default under this Section has
occurred or will occur as a result of such proposed payment.
9.2 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired, EXCEPT:
(a) a Disposition by a Restricted Subsidiary to Parent or to a
Borrower;
(b) a Disposition of any of the Peripheral Assets (and upon any
such Disposition, any Sibling Guarantor which is the subject of such
Disposition shall be released from the Sibling Guaranty);
(c) Dispositions of Property with an aggregate book value or fair
market value (whichever is greater) in any Fiscal Year not exceeding
$5,000,000; and
(d) Dispositions of Investments (OTHER THAN Investments in a
Subsidiary of Parent that is not an Immaterial Subsidiary);
PROVIDED that the applicability of this Section to any gaming license issued by
the State of Nevada, or to any Person that holds such a gaming license, is
subject to the approval of the Nevada Gaming Commission (if required by
applicable Law) or, if not so required, to the receipt by Parent of written
confirmation by the Nevada Gaming Commission that it is not so required (and
Parent agrees to use its best efforts to promptly obtain such approval or
written confirmation).
9.3 MERGERS. Merge or consolidate with or into any Person,
EXCEPT (a) mergers or consolidations permitted by Section 6.2 and (b) mergers
and consolidations of a Restricted Subsidiary into another Restricted
Subsidiary, into a Borrower or into Parent.
9.4 HOSTILE ACQUISITIONS. Directly or indirectly use any moneys
received from any Borrower that represent the proceeds of any Loan in connection
with the acquisition of part or all of a voting interest of five percent (5%) or
more in any corporation or other business entity if such acquisition is opposed
by the board of directors or management of such corporation or business entity.
9.5 [INTENTIONALLY OMITTED]
9.6 ERISA. (a) At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code), (ii) fail to comply with ERISA or any other
-60-
applicable Laws, (iii) incur any material "accumulated funding deficiency" (as
defined in Section 302 of ERISA), or (iv) terminate in any manner, which, with
respect to each event listed above, could reasonably be expected to result in a
Material Adverse Effect, or (b) withdraw, completely or partially, from any
Multiemployer Plan if to do so could reasonably be expected to result in a
Material Adverse Effect.
9.7 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Parent and its Subsidiaries, taken as a whole.
9.8 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in SCHEDULE 4.7 and any renewals or extensions thereof;
PROVIDED that the obligations secured or benefited thereby are not
increased;
(d) Liens securing the Revolver that are pari passu with the
Liens under the Collateral Documents, subject to the Intercreditor
Agreement, and Negative Pledges under the Revolving Loan Agreement;
(e) Liens on Property acquired by Parent or any of the Restricted
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such
acquisition and Negative Pledges limited to such Property;
(f) Liens securing Indebtedness permitted by Section 9.9(A) on
and limited to the capital assets acquired, constructed or financed
with the proceeds of such Indebtedness or with the proceeds of any
Indebtedness directly or indirectly refinanced by such Indebtedness
and Negative Pledges limited to such capital assets;
(g) Liens consisting of, or on assets owned by other Persons
which are leased to Parent under, an operating lease excluded from the
definition of Indebtedness and Negative Pledges limited to such
assets;
(h) Liens consisting of Cash deposits to secure obligations of
Parent or any Restricted Subsidiary under an operating lease of one or
more aircraft PROVIDED that the aggregate amount of
-61-
such deposits does not exceed $2,500,000;
PROVIDED that the applicability of this Section to any gaming license issued by
the State of Nevada, or to any Person that holds such a gaming license, is
subject to the approval of the Nevada Gaming Commission (if required by
applicable Law) or, if not so required, to the receipt by Parent of written
confirmation by the Nevada Gaming Commission that it is not so required (and
Parent agrees to use its best efforts to promptly obtain such approval or
written confirmation).
9.9 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur,
assume guarantee or suffer to exist any Indebtedness or Guaranty Obligation, or
permit Borrowers or any Restricted Subsidiary to do so, EXCEPT:
(a) Indebtedness which is non-recourse to Parent, Borrowers or
any Restricted Subsidiary the proceeds of which will be used to
finance the acquisition or lease by Parent, Borrowers or a Restricted
Subsidiary of furniture, fixtures or equipment used in the operation
of its business and secured by a Lien on such assets;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness and Guaranty Obligations under the Revolving
Loan Agreement and related loan documents or expressly permitted
thereby;
(d) the Existing Subordinated Debt;
(e) PROVIDED no Event of Default shall have occurred and be
continuing, other Indebtedness of Parent, Borrowers and Restricted
Subsidiaries in an amount not to exceed $15,000,000 in aggregate
principal amount;
(f) additional Indebtedness of Parent, Borrowers and Restricted
Subsidiaries, if at the time of the incurrence of such Indebtedness,
the pro forma Consolidated Coverage Ratio, calculated cumulatively for
the four most recent consecutive Fiscal Quarters and ending prior to
the date of incurrence (the "Reference Period"), is not less than 2.00
to 1.00, after giving effect to (i) the incurrence of such
Indebtedness as if such Indebtedness was incurred at the beginning of
the Reference Period and (if applicable) the application of the net
proceeds thereof to refinance other Indebtedness as if the application
of such proceeds occurred at the beginning of the Reference Period and
(ii) the acquisition or disposition of any company or business
acquired or disposed of by Parent, Borrowers or any Restricted
Subsidiary since the first day of the Reference Period, INCLUDING any
acquisition or disposition which will be consummated contemporaneously
with the incurrence of such Indebtedness, as if such acquisition or
disposition occurred at the beginning of the Reference Period;
-62-
(g) Permitted Refinancing Indebtedness;
(h) Indebtedness incurred under the Revolving Loan Agreement not
to exceed the greater of (i) $200,000,000 or (ii) 1.5 times Operating
Cash Flow calculated cumulatively for the four most recent consecutive
Fiscal Quarters of Parent immediately preceding the date on which such
Indebtedness is incurred, PROVIDED that the exception in this clause
(h) shall not be applicable to any Indebtedness incurred in
refinancing the Revolving Loan Agreement if the managing agent for the
lenders of such refinancing Indebtedness is a Person OTHER THAN a
banking institution with over $500,000,000 in assets and subject to
supervision and examination by federal or state banking authorities;
(i) Swap Agreements covering solely Indebtedness of Parent,
Borrowers or any Restricted Subsidiary which is otherwise permitted to
be incurred pursuant to this Section;
(j) Indebtedness to Parent or a Restricted Subsidiary that is a
Wholly-Owned Subsidiary; and
(k) to the extent that such incurrence does not result in the
incurrence by Parent, Borrowers or any Restricted Subsidiary of any
obligation for the payment of borrowed money of others, Indebtedness
incurred solely as a result of the execution by Parent, Borrowers or
Restricted Subsidiaries of a Completion Guarantee and Keep-Well
Agreement; PROVIDED, however, that the foregoing exception shall not
be applicable to Indebtedness incurred in connection with the
performance by Parent, Borrowers or Restricted Subsidiaries of a
Completion Guarantee and Keep-Well Agreement.
9.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Parent OTHER THAN (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors of Parent and expressly authorized by a resolution of the
board of directors of Parent which is approved by a majority of the directors
not having an interest in the transaction, (c) transactions between or among any
of Parent, Borrowers and the Restricted Subsidiaries, and (d) transactions on
overall terms at least as favorable to Parent or the Restricted Subsidiaries as
would be the case in an arm's-length transaction between unrelated parties of
equal bargaining power.
9.11 [INTENTIONALLY OMITTED]
9.12 [INTENTIONALLY OMITTED]
9.13 [INTENTIONALLY OMITTED]
9.14 [INTENTIONALLY OMITTED]
-63-
9.15 [INTENTIONALLY OMITTED]
9.16 AMENDMENTS TO OTHER FINANCIAL INSTRUMENTS. Amend or modify
any term or provision of any indenture, agreement or instrument evidencing or
governing any Subordinated Obligation or Permitted Preferred Stock in any
respect that will or may adversely affect the interests of the Lenders.
-64-
Article 10
INFORMATION AND REPORTING REQUIREMENTS
10.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrowers shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrowers' sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 30 days after
the end of each calendar month, a consolidated and consolidating (in
accordance with past consolidating practices of Parent) summary
statement of operations of Parent and its Subsidiaries for such
calendar month, in a form reasonably acceptable to the Administrative
Agent, together with a written report as to current operating data and
a narrative statement discussing any significant trends reflected
therein;
(b) As soon as practicable, and in any event within 60 days after
the end of each Fiscal Quarter (OTHER THAN the fourth Fiscal Quarter
in any Fiscal Year), (i) the consolidated balance sheet of Parent and
its Subsidiaries as at the end of such Fiscal Quarter and the
consolidated statement of operations for such Fiscal Quarter, and its
statement of cash flows for the portion of the Fiscal Year ended with
such Fiscal Quarter and (ii) the consolidating (in accordance with
past consolidating practices of Parent) balance sheets and statements
of operations as at and for the portion of the Fiscal Year ended with
such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer of Parent as fairly
presenting the financial condition, results of operations and cash
flows of Parent and its Subsidiaries in accordance with Generally
Accepted Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject
only to normal year-end accruals and audit adjustments;
(c) [Intentionally Omitted]
(d) As soon as practicable, and in any event within 120 days
after the end of each Fiscal Year, (i) the consolidated balance sheet
of Parent and its Subsidiaries as at the end of such Fiscal Year and
the consolidated statements of operations, stockholders' equity and
cash flows, in each case of Parent and its Subsidiaries for such
Fiscal Year and (ii) consolidating (in accordance with past
consolidating practices of Parent) balance sheets and statements of
operations, in each case as at the end of and for the Fiscal Year, all
in reasonable detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles, consistently
applied, and such consolidated
-65-
balance sheet and consolidated statements shall be accompanied by a
report of independent public accountants of recognized standing
selected by Parent and reasonably satisfactory to the Requisite
Lenders, which report shall be prepared in accordance with generally
accepted auditing standards as at such date, and shall not be subject
to any qualifications or exceptions as to the scope of the audit nor
to any other qualification or exception determined by the Requisite
Lenders in their good faith business judgment to be adverse to the
interests of the Lenders. Such accountants' report shall be
accompanied by a certificate stating that, in making the examination
pursuant to generally accepted auditing standards necessary for the
certification of such financial statements and such report, such
accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants
have reviewed Parent's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections
9.1 and 9.9, have read such Sections (including the definitions of all
defined terms used therein) and that nothing has come to the attention
of such accountants in the course of such examination that would cause
them to believe that the same were not calculated by Parent in the
manner prescribed by this Agreement;
(e) As soon as practicable, and in any event within 45 days after
the commencement of each Fiscal Year, a budget and projection by
Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next
four succeeding Fiscal Years, INCLUDING for the first such Fiscal
Year, projected consolidated and consolidating balance sheets,
statements of operations and statements of cash flow and, for the
second and third such Fiscal Years, projected consolidated and
consolidating condensed balance sheets and statements of operations
and cash flows, of Parent and its Subsidiaries, all in reasonable
detail;
(f) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of Parent by independent
accountants in connection with the accounts or books of Parent or any
of its Subsidiaries, or any audit of any of them;
(g) [Intentionally Omitted]
(h) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication
sent to the stockholders of Parent, and copies of all annual, regular,
periodic and special reports and registration statements which Parent
may file or be required to file with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, and not otherwise required to be delivered to the
Lenders pursuant to other provisions of this Section 10.1;
-66-
(i) Promptly after the same are available, copies of the Nevada
"Regulation 6.090 Report" and "6-A Report", and copies of any written
communication to Parent or Borrowers from any Gaming Board advising it
of a violation of or non-compliance with any Gaming Law by Parent, any
Borrower or any Sibling Guarantor;
(j) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrowers with any Governmental Agency;
(k) Promptly upon a Senior Officer of any Borrower becoming
aware, and in any event within ten (10) Banking Days after becoming
aware, of the occurrence of any (i) "reportable event" (as such term
is defined in Section 4043 of ERISA) or (ii) "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) in connection with any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature thereof, and, no
more than five (5) Banking Days after such telephonic notice, written
notice again specifying the nature thereof and specifying what action
Borrowers is taking or proposes to take with respect thereto, and,
when known, any action taken by the Internal Revenue Service with
respect thereto;
(l) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer of any Borrower becomes aware of
the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period
of existence thereof, and, no more than two (2) Banking Days after
such telephonic notice, written notice again specifying the nature and
period of existence thereof and specifying what action Borrowers are
taking or propose to take with respect thereto;
(m) Promptly upon a Senior Officer of any Borrower becoming
aware that (i) any Person has commenced a legal proceeding with
respect to a claim against any Borrower that is $10,000,000 or more in
excess of the amount thereof that is fully covered by insurance, (ii)
any creditor under a credit agreement involving Indebtedness of
$10,000,000 or more or any lessor under a lease involving aggregate
rent of $10,000,000 or more has asserted a default thereunder on the
part of any Borrower, (iii) any Person has commenced a legal
proceeding with respect to a claim against any Borrower under a
contract that is not a credit agreement or material lease in excess of
$10,000,000 or which otherwise may reasonably be expected to result in
a Material Adverse Effect, (iv) any labor union has notified any
Borrower of its intent to strike such Borrower on a date certain and
such strike would involve more than 100 employees of such Borrower or
(v) any Gaming Board has indicated its intent to consider or act upon
a License Revocation or a fine or penalty of $1,000,000 or more with
respect to any Borrower, a written notice describing the pertinent
facts relating thereto and what action such Borrower is taking or
proposes to take with respect thereto; and
-67-
(n) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through
the Administrative Agent) or the Requisite Lenders.
10.2 COMPLIANCE CERTIFICATES. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion
of the Commitment remains outstanding, Borrowers shall, at Borrowers' sole
expense, deliver to the Administrative Agent for distribution by it to the
Lenders concurrently with the financial statements required pursuant to
Sections 10.1(B) and 10.1(D), Compliance Certificates signed by a Senior
Officer of Borrowers.
-68-
Article 11
CONDITIONS
11.1 INITIAL ADVANCE. The obligation of each Lender to make the
initial Advance to be made by it is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise
specified, each properly executed by a Responsible Official of each
Party thereto, each dated as of the Closing Date and each in form and
substance satisfactory to the Administrative Agent and its legal
counsel (unless otherwise specified or, in the case of the date of any
of the following, unless the Administrative Agent otherwise agrees or
directs):
(1) at least one (1) executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative
Agent for additional executed counterparts, sufficient in number
for distribution to the Lenders and Borrowers;
(2) a Note executed by Borrowers in favor of each Lender, in
a principal amount equal to that Lender's Pro Rata Share of the
Commitment;
(3) the Omnibus Documents Amendment executed by Borrowers,
Parent and the Sibling Guarantors;
(4) such financing statements on Form UCC-1 executed by
Borrowers with respect to the Security Agreement as the
Administrative Agent may request;
(5) a Deed of Trust Amendment with respect to the Palace
Deed of Trust executed by Palace;
(6) a Deed of Trust Amendment with respect to the Boulder
Deed of Trust executed by Boulder;
(7) a Deed of Trust Amendment with respect to the Texas
Deed of Trust executed by Texas;
(8) a Deed of Trust Amendment with respect to the St.
Xxxxxxx Deed of Trust executed by St. Xxxxxxx;
(9) a Deed of Trust Amendment with respect to each of the
Kansas City Deeds of Trust executed by Kansas City;
(10) a Deed of Trust Amendment with respect to the
-69-
Sunset Deed of Trust executed by Sunset;
(11) the Intercreditor Agreement executed by the Collateral
Agent and the Revolver Agent;
(12) a written acknowledgment from First Security Trust
Company of Nevada to the effect that the Sunset Intercreditor
Agreement remains effective and applicable;
(13) assurances from the Title Company that it is prepared
to issue such endorsements with respect to the title insurance
policies issued in connection with the Existing Loan Agreement
as the Administrative Agent may reasonably require, and with
such assurances as the Administrative Agent may reasonably
require from title re-insurers acceptable to the Administrative
Agent;
(14) with respect to each Borrower and each of the
Guarantors, such documentation as the Administrative Agent may
require to establish the due organization, valid existence and
good standing of such Borrower and each such Guarantor, its
qualification to engage in business in each material jurisdiction
in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform any Loan
Documents to which it is a Party, the identity, authority and
capacity of each Responsible Official thereof authorized to act
on its behalf, INCLUDING certified copies of articles of
incorporation and amendments thereto, bylaws and amendments
thereto, certificates of good standing and/or qualification to
engage in business, tax clearance certificates, certificates of
corporate resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(15) the Opinions of Counsel, together with copies of all
factual certificates and legal opinions delivered to such
counsel in connection with such opinion upon which such counsel
has relied;
(16) a certificate of insurance issued by Borrowers'
insurance carrier or agent with respect to the insurance required
to be maintained pursuant to the Deeds of Trust, together with
lenders' loss payable endorsements thereof on Form 438BFU or
other form acceptable to the Administrative Agent;
(17) written confirmations from the landlords of all
leaseholds covered by the Deeds of Trust confirming that the
respective Landlord Consent previously delivered in connection
with the Existing Loan Agreement remains effective;
(18) such assurances as the Administrative Agent deems
appropriate that the relevant Gaming Boards have approved
-70-
the transactions contemplated by the Loan Documents to the extent
that such approval is required by applicable Gaming Laws;
(19) a Certificate of a Senior Officer of Parent certifying
that incurrence by Borrowers of the Obligations will not violate
the Indentures governing any Subordinated Obligation;
(20) a Certificate of a Senior Officer of each of the
Borrowers certifying that the conditions specified in Sections
11.1(G) and 11.1(H) have been satisfied; and
(21) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Requisite
Lenders reasonably may require.
(b) The arrangement fee payable pursuant to Section 3.2 shall
have been paid.
(c) Any agency fees payable on the Closing Date pursuant to
Section 3.5 shall have been paid.
(d) The Revolving Loan Agreement shall concurrently close.
(e) The Term Loan (as such term is defined in the Existing Loan
Agreement) shall be concurrently repaid (with interest) in full.
(f) The reasonable costs and expenses of the Administrative Agent
in connection with the preparation of the Loan Documents payable
pursuant to Section 14.3, and invoiced to Borrowers prior to the
Closing Date, shall have been paid.
(g) Parent shall have delivered to the trustees under the
Indentures governing all Subordinated Obligations a written statement
designating the Obligations as "Designated Senior Indebtedness" under
such Indentures.
(h) The representations and warranties of Borrowers contained in
ARTICLE 4 shall be true and correct.
(i) Borrowers and any other Parties shall be in compliance with
all the terms and provisions of the Loan Documents, and giving effect
to the initial Advance no Default or Event of Default shall have
occurred and be continuing.
(j) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP, special
counsel to the Administrative Agent.
-71-
(k) The Closing Date shall have occurred on or before October
31, 1999.
11.2 [INTENTIONALLY OMITTED]
11.3 [INTENTIONALLY OMITTED]
-72-
Article 12
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
12.1 EVENTS OF DEFAULT. The existence or occurrence of any one
or more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrowers fail to pay any principal on any of the Notes, or
any portion thereof, on the date when due; or
(b) Borrowers fail to pay any interest on any of the Notes, or
any fees under Sections 3.4 or 3.5, or any portion thereof, within two
(2) Banking Days after the date when due; or fail to pay any other fee
or amount payable to the Lenders under any Loan Document, or any
portion thereof, within five (5) Banking Days after demand therefor;
or
(c) Borrowers fail to comply with any of the covenants contained
in ARTICLE 6 or Parent fails to comply with any of the covenants
contained in ARTICLE 9; or
(d) Borrowers fail to comply with Section 10.1(l) in any respect
that is materially adverse to the interests of the Lenders; or
(e) Borrowers or any other Party fails to perform or observe any
other covenant or agreement (not specified in clause (A), (B), (C) or
(D) above) contained in any Loan Document on its part to be performed
or observed within twenty (20) Banking Days after the giving of notice
by the Administrative Agent on behalf of the Requisite Lenders of such
Default; or
(f) Any representation or warranty of Borrowers or any of the
Guarantors made in any Loan Document, or in any certificate or other
writing delivered by Borrowers or such Guarantor pursuant to any Loan
Document, proves to have been incorrect when made or reaffirmed in any
respect that is materially adverse to the interests of the Lenders; or
(g) Borrowers or any of the Guarantors (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $10,000,000 or more (EXCEPT under the Revolving Loan
Agreement), or any guaranty of present or future Indebtedness of
$10,000,000 or more (EXCEPT under the Revolving Loan Agreement), on
its part to be paid, when due (or within any stated grace period),
whether at the stated maturity, upon acceleration, by reason of
required prepayment or otherwise or (ii) fails to perform or observe
any other term, covenant or agreement on its part to be performed or
observed, or suffers any event of default to occur, in connection with
any present or future Indebtedness of $10,000,000 or more (EXCEPT
under the Revolving Loan Agreement), or of any guaranty of
-73-
present or future Indebtedness of $10,000,000 or more (EXCEPT under
the Revolving Loan Agreement), if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on
its or their behalf) has the right to declare such Indebtedness due
before the date on which it otherwise would become due or the right to
require Borrowers or any of the Guarantors to redeem or purchase, or
offer to redeem or purchase, all or any portion of such Indebtedness
(PROVIDED, that for the purpose of this clause (g), the principal
amount of Indebtedness consisting of a swap agreement shall be the
amount which is then payable by the counterparty to close out the swap
agreement); or
(h) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their
behalf) the right to declare such Subordinated Obligation due before
the date on which it otherwise would become due, or the right to
require the issuer thereof to redeem or purchase, or offer to redeem
or purchase, all or any portion of any Subordinated Obligation; or the
trustee for, or any holder of, a Subordinated Obligation breaches any
subordination provision applicable to such Subordinated Obligation; or
(i) Any Loan Document (OTHER THAN a Secured Swap Agreement), at
any time after its execution and delivery and for any reason, OTHER
THAN the agreement or action (or omission to act) of the
Administrative Agent or the Lenders or satisfaction in full of all the
payment Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void,
invalid or unenforceable in any respect which is materially adverse to
the interests of the Lenders; or any Collateral Document ceases (OTHER
THAN by action or inaction of the Administrative Agent or any Lender)
to create a valid and effective Lien in any material Collateral
covered thereby; or any Party thereto denies in writing that it has
any or further liability or obligation under any (other than a Secured
Swap Agreement) Loan Document, or purports to revoke, terminate or
rescind same; or
(j) A final judgment against any of (i) Borrowers, (ii) Parent
or (iii) any Sibling Guarantor that then has total assets of
$10,000,000 or more is entered for the payment of money in excess of
$5,000,000 (not covered by insurance or for which an insurer has
reserved its rights) and, absent procurement of a stay of execution,
such judgment remains unsatisfied for thirty (30) calendar days after
the date of entry of judgment, or in any event later than five (5)
days prior to the date of any proposed sale thereunder; or any writ or
warrant of attachment or execution or similar process is issued or
levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty (30)
calendar days after its issue or levy; or
(k) Any of (i) Borrowers, (ii) Parent or (iii) any Sibling
Guarantor that then has total assets of $10,000,000 or more
-74-
institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or any material part of its
Property, or is unable or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator
or similar officer for it or for all or any material part of its
Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for sixty (60)
calendar days; or
(l) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document)
applicable to any Borrower or other Party (EXCLUDING an Event of
Default applicable to a counterparty other than any Borrower under a
Secured Swap Agreement) under any other Loan Document; or
(m) A final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(n) Any Pension Plan maintained by Parent or any of its
Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess
of an amount equal to 5% of the consolidated total assets of Parent
and its Subsidiaries as of the most-recently ended Fiscal Quarter; or
(o) The occurrence of a License Revocation that continues for
three (3) consecutive calendar days; or
(p) The occurrence of an Event of Default (as such term is
defined in the Revolving Loan Agreement) under the Revolving Loan
Agreement and the expiration of thirty (30) days thereafter without
the cure thereof by Borrowers or waiver thereof by the Revolver
Lenders.
12.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default OTHER THAN an Event of Default described in Section 12.1(K)
with respect to any Borrower:
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
-75-
rights of Borrowers and any other Parties under the Loan
Documents shall be suspended without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, EXCEPT that
all of the Lenders or the Requisite Lenders (as the case may be,
in accordance with Section 14.2) may waive an Event of Default
or, without waiving, determine, upon terms and conditions
satisfactory to the Lenders or Requisite Lenders, as the case may
be, to reinstate the Commitment and such other obligations and
rights and make further Advances, which waiver or determination
shall apply equally to, and shall be binding upon, all the
Lenders; and
(2) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate
the Commitment and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice
of dishonor, demand or further notice of any kind, all of which
are expressly waived by Borrowers.
(b) Upon the occurrence of any Event of Default described in
Section 12.1(K) with respect to any Borrower:
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrowers and any other Parties under the Loan
Documents shall terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, EXCEPT that
all of the Lenders may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to all
the Lenders, to reinstate the Commitment and such other
obligations and rights and make further Advances, which
determination shall apply equally to, and shall be binding upon,
all the Lenders; and
(2) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrowers.
(c) Upon the occurrence of any Event of Default, the Lenders and
the Administrative Agent, or any of them, without notice to (EXCEPT as
expressly provided for in any Loan Document) or demand upon Borrowers,
which are expressly waived by Borrowers (EXCEPT as to notices
expressly provided for in any Loan Document), may proceed (but only
with the consent of the Requisite Lenders) to protect, exercise and
enforce their rights and remedies under the Loan Documents against
Borrowers and any other Party and such other rights
-76-
and remedies as are provided by Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied
first to the costs and expenses (including reasonable attorneys' fees
and disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate payment
Obligations owed to each Lender under the Loan Documents bear to the
aggregate payment Obligations owed under the Loan Documents to all the
Lenders, without priority or preference among the Lenders. Regardless
of how each Lender may treat payments for the purpose of its own
accounting, for the purpose of computing Borrowers' payment
Obligations hereunder and under the Notes, payments of the proceeds
from the exercise of the Lenders' rights and remedies shall be applied
FIRST, to the costs and expenses of the Administrative Agent and the
Lenders, as set forth above, SECOND, to the payment of accrued and
unpaid interest due under any Loan Documents to and including the date
of such application (ratably, and without duplication, according to
the accrued and unpaid interest due the Lenders under each of the Loan
Documents), and THIRD, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the
Lenders under the Loan Documents. No application of payments of the
proceeds from the exercise of the Lenders' rights and remedies will
cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity for the
collection or recovery of all unpaid payment Obligations.
-77-
Article 13
THE ADMINISTRATIVE AGENT
13.1 APPOINTMENT AND AUTHORIZATION. Subject to Section 13.8,
each Lender hereby irrevocably appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other purpose and, EXCEPT as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and ministerial capacity.
13.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America
National Trust and Savings Association (and each successor Administrative Agent)
has the same rights and powers under the Loan Documents as any other Lender and
may exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders" includes Bank of America, N.A. in its individual
capacity. Bank of America, N.A. (and each successor Administrative Agent) and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust or other business with Borrowers, any Subsidiary
thereof, or any Affiliate of Borrowers or any Subsidiary thereof, as if it were
not the Administrative Agent and without any duty to account therefor to the
Lenders. Bank of America, N.A. (and each successor Administrative Agent) need
not account to any other Lender for any monies received by it for reimbursement
of its costs and expenses as Administrative Agent hereunder, or for any monies
received by it in its capacity as a Lender hereunder. The Administrative Agent
shall not be deemed to hold a fiduciary relationship with any Lender and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent.
13.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents all items of any collateral or interests therein
received or held by the Administrative Agent. Subject to the Administrative
Agent's and the Lenders' rights to reimbursement for their costs and expenses
hereunder (INCLUDING reasonable attorneys' fees and disbursements and other
professional services and the reasonably allocated costs of attorneys employed
by the Administrative Agent or a Lender) and subject to the application of
payments in accordance with Section 12.2(D), each Lender shall have an interest
in the Lenders' interest in the Collateral or interests therein in the same
proportions that the aggregate Obligations owed such Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders, EXCEPT that
Obligations owed to any Lender (or Affiliate of a Lender) under a Secured Swap
Agreement shall
-78-
be secured on a PARI PASSU basis with all other Obligations up
to an amount equal to the Administrative Agent's then customary credit risk
factor for Swap Agreements times the notional amount of Indebtedness covered by
such Secured Swap Agreement and shall be secured on a subordinate basis as to
amounts in excess of such amount.
13.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrowers and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
13.5 ACTION BY ADMINISTRATIVE AGENT.
(a) Absent actual knowledge of the Administrative Agent of
the existence of a Default, the Administrative Agent may assume
that no Default has occurred and is continuing, unless the
Administrative Agent (or the Lender that is then the
Administrative Agent) has received notice from Borrowers stating
the nature of the Default or has received notice from a Lender
stating the nature of the Default and that such Lender considers
the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume
that no Event of Default has occurred and is continuing, the
Administrative Agent may, but shall not be required to, exercise
its discretion to act or not act, EXCEPT that the Administrative
Agent shall be required to act or not act upon the instructions
of the Requisite Lenders (or of all the Lenders, to the extent
required by Section 11.2) and those instructions shall be binding
upon the Administrative Agent and all the Lenders, PROVIDED that
the Administrative Agent shall not be required to act or not act
if to do so would be contrary to any Loan Document or to
applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall
immediately give notice thereof to the Lenders and shall act or
not act upon the instructions of the Requisite Lenders (or of all
the Lenders, to the extent required by Section 14.2), PROVIDED
that the Administrative
-79-
Agent shall not be required to act or not act if to do so would
be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent,
in substantial risk of liability to the Administrative Agent, and
EXCEPT that if the Requisite Lenders (or all the Lenders, if
required under Section 14.2) fail, for five (5) Banking Days
after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent,
in its sole discretion, may act or not act as it deems advisable
for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite
Lenders (or all the Lenders, if required under Section 14.2),
notwithstanding any other provision hereof.
13.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, EXCEPT for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the Administrative
Agent, signed by the payee, and may treat each Lender as the
owner of that Lender's interest in the Obligations for all
purposes of this Agreement until the Administrative Agent
receives notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by that Lender.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrowers
and/or their Subsidiaries or the Lenders, and shall not be liable
for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or
other professionals or experts.
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan
Documents or in any notice, certificate, report, request or other
statement (written or oral) given or made in connection with any
of the Loan Documents.
(d) EXCEPT to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the
performance or observance by Parent or its Subsidiaries of any of
the terms, conditions or covenants of any of the Loan Documents
or to
-80-
inspect any Collateral or the Property, books or records of
Parent or its Subsidiaries.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any
other instrument or writing furnished pursuant thereto or in
connection therewith, or any Collateral.
(f) Will not incur any liability to any Lender by acting or
not acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing
believed in good faith by it to be genuine and signed or sent by
the proper party or parties.
(g) Will not incur any liability for any arithmetical error
in computing any amount paid or payable by the Borrowers or any
Subsidiary or Affiliate thereof or paid or payable to or received
or receivable from any Lender under any Loan Document, INCLUDING,
without limitation, principal, interest, commitment fees,
Advances and other amounts; PROVIDED that, promptly upon
discovery of such an error in computation, the Administrative
Agent, the Lenders and (to the extent applicable) Borrowers
and/or their Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore
the parties to the position that they would have occupied had the
error not occurred.
13.7 INDEMNIFICATION. Each Lender shall, ratably in accordance
with its Pro Rata Share of the Commitment (if the Commitment is then in effect)
or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes (if the Commitment has then been terminated), indemnify
and hold the Administrative Agent, the Co-Agents and their respective directors,
officers, agents, employees and attorneys harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (INCLUDING
reasonable attorneys' fees and disbursements and allocated costs of attorneys
employed by the Administrative Agent) that may be imposed on, incurred by or
asserted against it or them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the failure of Borrowers to
pay the Indebtedness represented by the Notes) or any action taken or not taken
by it as Administrative Agent thereunder, EXCEPT such as result from its own
gross negligence or willful misconduct. Without limitation on the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for that
Lender's Pro Rata Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization (INCLUDING a
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that Borrowers or any other Party is required by
Section 14.3 to pay that cost or expense but fails to do so upon demand. Nothing
in this Section 13.7 shall entitle the Administrative Agent or any indemnitee
referred to above
-81-
to recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrowers or any of their Subsidiaries. To the
extent that the Administrative Agent or any indemnitee referred to above is
later reimbursed such amount by Borrowers or any of its Subsidiaries, it shall
return the amounts paid to it by the Lenders in respect of such amount.
13.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrowers effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrowers (and such approval shall not be unreasonably withheld
or delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrowers, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE 13, and Sections 14.3,
14.11 and 14.22, 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.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid
its agency fees under Section 3.6 or has not been reimbursed for any expense
reimbursable to it under Section 14.3, in either case for a period of at least
one (1) year and (b) no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Administrative Agent as provided for above.
13.9 FORECLOSURE ON COLLATERAL. In the event of foreclosure or
enforcement of the Lien created by any of the Collateral Documents, title to the
Collateral covered thereby shall be taken and held by the Administrative Agent
(or an Affiliate or designee thereof) pro rata for the benefit of the Lenders in
accordance with the Obligations outstanding to each of them and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities.
13.10 NO OBLIGATIONS OF BORROWERS. Nothing contained in this
Article 13 shall be deemed to impose upon Borrowers any obligation in
-82-
respect of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and Borrowers
shall have no liability to the Administrative Agent or any of the Lenders in
respect of any failure by the Administrative Agent or any Lender to perform any
of its obligations to the Administrative Agent or the Lenders under this
Agreement. Without limiting the generality of the foregoing, where any provision
of this Agreement relating to the payment of any amounts due and owing under the
Loan Documents provides that such payments shall be made by Borrowers to the
Administrative Agent for the account of the Lenders, Borrowers' obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
13.11 AUTHORITY REGARDING CERTAIN DOCUMENTS. The Lenders hereby
expressly authorize the Administrative Agent to execute, deliver and perform
under, on behalf of the Lenders, (a) the Intercreditor Agreement, (b) the
"Corporate Securities Financial Compliance Affidavit" required by the Missouri
Gaming Commission and (c) any other affidavit, report, native or document
required by any Gaming Board.
-83-
Article 14
MISCELLANEOUS
14.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers,
privileges and remedies of the Administrative Agent and the Lenders provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of ARTICLE 11 hereof are
inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent's or the
Lenders' rights to assert them in whole or in part in respect of any other Loan.
14.2 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by the Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
any of the Borrowers or any of the Guarantors is a Party, signed by each such
Party, and, in the case of any amendment, modification or supplement to ARTICLE
13, signed by the Administrative Agent), and then only in the specific instance
and for the specific purpose given; and, without the approval in writing of all
the Lenders, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable
on, any Note, or the amount of the Commitment or the Pro Rata
Share of any Lender or the amount of any commitment fee payable
to any Lender, or any other fee or amount payable to any Lender
under the Loan Documents or to waive an Event of Default
consisting of the failure of Borrowers to pay when due principal,
interest or any commitment fee;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on,
any Note or any installment of any commitment fee, or to extend
the term of the Commitment.
(c) To release the Parent Guaranty, the Sibling Guaranty, or
any material portion of the Collateral EXCEPT as expressly
provided for in any Loan Document (PROVIDED that the
Administrative Agent is authorized to release the Lien created by
the Collateral Documents on (i) assets secured by Indebtedness
permitted by Section 9.9(A), (ii) assets which are the subject of
a Disposition
-84-
permitted by Section 6.1, (iii) assets the sale, transfer or
other disposition of which is not a Disposition, and (iv) assets
that are transferred to an Unrestricted New Venture Entity as a
contribution to its capital, and shall do so upon request of
Borrowers subject to such reasonable and customary requirements
as the Administrative Agent may specify);
(d) To amend the provisions of the definition of
"AMORTIZATION AMOUNT," "AMORTIZATION DATE," "REQUISITE LENDERS,"
or "MATURITY DATE"; or
(e) To amend or waive ARTICLES 11 or 12, this Section 14.2,
or Sections 6.3 or 9.4; or
(f) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 14.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
14.3 COSTS, EXPENSES AND TAXES. Borrowers shall pay within five
(5) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents and any amendment thereto or waiver thereof. Borrowers shall also pay
on demand, accompanied by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent and the Lenders in connection with the refinancing,
restructuring, reorganization (INCLUDING a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (INCLUDING reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrowers or any Subsidiary
thereof. Such costs and expenses shall also include, in the case of any
amendment or waiver of any Loan Document requested by Borrowers, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Borrowers shall pay any and all documentary and other taxes, EXCLUDING
(i) taxes imposed on or measured in whole or in part by its overall net income
imposed on it by (A) any jurisdiction (or political subdivision thereof) in
which it is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business" or (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with respect to
which it has failed to provide Borrowers with the appropriate form or forms
required by
-85-
Section 14.21, to the extent such forms are then required by applicable Laws,
and all costs, expenses, fees and charges payable or determined to be payable in
connection with the filing or recording of this Agreement, any other Loan
Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto,
and shall reimburse, hold harmless and indemnify on the terms set forth in 14.11
the Administrative Agent and the Lenders from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative Agent or any
Lender under this Section 14.3 shall bear interest from the second Banking Day
following the date of demand for payment at the Default Rate.
14.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Borrowers or any Affiliate of any of Borrowers. Each Lender's obligation to
make any Advance pursuant hereto is several and not joint or joint and several,
and in the case of the initial Advance only is conditioned upon the performance
by all other Lenders of their obligations to make initial Advances. A default by
any Lender will not increase the Pro Rata Share of the Commitment attributable
to any other Lender. Any Lender not in default may, if it desires, assume in
such proportion as the nondefaulting Lenders agree the obligations of any Lender
in default, but is not obligated to do so. The Administrative Agent agrees that
it will use its best efforts either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another Lender, reasonably
satisfactory to Borrowers, to replace such a Lender in default.
14.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
14.6 NOTICES. EXCEPT as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. EXCEPT as otherwise
-86-
expressly provided in any Loan Document, if any notice, request, demand,
direction or other communication required or permitted by any Loan Document is
given by mail it will be effective on the earlier of receipt or the fourth
Banking Day after deposit in the United States mail with first class or airmail
postage prepaid; if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid; if given by telecopier, when sent; if dispatched
by commercial courier, on the scheduled delivery date; or if given by personal
delivery, when delivered.
14.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative
Agent otherwise specifies with respect to any Loan Document, (a) this Agreement
and any other Loan Document may be executed in any number of counterparts and
any party hereto or thereto may execute any counterpart, each of which when
executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may be,
when taken together will be deemed to be but one and the same instrument and (b)
execution of any such counterpart may be evidenced by a telecopier transmission
of the signature of such party. The execution of this Agreement or any other
Loan Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
14.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which
Borrowers are a Party will be binding upon and inure to the benefit of
Borrowers, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, EXCEPT that Borrowers may not
assign their rights hereunder or thereunder or any interest herein or
therein without the prior written consent of all the Lenders. Any
attempted assignment by any Borrower in contravention of this Section
14.8(a) shall be null and void. Each Lender represents that it is not
acquiring its Note with a view to the distribution thereof within the
meaning of the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within the control
of such Lender). Any Lender may at any time pledge its Note or any
other instrument evidencing its rights as a Lender under this
Agreement to a Federal Reserve Bank, but no such pledge shall release
that Lender from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent foreclosure of
such pledge. Any Lender that is a fund that invests in bank loans may,
without the consent of the Administrative Agent or the Borrowers,
pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to any holders of obligations owed, or
securities issued, by such fund as security for such obligations or
securities, or to any trustee for, or any other representative of,
such holders; PROVIDED that any foreclosure or similar action by such
trustee shall be subject to the provisions of this Section concerning
assignments.
(b) From time to time following the Closing Date, each
-87-
Lender may assign to one or more Eligible Assignees all or any portion
of its Pro Rata Share of the Commitment; PROVIDED that (i) such
Eligible Assignee, if not then a Lender or an Affiliate or Related
Fund of a Lender, shall be approved by each of the Administrative
Agent and (if no Event of Default then exists) Borrowers (neither of
which approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by a Commitment Assignment and
Acceptance, a copy of which shall be furnished to the Administrative
Agent as hereinbelow provided, (iii) EXCEPT in the case of an
assignment to an Affiliate or Related Fund of the assigning Lender, to
another Lender or of the entire remaining Commitment of the assigning
Lender, the assignment shall not assign a Pro Rata Share of the
Commitment that is equivalent to less than $5,000,000, and (iv) the
effective date of any such assignment shall be as specified in the
Commitment Assignment and Acceptance, but not earlier than the date
which is five (5) Banking Days after the date the Administrative Agent
has received the Commitment Assignment and Acceptance. Upon the
effective date of such Commitment Assignment and Acceptance, the
Eligible Assignee named therein shall be a Lender for all purposes of
this Agreement, with the Pro Rata Share of the Commitment therein set
forth and, to the extent of such Pro Rata Share, the assigning Lender
shall be released from its further obligations under this Agreement.
Borrowers agree that they shall execute and deliver (against delivery
by the assigning Lender to Borrowers of its Note) to such assignee
Lender, a Note evidencing that assignee Lender's Pro Rata Share of the
Commitment, and to the assigning Lender, a Note evidencing the
remaining balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitment Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Pro Rata Share of the Commitment
being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or
the performance by Borrowers of the Obligations; (iii) it has received
a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 10.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) it will, independently and without reliance upon
the Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative
-88-
Agent to take such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by this
Agreement; and (vi) it will perform in accordance with their terms all
of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Commitment Assignment and Acceptance
delivered to it and a register (the "Register") of the names and
address of each of the Lenders and the Pro Rata Share of the
Commitment held by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be available during
normal business hours for inspection by Borrowers or any Lender upon
reasonable prior notice to the Administrative Agent. After receipt of
a completed Commitment Assignment and Acceptance executed by any
Lender and an Eligible Assignee, and receipt of an assignment fee of
$2,500 from such Lender or Eligible Assignee, the Administrative Agent
shall, promptly following the effective date thereof, provide to
Borrowers and the Lenders a revised SCHEDULE 1.1A giving effect
thereto. Borrowers, the Administrative Agent and the Lenders shall
deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the Pro Rata Share of the Commitment listed
therein for all purposes hereof, and no assignment or transfer of any
such Pro Rata Share of the Commitment shall be effective, in each case
unless and until a Commitment Assignment and Acceptance effecting the
assignment or transfer thereof shall have been accepted by the
Administrative Agent and recorded in the Register as provided above.
Prior to such recordation, all amounts owed with respect to the
applicable Pro Rata Share of the Commitment 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 Pro Rata Share of the
Commitment.
(e) Each Lender may from time to time grant participations to one
or more Lenders or other financial institutions (INCLUDING another
Lender) in a portion of its Pro Rata Share of the Commitment;
PROVIDED, HOWEVER, that (i) such Lender notifies the Administrative
Agent and Borrowers in writing at least five (5) Banking Days in
advance of granting such a participation, which notice shall identify
the proposed participant, (ii) the proposed participant (if not then a
Lender or an Affiliate of the granting Lender) shall be approved by
each of the Administrative Agent and (if no Event of Default then
exists) Borrowers (neither of which approvals shall be unreasonably
withheld or delayed), (iii) such Lender's obligations under this
Agreement shall remain unchanged, (iv) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (v) the participating Lenders or other financial
institutions shall not be a Lender hereunder for any purpose EXCEPT,
if the participation agreement so
-89-
provides, for the purposes of Sections 3.7, 3.8, 14.11 and 14.22 but
only to the extent that the cost of such benefits to Borrowers does
not exceed the cost which Borrowers would have incurred in respect of
such Lender absent the participation, (vi) Borrowers, the
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, (vii) the participation
interest shall be expressed as a percentage of the granting Lender's
Pro Rata Share of the Commitment as it then exists and shall not
restrict an increase in the Commitment, or in the granting Lender's
Pro Rata Share of the Commitment, so long as the amount of the
participation interest is not affected thereby and (viii) the consent
of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents OTHER THAN
those which (A) extend any Amortization Date, the Maturity Date or any
other date upon which any payment of money is due to the Lenders, (B)
reduce the rate of interest on the Notes, any fee or any other
monetary amount payable to the Lenders, (C) reduce the amount of any
installment of principal due under the Notes, or (D) release the
Parent Guaranty, the Sibling Guaranty or any material portion of the
Collateral (except as otherwise expressly provided for in any Loan
Document).
(f) Notwithstanding anything in this Section 14.8 to the
contrary, the rights of the Lenders to make assignments of, and grant
participations in, their Pro Rata Shares of the Commitment shall be
subject to the approval of any Gaming Board, to the extent required by
applicable Gaming Laws, and to compliance with applicable securities
laws.
14.9 RIGHT OF SETOFF. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may (a) exercise its rights under Article
9 of the Uniform Commercial Code and other applicable Laws and (b) to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrowers and/or any Property of Borrowers in its possession against
the Obligations.
14.10 SHARING OF SETOFFS. Each Lender severally agrees that if
it, through the exercise of any right of setoff, Lender's lien or counterclaim
against Borrowers, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, Banker's lien or
counterclaim or receipt
-90-
of payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Lenders share any
payment obtained in respect of the Obligations ratably in accordance with each
Lender's share of the Obligations immediately prior to, and without taking into
account, the payment; PROVIDED that, if all or any portion of a disproportionate
payment obtained as a result of the exercise of the right of setoff, banker's
lien, counterclaim or otherwise is thereafter recovered from the purchasing
Lender by Borrowers or any Person claiming through or succeeding to the rights
of Borrowers, the purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of the recovery, but
without interest. Each Lender that purchases a participation in the Obligations
pursuant to this Section 14.10 shall from and after the purchase have the right
to give all notices, requests, demands, directions and other communications
under this Agreement with respect to the portion of the Obligations purchased to
the same extent as though the purchasing Lender were the original owner of the
Obligations purchased. Borrowers expressly consent to the foregoing arrangements
and agree that any Lender holding a participation in an Obligation so purchased
may exercise any and all rights of setoff, banker's lien or counterclaim with
respect to the participation as fully as if the Lender were the original owner
of the Obligation purchased.
14.11 INDEMNITY BY BORROWERS. Borrowers agree to indemnify, save
and hold harmless the Administrative Agent, the Co-Agents and each Lender and
their respective directors, officers, agents, attorneys and employees
(collectively the "INDEMNITEES") from and against: (a) any and all claims,
demands, actions or causes of action (EXCEPT a claim, demand, action, or cause
of action for any amount excluded from the definition of "Taxes" in Section
3.12(D)) if the claim, demand, action or cause of action arises out of or
relates to any act or omission (or alleged act or omission) of Borrowers, their
Affiliates or any of their officers, directors or stockholders relating to the
Commitment, the use or contemplated use of proceeds of any Loan, or the
relationship of Borrowers and the Lenders under this Agreement; (b) any
administrative or investigative proceeding by any Governmental Agency arising
out of or related to a claim, demand, action or cause of action described in
clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(INCLUDING reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or cause of action;
PROVIDED that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Borrowers, but the failure to so promptly notify Borrowers shall not
affect Borrowers' obligations under this Section unless such failure materially
prejudices Borrowers' right to participate in the contest of such claim, demand,
action or cause of action, as hereinafter provided. Such Indemnitee may (and
shall, if requested by Borrowers in writing) contest the validity, applicability
and
-91-
amount of such claim, demand, action or cause of action and shall permit
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Borrowers may be liable for
payment of indemnity hereunder shall give Borrowers written notice of the terms
of such proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrowers' prior consent
(which shall not be unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this Section 14.11 against
more than one Indemnitee, all such Indemnitees shall be represented by the same
legal counsel (which may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrowers; PROVIDED, that if such legal
counsel determines in good faith that representing all such Indemnitees would or
could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrowers, with all
such legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and FURTHER PROVIDED that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrowers to any Indemnitee under this Section 14.11
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Obligations owed to
the Lenders.
14.12 NONLIABILITY OF THE LENDERS. Borrowers acknowledge and
agree that:
(a) Any inspections of any Property of Borrowers made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrowers are not entitled to rely
upon the same (whether or not such inspections are at the expense of
Borrowers);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Loan Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the
Lenders;
(c) The relationship between Borrowers and the
-92-
Administrative Agent and the Lenders is, and shall at all times
remain, solely that of borrowers and lenders; neither the
Administrative Agent nor the Lenders shall under any circumstance be
construed to be partners or joint venturers of Borrowers or their
Affiliates; neither the Administrative Agent nor the Lenders shall
under any circumstance be deemed to be in a relationship of confidence
or trust or a fiduciary relationship with Borrowers or their
Affiliates, or to owe any fiduciary duty to Borrowers or their
Affiliates; neither the Administrative Agent nor the Lenders undertake
or assume any responsibility or duty to Borrowers or their Affiliates
to select, review, inspect, supervise, pass judgment upon or inform
Borrowers or their Affiliates of any matter in connection with their
Property or the operations of Borrowers or their Affiliates; Borrowers
and their Affiliates shall rely entirely upon their own judgment with
respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
the Administrative Agent or the Lenders in connection with such
matters is solely for the protection of the Administrative Agent and
the Lenders and neither Borrowers nor any other Person is entitled to
rely thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrowers
and/or its Affiliates and Borrowers hereby indemnify and hold the
Administrative Agent and the Lenders harmless on the terms set forth
in Section 14.11 from any such loss, damage, liability or claim.
14.13 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrowers, the Administrative Agent and the Lenders in connection with the
Loans, and is made for the sole benefit of Borrowers, the Administrative Agent
and the Lenders, and the Administrative Agent's and the Lenders' successors and
assigns. EXCEPT as provided in Sections 14.8 and 14.11, no other Person shall
have any rights of any nature hereunder or by reason hereof.
14.14 CONFIDENTIALITY. Each Lender agrees to hold any
confidential information that it may receive from Borrowers pursuant to this
Agreement in confidence, EXCEPT for disclosure: (a) to other Lenders; (b) to
legal counsel and accountants for Borrowers or any Lender; (c) to other
professional advisors to Borrowers or any Lender, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section 14.14; (d) to regulatory officials having
jurisdiction over that Lender; (e) to any Gaming Board having regulatory
jurisdiction over Parent or its Subsidiaries, provided that each Lender agrees
to notify Borrowers of any such disclosure unless prohibited by applicable Laws;
(f) as required by Law or legal process, provided that each Lender agrees to
notify Borrowers of any such disclosures unless prohibited by applicable Laws,
or in connection with any legal
-93-
proceeding to which that Lender and any of Borrowers are adverse parties; (g) to
another financial institution in connection with a disposition or proposed
disposition to that financial institution of all or part of that Lender's
interests hereunder or a participation interest in its Note, provided that the
recipient has accepted such information subject to a confidentiality agreement
substantially similar to this Section 14.14; (h) to the National Association of
Insurance Commissioners; and (i) to a nationally-recognized credit rating agency
provided that each Lender agrees to notify Borrowers of any such disclosures.
For purposes of the foregoing, "confidential information" shall mean any
information respecting Parent or its Subsidiaries reasonably considered by
Borrowers to be confidential, OTHER THAN (i) information previously filed with
any Governmental Agency and available to the public, (ii) information previously
published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by Borrowers to any
Person not associated with Borrowers without a confidentiality agreement or
obligation substantially similar to this Section 14.14. Nothing in this Section
shall be construed to create or give rise to any fiduciary duty on the part of
the Administrative Agent or the Lenders to Borrowers.
14.15 FURTHER ASSURANCES. Borrowers and the Guarantors shall, at
their expense and without expense to the Lenders or the Administrative Agent,
do, execute and deliver such further acts and documents as the Requisite Lenders
or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Collateral
Document.
14.16 INTEGRATION. This Agreement, together with the other Loan
Documents and the letter agreements referred to in Sections 3.2, 3.3 and 3.5,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; PROVIDED that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
14.17 GOVERNING LAW. EXCEPT to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the Laws of California applicable to contracts made and
performed in California.
14.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
-94-
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
14.19 HEADINGS. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
14.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
14.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrowers (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a
participation interest herein pursuant to Section 14.8, if applicable) two duly
completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by Borrowers pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such Lender
by the Borrowers pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (INCLUDING, if reasonably necessary, Form
W-9) satisfactory to Borrowers and the Administrative Agent that no withholding
under the federal income tax laws is required with respect to such Lender.
Thereafter and from time to time, each such Lender shall (a) promptly submit to
Borrowers (with a copy to the Administrative Agent), such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrowers and the
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Lender by Borrowers pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Eurodollar Lending
Office, if any) to avoid any requirement of applicable Laws that Borrowers make
any deduction or withholding for taxes from amounts payable to such Lender. In
the event that Borrowers or the Administrative Agent become aware that a
participation has been granted pursuant to Section 14.8(E) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrowers or the Administrative
Agent to the Lender which granted such participation, such Lender shall cause
such participant financial institution to deliver the same documents and
information to Borrowers and the Administrative Agent as would be required under
this Section if such financial institution were a Lender. The foregoing three
sentences of this Section 14.21 apply to any
-95-
Lender that is a "bank" within the meaning of Section 88(c)(3)(A) of the Code.
With respect to any Lender that is not a "bank" within the meaning of Section
88(c)(3)(A) of the Code that intends to claim exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payment of "portfolio interest," such a Lender shall deliver to Borrowers (with
a copy to the Administrative Agent) a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form W-8,
a certificate representing that such Non-U.S. Lender is not a "bank" for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of Borrowers and is not a
controlled foreign corporation related to Borrowers (within the meaning of
Section 864(d)(4) of the Code), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from U.S. Federal withholding tax on
payments of interest by Borrowers under this Agreement and the other Loan
Documents.
14.22 HAZARDOUS MATERIAL INDEMNITY. Each of Borrowers hereby
agrees to indemnify, hold harmless and defend (by counsel reasonably
satisfactory to the Administrative Agent) the Administrative Agent and each of
the Lenders and their respective directors, officers, employees, agents,
successors and assigns from and against any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial proceedings
and orders, judgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including but
not limited to reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by the Administrative Agent or any Lender, and expenses to
the extent that the defense of any such action has not been assumed by
Borrowers), arising directly or indirectly out of (i) the presence on, in, under
or about any Real Property of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from any Real Property and
(ii) any activity carried on or undertaken on or off any Real Property by
Borrowers or any of its predecessors in title, whether prior to or during the
term of this Agreement, and whether by Borrowers or any predecessor in title or
any employees, agents, contractors or subcontractors of Borrowers or any
predecessor in title, or any third persons at any time occupying or present on
any Real Property, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials at
any time located or present on, in, under or about any Real Property. The
foregoing indemnity shall further apply to any residual contamination on, in,
under or about any Real Property, or affecting any natural resources, and to any
contamination of any Property or natural resources arising in connection with
the generation, use, handling, storage, transport or disposal of any such
Hazardous Materials, and irrespective of whether any of such activities were or
will be undertaken in accordance with applicable Laws, but the foregoing
indemnity shall not apply to Hazardous Materials on any Real Property, the
presence of which is caused by the Administrative Agent or the Lenders.
Borrowers hereby acknowledge and agree that, notwithstanding any other provision
of this Agreement or any of the other Loan Documents to the contrary, the
obligations of Borrowers under this Section (and under Sections 4.18 and 5.10)
shall be unlimited corporate obligations of Borrowers and shall NOT be
-96-
secured by any Lien on any Real Property. Any obligation or liability of
Borrowers to any Indemnitee under this Section 14.22 shall survive the
expiration or termination of this Agreement and the repayment of all Loans and
the payment and performance of all other Obligations owed to the Lenders.
14.23 GAMING BOARDS. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrowers and its
Subsidiaries, INCLUDING the provision of such documents or other information as
may be requested by any such Gaming Board relating to Parent or any of its
Subsidiaries or to the Loan Documents.
14.24 JOINT AND SEVERAL. Each of Borrowers shall be obligated for
all of the Obligations on a joint and several basis, notwithstanding which of
Borrowers may have directly received the proceeds of any particular Loan. Each
of Borrowers acknowledges and agrees that, for purposes of the Loan Documents,
Borrowers constitute a single integrated financial enterprise and that each
receives a benefit from the availability of credit under this Agreement to all
of Borrowers. Each of Borrowers waive all defenses arising under the Laws of
suretyship, to the extent such Laws are applicable, in connection with its joint
and several obligations under this Agreement. Without limiting the foregoing,
each of Borrowers agrees to the Joint Borrower Provisions set forth in EXHIBIT
K, incorporated by this reference.
14.25 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW.
14.26 PURPORTED ORAL AMENDMENTS. BORROWERS EXPRESSLY ACKNOWLEDGE
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE A PARTY MAY
ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 14.2.
BORROWERS AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF
PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER THAT DOES NOT COMPLY WITH SECTION 14.2 TO
EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
[THIS SPACE INTENTIONALLY LEFT BLANK - SIGNATURE PAGES TO FOLLOW]
-97-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
PALACE STATION HOTEL & CASINO, INC.,
as a Borrower
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Senior Vice President
BOULDER STATION, INC., as a Borrower
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Senior Vice President
TEXAS STATION, INC., as a Borrower
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Senior Vice President
ST. XXXXXXX RIVERFRONT STATION, INC., as a Borrower
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Senior Vice President
KANSAS CITY STATION CORPORATION, as a Borrower
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Senior Vice President
-S-1-
SUNSET STATION, INC., as a Borrower
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Senior Vice President
STATION CASINOS, INC., solely for purposes of
Articles 8 and 9
By: s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
Executive Vice President
Address for all the foregoing:
c/o Station Casinos, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxxx
Executive Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-2-
BANK OF AMERICA, N.A., as Administrative Agent
By: s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Vice President
Address:
Bank of America, N.A.
CA9-706-11-03
Agency Management #12048
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-3-
BANK OF AMERICA, N.A.
By: s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Principal
Address:
Bank of America, N.A.
Credit Products - CA 9-706-11-01
Entertainment & Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Principal
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America, N.A.
Credit Products - LA 3283
Entertainment & Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-4-
BANK OF AMERICA, N.A.
By: x/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Managing Director
Address:
BancAmerica Securities, LLC
NC1-007-07-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-5-
CANADIAN IMPERIAL BANK OF COMMERCE
By: s/ Xxxxx Xxxx
Xxxxx Xxxx
Authorized Signatory
Address:
Canadian Imperial Bank of Commerce
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-6-
PINEHURST TRADING, INC.
By: s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President
Address:
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager and
Authorized Signatory
By: s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Vice President
Portfolio Manager
Address:
ING Capital Advisors LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-7-
THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.
By: ING Capital Advisors LLC,
as Investment Advisor
By: s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Vice President
Portfolio Manager
Address:
ING Capital Advisors LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Vice President
Address:
Xxxxxx Xxxxxxx Xxxx Xxxxxx Advisors
Xxxxxx Xxxxxxx Xxxx Xxxxxx Prime Income Trust
Two World Trade Center, 72nd Floor
New York, New York 10048
Attn: Xxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-8-
BANK OF SCOTLAND
By: s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Senior Vice President
Address:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: s/ F. Xxxx Xxxxxx
F. Xxxx Xxxxxx
Vice President
Address:
The CIT Group/Equipment Financing, Inc.
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-9-
WINGED FOOT FUNDING TRUST
By: s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Authorized Agent
Address:
Banc of America Securities, LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: s/ Xxxx Xxxxx
Xxxx Xxxxx
Address:
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-10-
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
---------------------------------
[Printed Name and Title]
Address:
Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxx
Telecopier: 413/744-6210
Telephone: 413/000-0000
-S-11-
BANK OF AMERICA, N.A.
By: s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Vice President
Address:
Banc of America Securities, LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-S-12-
