SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended July 2, 1998
-------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
----------- -----------
Commission file number 1-5440
----------------------------------------
AZTAR CORPORATION
- ---------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 86-0636534
- ----------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2390 East Camelback Road, Suite 400, Phoenix, Arizona 85016
- --------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (602) 381-4100
----------------
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days. Yes X No
----- -----
At July 30, 1998, the registrant had outstanding 45,231,790 shares of
its common stock, $.01 par value.
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Page
----
Consolidated Balance Sheets at July 2, 1998 and
January 1, 1998 3
Consolidated Statements of Operations for the quarters and
six months ended July 2, 1998 and July 3, 1997 5
Consolidated Statements of Cash Flows for the six months
ended July 2, 1998 and July 3, 1997 7
Consolidated Statements of Shareholders' Equity for the
six months ended July 2, 1998 and July 3, 1997 9
Notes to Consolidated Financial Statements 10
2
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (unaudited)
---------------------------------------
(in thousands, except share data)
<CAPTION>
July 2, January 1,
1998 1998
---------- ----------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 33,604 $ 46,129
Accounts receivable, net 39,885 44,133
Inventories 6,477 6,779
Prepaid expenses 10,137 10,374
Deferred income taxes, net 11,403 11,403
---------- ----------
Total current assets 101,506 118,818
Investments in and advances to
unconsolidated partnership 8,910 9,375
Other investments 23,370 22,319
Property and equipment:
Buildings, riverboats and equipment, net 786,320 802,230
Land 98,995 98,762
Construction in progress 7,463 1,215
Leased under capital leases, net 7,784 672
---------- ----------
900,562 902,879
Deferred income taxes, net 22 331
Other deferred charges and assets 38,011 37,774
---------- ----------
$1,072,381 $1,091,496
========== ==========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (unaudited) (continued)
---------------------------------------
(in thousands, except share data)
<CAPTION>
July 2, January 1,
1998 1998
---------- ----------
<S> <C> <C>
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable and accruals $ 54,957 $ 56,939
Accrued payroll and employee benefits 24,026 23,630
Accrued interest payable 12,490 13,167
Income taxes payable 2,457 896
Current portion of long-term debt 2,367 27,166
Current portion of other long-term
liabilities 2,929 2,931
---------- ----------
Total current liabilities 99,226 124,729
Long-term debt 495,596 491,932
Other long-term liabilities 23,836 24,204
Contingencies and commitments
Series B ESOP convertible preferred stock
(redemption value $7,622 and $6,857) 6,867 6,593
Shareholders' equity:
Common stock, $.01 par value (45,231,132
and 45,198,889 shares outstanding) 491 491
Paid-in capital 412,148 412,029
Retained earnings 51,343 48,654
Less: Treasury stock (17,126) (17,126)
Unearned compensation -- (10)
---------- ----------
Total shareholders' equity 446,856 444,038
---------- ----------
$1,072,381 $1,091,496
========== ==========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited)
For the periods ended July 2, 1998 and July 3, 1997
---------------------------------------------------------------
(in thousands, except per share data)
<CAPTION>
Second Quarter Six Months
------------------ ------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues
Casino $167,135 $164,518 $331,426 $321,666
Rooms 14,645 14,033 26,697 26,599
Food and beverage 13,605 13,117 26,652 25,849
Other 7,783 8,719 15,218 16,029
-------- -------- -------- --------
203,168 200,387 399,993 390,143
Costs and expenses
Casino 74,627 73,977 150,819 148,462
Rooms 8,260 7,927 15,400 15,253
Food and beverage 13,652 14,121 26,741 27,327
Other 6,627 6,323 13,026 12,074
Marketing 22,007 21,092 43,218 40,840
General and administrative 18,891 18,484 38,412 35,871
Utilities 3,127 3,474 6,010 6,928
Repairs and maintenance 6,347 6,050 12,332 11,844
Provision for doubtful accounts 3,692 3,051 6,684 5,205
Property taxes and insurance 5,963 6,237 12,027 12,357
Rent 4,781 5,246 10,220 9,782
Depreciation and amortization 13,612 12,655 26,656 25,396
-------- -------- -------- --------
181,586 178,637 361,545 351,339
-------- -------- -------- --------
Operating income 21,582 21,750 38,448 38,804
Interest income 923 517 1,339 1,027
Interest expense (15,246) (15,754) (30,382) (31,555)
-------- -------- -------- --------
Income before other items, income
taxes and extraordinary items 7,259 6,513 9,405 8,276
Equity in unconsolidated
partnership's loss (1,113) (1,158) (2,238) (2,324)
-------- -------- -------- --------
Income before income taxes and
extraordinary items 6,146 5,355 7,167 5,952
Income taxes (2,427) (1,926) (2,830) 154
-------- -------- -------- --------
Income before extraordinary items 3,719 3,429 4,337 6,106
Extraordinary items (1,346) -- (1,346) --
-------- -------- -------- --------
Net income $ 2,373 $ 3,429 $ 2,991 $ 6,106
======== ======== ======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited)(continued)
For the periods ended July 2, 1998 and July 3, 1997
---------------------------------------------------------------
(in thousands, except per share data)
<CAPTION>
Second Quarter Six Months
------------------ ------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Earnings per common share:
Income before extraordinary items $ .08 $ .07 $ .09 $ .13
Extraordinary items (.03) -- (.03) --
-------- -------- -------- --------
Net income $ .05 $ .07 $ .06 $ .13
======== ======== ======== ========
Earnings per common share assuming
dilution:
Income before extraordinary items $ .08 $ .07 $ .09 $ .12
Extraordinary items (.03) -- (.03) --
-------- -------- -------- --------
Net income $ .05 $ .07 $ .06 $ .12
======== ======== ======== ========
Weighted-average common shares
applicable to:
Earnings per common share 45,223 45,121 45,213 45,063
Earnings per common share assuming
dilution 46,737 46,664 46,839 46,682
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
6
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)
For the periods ended July 2, 1998 and July 3, 1997
---------------------------------------------------------------
(in thousands)
<CAPTION>
Six Months
---------------------
1998 1997
--------- ---------
<S> <C> <C>
Cash Flows from Operating Activities
Net income $ 2,991 $ 6,106
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation and amortization 27,944 26,726
Provision for losses on accounts receivable 6,684 5,205
Loss on reinvestment obligation 186 510
Rent expense (478) (557)
Distribution in excess of equity in income
of partnership 465 505
Deferred income taxes 309 699
Change in assets and liabilities:
(Increase) decrease in accounts receivable (1,925) (2,076)
(Increase) decrease in refundable income taxes -- 1,201
(Increase) decrease in inventories and
prepaid expenses (43) (2,022)
Increase (decrease) in accounts payable,
accrued expenses and income taxes payable (843) (8,809)
Other items, net 3,163 360
--------- ---------
Net cash provided by (used in) operating activities 38,453 27,848
--------- ---------
Cash Flows from Investing Activities
Payments received on notes receivable 722 634
Reduction in other investments 564 488
Purchases of property and equipment (14,711) (13,329)
Additions to other long-term assets (5,154) (3,485)
--------- ---------
Net cash provided by (used in) investing activities (18,579) (15,692)
--------- ---------
Cash Flows from Financing Activities
Proceeds from issuance of long-term debt 353,800 102,100
Proceeds from issuance of common stock 84 538
Principal payments on long-term debt (382,932) (114,323)
Principal payments on other long-term liabilities (638) (639)
Debt issuance costs (2,139) (170)
Preferred stock dividend (329) (352)
Redemption of preferred stock (245) (241)
--------- ---------
Net cash provided by (used in) financing activities (32,399) (13,087)
--------- ---------
Net increase (decrease) in cash and cash equivalents (12,525) (931)
Cash and cash equivalents at beginning of period 46,129 44,131
--------- ---------
Cash and cash equivalents at end of period $ 33,604 $ 43,200
========= =========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
7
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)(continued)
For the periods ended July 2, 1998 and July 3, 1997
---------------------------------------------------------------
(in thousands)
<CAPTION>
Six Months
-------------------
1998 1997
-------- --------
<S> <C> <C>
Supplemental Cash Flow Disclosures
Summary of non-cash investing and financing activities:
Reduction in land and other long-term liabilities $ -- $ 2,000
Capital lease obligations incurred for property
and equipment 7,847 552
Tax benefit from stock options and preferred stock
dividend 60 165
Forfeiture of restricted stock -- 22
Cash flow during the period for the following:
Interest paid, net of amount capitalized $ 29,781 $ 29,986
Income taxes paid (refunded) 175 (3,543)
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
8
<PAGE>
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (unaudited)
For the periods ended July 2, 1998 and July 3, 1997
---------------------------------------------------------------
(in thousands, except number of shares)
<CAPTION>
Six Months
--------------------
1998 1997
-------- --------
<S> <C> <C>
Common stock:
Beginning balance $ 491 $ 489
Stock options exercised for 23,405 and
136,348 shares -- 2
-------- --------
Ending balance 491 491
-------- --------
Paid-in capital:
Beginning balance 412,029 411,158
Stock options exercised 84 536
Tax benefit from stock options exercised 35 126
-------- --------
Ending balance 412,148 411,820
-------- --------
Retained earnings:
Beginning balance 48,654 44,846
Preferred stock dividend and losses on redemption,
net of income tax benefit of $25 and $39 (302) (328)
Net income 2,991 6,106
-------- --------
Ending balance 51,343 50,624
-------- --------
Treasury stock:
Beginning balance (17,126) (17,102)
Forfeiture of 3,334 shares of restricted stock
in 1997 -- (22)
-------- --------
Ending balance (17,126) (17,124)
-------- --------
Unearned compensation:
Beginning balance (10) (117)
Amortization 10 43
Forfeiture of restricted stock -- 22
-------- --------
Ending balance -- (52)
-------- --------
$446,856 $445,759
======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
9
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited)
Note 1: General
- ----------------
The consolidated financial statements reflect all adjustments, such adjust-
ments being normal recurring accruals, which are necessary, in the opinion of
management, for the fair presentation of the results of the interim periods;
interim results, however, may not be indicative of the results for the full
year.
The notes to the interim consolidated financial statements are presented to
enhance the understanding of the financial statements and do not necessarily
represent complete disclosures required by generally accepted accounting
principles. There was no interest capitalized during the quarters or six
months ended 1998 or 1997. Capitalized costs related to various development
projects, included in other deferred charges and assets, were $2,556,000 and
$954,000 at July 2, 1998 and January 1, 1998, respectively. For additional
information regarding significant accounting policies, Las Vegas Tropicana
redevelopment, long-term debt, lease obligations, and other matters
applicable to the Company, reference should be made to the Company's Annual
Report to Shareholders for the year ended January 1, 1998.
Note 2: Investments in and Advances to Unconsolidated Partnership
- -----------------------------------------------------------------
<TABLE>
Following are summarized operating results for the Company's unconsolidated
partnership, accounted for using the equity method for the periods ended
July 2, 1998 and July 3, 1997 (in thousands):
<CAPTION>
Second Quarter Six Months
------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues $ 4,083 $ 4,151 $ 8,205 $ 8,305
Operating expenses (691) (683) (1,375) (1,367)
-------- -------- -------- --------
Operating income 3,392 3,468 6,830 6,938
Interest expense (1,240) (1,359) (2,532) (2,733)
-------- -------- -------- --------
Net income $ 2,152 $ 2,109 $ 4,298 $ 4,205
======== ======== ======== ========
</TABLE>
<TABLE>
The Company's share of the above operating results, after intercompany
eliminations, is as follows (in thousands):
<CAPTION>
Second Quarter Six Months
------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Equity in unconsolidated
partnership's loss $ (1,113) $ (1,158) $ (2,238) $ (2,324)
</TABLE>
10
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
Note 3: Long-term Debt
- -----------------------
<TABLE>
At July 2, 1998 and January 1, 1998, long-term debt included (in thousands):
<CAPTION>
July 2, January 1,
1998 1998
-------- ----------
<S> <C> <C>
11% Senior Subordinated Notes Due 2002 $200,000 $200,000
13 3/4% Senior Subordinated Notes Due 2004 178,149 178,061
Reducing revolving credit note; floating
rate; matures December 31, 1999 -- 139,000
Reducing revolving credit note; floating
rate, 7.5% at July 2, 1998; matures
June 30, 2003 61,000 --
Term loan; floating rate, 8.2% at July 2,
1998; matures June 30, 2005 50,000 --
Other notes payable; 7% to 14.6%; maturities
to 2002 1,169 1,213
Obligations under capital leases 7,645 824
-------- --------
497,963 519,098
Less current portion (2,367) (27,166)
-------- --------
$495,596 $491,932
======== ========
</TABLE>
On May 28, 1998, the Company completed a new bank financing consisting of a
$250,000,000 reducing revolving credit note maturing on June 30, 2003 (the
"Credit Facility") and a $50,000,000 term loan maturing on June 30, 2005 (the
"Term Loan") provided largely by institutional lenders. The funds borrowed
under the Credit Facility were used to prepay the balance outstanding and
extinguish the prior reducing revolving credit note maturing on December 31,
1999 (the "Original Credit Facility"). The funds received under the Term
Loan were used to repay a portion of the Credit Facility. The Company's
$25,000,000 supplemental reducing revolving loan agreement maturing on March
15, 1999 (the "Supplemental Credit Facility"), was extinguished concurrently
with the extinguishment of the Original Credit Facility. There were no
borrowings outstanding under the Supplemental Credit Facility from its
inception through the date of extinguishment.
The maximum amount available under the Credit Facility will be reduced
quarterly, commencing on September 30, 2000, in annual amounts of $40,000,000
in each year until maturity. Interest is computed on the outstanding
principal balance of the Credit Facility based upon, at the Company's option,
a one-, two-, three- or six-month Eurodollar rate plus a margin ranging from
1.00% to 2.25%, or the prime rate plus a margin ranging from zero to 1.00%.
The applicable margin is dependent upon the Company's outstanding
indebtedness and operating cash flow. As of July 2, 1998, the margin was at
0.50% less than the highest level. The Company incurs a commitment fee
ranging from 0.225% to 0.4375% per annum on the unused portion of the Credit
Facility.
The Term Loan calls for quarterly principal payments of $125,000 beginning on
September 30, 1999 through June 30, 2004, and $11,875,000 beginning on
11
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
September 30, 2004 through maturity. Interest is computed on the Term Loan
based upon, at the Company's option, a one-, two-, three- or six-month
Eurodollar rate plus a margin of 2.5%.
The collateral for the Credit Facility and the Term Loan, shared on a pari
passu basis, is the same as under the Original Credit Facility. The Credit
Facility imposes various restrictions on the Company similar to those imposed
by the Original Credit Facility. The restrictions imposed by the Term Loan
are similar to those of the Company's subordinated debt. The Credit Facility
has certain quarterly financial tests, including a minimum requirement for
operating cash flow, a minimum debt service coverage ratio and ratios of
maximum debt and senior debt to operating cash flow. At July 2, 1998, the
maximum debt to operating cash flow ratio as calculated under the Credit
Facility was 3.88 to 1 and the allowable ratio was 5.25 to 1. The maximum
allowable ratio decreases to 5.00 to 1 at June 30, 1999 and continues to
decrease periodically, beginning June 30, 2000, in increments of .25 or .50,
until it is 4.00 to 1 at June 30, 2002 and thereafter. At July 2, 1998, the
maximum senior debt to operating cash flow ratio as calculated under the
Credit Facility was 1.28 to 1 and the allowable ratio was 3.50 to 1. The
maximum allowable ratio decreases to 3.00 to 1 at June 30, 1999 and
thereafter.
Note 4: Other Long-term Liabilities
- -------------------------------------
<TABLE>
At July 2, 1998 and January 1, 1998, other long-term liabilities consisted of
(in thousands):
<CAPTION>
July 2, January 1,
1998 1998
-------- ----------
<S> <C> <C>
Deferred compensation and retirement plans $ 11,522 $ 10,776
Accrued rent expense 10,849 11,327
Obligation to City of Evansville and
other civic and community organizations 3,925 4,550
Las Vegas Boulevard beautification assessment 469 482
-------- --------
26,765 27,135
Less current portion (2,929) (2,931)
-------- --------
$ 23,836 $ 24,204
======== ========
</TABLE>
Note 5: Income Taxes
- ----------------------
The Company is responsible, with certain exceptions, for the taxes of Ramada
Inc. ("Ramada") through December 20, 1989. The Internal Revenue Service
("IRS") has completed its examinations of the income tax returns for the
years 1988 through 1991 and has settled for all but one issue. Income taxes
for the 1997 six-month period included a non-recurring tax benefit of
$2,323,000 in the first quarter of 1997, primarily related to cash received
as a result of the settlement agreement between the IRS and Ramada. The IRS
is examining the income tax returns for the years 1992 through 1996.
Management believes that adequate provision for income taxes and interest has
been made in the financial statements.
12
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
Note 6: Extraordinary Items
- ----------------------------
In May 1998, the Company expensed the remaining unamortized deferred
financing costs in connection with the early extinguishment of the Original
Credit Facility and the Supplemental Credit Facility. This item was
reflected in the Consolidated Statement of Operations for the quarter and six
months ended 1998, as an extraordinary loss of $1,346,000, which was net of
an income tax benefit of $725,000.
Note 7: Earnings Per Share
- -----------------------------
Earnings per common share and earnings per common share, assuming dilution,
are computed based on the provisions of Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 128, Earnings per Share
("SFAS 128"), which superseded and simplified the standards for computing
earnings per share previously found in Accounting Principles Board Opinion
No. 15, Earnings per Share ("APB 15"). SFAS 128 replaced the presentation of
earnings per common and common equivalent share under APB 15 with a
presentation of earnings per common share. Earnings per common share
excludes dilution and is computed by dividing income applicable to common
shareholders by the weighted-average number of common shares outstanding.
Earnings per common share, assuming dilution, is computed similarly under
SFAS 128 as it was under APB 15 and is based on the weighted-average number
of common shares outstanding after consideration of the dilutive effect of
stock options and the assumed conversion of the preferred stock at the stated
rate. In accordance with the provisions of SFAS 128, the Company has
restated the earnings per share data for the quarter and six months ended
1997.
<TABLE>
The computations under SFAS 128 of earnings per common share and earnings
per common share, assuming dilution, for the periods ended July 2, 1998 and
July 3, 1997, are as follows:
<CAPTION>
Second Quarter Six Months
------------------ ------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Income before extraordinary items $ 3,719 $ 3,429 $ 4,337 $ 6,106
Deduct: preferred stock dividends
and losses on redemption (net of
income tax benefits of $11, $18,
$25 and $39, credited to retained
earnings) (148) (154) (302) (328)
-------- -------- -------- --------
Income before extraordinary items
applicable to computations 3,571 3,275 4,035 5,778
Extraordinary items (1,346) -- (1,346) --
-------- -------- -------- --------
Net income applicable to
computations $ 2,225 $ 3,275 $ 2,689 $ 5,778
======== ======== ======== ========
</TABLE>
13
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
<TABLE>
<CAPTION>
Second Quarter Six Months
------------------ ------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Weighted-average common shares
applicable to earnings per
common share 45,223 45,121 45,213 45,063
Effect of dilutive securities:
Stock option incremental shares 649 628 755 697
Assumed conversion of preferred
stock 865 915 871 922
-------- -------- -------- --------
1,514 1,543 1,626 1,619
-------- -------- -------- --------
Weighted-average common shares
applicable to earnings per
common share assuming dilution 46,737 46,664 46,839 46,682
======== ======== ======== ========
Earnings per common share:
Income before extraordinary items $ .08 $ .07 $ .09 $ .13
Extraordinary items (.03) -- (.03) --
-------- -------- -------- --------
Net income $ .05 $ .07 $ .06 $ .13
======== ======== ======== ========
Earnings per common share
assuming dilution:
Income before extraordinary items $ .08 $ .07 $ .09 $ .12
Extraordinary items (.03) -- (.03) --
-------- -------- -------- --------
Net income $ .05 $ .07 $ .06 $ .12
======== ======== ======== ========
</TABLE>
Note 8: Contingencies and Commitments
- --------------------------------------
The Company agreed to indemnify Ramada against all monetary judgments in
lawsuits pending against Ramada and its subsidiaries as of the conclusion of
the restructuring of Ramada (the "Restructuring") on December 20, 1989, as
well as all related attorneys' fees and expenses not paid at that time,
except for any judgments, fees or expenses accrued on the hotel business
balance sheet and except for any unaccrued and unreserved aggregate amount up
to $5,000,000 of judgments, fees or expenses related exclusively to the hotel
business. Aztar is entitled to the benefit of any crossclaims or
counterclaims related to such lawsuits and of any insurance proceeds
received. In addition, the Company agreed to indemnify Ramada for various
lease guarantees made by Ramada relating to the restaurant business conducted
through its Marie Callender Pie Shops, Inc. subsidiary. In connection with
these matters, the Company has an accrued liability of $3,899,000 and
$3,905,000 at July 2, 1998 and January 1, 1998, respectively.
14
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
The Company is a party to various other claims, legal actions and complaints
arising in the ordinary course of business or asserted by way of defense or
counterclaim in actions filed by the Company. Management believes that its
defenses are substantial in each of these matters and that the Company's
legal posture can be successfully defended without material adverse effect on
its consolidated financial statements.
The Tropicana Las Vegas lease agreement contains a provision that requires
the Company to maintain an additional security deposit with the lessor of
$21,000,000 in cash or a letter of credit if the Tropicana Las Vegas
operation fails to meet certain financial tests. A determination was made
for the period ended July 2, 1998, that the additional security deposit would
be required by October 1, 1998; however, the lessor has waived the
requirement. The Company has a 50% partnership interest in the lessor.
The Company has severance agreements with certain of its senior executives.
Severance benefits range from a lump-sum cash payment equal to three times
the sum of the executive's annual base salary and the average of the
executive's annual bonuses awarded in the preceding three years plus payment
of the value in his outstanding stock options and vesting and distribution of
any restricted stock to a lump-sum cash payment equal to his annual base
salary. In certain agreements, the termination must be as a result of a
change in control of the Company. Based upon current salary levels and stock
options, the aggregate commitment under the severance agreements should all
these executives be terminated was approximately $12,000,000 at July 2, 1998.
15
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
Item 2. Management's Discussion and Analysis
Financial Condition
On May 28, 1998, the Company completed a new bank financing consisting of a
$250 million reducing revolving credit note maturing on June 30, 2003 (the
"Credit Facility") and a $50 million term loan maturing on June 30, 2005 (the
"Term Loan") provided largely by institutional lenders. In addition, the
maturity date of a $63 million term loan among Tropicana Enterprises and a
group of banks was extended to June 30, 2003 from December 31, 1999. The
Company has a noncontrolling partnership interest of 50% in Tropicana
Enterprises, a Nevada general partnership that owns the real property and
certain personal property that the Company leases in the operation of the Las
Vegas Tropicana.
The maximum amount available under the Credit Facility will be reduced
quarterly, commencing on September 30, 2000, in annual amounts of $40 million
in each year until maturity. The funds borrowed under the Credit Facility
were used to prepay the balance outstanding and extinguish the prior reducing
revolving credit note maturing on December 31, 1999 (the "Original Credit
Facility"). The balance outstanding under the Original Credit Facility at
the time of prepayment was $135 million; the maximum amount available under
the Original Credit Facility was reduced to $138.7 million as of March 31,
1998. The funds received under the Term Loan were used to repay a portion of
the Credit Facility. As of July 2, 1998, the Credit Facility had an
outstanding balance of $61 million. The Company's $25 million supplemental
reducing revolving loan agreement maturing on March 15, 1999 (the
"Supplemental Credit Facility"), was extinguished concurrently with the
extinguishment of the Original Credit Facility. There were no borrowings
outstanding under the Supplemental Credit Facility from its inception through
the date of extinguishment.
At July 2, 1998, the maximum debt to operating cash flow ratio as calculated
under the Credit Facility was 3.88 to 1 and the allowable ratio was 5.25 to
1. The maximum senior debt to operating cash flow ratio as calculated under
the Credit Facility was 1.28 to 1 at July 2, 1998 and the allowable ratio was
3.50 to 1.
The Tropicana Las Vegas lease agreement contains a provision that requires
the Company to maintain an additional security deposit with the lessor of $21
million in cash or a letter of credit if the Tropicana Las Vegas operation
fails to meet certain financial tests. A determination was made for the
period ended July 2, 1998, that the additional security deposit would be
required by October 1, 1998; however, the lessor has waived the requirement.
Results of Operations
Six Months Ended July 2, 1998 Compared to Six Months Ended July 3, 1997
The Company's consolidated revenues in the first half of 1998 were $400.0
million, a 3% increase over $390.1 million in the first half of 1997.
Consolidated operating income was $38.4 million in the first half of 1998,
down slightly from $38.8 million in the first half of 1997.
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AZTAR CORPORATION AND SUBSIDIARIES
Consolidated interest expense was $1.2 million or 4% lower in the 1998 versus
1997 six-month period primarily as a result of lower levels of debt
outstanding.
For a discussion of income taxes and extraordinary items, refer to "Note 5:
Income Taxes" and "Note 6: Extraordinary Items" respectively.
TROPICANA ATLANTIC CITY Total revenues at Tropicana Atlantic City were
$204.4 million in the first half of 1998, up 5% from $193.9 million in the
first half of 1997. Casino revenue was 6% higher in the 1998 versus 1997
six-month period, primarily reflecting a 14% increase in games revenue
combined with a 1% increase in slot revenue. The increase in games revenue
was a result of increases in the hold percentage and the volume of play. The
increase in slot revenue was attained in spite of a reduction in coin offers
to slot players.
Tropicana Atlantic City had operating income of $29.8 million in the first
half of 1998, a 34% improvement over $22.2 million in the first half of 1997.
Casino costs were 1% lower in the 1998 versus 1997 six-month period primarily
due to a 13% reduction in coin offers to slot players that more than offset
increased costs related to the increase in casino revenue. Utilities expense
was $1.0 million lower in the 1998 versus 1997 six-month period primarily due
to a favorable electrical contract that began in November 1997. The
provision for doubtful accounts was $2.4 million higher in the six months
ended 1998 versus 1997 due to an increase in the allowance for potential
uncollectible markers associated with the property's ongoing emphasis on the
games segment of the business. Operating income is after rent and
depreciation and amortization expenses. Rent expense was $3.0 million in the
1998 six-month period compared to $3.1 million in the 1997 six-month period.
Depreciation and amortization was $11.8 million in the six months ended 1998
compared to $10.9 million in the six months ended 1997.
TROPICANA LAS VEGAS At Tropicana Las Vegas, total revenues were $78.2
million in the first half of 1998, a 5% decrease from $82.1 million in the
first half of 1997. Casino revenue was 8% lower in the 1998 versus 1997 six-
month period, primarily due to a 23% decrease in games revenue that was
partially offset by a 7% increase in slot revenue. The decrease in games
revenue was attributable in large part to a decline in baccarat revenue in
the 1998 versus 1997 six-month period. The decrease in baccarat revenue was
a result of decreases in the volume of play and the hold percentage.
Tropicana Las Vegas had an operating loss of $4.6 million in the first half
of 1998 compared to operating income of $0.9 million in the first half of
1997. Operating loss or income is after rent and depreciation and
amortization expenses. Rent expense was $5.0 million in the 1998 six-month
period compared to $4.8 million in the 1997 six-month period. Depreciation
and amortization was $4.8 million in the 1998 six-month period compared to
$4.6 million in the 1997 six-month period.
RAMADA EXPRESS At Ramada Express, total revenues were $42.7 million in the
1998 six-month period, down slightly from $43.2 million in the 1997 six-month
period. Operating income was $5.4 million in the first half of 1998 compared
to $7.4 million in the first half of 1997. Operating income is after rent
and depreciation and amortization expenses. Rent expense was $0.2 million in
the six months ended 1998 compared to $0.3 million in the six months ended
17
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
1997. Depreciation and amortization was $3.5 million in the 1998 six-month
period compared to $3.6 million in the 1997 six-month period.
CASINO AZTAR EVANSVILLE Total revenues at Casino Aztar Evansville were $62.3
million in the first half of 1998, a 6% increase over $58.8 million in the
first half of 1997. Operating income was $16.0 million in the 1998 six-month
period, a 2% improvement over $15.7 million in last year's six-month period.
Operating income is after rent and depreciation and amortization expenses.
Rent expense was $1.8 million in the 1998 six-month period compared to $1.4
million in the 1997 six-month period. Depreciation and amortization was $4.9
million in the 1998 six-month period compared to $4.6 million in the 1997
six-month period.
CASINO AZTAR CARUTHERSVILLE Total revenues at Casino Aztar Caruthersville
were $12.4 million in the first half of 1998 compared to $12.1 million in the
first half of 1997. Casino Aztar Caruthersville had an operating loss of
$0.8 million in the six months ended 1998 compared to $1.4 million in the six
months ended 1997. Operating loss is after depreciation and amortization of
$1.6 million in both periods.
Quarter Ended July 2, 1998 Compared to Quarter Ended July 3, 1997
The Company's consolidated revenues in the 1998 second quarter were $203.2
million, a slight increase over $200.4 million in the 1997 second quarter.
Consolidated operating income was $21.6 million in the second quarter of
1998, down slightly from $21.8 million in the second quarter of 1997.
Consolidated interest expense was $0.5 million or 3% lower in the 1998 versus
1997 second quarter primarily as a result of lower levels of debt
outstanding.
For a discussion of income taxes and extraordinary items, refer to "Note 5:
Income Taxes" and "Note 6: Extraordinary Items", respectively.
TROPICANA ATLANTIC CITY Total revenues at Tropicana Atlantic City were
$104.2 million in the 1998 second quarter, up 3% from $101.5 million in the
1997 second quarter. Casino revenue was 3% higher in the 1998 versus 1997
second quarter, primarily reflecting a 9% increase in games revenue. The
increase in games revenue was a result of increases in the volume of play and
the hold percentage.
Tropicana Atlantic City had operating income of $15.9 million in the 1998
second quarter, a 16% improvement over $13.8 million in the 1997 second
quarter. Casino costs were 1% lower in the 1998 versus 1997 second quarter
primarily due to a 3% reduction in coin offers to slot players. Utilities
expense was $0.5 million lower in the 1998 versus 1997 second quarter
primarily due to a favorable electrical contract that began in November 1997.
The provision for doubtful accounts was $1.2 million higher in the 1998
versus 1997 second quarter due to an increase in the allowance for potential
uncollectible markers associated with the property's ongoing emphasis on the
games segment of the business. Operating income is after rent and
depreciation and amortization expenses. Rent expense was $1.1 million in the
1998 second quarter compared to $1.6 million in the 1997 second quarter.
Depreciation and amortization was $6.2 million in the second quarter of 1998
compared to $5.5 million in the second quarter of last year.
18
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AZTAR CORPORATION AND SUBSIDIARIES
TROPICANA LAS VEGAS At Tropicana Las Vegas, total revenues were $40.6
million in the 1998 second quarter, a 2% decrease from $41.4 million in the
1997 second quarter. Casino revenue was 5% lower in the 1998 versus 1997
second quarter, primarily due to a 20% decrease in games revenue that was
partially offset by an 11% increase in slot revenue. Tropicana Las Vegas had
an operating loss of $1.2 million for the 1998 second quarter compared to
operating income of $0.3 million for the 1997 second quarter. Operating loss
or income is after rent and depreciation and amortization expenses. Rent
expense was $2.5 million in the 1998 second quarter compared to $2.6 million
in the 1997 second quarter. Depreciation and amortization was $2.4 million
in the second quarter of 1998 compared to $2.3 million in last year's second
quarter.
RAMADA EXPRESS At Ramada Express, total revenues were $21.4 million in the
1998 second quarter, up slightly from $21.2 million in the 1997 second
quarter. Operating income was $2.6 million in the 1998 second quarter
compared to $3.2 million in the 1997 second quarter. Operating income is
after rent and depreciation and amortization expenses. Rent expense was $0.1
million in both periods. Depreciation and amortization was $1.7 million in
the 1998 second quarter compared to $1.8 million in the 1997 second quarter.
CASINO AZTAR EVANSVILLE Total revenues at Casino Aztar Evansville were $31.0
million in the 1998 second quarter, a 2% increase over $30.4 million in last
year's second quarter. Operating income was $8.0 million in the 1998 second
quarter, a 3% decrease from $8.3 million in the 1997 second quarter.
Operating income is after rent and depreciation and amortization expenses.
Rent expense was $1.0 million in the second quarter of 1998 compared to $0.8
million in the second quarter of 1997. Depreciation and amortization was
$2.5 million in the 1998 second quarter compared to $2.3 million in last
year's second quarter.
CASINO AZTAR CARUTHERSVILLE Total revenues at Casino Aztar Caruthersville
were $6.0 million in the 1998 second quarter compared to $5.9 million in the
1997 second quarter. Casino Aztar Caruthersville had an operating loss of
$0.5 million in the second quarter of 1998 compared to $0.7 million in the
second quarter of 1997. Operating loss is after depreciation and
amortization of $0.8 million in both periods.
Other Matters
In April 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants issued a Statement of Position No.
98-5 entitled "Reporting on the Costs of Start-up Activities" ("SOP"). The
SOP stipulates that all costs that meet its definition of start-up
activities, which the Company has referred to as preopening costs, must be
expensed as incurred. The provisions of the SOP are effective for fiscal
years beginning after December 15, 1998. Upon adoption, entities are
required to write off all capitalized start-up costs as a cumulative effect
of a change in accounting principle. Entities are not required to report the
pro forma effect of retroactive application. The Company will adopt this SOP
when required. The Company's policy is, and has been, to capitalize these
costs as incurred and to expense them in the period the related facility
commences operations. Adoption of the SOP will have only a prospective
effect on the Company's financial statements as there are no capitalized
preopening costs at July 2, 1998 and the Company is not, nor plans to be,
engaged in start-up activities in 1998.
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AZTAR CORPORATION AND SUBSIDIARIES
In June 1998, the Financial Accounting Standards Board ("FASB") adopted
Statement of Financial Accounting Standards No. 133, Accounting for
Derivative Instruments and Hedging Activities ("SFAS 133"), which establishes
accounting and reporting standards for derivative instruments and for hedging
activities. It requires that an entity recognize all derivatives as either
assets or liabilities in the statement of financial position and measure
those instruments at fair value. If certain conditions are met, a derivative
may be specifically designated as a hedge of certain financial exposures.
The accounting for changes in the fair value of a derivative depends on the
intended use of the derivative and, if it's used in hedging activities, it
depends on its effectiveness as a hedge. SFAS 133 is effective for all
fiscal quarters of fiscal years beginning after June 15, 1999. SFAS 133
should not be applied retroactively to financial statements of prior periods.
The Company will adopt SFAS 133 when required. The effect, if any, of
adopting SFAS 133 has not been determined.
Management has initiated an enterprise-wide program to prepare the Company's
computer systems and applications for the year 2000. This is necessary
because computer programs have been written using two digits rather than four
to define the applicable year. The Company expects to incur internal staff
costs as well as consulting and other expenses related to infrastructure and
facilities enhancements necessary to prepare the systems for the year 2000.
Tropicana Atlantic City has undertaken a $6 million capital program, which is
expected to be complete by July 1999, to purchase upgrades for its major
hardware and software systems. When this capital program is completed, the
Atlantic City Tropicana should have addressed most of its year 2000 issues.
Tropicana Las Vegas and Ramada Express have decided to purchase upgrades for
several major software systems. Conversion to these upgrades is expected to
be completed by July 1999. The cost of these new software systems for both
operations combined is approximately $2.0 million, which represents
substantially all of the expected costs to make both these properties year
2000 compliant. Casino Aztar Evansville and Casino Aztar Caruthersville use
primarily third-party standard vendor software and are working with such
vendors to ensure year 2000 compliance and no significant costs are expected
to be incurred at these properties. The Company expects its year 2000 date
conversion projects to be completed on a timely basis. However, there can be
no assurance that the systems of other companies on which the Company's
systems rely will be timely converted or that any such failure to convert by
another company would not have an adverse effect on the Company's systems.
PART - II OTHER INFORMATION
Item 1. Legal Proceedings
(a) In connection with Case No. CV-S-94-1126-DAE(RJJ)-BASE FILE (the
"Poulos/Ahearn Case"), Case No. CV-S-95-00923-LDG(RJJ)(the "Schreier
Case") and Case No. CV-S-95-936 LDG(RLH)(the "Cruise Ship Case"),
(collectively, the "Consolidated Cases"), as reported under Part I, Item
3 of the Company's Form 10-K for the year ended January 1, 1998, the
plaintiffs, as reported under Part II, Item 1(a) of the Company's Form
10-Q for the quarter ended April 2, 1998, filed a motion on March 18,
1998, for class certification. On March 19, 1998, the Magistrate Judge
granted defendants' motion seeking to bifurcate discovery into "class"
and "merits" phases, and to stay "merits" discovery pending a decision
on plaintiffs' motion for class certification. "Class" discovery was
20
<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
completed on July 17, 1998; however, plaintiffs have filed a motion to
compel further discovery from the defendants. If that motion is
granted, defendants could be required to provide additional documents
and information to plaintiffs. The stay of merits discovery remains in
effect until the court decides the motion for class certification.
Item 4. Submission of Matters to a Vote of Security Holders
At the Company's annual meeting of shareholders held on May 12, 1998, the
persons whose names are set forth below were elected as directors to serve
until the 2001 annual meeting or until their retirement date or until their
successors are elected and qualified. The relevant voting information is as
follows:
Votes Cast
Nominee For Withheld
Edward M. Carson 41,819,388 682,323
John R. Norton 41,821,953 679,758
Robert S. Rosow 41,815,097 686,614
Richard Snell 41,827,223 674,488
Item 5. Other Information
On May 21, 1998, the Securities and Exchange Commission adopted an amendment
to Rule 14a-4 promulgated under the Securities Exchange Act of 1934, as
amended, which governs a company's use of its discretionary proxy voting
authority with respect to certain stockholder proposals raised at a
stockholders meeting. The Company's bylaws contain an advance notice
provision that requires that notice of stockholder proposals be received by
the Company not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders
in order to be properly brought before the meeting. This bylaw provision
will govern under amended Rule 14a-4.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Page No.
----------
10.1 Amended and Restated Reducing Revolving Loan
Agreement, dated as of May 28, 1998, among
Aztar Corporation and the lenders therein
named; Bankers Trust Company and Societe
Generale, as documentation agents; Bank of
Scotland, Credit Lyonnais Los Angeles Branch
and PNC Bank, National Association, as co-
agents; and Bank of America National Trust and
Savings Association, as administrative agent. *
21
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AZTAR CORPORATION AND SUBSIDIARIES
Page No.
--------
10.2 Term Loan Agreement, dated as of May 28, 1998,
among Aztar Corporation and the lenders therein
named; and Bank of America National Trust and
Savings Association, as administrative agent. *
10.3 Amendment No. 1, dated as of May 28, 1998, to
Second Amended and Restated Loan Agreement
dated as of October 4, 1994, among Tropicana
Enterprises, Hotel Ramada of Nevada and the
banks therein named; Bankers Trust Company and
Societe Generale, as documentation agents; Bank
of Scotland, Credit Lyonnais Los Angeles Branch
and PNC Bank, National Association, as co-
agents; and Bank of America National Trust and
Savings Association, as administrative agent. *
27. Financial Data Schedule. *
* See exhibit index at page E-1 of this report for a
listing of exhibits filed with this report.
All other exhibits have been omitted because the
information is either not required or not applicable.
(b) Reports on Form 8-K
The Company did not file any report on Form 8-K during
the quarter ended July 2, 1998.
22
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AZTAR CORPORATION AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
AZTAR CORPORATION
------------------------------
(Registrant)
Date August 11, 1998 By ROBERT M. HADDOCK
-------------------------- ---------------------------
Robert M. Haddock
Executive Vice President and
Chief Financial Officer
23
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AZTAR CORPORATION AND SUBSIDIARIES
Exhibit Index
- -------------
10.1 Amended and Restated Reducing Revolving Loan Agreement, dated
as of May 28, 1998, among Aztar Corporation and the lenders
therein named; Bankers Trust Company and Societe Generale, as
documentation agents; Bank of Scotland, Credit Lyonnais Los
Angeles Branch and PNC Bank, National Association, as co-
agents; and Bank of America National Trust and Savings
Association, as administrative agent.
10.2 Term Loan Agreement, dated as of May 28, 1998, among Aztar
Corporation and the lenders therein named; and Bank of America
National Trust and Savings Association, as administrative
agent.
10.3 Amendment No. 1, dated as of May 28, 1998, to Second Amended
and Restated Loan Agreement dated as of October 4, 1994, among
Tropicana Enterprises, Hotel Ramada of Nevada and the banks
therein named; Bankers Trust Company and Societe Generale, as
documentation agents; Bank of Scotland, Credit Lyonnais Los
Angeles Branch and PNC Bank, National Association, as co-
agents; and Bank of America National Trust and Savings
Association, as administrative agent.
27. Financial Data Schedule.
E-1
AMENDED AND RESTATED REDUCING REVOLVING LOAN AGREEMENT
Dated as of May 28, 1998
among
AZTAR CORPORATION
THE LENDERS HEREIN NAMED
BANKERS TRUST COMPANY
and
SOCIETE GENERALE, as Documentation Agents
BANK OF SCOTLAND
CREDIT LYONNAIS LOS ANGELES BRANCH
and
PNC BANK, NATIONAL ASSOCIATION, as Co-Agents
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Administrative Agent
TABLE OF CONTENTS
Article 1 DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms
1.2 Use of Defined Terms
1.3 Accounting Terms
1.4 Rounding
1.5 Exhibits and Schedules
1.6 References to "Borrower and its Subsidiaries"
1.7 Miscellaneous Terms
1.8 Relationship to TEGP Loan Agreement
Article 2 LOANS AND LETTERS OF CREDIT
2.1 Loans-General
2.2 Alternate Base Rate Loans
2.3 Eurodollar Rate Loans
2.4 Letters of Credit
2.5 Voluntary Reduction of Commitment
2.6 Automatic Reduction of Commitment
2.7 Optional Termination of Commitment
2.8 Increase of Commitment
2.9 Administrative Agent's Right to Assume Funds
Available for Advances
2.10 Swing Line
2.11 Extension of Initial Reduction Date and Maturity Date
2.12 Collateral and Guaranty
2.13 Senior Indebtedness
Article 3 PAYMENTS AND FEES
3.1 Principal and Interest
3.2 Arrangement Fee
3.3 Upfront Fees
3.4 Commitment Fees
3.5 Letter of Credit Fees
3.6 Agency Fees
3.7 Increased Commitment Costs
3.8 Eurodollar Costs and Related Matters
3.9 Late Payments
3.10 Computation of Interest and Fees
3.11 Non-Banking Days
3.12 Manner and Treatment of Payments
3.13 Funding Sources
3.14 Failure to Charge Not Subsequent Waiver
3.15 Administrative Agent's Right to Assume Payments
Will be Made by Borrower
3.16 Fee Determination Detail
3.17 Survivability
Article 4 REPRESENTATIONS AND WARRANTIES
4.1 Existence and Qualification; Power; Compliance
With Laws
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations
4.3 No Governmental Approvals Required
4.4 Subsidiaries
4.5 Financial Statements
4.6 No Other Liabilities; No Material Adverse Changes
4.7 Title to Property
4.8 Intangible Assets
4.9 Public Utility Holding Company Act
4.10 Litigation
4.11 Binding Obligations
4.12 No Default
4.13 ERISA
4.14 Regulations T, U and X; Investment Company Act
4.15 Disclosure
4.16 Tax Liability
4.17 Projections
4.18 Hazardous Materials
4.19 Developed Properties
4.20 Gaming Laws
4.21 Security Interests
Article 5 AFFIRMATIVE COVENANTS(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
5.1 Payment of Taxes and Other Potential Liens
5.2 Preservation of Existence
5.3 Maintenance of Properties
5.4 Maintenance of Insurance
5.5 Compliance With Laws
5.6 Inspection Rights
5.7 Keeping of Records and Books of Account
5.8 Compliance With Agreements
5.9 Use of Proceeds
5.10 Future Collateral
5.11 New Significant Subsidiaries
5.12 Hazardous Materials Laws
5.13 Intercompany Notes
Article 6 NEGATIVE COVENANTS
6.1 Payment of Subordinated Obligations
6.2 Disposition of Property
6.3 Mergers
6.4 Hostile Acquisitions
6.5 Distributions
6.6 ERISA
6.7 Change in Nature of Business
6.8 Liens and Negative Pledges
6.9 Indebtedness and Guaranty Obligations
6.10 Transactions with Affiliates
6.11 Senior Leverage Ratio
6.12 Total Leverage Ratio
6.13 Interest Coverage Ratio
6.14 Minimum Adjusted EBITDA
6.15 Capital Expenditures
6.16 Investments and Acquisitions
6.17 Subsidiary Indebtedness
6.18 Significant Subsidiaries
6.19 Amendments to Subordinated Obligations
Article 7 INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information
7.2 Compliance Certificates
Article 8 CONDITIONS
8.1 Initial Advances, Etc.
8.2 Acquisition of Future Collateral
8.3 Any Increasing Advance, Etc.
8.4 Any Advance
Article 9 EVENTS OF DEFAULT AND REMEDIES
UPON EVENT OF DEFAULT
9.1 Events of Default
9.2 Remedies Upon Event of Default
Article 10 THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization
10.2 Administrative Agent and Affiliates
10.3 Proportionate Interest in any Collateral
10.4 Lenders' Credit Decisions
10.5 Action by Administrative Agent
10.6 Liability of Administrative Agent
10.7 Indemnification
10.8 Successor Administrative Agent
10.9 Foreclosure on Collateral
10.10 No Obligations of Borrower
Article 11 MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver
11.2 Amendments; Consents
11.3 Costs, Expenses and Taxes
11.4 Nature of Lenders' Obligations
11.5 Survival of Representations and Warranties
11.6 Notices
11.7 Execution of Loan Documents
11.8 Binding Effect; Assignment
11.9 Right of Setoff
11.10 Sharing of Setoffs
11.11 Indemnity by Borrower
11.12 Nonliability of the Lenders
11.13 No Third Parties Benefited
11.14 Confidentiality
11.15 Further Assurances
11.16 Integration
11.17 Governing Law
11.18 Severability of Provisions
11.19 Headings
11.20 Time of the Essence
11.21 Foreign Lenders and Participants
11.22 Hazardous Material Indemnity
11.23 Gaming Boards
11.24 Removal of a Lender
11.25 Release of Tropicana Collateral
11.26 Termination; Release of Liens
11.27 Other Lien Releases
11.28 Waiver of Right to Trial by Jury
11.29 Purported Oral Amendments
Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Confirmation of Guaranty
D - Global Collateral Documents Amendment
E - Global Assignment and Release
F - Intercreditor Agreement
G - Note
H-1- Opinion of Counsel
H-2- Opinion of Counsel
H-3- Opinion of Counsel
H-4- Opinion of Counsel
H-5- Opinion of Counsel
I - Pricing Certificate
J - Request for Letter of Credit
K - Request for Loan
Schedules
1.1 Lender Commitments
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens and Negative Pledges
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.18 Environmental Matters
4.19 Developed Properties
6.9 Existing Indebtedness
6.16 Existing Investments
AMENDED AND RESTATED REDUCING REVOLVING LOAN
AGREEMENT
Dated as of May 28, 1998
This AMENDED AND RESTATED
REDUCING REVOLVING LOAN AGREEMENT ("Agreement") is entered into
by and among Aztar Corporation, a Delaware corporation ("Borrower"),
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 11.8 (collectively, the "Lenders"
and individually, a "Lender"), Bankers Trust Company and Societe
Generale, as Documentation Agents, Bank of Scotland, Credit Lyonnais
Los Angeles Branch and PNC Bank, National Association, as Co-Agents,
and Bank of America National Trust and Savings Association, as
Administrative Agent with respect to the following:
A. Borrower (together with certain of its Subsidiaries,
as co-borrowers on a joint and several basis, herein the "Co-Borrower
Subsidiaries") has heretofore entered that certain Reducing Revolving
Loan Agreement dated as of October 4, 1994 (as amended, the "Prior Loan
Agreement") with the Administrative Agent and the lenders (the "Prior
Lenders") party thereto. The obligations of Borrower (and the Co-
Borrower Subsidiaries) are guaranteed by other Subsidiaries of Borrower
pursuant to a Subsidiary Guaranty (as defined in the Prior Loan Agreement)
and secured by the Collateral Documents (as defined in the Prior Loan
Agreement).
B. Borrower has requested that the credit
facility created under the Prior Loan Agreement be transformed into two
credit facilities: a reducing revolving credit facility to be evidenced
by this Agreement and a $50,000,000 term credit facility to be evidenced
by the Term Loan Agreement (defined below), with new lenders joining
either new credit facility and with differing participation levels for
the continuing lenders in the reducing revolving credit facility.
In connection therewith, the Co-Borrower Subsidiaries will be released
as co-obligors under the Prior Loan Agreement, but will become party
to the Subsidiary Guaranty. The Collateral (as defined in the Prior
Loan Agreement) under the Collateral Documents will continue to secure
the obligations of Borrower and the Subsidiary Guarantors with respect
to this Agreement and the Term Loan Agreement on a pari-passu basis
pursuant to an Intercreditor Agreement (defined below). The Prior
Lenders are willing to so transform the credit facilities as requested
by Borrower.
C. Concurrently herewith, pursuant to the Global
Assignment and Release (defined below), the Prior Lenders have
assigned, with the consent of Borrower, their rights and obligations
under the Prior Loan Agreement to the Lenders under this Agreement
and to the Term Lenders (defined below) under the Term Loan Agreement,
and the Lenders and Term Lenders, respectively, have assumed such
rights and obligations as evidenced, respectively, by this Agreement
and the Term Loan Agreement. Pursuant to the Global Assignment and
Release, certain of the Prior Lenders will be released from all
further right and obligation under the Prior Loan Agreement and the
Co-Borrower Subsidiaries will be released from their obligations as
co-borrowers under the Prior Loan Agreement.
D. Concurrently with the Prior Loan Agreement,
the Prior Lenders also extended an amortizing loan credit facility
to Tropicana Enterprises ("TEGP"), a general partnership of which
a Subsidiary of Borrower is a 50% general partner, pursuant to the
Second Amended and Restated Loan Agreement dated as of October 4,
1994 (the "Prior TEGP Loan Agreement"). The Prior TEGP Loan
Agreement is secured by its own collateral and not by the Collateral
under the Collateral Documents. The Prior Lenders were required to
maintain the same Pro Rata Share of the Commitment under the Prior
Loan Agreement as under the Prior TEGP Loan Agreement and that
requirement will continue with respect to this Agreement and the
TEGP Loan Agreement (defined below). Pursuant to the Global
Assignment and Release, the Prior Lenders will also assign, with
the consent of TEGP, their respective rights and obligations under
the Prior TEGP Loan Agreement to the Lenders under the TEGP Loan
Agreement, and the Lenders will assume such rights and obligations
as evidenced by the TEGP Loan Agreement.
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:
"Acquisition" means any transaction, or any
series of related transactions, consummated after the Closing Date,
by which Borrower and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially
all of the assets of any Person engaged in any ongoing business,
whether through purchase of assets, merger or otherwise, (b)
acquires control of securities of a Person engaged in an ongoing
business representing more than 50% of the ordinary voting power
for the election of directors or other governing position if the
business affairs of such Person are managed by a board of directors
or other governing body or (c) acquires control of more than 50% of
the ownership interest in any partnership, joint venture, limited
liability company, business trust or other Person engaged in an
ongoing business that is not managed by a board of directors or
other governing body.
"Acquisition Expenditure" means the
aggregate consideration paid or payable in Cash by Borrower or
any of its Subsidiaries as the purchase price for an Acquisition,
including (a) Borrower's best estimate of the amount of any
contingent Cash purchase consideration and (b) amounts paid or
payable for agreements not to compete, guaranteed employment
contracts and similar agreements benefiting the sellers in
respect of the Acquisition. An Acquisition Expenditure shall
not be deemed a Capital Expenditure.
"Adjusted EBITDA" means, with
respect to any fiscal period, the sum of (a) Net Income for that
period, plus (b) any extraordinary loss reflected in such Net
Income, minus (c) any extraordinary gain reflected in such Net
Income, plus (d) Interest Expense for that period, plus (e) the
aggregate amount of federal and state taxes on or measured by
income for that period (whether or not payable during that period),
plus (f) depreciation, amortization and all other non-cash expenses
for that period, plus (g) Borrower's equity in any net loss of TEGP
for that period, minus (h) Borrower's equity in any net
income of TEGP for that period, plus (i) that portion of the rentals
paid to TEGP by HRN during that period which is designated and
used to service principal and interest payable under the TEGP Loan
Agreement, plus (j) dividends or other income received in Cash in
that period by Borrower or the Restricted Subsidiaries from an
Unrestricted New Venture Entity (but only to the extent of earnings
before interest, taxes, depreciation and amortization of such
Unrestricted New Venture Entity), in each case as determined in
accordance with Generally Accepted Accounting Principles and, in
the case of items (d), (e), (f), (g), (h) and (i), only to the extent
reflected in the determination of Net Income for that period.
"Adjusted Funded Debt" means, as of any date of
determination, Funded Debt as of that date plus (without
duplication) (a) all outstanding letters of credit on that date (other
than any letter of credit to the extent collateralized by the deposit
with the issuing bank of Cash, Cash Equivalents or a certificate of
deposit or other deposit account of the issuing bank as collateral
security therefor) plus (b) all Guaranty Obligations of Borrower and
the Restricted Subsidiaries on that date with respect to Indebtedness
of any Person that is not a Restricted Subsidiary, plus (c) all other
Guaranty Obligations of Borrower and the Restricted Subsidiaries if
and to the extent the amount thereof has been (or in accordance with
Financial Accounting Standards Board Statement No. 5 should be)
quantified as of that date and reflected or disclosed in the most
recent consolidated financial statements (or notes thereto) of
Borrower and the Restricted Subsidiaries.
"Adjusted Senior Funded Debt" means, as of any date of
determination, Adjusted Funded Debt as of that date minus the
principal amount of all Subordinated Obligations outstanding as of
that date.
"Administrative Agent" means Bank of America National
Trust and Savings Association, 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 Borrower and the Lenders.
"Advance" means any advance made or to be made by any
Lender to Borrower as provided in Article 2, and includes each
Alternate Base Rate Advance and Eurodollar Rate Advance.
"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
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 control such
corporation, partnership or other Person.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the sum of (a) the aggregate effective face amounts of
all such Letters of Credit not then paid by the Issuing Lender plus
(b) the aggregate amounts paid by the Issuing Lender under such
Letters of Credit not then reimbursed to the Issuing Lender by
Borrower pursuant to Section 2.4(d) and not the subject of Advances
made pursuant to Section 2.4(e).
"Agreement" means this Amended and Restated Reducing
Revolving Loan Agreement, either as originally executed or as it
may from time to time be supplemented, modified, amended,
restated or extended.
"AIGC" means Aztar Indiana Gaming Corporation, an Indiana
corporation.
"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 Advance" means an Advance made
hereunder and specified to be an Alternate Base Rate Advance in
accordance with Article 2.
"Alternate Base Rate Loan" means a Loan made hereunder
and specified to be an Alternate Base Rate Loan in accordance with
Article 2.
"AMGC" means Aztar Missouri Gaming Corporation, a
Missouri corporation.
"Ancillary Collateral Documents" means such ancillary
documents amending, or providing a memorandum for recordation
of, the Collateral Documents (including amendments to each of the
Deeds of Trust) as the Administrative Agent reasonably determines
are necessary or desirable, as notified to Borrower at least two (2)
Banking Days prior to the Closing Date.
"ANI" means Adamar of Nevada, a Nevada corporation.
"ANJI" means Adamar of New Jersey, Inc., a New Jersey
corporation.
"Applicable Alternate Base Rate Margin" means, for each
Pricing Period, the interest rate margin set forth below (expressed in
basis points per annum) opposite the Applicable Pricing Level for
that Pricing Period:
Applicable
Pricing Level Margin
I 0
II 0
III 25.00
IV 37.50
V 50.00
VI 75.00
VII 100.00
"Applicable Commitment Fee Rate" means, for each Pricing
Period, the rate set forth below (expressed in basis points per annum)
opposite the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Commitment Fee
I 22.50
II 25.00
III 25.00
IV 37.50
V 37.50
VI 43.75
VII 43.75
"Applicable Eurodollar Rate Margin" means, for each Pricing
Period, the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that
Pricing Period:
Applicable
Pricing Level Margin
I 100.00
II 125.00
III 150.00
IV 162.50
V 175.00
VI 200.00
VII 225.00
"Applicable Letter of Credit Fee" means, for each Pricing
Period, the per annum rate set forth as the interest rate margin in the
definition of "Applicable Eurodollar Rate Margin" opposite the
Applicable Pricing Level for that Pricing Period.
"Applicable Pricing Level" means (a) for the Pricing Period
from the Closing Date through August 15, 1998, Pricing Level V and
(b) for each Pricing Period thereafter, the pricing level set forth
below opposite the Pricing Ratio as of the last day of the Fiscal
Quarter most recently ended prior to the commencement of that
Pricing Period:
Pricing Level Pricing Ratio
I Less than 2.00 to 1.00
II Equal to or greater than 2.00 to 1.00
but less than 2.50 to 1.00
III Equal to or greater than 2.50 to 1.00
but less than 3.00 to 1.00
IV Equal to or greater than 3.00 to 1.00 but
less than 3.50 to 1.00
V Equal to or greater than 3.50 to 1.00 but
less than 4.00 to 1.00
VI Equal to or greater than 4.00 to 1.00 but
less than 4.50 to 1.00
VII Equal to or greater than 4.50 to 1.00;
provided that in the event that Borrower does not deliver a Pricing
Certificate with respect to any Pricing Period prior to the
commencement of such Pricing Period, then until (but only until)
such Pricing Certificate is delivered the Applicable Pricing Level for
that Pricing Period shall be Pricing Level VII.
"Arranger" means BancAmerica Robertson Stephens.
"Atlantic City Deeds of Trust" means the deeds of trust and
assignment of rents and leases executed and delivered by ANJI and
certain Significant Subsidiaries covering the Atlantic City Property
in the form of Exhibit N to the Prior Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Atlantic City Property" means the real property and
improvements thereon known as the "Tropicana Casino and Resort"
and certain related property, comprised of (a) a parcel of
approximately 4 acres located in Atlantic City, New Jersey on which
the original casino-hotel is located, (b) a parcel of approximately
3.1 acres located in Atlantic City, New Jersey on which the
expansion portion of the casino-hotel is located, (c) a parcel of
approximately 1.1 acres located in Atlantic City, New Jersey on
which a transportation center is located, (d) a parcel of
approximately 1.1 acres located in Atlantic City, New Jersey on
which a parking garage is located, (e) 23 parcels in "Block C-9"
aggregating approximately 2.7 acres located in Atlantic City, New
Jersey on which a parking lot is constructed and (f) a parcel of
approximately 3.5 acres located in Ventnor, New Jersey on which a
parking lot and minor structures are located.
"Average Quarterly Adjusted Funded Debt" means, as of the
last day of each Fiscal Quarter, the greater of (a) the principal
amount of all Adjusted Funded Debt outstanding on such day and
(b) the Average Quarterly Funded Debt as of such day.
"Average Quarterly Adjusted Senior Funded Debt" means, as
of the last day of each Fiscal Quarter, the greater of (a) the principal
amount of all Adjusted Senior Funded Debt outstanding on such day
and (b) the Average Quarterly Senior Funded Debt as of such day.
"Average Quarterly Senior Funded Debt" means, as of the last
day of each Fiscal Quarter, the average principal amount of all
Senior Funded Debt outstanding on the last day of each of the three
4 and 5 week fiscal periods comprising such Fiscal Quarter.
"Average Quarterly Funded Debt" means, as of the last day of
each Fiscal Quarter, the average principal amount of all Funded Debt
outstanding on the last day of each of the three 4 and 5 week fiscal
periods comprising such Fiscal Quarter.
"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, Arizona or New York.
"Basket Expenditures" means (a) Capital Expenditures
permitted by Sections 6.15(c), 6.15(d) and 6.15(e), (b) the
Acquisition Expenditures permitted by Section 6.16(l) and 6.16(m)
and (c) the aggregate purchase or redemption prices paid in respect
of Subordinated Obligations permitted by Section 6.1(b)(ii).
"Borrower" means Aztar Corporation, a Delaware
corporation, and its successors and permitted assigns.
"Capital Expenditure" means any expenditure by Borrower or
the Restricted Subsidiaries for or related to fixed assets or purchased
intangibles that is treated as a capital expenditure under Generally
Accepted Accounting Principles, including any amount which is
required to be treated as an asset subject to a Capital Lease
Obligation; provided, however, that Capital Expenditures to replace
or restore Property theretofore owned by Borrower or any Restricted
Subsidiary that is damaged, destroyed or taken by a Governmental
Agency under eminent domain shall not be deemed to be Capital
Expenditures to the extent funded by the proceeds of insurance or
eminent domain awards received by Borrower or the Restricted
Subsidiary. A Capital Expenditure shall not be deemed an
Acquisition Expenditure.
"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.
"Caruthersville Deed of Trust" means the deed of trust
executed and delivered by AMGC covering the Caruthersville
Property in the form of Exhibit H to the Prior Loan Agreement,
either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplemented.
"Caruthersville Property" means a fee simple parcel of
approximately 37 acres located in Caruthersville, Missouri.
"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.
"Cash Equivalents" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year after
the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America or any political
subdivision of any such State or any public agency or
instrumentality thereof given on the date of such Investment a
credit rating of at least Aa by Moody's Investors Service, Inc.
or AA by Standard & Poor's Rating Group (a division of
McGraw-Hill, Inc.), in each case due within one year from
the making of the Investment;
(c) certificates of deposit issued by, bank deposits
in, Eurodollar deposits through, bankers' acceptances of, and
repurchase agreements covering Government Securities
executed by any Lender or any bank incorporated under the
Laws of the United States of America, any State thereof or the
District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of
at least $250,000,000, or total assets of at least
$5,000,000,000, in each case due within one year after the
date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits
in, Eurodollar deposits through, bankers' acceptances of, and
repurchase agreements covering Government Securities
executed by any Lender or any branch or office located in the
United States of America of a bank incorporated under the
Laws of any jurisdiction outside the United States of America
having on the date of such Investment combined capital,
surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due
within one year after the date of the making of the
Investment;
(e) repurchase agreements covering Government
Securities executed by a broker or dealer registered under
Section 15(b) of the Securities Exchange Act of 1934, as
amended, having on the date of the Investment capital of at
least $50,000,000, due within 90 days after the date of the
making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it
of record ownership of the Government Securities on the
books of a "primary dealer" in such Government Securities or
on the books of such registered broker or dealer, as soon as
practicable after the making of the Investment;
(f) readily marketable commercial paper or other
debt securities issued by corporations doing business in and
incorporated under the Laws of the United States of America
or any State thereof or of any corporation that is the holding
company for a bank described in clause (c) or (d) above given
on the date of such Investment a credit rating of at least P-1
by Moody's Investors Service, Inc. or A-1 by Standard &
Poor's Rating Group (a division of McGraw-Hill, Inc.), in
each case due within one year after the date of the making of
the Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the Laws of the United States
of America or any State thereof (i) given on the date of such
Investment a credit rating of at least Aa by Moody's Investors
Service, Inc. and AA by Standard & Poor's Rating Group (a
division of McGraw-Hill, Inc.), in each case having an
investment period not exceeding 50 days or (ii) to the extent
that investors therein have the benefit of a standby letter of
credit issued by a Lender or a bank described in clauses (c) or
(d) above; provided that (y) the amount of all such
Investments issued by the same issuer does not exceed
$5,000,000 and (z) the aggregate amount of all such
Investments does not exceed $15,000,000;
(h) a readily redeemable "money market mutual
fund" sponsored by a bank described in clause (c) or (d)
hereof, or a registered broker or dealer described in clause (e)
hereof, that has and maintains an investment policy limiting
its investments primarily to instruments of the types described
in clauses (a) through (g) hereof and given on the date of such
Investment a credit rating of at least Aa by Moody's Investors
Service, Inc. and AA by Standard & Poor's Rating Group (a
division of McGraw-Hill, Inc.); and
(i) corporate notes or bonds having an original
term to maturity of not more than one year issued by a
corporation incorporated under the Laws of the United States
of America, or a participation interest therein; provided that
(i) commercial paper issued by such corporation is given on
the date of such Investment a credit rating of at least Aa by
Moody's Investors Service, Inc. and AA by Standard & Poor's
Rating Group (a division of McGraw-Hill, Inc.), (ii) the
amount of all such Investments issued by the same issuer does
not exceed $5,000,000 and (iii) the aggregate amount of all
such Investments does not exceed $15,000,000.
"Cash Interest Expense" means Interest Expense (other than
underwriting discounts, closing fees, legal fees and other
transactional fees and expenses, and the amortization of any thereof,
in connection with the issuance of any Indebtedness) that is paid or
currently payable in Cash.
"Certificate of a Responsible Official" means a certificate
signed by a Responsible Official 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 50%
or more of the outstanding Common Stock, or (b) any event or
circumstance constituting a "change in control" or other similar
occurrence under documentation evidencing or governing any
Indebtedness of Borrower of $25,000,000 or more which results in
an obligation of Borrower to prepay, purchase, offer to purchase,
redeem or defease all or a portion of such Indebtedness. For
purposes of the foregoing, the term "Unrelated Person" means any
Person other than (i) a Subsidiary of Borrower or (ii) an employee
stock ownership plan or other employee benefit plan covering the
employees of Borrower and its Subsidiaries.
"Closing Date" means the time and Banking Day on which
the conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrower and the Lenders of the
date that is the Closing Date.
"Co-Agents" means Bank of Scotland, Credit Lyonnais Los
Angeles Branch and PNC Bank, National Association. The Co-
Agents shall have no rights, duties or responsibilities hereunder
beyond those of a Lender.
"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 the Collateral Agent as such term is
defined in the Intercreditor Agreement.
"Collateral Documents" means, collectively, the Security
Agreement, the Trademark Collateral Assignment, the Pledge
Agreement (Nevada Gaming), the Pledge Agreement (General), the
Deeds of Trust (in the case of each of the foregoing, as amended by
the Global Collateral Documents Amendment and any Ancillary
Collateral Document) and any other security agreement, pledge
agreement, deed of trust, mortgage or other collateral security
agreement hereafter executed and delivered by Borrower or the
Significant Subsidiaries to secure the Obligations.
"Commitment" means, subject to Sections 2.5, 2.6 and 2.8,
$250,000,000.00. As of the Closing Date, the respective Pro Rata
Shares of the Lenders with respect to the Commitment are set forth
in Schedule 1.1. From and after the Closing Date, the Pro Rata
Shares set forth in Schedule 1.1 may be subject to assignment
pursuant to Section 11.8, with the portion of any Pro Rata Share so
assigned being reflected in the applicable Commitment Assignment
and Acceptance.
"Commitment Assignment and Acceptance" means a
commitment assignment and acceptance substantially in the form of
Exhibit A.
"Common Stock" means the common stock of Borrower or its
successor by merger.
"Completion Guaranty" means a Guaranty Obligation given
by Borrower or a Restricted Subsidiary to a holder of Indebtedness
of, or an obligee of, a New Venture Entity which obligates Borrower
or the Restricted Subsidiary (a) to cause the completion of
construction of a New Venture, (b) to provide funding for all or a
portion of any construction cost overruns with respect thereto, and/or
(c) to cause the New Venture Entity to perform any of its
Contractual Obligations (other than in respect of the repayment of
any Indebtedness or other monetary obligation of the New Venture
Entity) to an obligee of the New Venture Entity.
"Compliance Certificate" means a certificate in the form of
Exhibit B, properly completed and signed by a Senior Officer of
Borrower.
"Confirmation of Guaranty" means the confirmation of
guaranty with respect to the Subsidiary Guaranty executed by each
Significant Subsidiary as of the Closing Date, in the form of
Exhibit C, either as originally executed or as it may from time to
time be supplemented, modified, amended, extended or supplanted.
"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.
"Deeds of Trust" means (a) the Ramada Express Deed of
Trust, (b) the Atlantic City Deeds of Trust, (c) the Caruthersville
Deed of Trust and (d) the Evansville Deed of Trust.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1, or both,
would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.9.
"Designated Deposit Account" means a deposit account to be
maintained by Borrower with Bank of America National Trust and
Savings Association, as from time to time designated by Borrower
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 the Cayman
Islands Eurodollar Market are at the relevant time not accepting
deposits of Dollars or if the Administrative Agent determines in
good faith that the Cayman Islands Eurodollar Market does not
represent at the relevant time the effective pricing to the Lenders for
deposits of Dollars in the Cayman Islands Eurodollar Market, such
other Eurodollar Market as may from time to time be selected by the
Administrative Agent with the approval of Borrower 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, golf course, entertainment center or similar facility
owned by Borrower or any of the Restricted Subsidiaries (or owned
by a Person in which Borrower or any of the Restricted Subsidiaries
holds an Investment other than an Investment of the type
contemplated by Section 6.16(n)) and which is at such date
substantially complete and open for business.
"Disposition" means the voluntary sale, transfer or other
disposition (including a Sale and Leaseback Transaction) of any
asset of Borrower or any of the Restricted Subsidiaries other than
(a) Cash, Cash Equivalents, inventory or other assets sold, leased or
otherwise disposed of in the ordinary course of business of Borrower
or a Restricted Subsidiary, (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 Borrower or a Restricted Subsidiary, or where Borrower or the
Restricted Subsidiary determines in good faith that the failure to
replace such equipment will not be detrimental to the business of
Borrower or the Restricted Subsidiary and (c) a disposition to
Borrower or a Restricted Subsidiary.
"Disqualified Stock" means any capital stock, warrants,
options or other rights to acquire capital stock (but excluding any
debt security which is convertible, or exchangeable, for capital
stock), which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to
the Maturity Date; provided that the aforementioned interests shall
not be Disqualified Stock if they are redeemable prior to the
Maturity Date only if the board of directors of Borrower determines
in its judgment that as a result of a holder or beneficial owner
owning such interests (i) Borrower or a Subsidiary of Borrower has
lost or may lose any license or franchise from any Gaming Board
held by Borrower or any Subsidiary of Borrower necessary to
conduct any portion of the business of Borrower or such Subsidiary
of Borrower or (ii) any Gaming Board has taken or may take action
to materially restrict or impair the operations of Borrower or its
Subsidiaries, which license, franchise or action is conditioned upon
some or all of the holders or beneficial owners of such interests
being licensed or found qualified or suitable to own such interests.
"Distribution" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity security or other
equity security issued by a Person, (i) the retirement, redemption,
purchase or other acquisition for Cash or for Property by such
Person of any such security, (ii) the declaration or (without duplica-
tion) payment by such Person of any dividend in Cash or in Property
on or with respect to any such security, (iii) any Investment by such
Person in the holder of 5% or more of any such security if a purpose
of such Investment is to avoid characterization of the transaction as a
Distribution and (iv) any other payment in Cash or Property by such
Person constituting a distribution under applicable Laws with respect
to such security.
"Documentation Agents" means Bankers Trust Company and
Societe Generale. The Documentation Agents shall have no rights,
duties or responsibilities hereunder beyond those of a Lender.
"Dollars" or "$" means United States dollars.
"Domestic Reference Lender" means Bank of America
National Trust and Savings Association.
"Eligible Assignee" means (a) another Lender, (b) with
respect to any Lender, any Affiliate of that 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 and extending credit 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 or funding office 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
(including the New Jersey Casino Control Commission).
"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 Borrower 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 Borrower pursuant
to Section 2.1(b) 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 Borrower in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period shall be a
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) Borrower may not specify a Eurodollar Period
that extends beyond the next Reduction Date unless the sum
of (i) the aggregate principal amount of the Eurodollar Loans
having a Eurodollar Period ending after such Reduction Date
plus (ii) the aggregate maximum amount available for
drawing under Letters of Credit for which the expiry date is
after such Reduction Date, does not exceed the Commitment
(after giving effect to any reduction thereto scheduled to be
made on such Reduction Date pursuant to Section 2.6); and
(d) No Eurodollar Period shall extend beyond the
Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan, the interest rate 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 Euro-
dollar 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 an Advance made
hereunder and specified to be a Eurodollar Rate Advance in
accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and
specified to be a Eurodollar Rate Loan in accordance with Article 2.
"Eurodollar Reference Lender" means Bank of America
National Trust and Savings Association.
"Evansville Deed of Trust" means the deed of trust executed
and delivered by AIGC covering the Evansville Property in the form
of Exhibit H to the Prior Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"Evansville Property" means (a) a fee simple parcel of
approximately 3.6 acres and (b) a leasehold parcel of approximately
10.2 acres, in both cases located in Evansville, Indiana.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing 11% Subordinated Debt" means the 11% Senior
Subordinated Notes due 2002 issued by Borrower.
"Existing 13 3/4% Subordinated Debt" means the 13 3/4%
Senior Subordinated Notes due 2004 issued by Borrower.
"Existing 13 3/4% Subordinated Debt Indenture" means the
Indenture governing the Existing 13 3/4% Subordinated Debt, as in
effect on the date of this Agreement, and as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplanted with the written consent of the Requisite Lenders.
"Existing Indentures" means the Existing 13 3/4%
Subordinated Debt Indenture and the indenture covering the Existing
11% Subordinated Debt.
"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.
"Fiscal Quarter" means the fiscal quarter of Borrower
consisting of a 13 week or 14 week fiscal period ending on or about
each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting of
a 52 week or 53 week fiscal period ending on the Thursday nearest
December 31.
"Funded Debt" means, as of any date of determination
(without duplication and on a consolidated basis), the sum of (a) all
principal Indebtedness of Borrower and the Restricted Subsidiaries
and of TEGP for borrowed money (including debt securities issued
by Borrower, any of the Restricted Subsidiaries or TEGP, but
excluding in any event any contingent obligations with respect to
undrawn letters of credit) on that date plus (b) the aggregate amount
of the principal portion of all Capital Lease Obligations of Borrower
and the Restricted Subsidiaries and of TEGP on that date.
"Gaming Board" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the
New Jersey Casino Control Commission, (d) the New Jersey
Division of Gaming Enforcement, (e) the Indiana Gaming
Commission, (f) the Missouri Gaming Commission and (g) any other
Governmental Agency that holds regulatory, licensing or permit
authority over gambling, gaming or casino activities conducted by
Borrower and the Restricted Subsidiaries within its jurisdiction.
"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 Borrower
and the Restricted Subsidiaries 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.
"Global Assignment and Release" means the global
assignment and release to be executed and delivered by the Prior
Lenders, the Term Lenders, the Lenders and Borrower as of the
Closing Date, in the form of Exhibit E.
"Global Collateral Documents Amendment" means the Global
Collateral Documents Amendment amending the Collateral
Documents to be executed by Borrower and the Subsidiary
Guarantors, in the form of Exhibit D, as of the Closing Date,
together with all ancillary amendments to the Collateral Documents
referred to therein.
"Government Securities" means readily marketable (a) direct
full faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United
States of America and (b) obligations of an agency or instrumentality
of, or corporation owned, controlled or sponsored by, the United
States of America that are generally considered in the securities
industry to be implicit obligations of the United States of America.
"Governmental 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, or (c) any court or administrative
tribunal of competent jurisdiction.
"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 should be) quantified and reflected
or disclosed in the consolidated financial statements (or notes
thereto) of Borrower and the Restricted Subsidiaries.
"Hazardous Materials" means substances defined as
"hazardous substances" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. Sec. 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. Sec. 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Sec. 6901, et seq., or as
"friable asbestos" pursuant to the Toxic Substances Control Act,
15 U.S.C. Sec. 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.
"HRN" means Hotel Ramada of Nevada, a Nevada
corporation.
"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
value of such assets, (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.
"Intangible Assets" means assets that are considered
intangible assets under Generally Accepted Accounting Principles,
including customer lists, goodwill, computer software, copyrights,
trade names, trademarks and patents.
"Intercompany Notes" means the intercompany promissory
notes required pursuant to Section 5.13.
"Intercreditor Agreement" means the intercreditor agreement
to be executed and delivered by the Administrative Agent, on behalf
of the Lenders, and the Term Loan Agent, on behalf of the Term
Lenders, in the form of Exhibit E.
"Interest Charges" means, as of the last day of any fiscal
period, the sum of (a) Cash Interest Expense for that fiscal period,
plus (b) all interest currently payable in Cash incurred during that
fiscal period which is capitalized under Generally Accepted
Accounting Principles, plus (c) that portion of the rentals paid to
TEGP by HRN during that period which is designated and used to
service interest payable under the TEGP Loan Agreement.
"Interest Coverage Ratio" means, as of the last day of each
Fiscal Quarter, the ratio of (a) Adjusted EBITDA for the fiscal
period consisting of that Fiscal Quarter and the three immediately
preceding Fiscal Quarters to (b) Interest Charges for that fiscal
period.
"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 Expense" means, as of the last day of any fiscal
period, the sum of (a) all interest, fees, charges and related expenses
paid or payable (without duplication) for that fiscal period by
Borrower and the Restricted Subsidiaries to a lender in connection
with borrowed money (including any obligations for fees, charges
and related expenses payable to the issuer of any letter of credit) or
the deferred purchase price of assets that are considered "interest
expense" under Generally Accepted Accounting Principles, plus
(b) the portion of rent paid or payable (without duplication) for that
fiscal period by Borrower and the Restricted Subsidiaries under
Capital Lease Obligations that should be treated as interest in
accordance with Financial Accounting Standards Board Statement
No. 13.
"Interest Period" means, with respect to any Eurodollar Rate
Loan, the related Eurodollar Period.
"Initial Reduction Date" means September 30, 2000 or such
later Initial Reduction Date as may then be in effect pursuant to
Section 2.11.
"Investment" means, when used in connection with any
Person, any investment by or of that Person, whether by means of
purchase or other acquisition of stock or other securities of any other
Person or by means of a loan, advance creating a debt, capital
contribution, guaranty or other debt or equity participation or interest
in any other Person, including any partnership and joint venture
interests of such Person. The amount of any Investment shall be the
amount actually invested (minus any return of capital with respect to
such Investment which has actually been received in Cash or Cash
Equivalents or has been converted into Cash or Cash Equivalents),
without adjustment for subsequent increases or decreases in the
value of such Investment.
"Issuing Lender" means Bank of America National Trust and
Savings Association.
"Jaffe Partnership Interest" means the general partnership
interest in TEGP held, as if the Closign Date, by Persons other than
ANI.
"Jaffe Transaction" means the acquisition by Borrower or any
of its Subsidiaries of the Jaffe Partnership Interest.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
"Lender" means each lender whose name is set forth in the
signature pages of this Agreement and each lender which may
hereafter become a party to this Agreement pursuant to Section 2.8
or Section 11.8.
"Lender Disqualification" means, with respect to any Lender:
(a) the failure of that Lender timely to file pursuant
to applicable Gaming Laws (i) any application requested of
the Lender by any Gaming Board in connection with licensing
required of that Lender as a lender to Borrower or (ii) any
required application or other papers in connection with
determination of the suitability of the Lender as a lender to
Borrower;
(b) the withdrawal by that Lender (except where
requested or permitted, without prejudice, by the Gaming
Board) of any such application or other required papers; or
(c) any final determination by a Gaming Board
pursuant to applicable Gaming Laws (i) that the Lender is
"unsuitable" as a lender to Borrower, (ii) that the Lender shall
be "disqualified" as a lender to Borrower or (iii) denying a
finding of suitability as a lender to Borrower or denying the
issuance to the Lender of any license required under
applicable Gaming Laws to be held by all lenders to
Borrower.
"Letters of Credit" means (a) standby letter of credit No.
LASB-22401 in the amount of $980,000 issued by Bank of America,
N.T.&S.A., as issuing bank under the Prior Loan Agreement, which
letter of credit shall be deemed issued under this Agreement as of the
Closing Date and (b) any of the standby letters of credit issued by
the Issuing Lender under the Commitment pursuant to Section 2.4,
either as originally issued or as the same may be supplemented,
modified, amended, renewed, extended or supplanted.
"License Revocation" means the revocation, failure to renew
or suspension of, or the appointment of a receiver, supervisor or
similar official with respect to, any casino, gambling or gaming
license issued by any Gaming Board covering any casino or gaming
facility of Borrower or any Restricted Subsidiary.
"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 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 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, the Global
Assignment and Release (to the extent it relates to this Agreement),
this Agreement, the Notes, the Subsidiary Guaranty, the
Confirmation of Guaranty, the Swing Line Documents, the Collateral
Documents, the Unsecured Environmental Indemnity (New Jersey),
any Secured Swap Agreement, any Request for Loan, any Request
for Letter of Credit, any Compliance Certificate, any Pricing
Certificate and any other agreements of any type or nature hereafter
executed and delivered by Borrower or any of the Restricted
Subsidiaries to the Administrative Agent or to 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.
"Maintenance Capital Expenditure" means a Capital
Expenditure for the maintenance, repair, restoration or refurbishment
of any Developed Property of Borrower or any of the Restricted
Subsidiaries, but excluding any Capital Expenditure which
materially adds to or further improves such Developed Property.
"Margin Stock" means "margin stock" as such term is defined
in Regulation G or U.
"Material Adverse Effect" means any set of circumstances or
events which (a) has or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforce-
ability of any Loan Document, (b) is or could reasonably be
expected to be material and adverse to the business or condition
(financial or otherwise) of Borrower and the Restricted Subsidiaries,
taken as a whole or (c) materially impairs or could reasonably be
expected to materially impair the ability of Borrower and the
Significant Subsidiaries, taken as a whole, to perform the
Obligations, taken as a whole.
"Maturity Date" means June 30, 2003 or such later Maturity
Date as may then be in effect pursuant to Section 2.11.
"Multiemployer Plan" means any employee benefit plan of
the type described in Section 4001(a)(3) of ERISA to which
Borrower or any of its ERISA Affiliates contribute or are obligated
to contribute.
"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrower or any of the Restricted
Subsidiaries 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 Section 6.8 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 Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and the Restricted Subsidiaries
for that period, determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
"New Subordinated Debt" means Indebtedness of Borrower
(and any Guaranty Obligation with respect thereto given by one or
more of the Restricted Subsidiaries) that (a) is unsecured, (b) has no
principal due or sinking fund requirement applicable prior to June
30, 2004 and (c) is issued pursuant to an indenture or other
agreement that contains subordination provisions applicable to such
Indebtedness and any such Guaranty Obligation, interest blockage
provisions, events of default, representations and covenants that
(i) are substantially the same as those in the Existing 13 3/4%
Subordinated Debt Indenture, (ii) are, taken as a whole, at least as
favorable to holders of senior indebtedness and less restrictive on
Borrower and the Restricted Subsidiaries or (iii) have been
approved, in their sole discretion, in writing by the Requisite
Lenders.
"New Venture" means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, golf course,
entertainment center or similar facility (or any site or proposed site
for any of the foregoing) owned or to be owned by Borrower or any
of the Restricted Subsidiaries (or owned or to be owned by a Person
in which Borrower, any of the Restricted Subsidiaries or a New
Venture Entity owned directly or indirectly by Borrower or any of
the Restricted Subsidiaries holds an Investment other than an
Investment of the type contemplated by Section 6.16(n)) and which
is not at the Closing Date a Developed Property.
"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.
"New Venture Investment" means any Investment by
Borrower or any of the Restricted Subsidiaries in an Unrestricted
New Venture Entity.
"Note" means the promissory note made by Borrower to a
Lender evidencing the Advances under that Lender's Pro Rata Share
of the Commitment, substantially in the form of Exhibit G, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"Obligations" means all present and future obligations of
every kind or nature of Borrower or any Significant Subsidiary at
any time and from time to time owed to the Administrative Agent,
the Issuing Lender , the Swing Line Lender 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 Borrower or any
Subsidiary or Affiliate of Borrower.
"Opinions of Counsel" means the favorable written legal
opinions of (a) Latham & Watkins, special counsel to Borrower and
the Restricted Subsidiaries, (b) Lionel Sawyer & Collins, special
Nevada counsel to Borrower and the Restricted Subsidiaries,
(c) Hankin, Sandson & Sandman, special New Jersey counsel to
Borrower and the Restricted Subsidiaries, (d) Ice, Miller, Donadio &
Ryan, special Indiana counsel to Borrower and the Restricted
Subsidiaries and (e) Thompson Coburn, special Missouri counsel to
Borrower and the Restricted Subsidiaries, substantially in the form
of Exhibits H-1, H-2, H-3, H-4 and H-5, respectively, together with
copies of all factual certificates and legal opinions upon which such
counsel has relied.
"Party" means any Person other than the Administrative
Agent, the Issuing Lender, the Swing Line Lender and the Lender,
which now or hereafter is a party to any of the Loan Documents.
"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 Borrower or any of its Subsidiaries or to which
Borrower or any of its Subsidiaries contributes or has an obligation
to contribute.
"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 to the extent
required by Generally Accepted Accounting Principles (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 such
Property is subject to a material 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
to the extent required by Generally Accepted Accounting
Principles 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 such Property is subject to a
material 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, facilities, or equipment 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;
(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 Governmen-
tal 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 Govern-
mental 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 to the extent required by Generally Accepted
Accounting Principles and, by reason of nonpayment, no
Property is subject to a material 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 agree-
ments 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 Prop-
erty to secure performance in connection with operating
leases made in the ordinary course of business to which
Borrower or a Subsidiary of Borrower is a party as lessee,
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 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 Borrower or a Subsidiary of
Borrower;
(q) Liens consisting of deposits of Property to
secure (or in lieu of) surety, appeal or customs bonds in
proceedings to which Borrower or a Subsidiary of Borrower
is a party;
(r) Liens created by or resulting from any litigation
or legal proceeding involving Borrower or a Subsidiary of
Borrower in the ordinary course of its 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 to the extent required by Generally Accepted
Accounting Principles and no material Property is subject to a
material risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the
ordinary course of business but not in connection with an
extension of credit, which do not in the aggregate, when taken
together with all other Liens, materially impair the value or
use of the Property of Borrower and the Subsidiaries of
Borrower, taken as a whole.
"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, Governmental
Agency, or other entity.
"Pledge Agreement (Nevada Gaming)" means the pledge
agreement executed and delivered by Borrower in the form of
Exhibit E to the Prior Loan Agreement, either as originally executed
or as it may from time to time be supplemented, modified, amended,
extended or supplanted.
"Pledge Agreement (General)" means the pledge agreement
executed and delivered by Borrower and the Significant Subsidiaries
(other than HRN), in the form of Exhibit F to the Prior Loan
Agreement, either as originally executed or as it may from time to
time be supplemented, modified, amended, extended or supplanted.
"Pledged Collateral (Nevada Gaming)" means the certificates
evidencing (a) 100% of the shares of capital stock of REI and
(b) 49% of the shares of capital stock of HRN.
"Pledged Collateral (General)" means (a) the certificates
evidencing all of the shares of capital stock held by Borrower or any
of the Significant Subsidiaries in all Subsidiaries of Borrower other
than (i) the shares of capital stock comprising the Pledged Collateral
(Nevada Gaming), (ii) 100% of the shares of capital stock of ANI,
(iii) 51% of the shares of capital stock of HRN and (iv) 100% of the
shares of AMGC and (b) the Intercompany Notes.
"Pricing Certificate" means a certificate in the form of
Exhibit I, properly completed and signed by a Senior Officer of
Parent.
"Pricing Period" means (a) the period commencing on the
Closing Date and ending on August 15, 1998, (b) the period
commencing on each August 16 and ending on the next following
November 15, (c) the period commencing on each November 16 and
ending on the next following February 15, (d) the period
commencing on each February 16 and ending on the next following
May 15 and (e) the period commencing on each August 16 and
ending on the next following August 15.
"Pricing Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) Average Quarterly Funded Debt as of that
date to (b) Adjusted EBITDA for the fiscal period consisting of that
Fiscal Quarter and the three immediately preceding Fiscal Quarters.
"Prior Loan Agreement" has the meaning set forth in the
Recitals to this Agreement.
"Projections" means the financial projections contained in the
Confidential Information Memorandum distributed by or on behalf
of Borrower to the Lenders on or about February 6, 1998.
"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 1.1, as such percentage may be increased or
decreased pursuant to a Commitment Assignment and Acceptance
executed in accordance with Section 11.8.
"Quarterly Payment Date" means each June 30,
September 30, December 31 and March 31.
"Ramada Express Deed of Trust" means the deed of trust
executed and delivered by REI covering the Ramada Express
Property, in the form of Exhibit H to the Prior Loan Agreement,
either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Ramada Express Property" means the real property and
improvements thereon known as the "Ramada Express Hotel and
Casino" located in Laughlin, Nevada, comprised of approximately
27.7 acres and related easements and appurtenances.
"Real Property" means, as of any date of determination, all
real Property then or theretofore owned, leased or occupied by
Borrower or any of the Restricted Subsidiaries.
"Reduction Amount" means, with respect to each Reduction
Date, the sum of (a) $10,000,000 plus (b) if the Commitment has
been increased subsequent to the Closing Date pursuant to Section
2.8, the result obtained by multiplying the amount of such increase
by .04 (4%).
"Reduction Date" means the Initial Reduction Date and each
Quarterly Payment Date thereafter.
"Reference Rate" means the rate of interest publicly
announced from time to time by the Domestic Reference Lender in
San Francisco, California (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.
"Regulations T, U and X" means Regulations T, U and X, as
at any time amended, of the Board of Governors of the Federal
Reserve System, or any other regulations in substance substituted
therefor.
"REI" means Ramada Express, Inc., a Nevada corporation.
"Request for Letter of Credit" means a written request for a
Letter of Credit substantially in the form of Exhibit J , signed by a
Responsible Official of Borrower, on behalf of Borrower, and
properly completed to provide all information required to be
included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit K , signed by a Responsible
Official of Borrower, on behalf of Borrower, 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
65% 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 65% 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 Borrower or any of its
Subsidiaries as having been authorized by all necessary corporate
partnership and/or other action on the part of Borrower or such
Subsidiary.
"Restricted Subsidiary" means, as of any date of
determination, all Subsidiaries of Borrower other than Unrestricted
New Venture Entities.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any such Person is
a party, providing for the leasing to Borrower or a Restricted
Subsidiary of any Property, whether owned at the date of this
Agreement or thereafter acquired, which has been or is to be sold or
transferred by Borrower or such Restricted Subsidiary to such
Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property if, after
giving effect to such arrangement, Borrower or a Restricted
Subsidiary operates the business, if any, located on such property.
"Secured Swap Agreement" means a Swap Agreement
between Borrower and a Lender (or an Affiliate of a Lender) that is,
by its terms, secured by any of the Collateral.
"Security Agreement" means the security agreement executed
and delivered by Borrower and the Significant Subsidiaries (other
than HRN), in the form of Exhibit K to the Prior Loan Agreement,
either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Senior Funded Debt" means Funded Debt that is not a
Subordinated Obligation.
"Senior Leverage Ratio" means, as of the last day of each
Fiscal Quarter, the ratio of (a) Average Quarterly Adjusted Senior
Funded Debt as of that date to (b) Adjusted EBITDA for the fiscal
period consisting of that Fiscal Quarter and the three immediately
preceding Fiscal Quarters.
"Senior Officer" means the (a) chief executive officer,
(b) president, (c) executive vice president, (d) senior vice president,
(e) chief financial officer, (f) treasurer or (g) assistant treasurer of
Borrower.
"Significant Subsidiary" means (a) each Restricted Subsidiary
that holds title to any portion of the Ramada Express Property, the
Atlantic City Property, the Caruthersville Property and the
Evansville Property, (b) each Restricted Subsidiary that holds title to
any Property acquired after the Closing Date which is required to be
pledged as future Collateral pursuant to Section 5.10 and (c) as of
any date of determination, each other Restricted Subsidiary that had
on the last day of the Fiscal Quarter then most recently ended total
assets with a book value or fair market value of $5,000,000 or more
(except ANI, so long as the Jaffe Transaction has not occurred).
"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 administra-
tion 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 com-
parable authority, or the existence or occurrence of circumstances
affecting the Designated Eurodollar Market generally that are
beyond the reasonable control of the Lenders.
"Stockholders' Equity" means, as of any date of determination
and with respect to any Person, the consolidated stockholders' equity
of the Person as of that date determined in accordance with
Generally Accepted Accounting Principles; provided that there shall
be excluded from Stockholders' Equity any amount attributable to
Disqualified Stock.
"Subordinated Obligations" means (a) the Existing 11%
Subordinated Debt, (b) the Existing 13 3/4% Subordinated Debt and
(c) any New Subordinated Debt.
"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 part-
nership or other ownership interests are at the time beneficially
owned by such Person and/or one or more of its Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty of the
Obligations executed and delivered by the Significant Subsidiaries,
in the form of Exhibit L to the Prior Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Supplemental Loan Agreement" means the $25,000,000
Supplemental Loan Agreement dated as of March 13, 1997 among
Borrower and the lenders party thereto.
"Swap Agreement" means a written agreement between
Borrower and one or more financial institutions providing for
"swap", "cap", "collar" or other interest rate protection with respect
to any Indebtedness.
"Swing Line" means the revolving line of credit established
by the Swing Line Lender in favor of Borrower pursuant to
Section 2.10.
"Swing Line Lender" means Bank of America National Trust
and Savings Association.
"Swing Line Documents" means the promissory note and any
other documents executed by Borrower in favor of the Swing Line
Lender in connection with the Swing Line.
"Swing Line Loans" means loans made by the Swing Line
Lender to Borrower pursuant to Section 2.10.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower on
all Swing Line Loans then outstanding.
"TEGP" means Tropicana Enterprises, a Nevada general
partnership, in which ANI is a 50% general partner.
"TEGP Loan Agreement" means the Second Amended and
Restated Loan Agreement dated as of October 4, 1994 among TEGP,
HRN, Bank of America National Trust and Savings Association, as
agent, and the lenders party thereto, as amended pursuant to the
TEGP Loan Agreement Amendment and otherwise as amended from
time to time. The interests of Bank of America National Trust and
Savings Association, as agent, and the lenders party thereto under
the TEGP Loan Agreement are being acquired on the Closing Date
pursuant to the Global Assignment and Release.
"TEGP Loan Agreement Amendment" means the Amendment
of even date herewith to the TEGP Loan Agreement.
"TEGP Loan Outstandings" means, as of any date of
determination, the principal amount then outstanding under the
TEGP Loan Agreement.
"TEGP Property" means the Tropicana Resort and Casino in
Las Vegas, Nevada, including the real Property, improvements and
related personal Property.
"Term Lenders" means the Lenders under the Term Loan
Agreement.
"Term Loan" means the term loan of $50,000,000 extended to
Borrower pursuant to the Term Loan Agreement.
"Term Loan Agent" means the Administrative Agent, as such
term is defined in the Term Loan Agreement.
"Term Loan Agreement" means that certain Term Loan
Agreement of even date herewith among Borrower, Bank of America
National Trust and Savings Association, as Term Loan Agent, and
the Term Lenders party hereto.
"Title Company" means Lawyers Title Insurance Company or
such other title insurance company as is reasonably acceptable to the
Administrative Agent.
"Total Leverage Ratio" means, as of the last day of each
Fiscal Quarter, the ratio of (a) Average Quarterly Adjusted Funded
Debt as of that date to (b) Adjusted EBITDA for the fiscal period
consisting of that Fiscal Quarter and the three immediately preceding
Fiscal Quarters.
"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 Borrower and the
Significant Subsidiaries (other than HRN) in the form of Exhibit M
to the Prior 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 Entity in which any single Person other than Borrower
and its Subsidiaries owns an equity interest that is equal to or larger
than the equity interest owned by Borrower and its Subsidiaries and
(b) any other New Venture Entity (except a Restricted Subsidiary
that owns assets with a value in excess of $5,000,000 at the time of
designation) designated by Borrower to be an Unrestricted
New Venture Entity by written notice thereof to the Administrative
Agent; provided, however, (i) Borrower may redesignate any
Unrestricted New Venture Entity as a Restricted Subsidiary by
written notice to the Administrative Agent, with such redesignation
to become effective upon the execution of the Subsidiary Guaranty,
the Security Agreement and any other instruments, documents and
agreements reasonably requested by the Administrative Agent in
connection therewith by the former Unrestricted New Venture Entity
and (ii) if no Default or Event of Default exists, Borrower may, with
the prior written consent of the Requisite Lenders and each
Restricted Subsidiary, redesignate any Restricted Subsidiary which
is a New Venture Entity and which has assets with a value not in
excess of $5,000,000 as an Unrestricted New Venture Entity.
"Unsecured Environmental Indemnity (New Jersey)" means
the unsecured environmental indemnity executed and delivered by
ANJI and the Significant Subsidiaries which execute the Atlantic
City Deeds of Trust substantially in the form of Exhibit O to the
Prior Loan Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
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 6.11
through 6.14 would then be calculated in a different manner or with dif-
ferent components, (a) Borrower and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the
same criteria as were effective prior to such change in Generally Accepted
Accounting Principles and (b) Borrower shall be deemed to be in com-
pliance with the covenants contained in the aforesaid Sections if and to the
extent that Borrower 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 7 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 Borrower 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 "Borrower and its Subsidiaries". Any
reference herein to "Borrower and its Subsidiaries" or the like shall refer
solely to Borrower during such times, if any, as Borrower 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.
1.8 Relationship to TEGP Loan Agreement. This Agreement
is being entered concurrently with the TEGP Loan Agreement Amendment,
and each of the Lenders holds a pro rata share of the TEGP Loan
Outstandings which is equivalent to its Pro Rata Share of the Commitment.
Pursuant to (a) Section 11.8(b)(iv) and 11.8(e)(vi), assignments of and
participations in this Agreement and the TEGP Loan Agreement must be in
the same proportion, (b) Section 2.5, any termination of the Commitment
under this Agreement must be concurrent with a prepayment in full of the
TEGP Loan Outstandings, (c) Section 2.11, any request for extension of the
Maturity Date must be concurrent with a request for extension of the
maturity date under the TEGP Loan Agreement and (d) Section 9.1(m), an
Event of Default as defined under the TEGP Loan Agreement is an Event of
Default under this Agreement. This Agreement and the TEGP Loan
Agreement are, however, separate credit facilities and the foregoing are the
only interrelationships between them; the Collateral hereunder does not
secure the TEGP Loan Agreement and the collateral securing the TEGP
Loan Agreement does not secure the Obligations under this Agreement.
Article 2
LOANS AND LETTERS OF CREDIT
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in
this Agreement, at any time and from time to time from the Closing
Date through the Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable
Commitment, make Advances to Borrower under the Commitment in
such amounts as Borrower may request that do not result in the sum
of (i) the aggregate principal amount outstanding under the Notes,
plus (ii) the Aggregate Effective Amount of all outstanding Letters of
Credit plus (iii) the Swing Line Outstandings exceeding the then
applicable Commitment. Subject to the limitations set forth herein,
Borrower may borrow, repay and reborrow under the Commitment
without premium or penalty.
(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) in the case of a Eurodollar Rate Loan, the
Interest Period for such Loan. Unless the Administrative Agent has
notified, in its sole and absolute discretion, Borrower to the contrary,
a Loan may be requested by telephone by a Responsible Official of
Borrower, in which case Borrower 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 Borrower, and Borrower hereby agrees to
indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting. In the case of the initial Loan and
Letters of Credit to be made and issued on the Closing Date, the
related Request for Loan and Request for Letter of Credit to be
delivered by the Borrower shall be delivered to the Administrative
Agent no later than 12:00 noon (California time), one day before the
Closing Date, and such Loan shall be an Alternate Base Rate Loan.
(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
11:00 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 8, 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 $5,000,000.
(e) The Advances made by each Lender shall be
evidenced by that Lender's Note.
(f) 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 or 2.3 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) If a Loan is to be made on the same date that
another Loan is due and payable, Borrower or the Lenders, as the
case may be, shall make available to the Administrative Agent the
net amount of funds giving effect to both such Loans and the effect
for purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such Loan.
2.2 Alternate Base Rate Loans. Each request by Borrower
for an Alternate Base Rate Loan shall be made pursuant to a Request for
Loan (or telephonic or other request for loan 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, on the date (which must be a Banking Day) of the
requested Alternate Base Rate Loan. All Loans shall constitute Alternate
Base Rate Loans unless properly designated as a Eurodollar Rate Loan
pursuant to Section 2.3.
2.3 Eurodollar Rate Loans.
(a) Each request by Borrower for a Eurodollar Rate
Loan shall be made pursuant to a Request for Loan (or telephonic or
other request for Loan 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 Borrower 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 with respect to Eurodollar Rate Loans shall be in effect at
any one time.
(d) No Eurodollar Rate Loan may be requested
during the continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any
Lender to fund any Eurodollar Rate Advance in the Designated
Eurodollar Market.
2.4 Letters of Credit.
(a) Subject to the terms and conditions hereof, at
any time and from time to time from the Closing Date through the
Maturity Date, the Issuing Lender shall issue such Letters of Credit
under the Commitment as Borrower may request by a Request for
Letter of Credit; provided that (i) giving effect to all such Letters of
Credit, the sum of (A) the aggregate principal amount outstanding
under the Notes, plus (B) the Aggregate Effective Amount of all
outstanding Letters of Credit, plus (C) the Swing Line Outstandings
do not exceed the then applicable Commitment and (ii) the
Aggregate Effective Amount under all outstanding Letters of Credit
shall not exceed $40,000,000. Each Letter of Credit shall be issued
only in Dollars and shall be in a form reasonably acceptable to the
Issuing Lender. Unless all the Lenders otherwise consent in a
writing delivered to the Administrative Agent, the term of any Letter
of Credit shall not exceed one (1) year or extend beyond the
Maturity Date.
(b) Each Request for Letter of Credit shall be
submitted to the Issuing Lender, with a copy to the Administrative
Agent, at least five (5) Banking Days prior to the date upon which
the related Letter of Credit is proposed to be issued. The
Administrative Agent shall promptly notify the Issuing Lender
whether such Request for Letter of Credit, and the issuance of a
Letter of Credit pursuant thereto, conforms to the requirements of
this Agreement. Upon issuance of a Letter of Credit, the Issuing
Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Lenders, of the
amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each
Lender shall be deemed to have purchased a pro rata participation in
such Letter of Credit from the Issuing Lender in an amount equal to
that Lender's Pro Rata Share. Without limiting the scope and nature
of each Lender's participation in any Letter of Credit, to the extent
that the Issuing Lender has not been reimbursed by Borrower for any
payment required to be made by the Issuing Lender under any Letter
of Credit, each Lender shall, pro rata according to its Pro Rata Share,
reimburse the Issuing Lender through the Administrative Agent
promptly upon demand for the amount of such payment. The
obligation of each Lender to so reimburse the Issuing Lender shall be
absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise impair the
obligation of Borrower to reimburse the Issuing Lender for the
amount of any payment made by the Issuing Lender under any Letter
of Credit together with interest as hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender
through the Administrative Agent an amount equal to any payment
made by the Issuing Lender with respect to each Letter of Credit
within one (1) Banking Day after demand made by the Issuing
Lender therefor, together with interest on such amount from the date
of any payment made by the Issuing Lender at the rate applicable to
Alternate Base Rate Loans for three Business Days and thereafter at
the Default Rate. The principal amount of any such payment shall
be used to reimburse the Issuing Lender for the payment made by it
under the Letter of Credit and, to the extent that the Lenders have
not reimbursed the Issuing Lender pursuant to Section 2.4(c), the
interest amount of any such payment shall be for the account of the
Issuing Lender. Each Lender that has reimbursed the Issuing Lender
pursuant to Section 2.4(c) for its Pro Rata Share of any payment
made by the Issuing Lender under a Letter of Credit shall thereupon
acquire a pro rata participation, to the extent of such reimbursement,
in the claim of the Issuing Lender against Borrower for
reimbursement of principal and interest under this Section 2.4(d) and
shall share, in accordance with that pro rata participation, in any
principal payment made by Borrower with respect to such claim and
in any interest payment made by Borrower (but only with respect to
periods subsequent to the date such Lender reimbursed the Issuing
Lender) with respect to such claim.
(e) Borrower may, pursuant to a Request for Loan,
request that Advances be made pursuant to Section 2.1(a) to provide
funds for the payment required by Section 2.4(d) and, for this
purpose, the conditions precedent set forth in Article 8 shall not
apply. The proceeds of such Advances shall be paid directly to the
Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
(f) If Borrower fails to make the payment required
by Section 2.4(d) within the time period therein set forth, in lieu of
the reimbursement to the Issuing Lender under Section 2.4(c) the
Issuing Lender may (but is not required to), without notice to or the
consent of Borrower, instruct the Administrative Agent to cause
Advances to be made by the Lenders under the Commitment in an
aggregate amount equal to the amount paid by the Issuing Lender
with respect to that Letter of Credit and, for this purpose, the condi-
tions precedent set forth in Article 8 shall not apply. The proceeds
of such Advances shall be paid directly to the Issuing Lender to
reimburse it for the payment made by it under the Letter of Credit.
(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit shall
be treated in all respects the same as the issuance of a new Letter of
Credit, except that the Issuing Lender's issuance fees shall be
payable as set forth in the letter agreement referred to in Section 3.5.
(h) The obligation of Borrower to pay to the Issuing
Lender the amount of any payment made by the Issuing Lender
under any Letter of Credit shall be absolute, unconditional, and
irrevocable, subject only to performance by the Issuing Lender of its
obligations to Borrower under Uniform Commercial Code
Section 5109. Without limiting the foregoing, Borrower's
obligations shall not be affected by any of the following
circumstances:
(i) any lack of validity or
enforceability of the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(ii) any amendment or waiver of or
any consent to departure from the Letter of Credit, this Agree-
ment, or any other agreement or instrument relating thereto,
with the consent of Borrower;
(iii) the existence of any claim, setoff,
defense, or other rights which Borrower may have at any time
against the Issuing Lender, the Administrative Agent or any
Lender, any beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary may be
acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any
other document presented under the Letter of Credit proving
to be forged, fraudulent, invalid, or insufficient in any respect
or any statement therein being untrue or inaccurate in any
respect whatsoever so long as any such document appeared to
comply with the terms of the Letter of Credit;
(v) payment by the Issuing Lender in
good faith under the Letter of Credit against presentation of a
draft or any accompanying document which does not strictly
comply with the terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery of any Property
purported to be represented by documents presented in
connection with any Letter of Credit or any difference
between any such Property and the character, quality,
quantity, condition, or value of such Property as described in
such documents;
(vii) the time, place, manner, order or
contents of shipments or deliveries of Property as described in
documents presented in connection with any Letter of Credit
or the existence, nature and extent of any insurance relative
thereto;
(viii) the solvency or financial
responsibility of any party issuing any documents in
connection with a Letter of Credit;
(ix) any failure or delay in notice of
shipments or arrival of any Property;
(x) any error in the transmission of
any message relating to a Letter of Credit not caused by the
Issuing Lender, or any delay or interruption in any such
message;
(xi) any error, neglect or default of
any correspondent of the Issuing Lender in connection with a
Letter of Credit;
(xii) any consequence arising from acts
of God, war, insurrection, civil unrest, disturbances, labor
disputes, emergency conditions or other causes beyond the
control of the Issuing Lender;
(xiii) so long as the Issuing Lender in
good faith determines that the contract or document appears
to comply with the terms of the Letter of Credit, the form,
accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to the
Issuing Lender in connection with a Letter of Credit; and
(xiv) where the Issuing Lender has
acted in good faith and observed general banking usage, any
other circumstances whatsoever.
(i) The Issuing Lender shall be entitled to the pro-
tection accorded to the Administrative Agent pursuant to
Section 10.6, mutatis mutandis.
(j) The Uniform Customs and Practice for
Documentary Credits, as published in its most current version by the
International Chamber of Commerce, shall be deemed a part of this
Section and shall apply to all Letters of Credit to the extent not
inconsistent with applicable Law.
2.5 Voluntary Reduction of Commitment. Borrower shall
have the right, at any time and from time to time, without penalty or charge,
upon at least three (3) Banking Days' prior written notice by a Responsible
Official of Borrower to the Administrative Agent, voluntarily to reduce,
permanently and irrevocably, in aggregate principal amounts in an integral
multiple of $1,000,000 but not less than $5,000,000, or to terminate, all or a
portion of the then undisbursed portion of the Commitment, provided that
any termination of the Commitment must be concurrent with the
prepayment in full of the TEGP Loan Outstandings. The Administrative
Agent shall promptly notify the Lenders of any reduction or termination of
the Commitment under this Section. Any voluntary reduction of the
Commitment under this Section shall be applied to reduce the Reduction
Amount for the next following Reduction Date (to the extent of such
reduction) and thereafter to subsequent Reduction Dates (to the extent not
previously applied) in the order of their occurrence.
2.6 Automatic Reduction of Commitment. Subject to the last
sentence of Section 2.5, on each Reduction Date, the Commitment shall
automatically be reduced by the Reduction Amount.
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 Borrower's 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 effective on the date which is thirty (30) days subsequent to
written notice from the Administrative Agent to Borrower thereof.
2.8 Increase of Commitment. Borrower may, by written
notice to the Administrative Agent and the Lenders, increase the
Commitment up to $300,000,000; provided that (a) the Commitment has
not theretofore been voluntarily reduced pursuant to Section 2.5, (b) the
effective date of such increase is not later than April 30, 1999, (c) the
obligation to fund the increase in the Commitment amount is assumed in
writing by a Lender or Lenders then party to this Agreement or by a Person
or Persons that is an Eligible Assignee, in each case acceptable to Borrower
and, in the latter case, reasonably acceptable to the Administrative Agent,
(d) each such Person concurrently purchases a pro rata share of the TEGP
Loan Outstandings from the lenders party to the TEGP Loan Agreement
(and each Lender, in its capacity as such a lender, hereby agrees to sell such
a share at par value to such Person) that is equivalent to the increased
Pro Rata Share of such Person, (e) the Eligible Assignee executes and
delivers an agreement of joinder to this Agreement and to the TEGP Loan
Agreement in form and substance satisfactory to Borrower, TEGP and the
Administrative Agent, (f) the amount of such increase, when aggregated
with any increase theretofore or concurrently made in the amount of the
Term Loan pursuant to Section 2.6 of the Term Loan Agreement, does not
exceed $50,000,000 and (g) no such increase shall increase the aggregate of
the amount of the Commitment and the amount of the TEGP Loan
Outstandings held by any other Lender absent the express written consent
of that Lender. Giving effect to such increase in the Commitment and
purchase of TEGP Loan Outstandings, adjustments shall be made to the Pro
Rata Shares of the Lenders and the pro rata shares of TEGP Loan
Outstandings such that the Pro Rata Shares of each Lender shall be identical
to its pro rata share of the TEGP Loan Outstandings. The Administrative
Agent shall promptly thereafter prepare and circulate to Borrower and the
Lenders a revised Schedule 1.1 reflecting such increased Commitment, the
revised Pro Rata Shares of the Lenders and the revised pro rata shares of the
TEGP Loan Outstandings.
2.9 Administrative Agent's Right to Assume Funds Available
for Advances. Unless the Administrative Agent shall have been notified by
any Lender no later than 10:00 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 reli-
ance upon such assumption, make available to Borrower a corresponding
amount. If the Administrative Agent has made funds available to Borrower
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 Borrower and
Borrower 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 Borrower 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 Borrower may have
against any Lender as a result of any default by such Lender hereunder.
2.10 Swing Line. (a) The Swing Line Lender shall from
time to time from the Closing Date through the day prior to the Maturity
Date make Swing Line Loans to Borrower in such amounts as Borrower
may request, provided that (a) after giving effect to such Swing Line Loan,
the Swing Line Outstandings do not exceed $10,000,000, (b) without the
consent of all of the Lenders, no Swing Line Loan may be made during the
continuation of an Event of Default and (c) the Swing Line Lender has not
given at least twenty-four (24) hours prior notice to Borrower that
availability under the Swing Line is suspended or terminated. Borrower
may borrow, repay and reborrow under this Section. Unless notified to the
contrary by the Swing Line Lender, borrowings under the Swing Line may
be made in amounts which are integral multiples of $100,000 upon
telephonic request by a Responsible Official of Borrower made to the
Administrative Agent not later than 1:00 p.m., California time, on the
Banking Day of the requested borrowing (which telephonic request shall be
promptly confirmed in writing by telecopier). Promptly after receipt of
such a request for borrowing, the Administrative Agent shall provide
telephonic verification to the Swing Line Lender that, after giving effect to
such request, availability for Loans will exist under Section 2.1 (and such
verification shall be promptly confirmed in writing by telecopier). Unless
notified to the contrary by the Swing Line Lender, each repayment of a
Swing Line Loan shall be in an amount which is an integral multiple of
$100,000. If Borrower instructs the Swing Line Lender to debit its demand
deposit account at the Swing Line Lender in the amount of any payment
with respect to a Swing Line Loan, or the Swing Line Lender otherwise
receives repayment, after 3:00 p.m., California time, on a Banking Day,
such payment shall be deemed received on the next Banking Day. The
Swing Line Lender shall promptly notify the Administrative Agent of the
Swing Loan Outstandings each time there is a change therein.
(b) Swing Line Loans shall bear interest at a fluctuating
rate per annum equal to the Alternate Base Rate plus (if applicable) an
interest rate equal to the excess of the Applicable Alternate Base Rate
Margin over the Applicable Commitment Fee Rate or minus (if applicable)
an interest rate equal to the excess of the Applicable Commitment Fee Rate
over the Applicable Alternate Base Rate Margin. Interest shall be payable
on such dates, not more frequent than monthly, as may be specified by the
Swing Line Lender and in any event on the Maturity Date. The Swing Line
Lender shall be responsible for invoicing Borrower for such interest. The
interest payable on Swing Line Loans is solely for the account of the Swing
Line Lender (subject to clause (d) below).
(c) The Swing Line Loans shall be payable on demand
made by the Swing Line Lender and in any event on the Maturity Date.
(d) Upon the making of a Swing Line Loan, each Lender
shall be deemed to have purchased from the Swing Line Lender a partici-
pation therein in an amount equal to that Lender's Pro Rata Share of the
Commitment times the amount of the Swing Line Loan. Upon demand
made by the Swing Line Lender, each Lender shall, according to its Pro
Rata Share of the Commitment, promptly provide to the Swing Line Lender
its purchase price therefor in an amount equal to its participation therein.
The obligation of each Lender to so provide its purchase price to the Swing
Line Lender shall be absolute and unconditional (except only demand made
by the Swing Line Lender) and shall not be affected by the occurrence of a
Default or Event of Default; provided that no Lender shall be obligated to
purchase its Pro Rata Share of (i) Swing Line Loans to the extent that
Swing Line Outstandings are in excess of $10,000,000 and (ii) any Swing
Line Loan made (absent the consent of all of the Lenders) during the
continuation of an Event of Default. Each Lender that has provided to the
Swing Line Lender the purchase price due for its participation in Swing
Line Loans shall thereupon acquire a pro rata participation, to the extent of
such payment, in the claim of the Swing Line Lender against Borrower for
principal and interest and shall share, in accordance with that pro rata
participation, in any principal payment made by Borrower with respect to
such claim and in any interest payment made by Borrower (but only with
respect to periods subsequent to the date such Lender paid the Swing Line
Lender its purchase price) with respect to such claim.
(e) In the event that the Swing Line Outstandings are in
excess of $5,000,000 on three (3) consecutive Banking Days, then on the
next Banking Day (unless Borrower has made other arrangements
acceptable to the Swing Line Lender to reduce the Swing Line Outstandings
below $5,000,000), Borrower shall request a Loan pursuant to Section 2.1
sufficient to reduce the Swing Line Outstandings below $5,000,000. In
addition, upon any demand for payment of the Swing Line Outstandings by
the Swing Line Lender (unless Borrower has made other arrangements
acceptable to the Swing Line Lender to reduce the Swing Line Outstandings
to $0), Borrower shall request a Loan pursuant to Section 2.1 sufficient to
repay all Swing Line Outstandings (and, for this purpose, Section 2.1(d)
shall not apply). In each case, the Administrative Agent shall
automatically provide the responsive Advances made by each Lender to the
Swing Line Lender (which the Swing Line Lender shall then apply to the
Swing Line Outstandings). In the event that Borrower fails to request a
Loan within the time specified by Section 2.2 on any such date, the
Administrative Agent may, but is not required to, without notice to or the
consent of Borrower, cause Advances to be made by the Lenders under the
Commitment in amounts which are sufficient to reduce the Swing Line
Outstandings as required above. The conditions precedent set forth in
Article 8 shall not apply to Advances to be made by the Lenders pursuant to
the three preceding sentences. The proceeds of such Advances shall be
paid directly to the Swing Line Lender for application to the Swing Line
Outstandings.
2.11 Extension of Initial Reduction Date and Maturity Date.
During the period commencing on April 1, 1999 and ending on May 31,
1999, Borrower may by written request delivered to the Administrative
Agent (with sufficient copies thereof for the Lenders) request that the Initial
Reduction Date and the Maturity Date each be extended for one (1) year.
Such request shall be accompanied either by a written statement of a Senior
Officer of Borrower confirming the reasonableness of the budget and
projections most recently provided to the Lenders pursuant to
Section 7.1.(e) or by a revised budget and projection as required by such
Section. A request for extension under this Section 2.11 will not be
considered by the Lenders unless there is a concurrent request by TEGP for
a similar extension of the maturity date under the TEGP Loan Agreement.
The Administrative Agent shall promptly forward the request
for extension, and any accompanying materials, to the Lenders. Each
Lender, in its sole and absolute discretion, shall determine whether to grant
the request for extension. Borrower at its option may offer to pay an
extension fee to each Lender which consents to such extension, but if such
a fee is offered, it shall be a fee offered ratably to each consenting Lender
in accordance with that Lender's Pro Rata Share. The Lenders agree to use
their best efforts to respond to the request for extension within thirty (30)
Banking Days after receipt of the request for extension; failure to respond
shall in no event be deemed to be a consent to the extension.
If all of the Lenders notify the Administrative Agent in
writing that they consent to the requested extension, the Initial Reduction
Date and the Maturity Date shall (subject to payment of any agreed-upon
extension fee) automatically be extended for one (1) year. The
Administrative Agent shall notify Borrower and the Lenders in writing of
such an extension.
If Lenders holding at least 75% of the Commitment consent to
the request for extension, but one or more Lenders (each a "Non-
Consenting Lender") notify the Administrative Agent that it will not
consent to the request for extension (or fail to notify the Administrative
Agent in writing of its consent to the extension), Borrower may cause such
Non-Consenting Lender to be removed as a Lender under this Agreement
pursuant to Section 11.24. If such removal is accomplished by assignment
to an Eligible Assignee and such Eligible Assignee notifies the
Administrative Agent in writing that it consents to the request for extension,
then the request or extension shall be granted with the effect as set forth
above. If such removal is accomplished by a voluntary reduction of the
Commitment, then the Administrative Agent shall notify all of the Lenders
in writing thereof and each Lender shall have the right to notify the
Administrative Agent within ten (10) Banking Days after receipt of such
notice that such Lender elects to be treated as a Non-Consenting Lender, in
which case it shall be so treated as aforesaid.
If a request for extension is made during the April 1, 1999
through May 31, 1999 period as aforesaid and the requested extension is
granted by the Lenders, Borrower shall have the right to request a further
one (1) year extension of the Initial Reduction Date and Maturity Date
during the period from April 1, 2000 through May 31, 2000. All of the
procedures and conditions applicable to the earlier request for extension
shall apply to any such request for extension.
2.12 Collateral and Guaranty. The Obligations shall be
secured by the Collateral pursuant to the Collateral Documents and be
guaranteed by the Significant Subsidiaries pursuant to the Subsidiary
Guaranty.
2.13 Senior Indebtedness. The Obligations shall be "Senior
Indebtedness" with respect to all Subordinated Obligations.
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 Alternate Base Rate
Loan on each Quarterly Payment Date, shall be due and payable on
that day. Except as otherwise provided in Section 3.9, the unpaid
principal amount of any Alternate Base Rate Loan shall bear interest
at a fluctuating rate per annum equal to the Alternate Base Rate plus
the Applicable Alternate Base Rate Margin. Each change in the
interest rate under this Section 3.1(b) due to a change in the
Alternate Base Rate shall take effect simultaneously with the
corresponding change in the Alternate Base Rate.
(c) 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 3.9, 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 the
Applicable Eurodollar Rate Margin.
(d) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the amount, if any, by which the sum of (A) the
principal outstanding Indebtedness evidenced by the Notes,
plus (B) the Aggregate Effective Amount of all outstanding
Letters of Credit, plus (C) the Swing Line Outstandings at any
time exceeds the then applicable Commitment, shall be pay-
able immediately; and
(ii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(e) 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 of a
Eurodollar Rate Loan shall be not less than $5,000,000 and any
partial prepayment of an Alternate Base Rate Loan shall not be less
than $1,000,000, (ii) the Administrative Agent shall have received
written notice of any prepayment by 9:00 a.m. California time on the
date of prepayment (which must be a Banking Day) in the case of an
Alternate Base Rate Loan, and, in the case of a Eurodollar Rate
Loan, 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 on any
Eurodollar Rate Loan shall be accompanied by payment of interest
accrued to the date of payment on the amount of principal paid and
(iv) any payment or prepayment of all or any part of any Eurodollar
Rate Loan on a day other than the last day of the applicable Interest
Period shall be subject to Section 3.8(e).
3.2 Arrangement Fee. On the Closing Date, Borrower shall
pay to the Arranger an arrangement fee in the amount heretofore agreed
upon by letter agreement dated February 10, 1998 between Borrower and
the Arranger. Such arrangement fee is for the services of the Arranger in
arranging the credit facilities under this Agreement and is fully earned when
paid. The arrangement fee paid to the Arranger is solely for its own
account and is nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall
further pay to the Administrative Agent, for the respective accounts of the
Lenders (other than the Administrative Agent) pro rata according to their
Pro Rata Share of the Commitment, an upfront fee in an amount set forth in
a letter from the Arranger to each Lender and acknowledged by that Lender
and by Borrower as the applicable upfront fee for such Lender. Such
upfront fees are for the credit facilities committed by each Lender under
this Agreement and are fully earned when paid. The upfront fees paid to
each Lender are solely for its own account and are nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrower
shall pay to the Administrative Agent, for the ratable accounts of the
Lenders pro rata according to their Pro Rata Share of the Commitment, a
commitment fee equal to the Applicable Commitment Fee Rate per annum
times the average daily amount by which the Commitment exceeds the sum
of (a) the aggregate principal Indebtedness evidenced by the Notes (but not
the Swing Line Outstandings) plus (b) the Aggregate Effective Amount of
all outstanding Letters of Credit. The commitment fee shall be payable
quarterly in arrears on each Quarterly Payment Date and on the Maturity
Date.
3.5 Letter of Credit Fees. Concurrently with the issuance of
each Letter of Credit, Borrower shall pay a letter of credit issuance fee to
the Issuing Lender, for the sole account of the Issuing Lender, in an amount
set forth in a letter agreement between Borrower and the Issuing Lender.
The letter of credit issuance fee is nonrefundable. On each Quarterly
Payment Date and on the Maturity Date, Borrower shall also pay to the
Administrative Agent in arrears, for the ratable account of the Lenders in
accordance with their Pro Rata Share of the Commitment, standby letter of
credit fees in an amount equal to the Applicable Letter of Credit Fee times
the average daily Aggregate Effective Amount since the later of the Closing
Date or the previous Quarterly Payment Date.
3.6 Agency Fees. Borrower shall pay to the Administrative
Agent an agency fee in such amounts and at such times as heretofore agreed
upon by letter agreement dated February 10, 1998 between Borrower 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.
3.7 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, 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, Borrower 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 Borrower 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. Any request for
compensation by a Lender under this Section shall set forth the basis upon
which it has been determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the corresponding
costs or diminished rate of return on capital have been incurred or sustained
by the Lender. If Borrower becomes obligated to pay any amount under
this Section to any Lender, that Lender will be subject to removal in
accordance with Section 11.24; provided that Borrower shall have paid
such amount to that Lender and that Borrower, within the thirty (30) day
period following the date of such payment, shall have notified that Lender
in writing of its intent to so remove the Lender. Each Lender's determina-
tion of such amounts shall be conclusive in the absence of manifest error.
3.8 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, Borrower 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. 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, excluding (i) taxes imposed on or measured
in whole or in part by its overall net income, gross income or
gross receipts and franchise taxes 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," (ii) any
withholding taxes or other taxes based on gross income
imposed by the United States of America (other than
withholding taxes and taxes based on gross income resulting
from or attributable to any change in any law, rule or
regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Agency) and (iii) 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 Borrower with the appropriate form or forms
required by Section 11.21, 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 (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 Lender (with a copy to the
Administrative Agent), Borrower shall pay to such Lender such addi-
tional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender'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 and setting
forth in reasonable detail the additional amount or amounts to be
paid to it hereunder 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
Borrower. 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
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 3.8(e). Each Lender agrees to endeavor promptly to
notify Borrower 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 Euro-
dollar 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 Borrower of the cessation of the
Special Eurodollar Circumstance which gave rise to such suspension.
(d) 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 Desig-
nated Eurodollar Market for the applicable Eurodollar Period;
or
(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
Borrower and the Lenders, whereupon until the Administrative
Agent notifies Borrower 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 unless (but
only if clause (2) above is the basis for such suspension) Borrower
notifies the Agent in writing that it elects to pay the Enhanced
Applicable Eurodollar Rate Margin with respect to all Eurodollar
Rate Loans made during such period. The Enhanced Applicable
Eurodollar Rate Margin shall be the sum of (i) the Applicable
Eurodollar Rate Margin plus (ii) such interest rate margin as the
Requisite Lenders specify is necessary to adjust the Eurodollar Rate
to a rate which represents the effective pricing to such Lenders for
deposits of Dollars in the Designated Eurodollar Market in the
relevant amount for the applicable Eurodollar Period and which
adequately and fairly reflects the cost to such Lenders of making the
applicable Eurodollar Rate Advances.
(e) Upon payment or prepayment of any Eurodollar
Rate Advance (other than as the result of a conversion required
under Section 3.8(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 Borrower
(for a reason other than the failure of a Lender to make an Advance)
to borrow on the date or in the amount specified for a Eurodollar
Rate Loan in any Request for Loan, Borrower 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
Advance 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.
(f) Each Lender agrees to endeavor promptly to
notify Borrower of any event of which it has actual knowledge,
occurring after the Closing Date, which will entitle such Lender to
compensation pursuant to clause (a) or clause (b) of this Section 3.8,
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 3.8
shall set forth the basis upon which it has been determined that such
an amount is due from Borrower, a calculation of the amount due,
and a certification that the corresponding costs have been incurred
by the Lender.
(g) If any Lender claims compensation or is
excused from making or continuing Eurodollar Rate Loans under this
Section:
(i) Borrower may at any time, upon
at least four (4) Eurodollar Banking Days' prior notice to the
Administrative Agent and such Lender and upon payment in
full of the amounts provided for in this Section through the
date of such payment plus any prepayment fee required by
Section 3.8(e), pay in full the affected Eurodollar Rate
Advances of such Lender or request that such Eurodollar Rate
Advances be converted to Alternate Base Rate Advances; and
(ii) In the case where Borrower
becomes obligated to pay any amount under this Section 3.8
to any Lender, or a Lender is excused from making or
continuing Eurodollar Rate Loans, that Lender will be subject
to removal in accordance with Section 11.24; provided that
Borrower shall have paid such amount to that Lender and that
Borrower, within the thirty (30) day period following the date
of such payment, shall have notified that Lender in writing of
its intent to so remove the Lender.
3.9 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 a fluctuating interest rate per annum at all times equal
to the sum of the Alternate Base Rate plus the Applicable Alternate Base
Rate Margin plus 2%, to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including, without limi-
tation, 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.
3.10 Computation of Interest and Fees. Computation of
interest on Alternate Base Rate Loans shall be calculated on the basis of a
year of 365 or 366 days, as the case may be, and the actual number of days
elapsed; computation of interest on Eurodollar Rate Loans and all fees
under this Agreement shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed. Borrower acknowledges that such
latter calculation method will result in a higher yield to the Lenders than a
method based on a year of 365 or 366 days. 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.
3.11 Non-Banking Days. If any payment to be made by
Borrower 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.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments
pursuant to Sections 2.9, 3.7, 3.8, 11.3, 11.11 and 11.22) 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 each of the Lenders or the Administrative Agent, as the
case may be, in immediately available funds not later than
11:00 a.m. (other than payments with respect to Swing Line Loans,
which must be received by 3:00 p.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 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 of Advances made by it and payments received by it with
respect to each of its Notes and, subject to Section 10.6(g), such
record shall, as against Borrower, be presumptive evidence of the
amounts owing. Notwithstanding the foregoing sentence, no Lender
shall be liable to any Party for any failure to keep such a record.
(d) Each payment of any amount payable by
Borrower 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, gross income or gross receipts and franchise
taxes 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," (ii) any
withholding taxes or other taxes based on gross income imposed by
the United States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to any change in
any law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any Governmental
Agency) and (iii) 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 Borrower with
the appropriate form or forms required by Section 11.21, 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 Borrower is obligated by
applicable Laws to make any deduction or withholding on account of
Taxes from any amount payable to any Lender under this
Agreement, Borrower 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 Borrower. If Borrower becomes obligated to pay any
amount under this Section to any Lender, that Lender will be subject
to removal in accordance with Section 11.24; provided that
Borrower shall have paid such amount to that Lender and that
Borrower, within the thirty (30) day period following the date of
such payment, shall have notified that Lender in writing of its intent
to so remove the Lender.
3.13 Funding Sources. Nothing in this Agreement shall be
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.
3.14 Failure to Charge Not Subsequent Waiver. Any deci-
sion by the Administrative Agent or any Lender not to require payment of
any interest (including interest arising under Section 3.9), 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 Sec-
tion 3.9), 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.
3.15 Administrative Agent's Right to Assume Payments Will
be Made by Borrower. Unless the Administrative Agent shall have been
notified by Borrower prior to the date on which any payment to be made by
Borrower hereunder is due that Borrower does not intend to remit such
payment, the Administrative Agent may, in its discretion, assume that
Borrower has 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 Borrower has 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.
3.16 Fee Determination Detail. The Administrative Agent,
and any Lender, shall provide reasonable detail to Borrower 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.
3.17 Survivability. All of Borrower's obligations under
Sections 3.7 and 3.8 shall survive for ninety (90) days following the date on
which the Commitment is terminated, all Loans hereunder are fully paid
and all Letters of Credit have expired.
Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders, as of the
date hereof and as of the Closing Date, that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation duly formed, validly existing and in good
standing under the Laws of Delaware and 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. Borrower 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. All outstanding shares of capital stock of
Borrower 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. Borrower 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, 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 Borrower and each Significant Subsidiary 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 upon or with respect to any Property now owned or leased
or hereafter acquired by such Party;
(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; or
(e) Result in a breach of or constitute a default
under, or cause or permit the acceleration of any obligation owed
under, any indenture or loan or credit agreement or any other
Contractual Obligation to which such Party is a party or by which
such Party or any of its Property is bound or affected;
and neither Borrower nor any Significant Subsidiary is in violation of, or
default under, any Requirement of Law or Contractual Obligation, or any
indenture, loan or credit agreement 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 Borrower and the Significant Subsidiaries of the Loan
Documents to which it is a Party. All authorizations from, or filings with,
any Governmental Agency described in Schedule 4.3 will be accomplished
as of the Closing Date or such other date as is specified in Schedule 4.3.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the
names, form of legal entity, number of shares of capital stock issued
and outstanding, number of shares owned by Borrower or a
Subsidiary of Borrower (specifying such owner) and jurisdictions of
organization of all Subsidiaries of Borrower and specifies which
thereof, as of the Closing Date, are Restricted Subsidiaries,
Significant Subsidiaries and Unrestricted New Venture Entities.
Except as described in Schedule 4.4 or Schedule 6.17, Borrower
does not own any capital stock, equity interest or debt security which
is convertible, or exchangeable, for capital stock or equity interests
in any Person. 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 Borrower, 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, except
for Permitted Encumbrances.
(b) Each Significant Subsidiary is a corporation
duly formed, validly existing and in good standing under the Laws of
its jurisdiction of organization, is duly qualified to do business as a
foreign organization and is in good standing as such in each
jurisdiction in which the conduct of its business or the ownership or
leasing of its Properties makes such qualification necessary (except
where the failure to be so duly qualified and in good standing does
not constitute a Material Adverse Effect), and has all requisite power
and authority to conduct its business and to own and lease its
Properties.
(c) Each Restricted Subsidiary is in compliance
with all Laws and other requirements applicable to its business and
has obtained all authorizations, consents, approvals, orders, licenses,
and permits from, and each such Subsidiary 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
to be in such compliance, obtain such authorizations, consents,
approvals, orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the
Lenders the audited consolidated financial statements of Borrower and its
Subsidiaries for the Fiscal Year ended January 1, 1998. Such financial
statements fairly present in all material respects the financial condition,
results of operations and changes in financial position of Borrower and its
Subsidiaries as of such date and for such period in conformity with
Generally Accepted Accounting Principles, consistently applied.
4.6 No Other Liabilities; No Material Adverse Changes.
Borrower and the Restricted Subsidiaries 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 included in the financial statements described
in Section 4.5, 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 January 1, 1998. 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. Borrower and the Restricted
Subsidiaries have valid title to the Property (other than assets which are the
subject of a Capital Lease Obligation) reflected in the balance sheet
described in Section 4.5(c), other than items of Property or exceptions to
title which are in each case immaterial to Borrower and the Restricted
Subsidiaries, taken as a whole, and Property subsequently sold or disposed
of in the ordinary course of business, free and clear of all Liens, other than
Liens described in Schedule 4.7 or permitted by Section 6.8.
4.8 Intangible Assets. Borrower and the Restricted
Subsidiaries own, or possess the right to use to the extent necessary in their
respective businesses, all material trademarks, trade names, copyrights,
patents, patent rights, computer software, licenses and other Intangible
Assets that are used in the conduct of their businesses as now operated, and
no such Intangible Asset, to the best knowledge of Borrower, 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 Borrower or any of its Subsidiaries at any
time within the five (5) year period ending on the Closing Date.
4.9 Public Utility Holding Company Act. Neither Borrower
nor any Restricted Subsidiary 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 Borrower or any of the Restricted
Subsidiaries of less than $1,000,000, (c) matters of an administrative nature
not involving a claim or charge against Borrower or any of the Restricted
Subsidiaries and (d) matters set forth in Schedule 4.10, there are as of the
Closing Date no actions, suits, proceedings or investigations pending as to
which Borrower or any of the Restricted Subsidiaries have been served or
have received notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of the Restricted Subsidiaries or any
Property of any of them before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to
which Borrower or the Significant Subsidiaries 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) Neither Borrower 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) Neither Borrower nor any of the Restricted
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 Regulations T, U and X; 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 Regulations T, U and X. Neither
Borrower nor any of the Restricted Subsidiaries is or is required to be
registered as an "investment company" under the Investment Company Act
of 1940.
4.15 Disclosure. No written statement made by a Senior
Officer 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. Borrower and the Restricted 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 Borrower or any of the Restricted Subsidiaries,
except (a) such taxes, if any, as are being contested in good faith by
appropriate proceedings and as to which adequate reserves (to the extent
required by Generally Accepted Accounting Principles) have been estab-
lished and maintained and (b) immaterial taxes so long as no material
Property of Borrower or any of the Restricted Subsidiaries is in jeopardy of
being seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best knowl-
edge of Borrower, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to
Borrower, and the Projections are reasonably based on such assumptions.
Nothing in this Section 4.17 shall be construed as a representation or cove-
nant that the Projections in fact will be achieved.
4.18 Hazardous Materials. Except as described in
Schedule 4.18, (a) neither Borrower nor any of the Restricted Subsidiaries
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
Borrower, 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 have a Material Adverse Effect, (c) no Real
Property or any portion thereof is or has been utilized by Borrower or any
of the Restricted Subsidiaries 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 Borrower or any of the Restricted Subsidiaries
on any Real Property, or transported to or from such Real Property by
Borrower or any of the Restricted Subsidiaries, such use, generation,
storage and transportation are in compliance in all material respects with all
Hazardous Materials Laws.
4.19 Developed Properties. As of the Closing Date, the
facilities described on Schedule 4.19 comprise all of the Developed
Property owned by Borrower and the Restricted Subsidiaries.
4.20 Gaming Laws. Borrower and the Restricted
Subsidiaries are in compliance with all applicable Gaming Laws in all
respects which are material to the operations, businesses and prospects of
Borrower and the Restricted Subsidiaries, taken as a whole.
4.21 Security Interests. The Security Agreement creates a
valid first priority security interest in the Collateral described therein
securing the Obligations (subject only to Permitted Encumbrances,
purchase money liens permitted under Section 6.8(h) 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 Collateral Agent pursuant to
Section 8.1 with the appropriate Governmental Agency have been taken and
completed. The Trademark Collateral Assignment creates a valid first
priority collateral assignment of the Collateral described therein securing
the Obligations 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. The Pledge
Agreement (Nevada Gaming) creates a valid first priority security interest
in the Pledged Collateral (Nevada Gaming) and upon delivery of the
Pledged Collateral (Nevada Gaming) to the Collateral Agent (or its
designee) in the State of Nevada all action necessary to perfect the security
interest so created has been taken and completed. The Pledge Agreement
(General) creates a valid first priority security interest in the Pledged
Collateral (General) and upon delivery of the Pledged Collateral (General)
to the Collateral Agent (or its designee) all action necessary to perfect the
security interest so created has been taken and completed. Each Deed of
Trust creates a valid Lien in the Collateral described therein securing the
Obligations, other than those arising under Sections 4.18, 5.12 and 11.22,
(subject only to Permitted Encumbrances 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, have been taken and completed.
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid or any portion of the
Commitment remains in force, Borrower shall, and shall cause each of the
Restricted Subsidiaries to, 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 Borrower and the Restricted Subsidiaries 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 (to the extent required by Generally Accepted Accounting
Principles) for the payment of the same or (b) any immaterial tax so long as
no material Property of Borrower or any of the Restricted Subsidiaries is in
jeopardy of being seized, levied upon or forfeited.
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 except (a) where
the failure to so preserve and maintain the existence of any Restricted
Subsidiary and such authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations would not constitute a
Material Adverse Effect and (b) that a merger permitted by Section 6.3 shall
not constitute a violation of this covenant; 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 Borrower and the
Restricted 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 Borrower and the
Restricted Subsidiaries 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
Agencies with enforcement authority, with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, except
that Borrower and the Restricted Subsidiaries 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 Borrower 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, Borrower and its Subsidiaries and to dis-
cuss the affairs, finances and accounts of Borrower and its Subsidiaries
with any of their officers, key employees or accountants and, upon request,
furnish promptly to the Administrative Agent or any Lender true copies of
all financial information made available to the board of directors or audit
committee of the board of directors of Borrower.
5.7 Keeping of Records and Books of Account. Keep ade-
quate 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 Borrower or any
of the Restricted Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully com-
ply 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 for working
capital, permitted Capital Expenditures, permitted Acquisition Expenditures
and other general corporate purposes of Borrower and the Restricted
Subsidiaries.
5.10 Future Collateral. Upon the acquisition by Borrower or
any Significant Subsidiary of (a) any capital stock of a new Subsidiary,
deliver the certificates evidencing such capital stock in pledge to the
Collateral Agent pursuant to the Pledge Agreement (Nevada Gaming) or
Pledge Agreement (General), as the case may be, (b) upon consummation
of the Jaffe Transaction, deliver certificates evidencing 100% of the shares
of capital stock of ANI and the remaining 51% of the shares of capital stock
of HRN to the Collateral Agent in pledge pursuant to the Pledge Agreement
(Nevada Gaming), subject to prior approvals required under applicable
Gaming Laws, and the Pledge Agreement (General), as applicable and
(c) any fee simple interest in real Property or any vessel, vehicle or other
Property which is not subject to the Lien of the Collateral Documents,
execute and deliver to the Collateral Agent such Collateral Documents as
are appropriate therefor as requested by the Collateral Agent to create a
Lien thereon securing the Obligations and the Obligations under the Term
Loan Agreement subject in priority only to Permitted Encumbrances,
purchase money liens, if any, permitted under Section 6.8(h) and Liens
existing thereon prior to such acquisition (and not done in contemplation
thereof); provided, however, that such Collateral Documents shall not be
required if Borrower delivers to the Administrative Agent promptly
following any such acquisition an Officers' Certificate stating that the
aggregate fair market value of such Property plus the aggregate fair market
value of all other Property (except (a) any gaming license issued under any
Gaming Law, (b) the assets and capital stock of ANI, (c) the assets and 51%
of the capital stock of HRN and (d) the gaming equipment and capital stock
of AMGC) owned by Borrower and the Restricted Subsidiaries that is not
subject to the Lien of the Collateral Documents is less than $20,000,000.
5.11 New Significant Subsidiaries. Cause each of its
Restricted Subsidiaries which hereafter becomes a Significant Subsidiary to
execute and deliver to the Administrative Agent an instrument of joinder of
the Subsidiary Guaranty, Security Agreement and the Trademark Collateral
Assignment.
5.12 Hazardous Materials Laws. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects
with all applicable Hazardous Materials Laws 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 Borrower relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from any Hazardous
Materials and (c) discovery by any Senior Officer of Borrower 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 any applicable Hazardous Materials Laws.
5.13 Intercompany Notes. Execute a promissory note (in a
form reasonably acceptable to the Administrative Agent) evidencing any
Indebtedness of Borrower or a Restricted Subsidiary to any Restricted
Subsidiary which is in an amount of $5,000,000 or more, and cause each
payee of such promissory note to deliver the same to the Collateral Agent,
with an endorsement in blank, as Pledged Collateral (General).
Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid or any portion of the
Commitment remains in force, Borrower shall not, and shall not permit any
of the Restricted Subsidiaries to, unless the Administrative Agent (with the
written approval of the Requisite Lenders) otherwise consents:
6.1 Payment of Subordinated Obligations. Pay any
(a) scheduled interest on any Subordinated Obligation unless the payment
thereof is then permitted pursuant to the terms of the indenture or other
agreement governing such Subordinated Obligation or (b) principal
(including sinking fund payments) or any other amount (other than
scheduled interest payments) with respect to any Subordinated Obligation,
or purchase or redeem (or offer to purchase or redeem) any Subordinated
Obligation, or deposit any monies, securities or other Property with any
trustee or other Person to provide assurance that the principal or any portion
thereof of any Subordinated Obligation will be paid when due or otherwise
to provide for the defeasance of any Subordinated Obligation except:
(i) to the extent that the source of such payment
consists of proceeds from the issuance by Borrower of
(A) Common Stock or other equity securities (except
Disqualified Stock) of Borrower or (B) New
Subordinated Debt; and
(ii) for payments that do not exceed either
(A) $75,000,000 or (B) when aggregated with all other
Basket Expenditures made since the Closing Date,
$300,000,000; provided that no Default or Event of
Default then exists or results therefrom;
provided, however, that this Section shall not apply to prohibit any payment
consisting of the repurchase or redemption of Subordinated Obligations to
the extent necessary to prevent a License Revocation if (i) no Default or
Event of Default then exists which will not be cured by such payment,
(ii) the purchase or redemption price paid is not in excess of the amount
specified in Section 907 of the Existing 13 3/4% Subordinated Debt
Indenture and (iii) Borrower has notified the Administrative Agent in
writing of the necessity to invoke this proviso at least ten (10) Banking
Days (or such shorter period as may be necessary in order to comply with a
regulation or order of the relevant Gaming Board) in advance.
6.2 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, if, giving effect
thereto, the aggregate book value or fair market value (whichever is greater)
of all Dispositions made since the Closing Date would exceed $60,000,000.
6.3 Mergers. Merge or consolidate with or into any Person,
except:
(a) mergers and consolidations of a Subsidiary of
Borrower into Borrower or a Restricted Subsidiary (with any of
Borrower or the Restricted Subsidiary as the surviving entity) or of
Borrower or Restricted Subsidiaries of Borrower with each other,
provided that Borrower and each of such Subsidiaries have executed
such amendments to the Loan Documents as the Administrative
Agent may reasonably determine are appropriate as a result of such
merger; and
(b) a merger or consolidation of Borrower or any
Restricted Subsidiary with any other Person, provided that (i) either
(A) Borrower or the Restricted Subsidiary is the surviving entity, or
(B) the surviving entity is a corporation organized under the Laws of
a State of the United States of America or the District of Columbia
and, as of the date of such merger or consolidation, expressly
assumes, by an appropriate instrument, the Obligations of Borrower
or the Restricted Subsidiary, as the case may be, (ii) giving effect
thereto on a pro-forma basis, no Default or Event of Default exists or
would result therefrom, and (iii) as a result thereof, no Change in
Control has occurred.
6.4 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.
6.5 Distributions. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other Property, except
(a) Distributions by Borrower or any Restricted Subsidiary to Borrower or
any Restricted Subsidiary, (b) scheduled and required Distributions with
respect to the Series B ESOP Convertible Preferred Stock of Borrower if no
Default or Event of Default exists or would result therefrom, and (c) divi-
dends payable solely in Common Stock or rights to purchase Common
Stock; provided, however, that this Section shall not apply to prohibit a
Distribution consisting of the repurchase or redemption of capital stock of
Borrower to the extent necessary to prevent a License Revocation if (i) no
Default or Event of Default then exists which will not be cured by such
Distribution, (ii) the purchase or redemption price paid is not in excess of
the amount specified in article 12 of Borrower's articles of incorporation
and (iii) Borrower has notified the Administrative Agent in writing of the
necessity to invoke this proviso at least ten (10) Banking Days (or such
shorter period as may be necessary in order to comply with a regulation or
order of the relevant Gaming Board) in advance.
6.6 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
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.
6.7 Change in Nature of Business. Make any material
change in the nature of the business of Borrower and the Restricted Sub-
sidiaries, taken as a whole; provided that the acquisition of an ownership
interest in one or more New Ventures shall not be construed to violate this
covenant.
6.8 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/extensions or amendments thereof; provided that the
obligations secured or benefited thereby are not increased;
(d) any Lien or Negative Pledge on shares of any
equity security or any warrant or option to purchase an equity
security or any security which is convertible into an equity security
issued by any of Borrower or any Restricted Subsidiary that holds,
directly or indirectly through a holding company or otherwise, a
license under any Gaming Law of the State of Nevada; provided that
this clause (d) shall apply only so long as the Gaming Laws of the
State of Nevada provide that the creation of any restriction on the
disposition of any of such securities shall not be effective and, if
such Gaming Laws at any time cease to so provide, then this
clause (d) shall be of no further effect; and provided further that if at
any time Borrower creates or suffers to exist a Lien or Negative
Pledge covering such securities in favor of the holder of any other
Indebtedness, it will (subject to any approval required under the
Gaming Laws of the State of Nevada) concurrently grant a
pari-passu Lien or Negative Pledge likewise covering such securities
in favor of the Administrative Agent for the benefit of the Lenders;
(e) Liens on Property acquired by Borrower 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;
(f) Liens securing Indebtedness permitted by
Section 6.9(e) on and limited to the capital assets (and accessions
thereto and proceeds thereof) 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
(g) any Lien or Negative Pledge created by an
agreement or instrument entered into by Borrower or a Restricted
Subsidiary in the ordinary course of its business which consists of a
restriction on the assignability, transfer or hypothecation of such
agreement or instrument;
provided, that this Section shall not apply to prohibit the creation of a
Negative Pledge requested by a Gaming Board in favor of the Gaming
Board or a Person designated by the Gaming Board to the extent necessary
to prevent a License Revocation if (i) no Default or Event of Default then
exists which will not be cured by creation of the Negative Pledge and
(ii) Borrower has notified the Administrative Agent in writing of the
necessity to invoke this proviso at least ten (10) Banking Days (or such
shorter period as may be necessary in order to comply with a regulation or
order of the relevant Gaming Board) in advance.
6.9 Indebtedness and Guaranty Obligations. Create, incur or
assume any Indebtedness or Guaranty Obligation except:
(a) Indebtedness and Guaranty Obligations existing
on the Closing Date and disclosed in Schedule 6.9, and refinancings,
renewals, extensions or amendments that do not increase the amount
thereof;
(b) Indebtedness and Guaranty Obligations under
the Loan Documents;
(c) Indebtedness and Guaranty Obligations owed to
Borrower or any Restricted Subsidiary;
(d) Indebtedness under the TEGP Loan Agreement
and Guaranty Obligations in support thereof;
(e) Indebtedness consisting of Capital Lease
Obligations, or otherwise incurred to finance the purchase or
construction of capital assets (which shall be deemed to exist if the
Indebtedness is incurred at or within 90 days before or after the
purchase or construction of the capital asset), or to refinance any
such Indebtedness, provided that the aggregate principal amount of
such Indebtedness outstanding at any time does not exceed
$20,000,000;
(f) Indebtedness consisting of one or more Swap
Agreements; provided, that the aggregate notional amount of
Indebtedness covered by all Secured Swap Agreements shall not
exceed $180,000,000;
(g) New Subordinated Debt;
(h) Guaranty Obligations in support of the
obligations of a Restricted Subsidiary; and
(i) Guaranty Obligations (including Completion
Guaranties) in support of the obligations of Persons other than a
Restricted Subsidiary provided that the obligations under such
Guaranty Obligations are subordinated in right of payment to the
Obligations pursuant to subordination provisions acceptable to the
Administrative Agent.
6.10 Transactions with Affiliates. Enter into any transaction
of any kind with any Affiliate of Borrower 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 Borrower and expressly authorized by
a resolution of the board of directors of Borrower which is approved by a
majority of the directors not having an interest in the transaction,
(c) transactions between or among Borrower and the Restricted
Subsidiaries, and (d) transactions on overall terms at least as favorable to
Borrower or the Restricted Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal bargaining
power.
6.11 Senior Leverage Ratio. Permit the Senior Leverage
Ratio, as of the last day of any Fiscal Quarter ending after the Closing Date,
to be greater than the ratio set forth below opposite the period during which
such Fiscal Quarter ends:
Period Ratio
Closing Date through
March 31, 1999 3.50 to 1.00
June 30, 1999 and
thereafter 3.00 to 1.00
6.12 Total Leverage Ratio. Permit the Total Leverage Ratio,
as of the last day of any Fiscal Quarter ending after the Closing Date, to be
greater than the ratio set forth below opposite the period during which such
Fiscal Quarter ends:
Period Ratio
Closing Date through
March 31, 1999 5.25 to 1.00
June 30, 1999 through
March 31, 2000 5.00 to 1.00
June 30, 2000 through
March 31, 2001 4.75 to 1.00
June 30, 2001 through
March 31, 2002 4.25 to 1.00
June 30, 2002 and thereafter 4.00 to 1.00
6.13 Interest Coverage Ratio. Permit the Interest Coverage
Ratio, as of the last day of any Fiscal Quarter ending after the Closing Date,
to be less than the ratio set forth below opposite the period during which
such Fiscal Quarter ends:
Period Ratio
Closing Date through
December 31, 1998 1.50 to 1.00
March 31, 1999 through
December 31, 1999 1.60 to 1.00
March 31, 2000 and thereafter 1.70 to 1.00
6.14 Minimum Adjusted EBITDA. Permit, as of the last
day of any Fiscal Quarter ending after the Closing Date, Adjusted EBITDA
to be less than $120,000,000 for the fiscal period consisting of that Fiscal
Quarter and the three immediately preceding Fiscal Quarters.
6.15 Capital Expenditures. Make, or become legally
obligated to make, any Capital Expenditure except:
(a) Maintenance Capital Expenditures in any Fiscal
Year not in excess of the sum of (i) $40,000,000 plus (ii) the
amount, if any, by which $40,000,000 exceeds Maintenance Capital
Expenditures made by Borrower and the Restricted Subsidiaries in
the immediately preceding Fiscal Year;
(b) Capital Expenditures to the extent financed by
Indebtedness permitted under Section 6.9(e);
(c) a Capital Expenditure to effect the Jaffe
Transaction that does not exceed either (i) $125,000,000 (excluding
in any event from this calculation any assumption by Borrower or a
Restricted Subsidiary of any Indebtedness of TEGP resulting from
the Jaffe Transaction) or (ii) when aggregated with all other Basket
Expenditures made since the Closing Date, $300,000,000;
(d) if the Jaffe Transaction is consummated, Capital
Expenditures (other than those described in clauses (a) and (b)
above) that, giving effect thereto, do not exceed either (i) when
aggregated with all other Capital Expenditures (other than those
described in clauses (a) and (b) above) and Acquisition Expenditures
made since the Closing Date, $250,000,000 or (ii) when aggregated
with all other Basket Expenditures made since the Closing Date,
$300,000,000; and
(e) if the Jaffe Transaction is not consummated,
Capital Expenditures (other than those described in clauses (a) and
(b) above) that, giving effect thereto, do not exceed either (i) when
aggregated with all other Capital Expenditures (other than those
described in clauses (a) and (b) above) and Acquisition Expenditures
made since the Closing Date, $150,000,000 or (ii) when aggregated
with all other Basket Expenditures made since the Closing Date,
$300,000,000.
6.16 Investments and Acquisitions. Make or suffer to exist
any Investment or Acquisition, other than:
(a) Investments in existence on the Closing Date
and disclosed on Schedule 6.16;
(b) Investments consisting of Cash and Cash
Equivalents;
(c) Investments consisting of advances to officers,
directors and employees of Borrower and the Restricted Subsidiaries
for travel, entertainment, relocation and analogous ordinary business
purposes;
(d) Investments of Borrower in any Restricted
Subsidiary and Investments of any Restricted Subsidiary in Borrower
or another Restricted Subsidiary;
(e) Investments consisting of or evidencing the
extension of credit to customers or suppliers of Borrower and the
Restricted Subsidiaries in the ordinary course of business and any
Investments received in satisfaction or partial satisfaction thereof;
(f) Investments received in connection with the
settlement of a bona fide dispute with another Person;
(g) Investments representing all or a portion of the
sales price of Property sold or services provided to another Person;
(h) Investments resulting from the acquisition by
Borrower or any of the Restricted Subsidiaries of all or a portion of
another Person's ownership interest in a New Venture Entity
pursuant to an obligation or right of such Person to sell, or an
obligation or right of Borrower or any of its Restricted Subsidiaries
to purchase, such ownership interest, which obligation or right was
created substantially concurrently with the acquisition of such
ownership interest in the New Venture Entity;
(i) Investments consisting of Guaranty Obligations
permitted by Section 6.9.
(j) Investments required to be made pursuant to the
New Jersey Community Redevelopment Act;
(k) Investments by Borrower in TEGP required by
TEGP's Partnership Agreement or by the lease between TEGP and
HRN covering the real property and related personal property known
as the Tropicana Resort and Casino, in either case as in effect on the
date hereof;
(l) an Acquisition to effect the Jaffe Transaction
for which the Acquisition Expenditures do not exceed either
(i) $125,000,000 (excluding in any event from this calculation any
assumption by Borrower or a Restricted Subsidiary of any
Indebtedness of TEGP resulting from the Jaffe Transaction) or
(ii) when aggregated with all other Basket Expenditures made since
the Closing Date, $300,000,000;
(m) Acquisitions not described above for which the
Acquisition Expenditures do not exceed either (i) when aggregated
with all other Acquisition Expenditures made since the Closing Date,
$50,000,000 or (ii) when aggregated with all other Basket
Expenditures made since the Closing Date, $300,000,000; and
(n) Investments consisting of 100 shares or less of
publicly traded equity securities of Persons engaged in any business
in which Borrower is engaged, which Investments do not exceed
$100,000 at any time.
6.17 Subsidiary Indebtedness. Permit (whether or not
otherwise permitted under Section 6.9) any Significant Subsidiary to create,
incur, assume or suffer to exist any Indebtedness or Guaranty Obligation,
except (a) Indebtedness and Guaranty Obligations in existence on the
Closing Date, (b) the Subsidiary Guaranty, (c) Indebtedness owed to
Borrower or another Restricted Subsidiary, (d) Capital Lease and purchase
money obligations of a Restricted Subsidiary in respect of Property used by
that Subsidiary, (e) Indebtedness permitted under Section 6.9(d) and
(f) other Indebtedness incurred in the ordinary course of business not in
excess, with respect to any Significant Subsidiary, of $500,000.
6.18 Significant Subsidiaries. Permit any Restricted
Subsidiary that is, as of the Closing Date, a Significant Subsidiary to cease
being a Restricted Subsidiary.
6.19 Amendments to Subordinated Obligations. Amend or
modify any term or provision of any indenture, agreement or instrument
evidencing or governing any Subordinated Obligation in any respect that
will or may adversely affect the interests of the Lenders.
Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any
Advance remains unpaid or any portion of the Commitment remains in
force, Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Lenders) otherwise consents, at Borrower's 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 by the
fifteenth Banking Day (or the thirtieth Banking Day in the case of
the last month in a Fiscal Year) following, the end of a month, an
operating revenue report for such month for each of the Developed
Properties, in a form reasonably acceptable to the Administrative
Agent, together with a written narrative statement discussing any
significant trends reflected therein signed by a Responsible Officer
of Borrower;
(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 Borrower 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 Borrower) 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
Borrower as fairly presenting the financial condition, results of
operations and cash flows of Borrower 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) As soon as practicable, and in any event within
45 days after the end of each Fiscal Quarter, a Pricing Certificate
setting forth a preliminary calculation of the Pricing Ratio as of the
last day of such Fiscal Quarter, and providing reasonable detail as to
the calculation thereof, which calculations shall be based on the
preliminary unaudited financial statements of Borrower and its
Subsidiaries for such Fiscal Quarter, and as soon as practicable
thereafter, in the event of any material variance in the actual
calculation of the Pricing Ratio from such preliminary calculation, a
revised Pricing Certificate setting forth the actual calculation thereof;
(d) As soon as practicable, and in any event within
105 days after the end of each Fiscal Year, (i) the consolidated
balance sheet of Borrower 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 Borrower and its
Subsidiaries for such Fiscal Year and (ii) consolidating (in
accordance with past consolidating practices of Borrower) 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
balance sheet and consolidated statements shall be accompanied by a
report of independent public accountants of recognized standing
selected by Borrower 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. Unless such independent public
accountants do not, as a matter of firm policy, generally provide
similar information at the request of their audit clients, 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 described in Sections 9.1(a), (b), (c) or (g) 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 Borrower's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under
Sections 6.11 through 6.14, 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 Borrower in the manner prescribed by this Agreement;
(e) As soon as practicable, and in any event within
60 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 balance sheets, statements of
operations and statements of cash flow and, for the second and third
such Fiscal Years, projected consolidated condensed balance sheets
and statements of operations and cash flows, of Borrower 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
Borrower by independent accountants in connection with the
accounts or books of Borrower or any of its Subsidiaries, or any
audit of any of them;
(g) As soon as practicable, and in any event within
45 days (or, in the case of the fourth Fiscal Quarter in each Fiscal
Year, 90 days) after the end of each Fiscal Quarter, a written report,
in form and detail reasonably acceptable to the Administrative
Agent, with respect to the status of each project for which Capital
Expenditures are permitted pursuant to Sections 6.15(d) or 6.15(e),
as applicable;
(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 Borrower, and copies of
all annual, regular, periodic and special reports and registration
statements which Borrower 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 7.1;
(i) Promptly after request by the Administrative
Agent, copies of the Nevada "Regulation 6.090 Report" and
"6-A Report" and the New Jersey "Annual Report", and copies of
any written communication to Borrower or any of the Restricted
Subsidiaries from any Gaming Board advising it of a violation of or
non-compliance with any Gaming Law by Borrower or any of the
Restricted Subsidiaries;
(j) Promptly after request by the Administrative
Agent or any Lender, copies of any other report or other document
that was filed by Borrower or any of the Restricted Subsidiaries with
any Governmental Agency;
(k) Promptly upon a Senior Officer 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 Borrower or any of the Restricted
Subsidiaries 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 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 Borrower or
any of its Restricted Subsidiaries are taking or propose to take with
respect thereto;
(m) Promptly upon a Senior Officer becoming
aware that (i) any Person has commenced a legal proceeding with
respect to a claim against Borrower or any of the Restricted
Subsidiaries that is $5,000,000 or more in excess of the amount
thereof that is fully covered by insurance, (ii) any creditor or lessor
under a written credit agreement or material lease has asserted a
default thereunder on the part of Borrower or any of the Restricted
Subsidiaries, (iii) any Person has commenced a legal proceeding
with respect to a claim against Borrower or any of the Restricted
Subsidiaries under a contract that is not a credit agreement or mate-
rial lease in excess of $5,000,000 or which otherwise may
reasonably be expected to result in a Material Adverse Effect,
(iv) any labor union has notified Borrower of its intent to strike
Borrower or any of the Restricted Subsidiaries on a date certain and
such strike would involve more than 100 employees of Borrower and
the Restricted Subsidiaries, 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 Borrower or any of
the Restricted Subsidiaries, a written notice describing the pertinent
facts relating thereto and what action Borrower or the Restricted
Subsidiaries are taking or propose to take with respect thereto; and
(n) Such other data and information as from time to
time may be reasonably requested by the Administrative Agent or
the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance
remains unpaid or any portion of the Commitment remains outstanding,
Borrower shall, at Borrower's sole expense, deliver to the Administrative
Agent for distribution by it to the Lenders concurrently with the financial
statements required pursuant to Sections 7.1(b) and 7.1(d), a Compliance
Certificate signed by a Senior Officer.
Article 8
CONDITIONS
8.1 Initial Advances, Etc.. The obligation of each Lender to
make the initial Advance to be made by it, or the obligation of the Issuing
Lender to issue the initial Letter of Credit (as applicable), 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) the Global Assignment and Release executed by
all parties thereto;
(2) 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
Borrower;
(3) Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro
Rata Share of the Commitment;
(4) the Swing Line Documents;
(5) the Confirmation of the Guaranty executed by
each Significant Subsidiary;
(6) the Global Collateral Documents Amendment
executed by Borrower and each Significant Subsidiary (other
than HRN);
(7) such amendments to financing statements on
Form UCC-1 executed by Borrower and each Significant
Subsidiary (other than HRN) with respect to the Global
Collateral Documents Amendment as the Administrative
Agent may request;
(8) the Ancillary Collateral Documents, executed
by such Parties as the Administrative Agent specifies;
(9) the Intercreditor Agreement executed by the
Term Loan Agent;
(10) with respect to Borrower and each Significant
Subsidiary, such documentation as the Administrative Agent
may require to establish the due organization, valid existence
and good standing of Borrower and each such Subsidiary, its
qualification to engage in business in each material juris-
diction 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;
(11) the Opinions of Counsel;
(12) assurances from the Title Company that it is
prepared to issue such endorsements to the existing ALTA
lender's policies insuring the Lien of the Deeds of Trust as
may be reasonably requested by the Administrative Agent,
subject only to such exceptions as are reasonably acceptable
to the Administrative Agent, and with such assurances as the
Administrative Agent may reasonably require from title
re-insurers acceptable to the Administrative Agent;
(13) such assurances as the Administrative Agent
deems appropriate that the relevant Gaming Boards have
approved the transactions contemplated by the Loan
Documents to the extent that such approval is required by
applicable Gaming Laws;
(14) written evidence that the Supplemental Loan
Agreement has been or will be concurrently terminated and
all Liens securing such facility have been or will be
concurrently released;
(15) a Pricing Certificate as of the last day of the
most recently ended Fiscal Quarter;
(16) a Certificate of a Senior Officer certifying that
incurrence by Borrower of the Obligations will not violate the
Existing 11% Subordinated Debt Indenture or the Existing
13 3/4% Subordinated Debt Indenture;
(17) a Certificate of a Responsible Official signed by
a Senior Officer of Borrower certifying that the conditions
specified in Sections 8.1(h) and 8.1(i) have been satisfied; and
(18) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably
may require.
(b) The arrangement fee payable pursuant to
Section 3.2 shall have been paid.
(c) The upfront fees payable pursuant to
Section 3.3 shall have been paid.
(d) Any agency fees payable on the Closing Date
pursuant to Section 3.6 shall have been paid.
(e) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 11.3, and invoiced to
Borrower prior to the Closing Date, shall have been paid.
(f) The TEGP Loan Agreement shall be
concurrently assigned to the Lenders (in their capacity as Lenders
under the TEGP Loan Agreement).
(g) Borrower shall have delivered to the trustees
under the Existing Indentures a written statement designating the
Obligations as "Designated Senior Indebtedness" under such
Indentures.
(h) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(i) Borrower 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 (or initial Letter
of Credit, as applicable) 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, Richter &
Hampton LLP, special counsel to the Administrative Agent.
(k) The Closing Date shall have occurred on or
before June 12, 1998.
8.2 Acquisition of Future Collateral. The obligation of each
Lender to make any Advance to be used to acquire any asset which is
required pursuant to Section 5.10 to be delivered as Collateral hereunder is
subject to the condition precedent that (unless the Requisite Lenders, in
their sole and absolute discretion, shall agree otherwise) Borrower and the
applicable Significant Subsidiaries concurrently execute and deliver such
Collateral Documents as are required by Section 5.10 with respect to such
asset.
8.3 Any Increasing Advance, Etc. The obligation of each
Lender to make any Advance which would increase the principal amount
outstanding under the Notes (other than the initial Advance pursuant to
Section 8.1), and the obligation of the Issuing Lender to issue a Letter of
Credit, is subject to the following conditions precedent (unless the
Requisite Lenders, in their sole and absolute discretion, shall agree
otherwise):
(a) except (i) for representations and warranties
which expressly speak as of a particular date or are no longer true
and correct as a result of a change which is permitted by this
Agreement or (ii) as disclosed by Borrower and approved in writing
by the Requisite Lenders, the representations and warranties
contained in Article 4 (other than Sections 4.4(a), 4.6 (first
sentence), 4.10, 4.17 and 4.19) shall be true and correct on and as of
the date of the Advance as though made on that date;
(b) other than matters described in Schedule 4.10 or
not required as of the Closing Date to be therein described, there
shall not be then pending or threatened any action, suit, proceeding
or investigation against or affecting Borrower or any of the
Restricted Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely
received a Request for Loan in compliance with Article 2 (or
telephonic or other request for Loan referred to in the second
sentence of Section 2.1(b), if applicable) or the Issuing Lender shall
have received a Request for Letter of Credit, as the case may be, in
compliance with Article 2; and
(d) the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, such
other assurances, certificates, documents or consents related to the
foregoing as the Administrative Agent or Requisite Lenders
reasonably may require.
8.4 Any Advance. The obligation of each Lender to make
any Advance (other than an Alternate Base Rate Advance with respect to an
Alternate Base Rate Loan which, if made, would not increase the
outstanding principal Indebtedness evidenced by the Notes) is subject to the
condition precedent that the Administrative Agent shall have timely
received a Request for Loan in compliance with Article 2 (or telephonic or
other request for Loan referred to in the second sentence of Section 2.1(b),
if applicable).
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT
9.1 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) Borrower fails to pay any principal on any of
the Notes, or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under Sections 3.4, 3.5 or 3.6, or any portion
thereof, within five (5) 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) Borrower fails to comply with any of the
covenants contained in Article 6; or
(d) Borrower fails to comply with Section 7.1(l) in
any respect that is materially adverse to the interests of the Lenders;
or
(e) Borrower, any of the Significant Subsidiaries 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 ten (10) 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 Borrower or
any of the Significant Subsidiaries made in any Loan Document, or
in any certificate or other writing delivered by Borrower or such
Significant Subsidiary 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) Borrower or any of the Restricted Subsidiaries
(i) fails to pay the principal, or any principal installment, of any
present or future indebtedness for borrowed money of $10,000,000
or more, or any guaranty of present or future indebtedness for
borrowed money of $10,000,000 or more, 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 for borrowed money of $10,000,000 or more, or of any
guaranty of present or future indebtedness for borrowed money of
$10,000,000 or more, 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
Borrower or any Restricted Subsidiary to redeem or purchase, or
offer to redeem or purchase, all or any portion of such indebtedness;
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 Obli-
gation; 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, at any time after its exe-
cution 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 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, in any such event in the reasonable opinion of the
Requisite Lenders, is materially adverse to the interests of the
Lenders; or any Party thereto denies in writing that it has any or
further liability or obligation under any Loan Document, or purports
to revoke, terminate or rescind same; or
(j) A final judgment against any of Borrower or
any of the Restricted Subsidiaries is entered for the payment of
money in excess of $1,000,000 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) Borrower or any of the Significant Subsidiaries
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 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) under any other Loan Document; or
(m) The occurrence of an Event of Default (as such
term is defined in the TEGP Loan Agreement) under the TEGP Loan
Agreement or the occurrence of an Event of Default (as such term is
defined in the Term Loan Agreement) under the Term Loan
Agreement; or
(n) 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
(o) Any Pension Plan maintained by Borrower or
any of its Restricted Subsidiaries is determined to have a material
"accumulated funding deficiency" as that term is defined in
Section 302 of ERISA and the result is a Material Adverse Effect; or
(p) The occurrence of a License Revocation that
continues for three (3) consecutive calendar days affecting gaming
operations accounting for five percent (5%) or more of the consoli-
dated gross revenues of Borrower and the Restricted Subsidiaries.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Agent or the Lenders pro-
vided 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 9.1(k):
(1) the Commitment to make Advances and the
obligation of the Issuing Lender to issue Letters of Credit
shall be suspended without notice to or demand upon
Borrower, which are expressly waived by Borrower, except
that all of the Lenders or the Requisite Lenders (as the case
may be, in accordance with Section 11.2) 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, and cause
the Issuing Lender to issue further Letters of Credit which
waiver or determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) the Issuing Lender may, with the approval of
the Administrative Agent on behalf of the Requisite Lenders ,
demand immediate payment by Borrower of an amount equal
to the aggregate amount of all outstanding Letters of Credit to
be held by the Issuing Lender in an interest-bearing cash
collateral account as collateral hereunder; and
(3) 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 Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(k):
(1) the Commitment to make Advances and the
obligation of the Issuing Lender to issue Letters of Credit
shall terminate without notice to or demand upon Borrower,
which are expressly waived by Borrower, except that all of
the Lenders (or, in the case that such an Event of Default
affects one Significant Subsidiary, but not the Borrower or the
other Significant Subsidiaries, the Requisite 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 and to cause the Issuing
Lender to issue further Letters of Credit, which determination
shall apply equally to, and shall be binding upon, all the
Lenders;
(2) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and
payable to the Issuing Lender without notice to or demand
upon Borrower, which are expressly waived by Borrower, to
be held by the Issuing Lender in an interest-bearing cash
collateral account as collateral hereunder; and
(3) 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 Borrower.
(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 Borrower, which are expressly waived by Borrower
(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 Borrower and any other Party and such
other rights 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 Obligations owed to each 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. Regardless of how each Lender may treat payments for
the purpose of its own accounting, for the purpose of computing
Borrower's Obligations hereunder and under the Notes, payments
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 duplica-
tion, according to the accrued and unpaid interest due 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. Amounts due to a
Lender under a Secured Swap Agreement shall be considered a
principal amount for purposes of the preceding sentence. No
application of payments 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.
Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section
10.8, each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf (including
execution and delivery of the Intercreditor Agreement) 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.
10.2 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 National Trust and Savings Association in its individual capacity.
Bank of America National Trust and Savings Association (and each succes-
sor 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 Borrower, any Subsidiary thereof, or any Affiliate of
Borrower 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 National Trust and Savings Association (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.
10.3 Proportionate Interest in any Collateral. The Collateral
Agent, on behalf of the Lenders and the Term Lenders, shall hold in
accordance with the Intercreditor Agreement and the Loan Documents all
items comprising the Collateral. 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 9.2(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.
10.4 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 Borrower 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.
10.5 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 Borrower 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 Requi-
site 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 11.2), 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 A-
gent, in substantial risk of liability to the Administrative Agent, and
except that if the Requisite Lenders (or all the Lenders, if required
under Section 11.2) 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 11.2),
notwithstanding any other provision hereof.
10.6 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 Borrower
and/or its 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 Borrower or its Subsidiaries of any of
the terms, conditions or covenants of any of the Loan Documents or
to inspect any Collateral or the Property, books or records of
Borrower or their 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 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 Borrower 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) Borrower and/or its 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.
10.7 Indemnification. Each Lender shall, ratably in accor-
dance 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 and its
directors, officers, agents, employees and attorneys harmless against any
and all liabilities, obligations, losses, damages, penalties, actions, judg-
ments, suits, costs, expenses or disbursements of any kind or nature whatso-
ever (including, without limitation, 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 Borrower 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 Borrower or any other Party is required by
Section 11.3 to pay that cost or expense but fails to do so upon demand.
Nothing in this Section 10.7 shall entitle the Administrative Agent to
recover any amount from the Lenders if and to the extent that such amount
has theretofore been recovered from Borrower or any of its Subsidiaries.
To the extent that the Administrative Agent is later reimbursed such cost or
expense by Borrower or any of its Subsidiaries, it shall return the amounts
paid to it by the Lenders in respect of such cost or expense.
10.8 Successor Administrative Agent. The Administrative
Agent may, and at the request of the Requisite Lenders shall, resign as
Administrative Agent upon thirty (30) days' notice to the Lenders and
Borrower. 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 Borrower (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 Borrower, 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 10, and
Sections 11.3, 11.11 and 11.22, 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. 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 11.3, 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.
10.9 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 Collateral
Agent (or an Affiliate or designee thereof) pro rata for the benefit of the
Lenders in accordance with the Intercreditor Agreement and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Collateral Agent in comparable
syndicated credit facilities.
10.10 No Obligations of Borrower. Nothing contained in
this Article 10 shall be deemed to impose upon Borrower any obligation in
respect of the due and punctual performance by the Administrative Agent of
its obligations to the Lenders under any provision of this Agreement, and
Borrower 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 Borrower to the Administrative Agent for the
account of the Lenders, Borrower's 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.
Article 11
MISCELLANEOUS
11.1 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 8 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 or Letter
of Credit without prejudicing the Administrative Agent's or the Lenders'
rights to assert them in whole or in part in respect of any other Loan.
11.2 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 Borrower or any other
Party therefrom, shall 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 the Borrower or any
Significant Subsidiary is a Party, signed by each such Party, and, in the case
of any amendment, modification or supplement to Article 10, 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 Borrower 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, or to release the Subsidiary Guaranty
(except with respect to any Significant Subsidiary which is the
subject of a Disposition permitted hereunder);
(c) to release any material portion of the Collateral
except (i) as expressly provided for in Sections 11.25, 11.26 and
11.27 and (ii) as otherwise expressly provided for in any Loan
Document;
(d) To amend the provisions of the definition of
"Requisite Lenders", Articles 8 or 9 or this Section 11.2, or
(e) 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 11.2 shall apply equally to, and shall be binding
upon, all the Lenders and the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrower shall pay within
five (5) Banking Days after demand, accompanied by an invoice therefor,
the reasonable costs and expenses of the Administrative Agent in con-
nection with the negotiation, preparation, syndication, execution and deliv-
ery of the Loan Documents and any amendment thereto or waiver thereof.
Borrower 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 Borrower 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 Borrower, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Borrower 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, gross income or gross receipts and franchise taxes
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", (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America (other than withholding
taxes and taxes based on gross income resulting from or attributable to any
change in any law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any Governmental Agency)
or (iii) 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 Borrower with the appropriate form or forms required by
Section 11.21, 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 11.11 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 11.3
shall bear interest from the second Banking Day following the date of
demand for payment at the Default Rate.
11.4 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 Borrower or any Affiliate of any of Borrower. 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
Borrower, to replace such a Lender in default.
11.5 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.
11.6 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 11.6. Except as
otherwise 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.
11.7 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.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents
to which Borrower is a Party will be binding upon and inure to the
benefit of Borrower, the Administrative Agent, each of the Lenders,
and their respective successors and assigns, except that, except as
permitted in Section 6.3, Borrower may not assign its rights
hereunder or thereunder or any interest herein or therein without the
prior written consent of all the Lenders. 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.
(b) From time to time following the Closing Date,
each 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 of the
assigning Lender, shall be approved by the Administrative Agent and
Borrower (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 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, when added to the pro
rata share of the TEGP Loan Outstandings being concurrently
assigned to the same Eligible Assignee, is equivalent to less than
$10,000,000, (iv) assignment of a Pro Rata Share of the
Commitment must be concurrent with an assignment to the same
Eligible Assignee of the same pro rata share of the assigning
Lender's pro rata share of the TEGP Loan Outstandings and (v) 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. Borrower agrees that it shall
execute and deliver (against delivery by the assigning Lender to
Borrower 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 Borrower or the performance by
Borrower 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 7.1 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 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 Assign-
ment 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 Borrower
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 Borrower and the Lenders a revised
Schedule 1.1 giving effect thereto. Borrower, 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's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the perfor-
mance of such obligations, (iii) the participating lenders or other
financial institutions shall not be a Lender hereunder for any purpose
except, if the participation agreement so provides, for the purposes
of Sections 3.8, 3.9, 11.11 and 11.22 but only to the extent that the
cost of such benefits to Borrower do not exceed the cost which
Borrower would have incurred in respect of such Lender absent the
participation, (iv) Borrower, 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, (v) 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, (vi) a participation in a percentage of the
granting Lender's Pro Rata Share of the Commitment must be
concurrent with a participation granted to the same participant of the
same percentage of the granting Lender's pro rata share of the
TEGP Loan Outstandings and (vii) 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 Reduction 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 any
material portion of the Collateral (except as otherwise expressly
provided for in any Loan Document).
(f) Notwithstanding anything in this Section 11.8 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.
11.9 Right of Setoff. If an Event of Default has occurred and
is continuing, the Administrative Agent may exercise its rights under
Article 9 of the Uniform Commercial Code and other applicable Laws and
the Administrative Agent or any Lender may (but only with the consent of
the Requisite Lenders) to the extent permitted by applicable Laws, apply
any funds in any deposit account maintained with it by Borrower and/or
any Property of Borrower in its possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that
if it, through the exercise of any right of setoff, banker's lien or
counterclaim against Borrower, 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 the other Lender a participation in the Obligations held by the other
Lender and shall pay to the other Lender 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 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 Borrower or any Person claiming through or
succeeding to the rights of Borrower, 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 11.10 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.
Borrower 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.
11.11 Indemnity by Borrower. Borrower agrees to indem-
nify, save and hold harmless the Administrative Agent and each Lender and
their 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 Borrower, its Affiliates or
any of its officers, directors or stockholders relating to the Commitment, the
use or contemplated use of proceeds of any Loan, or the relationship of
Borrower 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 Borrower, but the failure to so promptly notify Borrower
shall not affect Borrower's obligations under this Section unless such failure
materially prejudices Borrower's rights 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 Borrower in writing) contest the
validity, applicability and amount of such claim, demand, action or cause of
action and shall permit Borrower to participate in such contest. Any
Indemnitee that proposes to settle or compromise any claim or proceeding
for which Borrower may be liable for payment of indemnity hereunder shall
give Borrower 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 Borrower's 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 11.11 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 Borrower; 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 Indemnitee shall be entitled to separate representation
by legal counsel selected by that Indemnitee and reasonably acceptable to
Borrower, 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 Borrower to any
Indemnitee under this Section 11.11 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.
11.12 Nonliability of the Lenders. Borrower acknowledges
and agrees that:
(a) Any inspections of any Property of Borrower
made by or through the Administrative Agent or the Lenders are for
purposes of administration of the Loan only and Borrower is not
entitled to rely upon the same (whether or not such inspections are at
the expense of Borrower);
(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 Borrower and the
Administrative Agent and the Lenders is, and shall at all times
remain, solely that of Borrower and the Lenders; neither the
Administrative Agent nor the Lenders shall under any circumstance
be construed to be partners or joint venturers of Borrower or its
Affiliates; neither the Administrative Agent nor the Lenders shall
under any circumstance be deemed to be in a relationship of confi-
dence or trust or a fiduciary relationship with Borrower or its
Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates;
neither the Administrative Agent nor the Lenders undertake or
assume any responsibility or duty to Borrower or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform
Borrower or its Affiliates of any matter in connection with their
Property or the operations of Borrower or its Affiliates; Borrower
and its 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 Borrower 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, lia-
bility or claim of any kind relating to injury or death to Persons or
damage to Property caused by the actions, inaction or negligence of
Borrower and/or its Affiliates and Borrower hereby indemnifies and
holds the Administrative Agent and the Lenders harmless on the
terms set forth in Section 11.11 from any such loss, damage, liability
or claim.
11.13 No Third Parties Benefited. This Agreement is made
for the purpose of defining and setting forth certain obligations, rights and
duties of Borrower, the Administrative Agent and the Lenders in connection
with the Loans, and is made for the sole benefit of Borrower, the
Administrative Agent and the Lenders, and the Administrative Agent's and
the Lenders' successors and assigns. Except as provided in Sections 11.8
and 11.11, no other Person shall have any rights of any nature hereunder or
by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from Borrower pursuant to this
Agreement in confidence, except for disclosure: (a) to an Affiliate of that
Lender provided that the recipient has accepted such information subject to
a confidentiality agreement substantially similar to this Section 11.14; (b) to
other Lenders; (c) to legal counsel and accountants for Borrower or any
Lender; (d) to other professional advisors to Borrower or any Lender,
provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section 11.14; (e) to
regulatory officials having jurisdiction over that Lender; (f) to any Gaming
Board having regulatory jurisdiction over Borrower or its Subsidiaries,
provided that each Lender agrees to use its best efforts to notify Borrower
of any such disclosure unless prohibited by applicable Laws; (g) as required
by Law or legal process or in connection with any legal proceeding to
which that Lender and Borrower are adverse parties; and (h) 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 11.14. For purposes of the foregoing,
"confidential information" shall mean any information respecting Borrower
or its Subsidiaries reasonably considered by Borrower 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 Borrower to any Person not
associated with Borrower without a confidentiality agreement or obligation
substantially similar to this Section 11.14. 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 Borrower.
11.15 Further Assurances. Borrower and the Significant
Subsidiaries 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 Loan Document.
11.16 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.
11.17 Governing Law. Except to the extent otherwise
provided therein, each Loan Document shall be governed by, and construed
and enforced in accordance with, the local Laws of California.
11.18 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
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.
11.19 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.
11.20 Time of the Essence. Time is of the essence of the
Loan Documents.
11.21 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 Borrower (with a copy to the Administrative
Agent), within twenty (20) days after the Closing Date (or after accepting
an assignment or receiving a participation interest herein pursuant to Sec-
tion 11.8, 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 Borrower pursuant to this Agreement) or
Form 4224 (relating to all payments to be made to such Lender by the
Borrower pursuant to this Agreement) of the United States Internal Revenue
Service or such other evidence (including, if reasonably necessary,
Form W-9) satisfactory to Borrower 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 Borrower (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 Borrower 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 Borrower 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 Borrower makes any
deduction or withholding for taxes from amounts payable to such Lender.
In the event that Borrower or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(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 Borrower 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 Borrower and the Administrative Agent as
would be required under this Section if such financial institution were a
Lender.
11.22 Hazardous Material Indemnity. Borrower 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 Borrower), 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 Borrower
or any of its predecessors in title, whether prior to or during the term of
this Agreement, and whether by Borrower or any predecessor in title or any
employees, agents, contractors or subcontractors of Borrower 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. Borrower hereby
acknowledges and agrees that, notwithstanding any other provision of this
Agreement or any of the other Loan Documents to the contrary, the
obligations of Borrower under this Section (and under Sections 4.18 and
5.14) shall be unlimited corporate obligations of Borrower and shall not be
secured by any deed of trust on any Real Property. Any obligation or
liability of Borrower to any Indemnitee under this Section 11.22 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.
11.23 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 Borrower and
its Subsidiaries, including the provision of such documents or other
information as may be requested by any such Gaming Board relating to
Borrower or any of its Subsidiaries or to the Loan Documents.
11.24 Removal of a Lender. Borrower shall have the right to
remove a Lender as a party to this Agreement in accordance with this
Section (a) under the circumstances set forth in Sections 2.11, 3.7, 3.8 and
3.12(d) or if any participant permitted by Section 11.8(e) with respect to
such Lender makes a claim for payment under any of such Sections, (b) if
such Lender is the subject of a Lender Disqualification and (c) upon the
occurrence of any event or circumstance which allows TEGP to remove the
same Lender as a party to the TEGP Loan Agreement; provided that (i) no
Default or Event of Default then exists and (ii) such Lender is concurrently
removed as a party to the TEGP Loan Agreement pursuant to Section 8.20
thereof. If Borrower is so entitled to remove a Lender pursuant to this
Section either:
(x) Upon notice from Borrower, the Lender being removed
shall execute and deliver a Commitment Assignment and
Acceptance covering that Lender's Pro Rata Share of the
Commitment and that Lender's Pro Rata Share of the TEGP
Loan Outstandings in favor of one or more Eligible Assignees
designated by Borrower (and acceptable to the Administrative
Agent, which acceptance shall not be unreasonably delayed or
withheld) and which Eligible Assignees shall have identical
percentage interests in the Commitment and the TEGP Loan
Outstandings, subject to (i) payment of a purchase price by
such Eligible Assignee equal to all principal and accrued
interest, fees and other amounts payable to such Lender under
this Agreement and the TEGP Loan Agreement through the
date of assignment and (ii) the written release of the Issuing
Lender and the Swing Line Lender of such Lender's
obligations under Sections 2.4(c) and 2.10(d) or delivery by
such Eligible Assignee of such appropriate assurances and
indemnities (which may include letters of credit) as such
Lender may reasonably require with respect to its
participation interest in any Letters of Credit then outstanding
or any Swing Line Outstandings; or
(y) Borrower may reduce the Commitment pursuant to
Section 2.5 (and, for this purpose, the numerical requirements
of such Section shall not apply) by an amount equal to that
Lender's Pro Rata Share of the Commitment, pay and provide
to such Lender the amounts, assurances and indemnities
described in subclauses (i) and (ii) of clause (x) above and
release such Lender from its Pro Rata Share of the
Commitment, provided that concurrently therewith, the TEGP
Loan Outstandings are reallocated in the manner described in
Section 8.20(b) of the TEGP Loan Agreement. In the event
that the Commitment is reduced pursuant to this clause (y),
subsequent Reduction Amounts shall be reduced by a
proportional amount.
11.25 Release of Tropicana Collateral. In the event that the
Jaffe Transaction is effected such that, pursuant to Section 5.10, the TEGP
Property becomes subject to the Lien of the Collateral Documents, such
Lien may be released (so long as no Event of Default then exists under this
Agreement or the Term Loan Agreement) with the written approval of (a)
the Requisite Lenders and (b) the Requisite Lenders under the Term Loan
Agreement.
11.26 Termination; Release of Liens. Upon (a) the
expiration or termination of the Commitment, (b) the full and final payment
in Cash of the Loans, all interest and fees with respect thereto, (c) the
reimbursement of all draws under Letters of Credit and the payment of all
fees with respect thereto, (d) the expiration of all Letters of Credit or the
deposit of Cash collateral with the Issuing Lender in the effective face
amount thereof, (e) the payment of all amounts then demanded by any
Lender or indemnitee under Sections 3.7, 3.8, 11.11 and 11.22 and (f) the
payment of all other amounts then due under the Loan Documents, the
Administrative Agent is hereby authorized by the Lenders to, and the
Administrative Agent shall, upon the request of Borrower, execute and
deliver to Borrower discharges from further compliance with the covenants
contained in Articles 5, 6 and 7 and releases of the Liens created by the
Collateral Documents, and shall return any Property pledged to the
Administrative Agent as Collateral for the Obligations, notwithstanding the
survival of any provisions of this Agreement herein provided for.
11.27 Other Lien Releases. In addition to the provisions of
Section 11.26, each of the Lenders hereby authorizes the Administrative
Agent to, and the Administrative Agent shall, release any Lien granted to or
held by the Administrative Agent upon any Collateral (i) sold, transferred
or otherwise disposed of in connection with any transaction not prohibited
by the Loan Documents, (ii) constituting Property leased to Borrower or its
Subsidiaries under a lease which has expired or been terminated in a
transaction not prohibited by the Loan Documents or which will
concurrently expire and which has not been, and is not intended by
Borrower or the relevant Subsidiary to be, renewed or extended,
(iii) consisting of an instrument, if the Indebtedness evidenced by such
instrument has been finally repaid in full and (iv) if approved or consented
to by those of the Lenders required by Section 11.2. If the Collateral so
released consists of capital stock of a Significant Subsidiary, then the
Administrative Agent shall concurrently also release such Significant
Subsidiary from its obligations under the Subsidiary Guaranty. Upon the
request of the Administrative Agent, each Lender shall promptly provide
written confirmation of the authority of the Administrative Agent to release
such Liens upon any one or more items of Collateral under this Section.
11.28 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.
11.29 Purported Oral Amendments. BORROWER
EXPRESSLY ACKNOWLEDGES THAT THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED
OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT
COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PER-
FORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY
LENDER THAT DOES NOT COMPLY WITH SECTION 11.2 TO
EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR
SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
AZTAR CORPORATION
By: NEIL A. CIARFALIA
Neil A. Ciarfalia
Treasurer
Address:
Aztar Corporation
2390 East Camelback Road
Suite 400
Phoenix, Arizona 85016
Attn: Neil A. Ciarfalia
Treasurer
Telecopier: (602) 381-4108
Telephone: (602) 381-4113
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: JANICE HAMMOND
Janice Hammond
Vice President
Address:
Bank of America National Trust and Savings
Association
555 South Flower Street, 11th Floor, #20529
Los Angeles, California 90071
Attn: Janice Hammond, Vice President
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Lender
By: SCOTT L. FABER
Scott L. Faber
Vice President
Address:
Bank of America National Trust and Savings
Association
555 South Flower Street, 11th Floor, #3283
Los Angeles, California 90071
Attn: Scott L. Faber, Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANKERS TRUST COMPANY, as
Documentation Agent and as a Lender
By GINA S. THOMPSON
Gina S. Thompson
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn: David Bell
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9048
SOCIETE GENERALE, as Documentation
Agent and as a Lender
By DONALD L. SCHUBERT
Donald L. Schubert
First Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
First Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
With a copy sent to:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Jane van Brussel
Telecopier: (310) 788-7106
Telephone: 9310) 551-1537
BANK OF SCOTLAND, as Co-Agent and as a
Lender
By ANNIE CHIN TAT
Annie Chin Tat
Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin Tat
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
With a copy to:
Bank of Scotland
660 South Figueroa Street, Suite 1760
Los Angeles, California 90017
Attn: Kandis Jaffrey
Telecopier: (213) 489-3594
Telephone: (213) 629-3057
CREDIT LYONNAIS LOS ANGELES
BRANCH, as Co-Agent and as a Lender
By DIANNE M. SCOTT
Dianne M. Scott
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
With a copy to:
Ron Finn, Esquire
Legal Department
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopier: (212) 459-3187
Telephone: (212) 261-7050
PNC BANK, NATIONAL ASSOCIATION, as
Co-Agent and as a Lender
By G.W. WESSELS
Gary W. Wessels
Vice President
Address:
PNC Bank, N.A.
Two Tower Center, 16th Floor
East Brunswick, New Jersey 08816
Attn: Denise D. Killen
Telecopier: (732) 220-3270
Telephone: (732) 220-3262
ABN AMRO BANK, N.V., as a Lender
By JEFFREY A. FRENCH
Jeffrey A. French
Group Vice President and Director
By M. TOLENTINO
Michael Tolentino
Assistant Vice President and Credit
Analyst
Address:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, California 94111-5812
Attn: Michael Tolentino
Telecopier: (415) 362-3524
Telephone: (415) 984-3722
IMPERIAL BANK, A CALIFORNIA
BANKING CORPORATION, as a Lender
By STEVEN K. JOHNSON
Steven K. Johnson
Senior Vice President
[Printed Name and Title]
Address:
Imperial Bank
9920 South La Cienega Boulevard, 14th Floor
Inglewood, California 90301
Attn: Steven K. Johnson
Telecopier: (310) 417-5997
Telephone: (310) 417-5657
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By MARY K. YOUNG
Mary K. Young
Commercial Banking Officer
Address:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, Washington 98104
Attn: Mary K. Young
Telecopier: (206) 684-6035
Telephone: (206) 684-6085
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY,
as a Lender
By Y. SATOMI
Yasushi Satomi
Senior Vice President and Chief Manager
Address:
The Mitsubishi Trust and Banking Corporation,
Los Angeles Agency
801 South Figueroa Street, Suite 500
Los Angeles, California 90017
Attn: F. Frank Herrera
Telecopier: (213) 687-4631
Telephone: (213) 896-4652
EXHIBIT A
COMMITMENT ASSIGNMENT AND ACCEPTANCE
This COMMITMENT ASSIGNMENT AND ACCEPTANCE
("Assignment") dated as of ____________, ____ is made with reference to
the following loan agreements:
A. That certain Amended and Restated Reducing
Revolving Loan Agreement dated as of May 28, 1998 (as amended,
extended, renewed, supplemented or otherwise modified from time to time,
the "Aztar Loan Agreement") by and among Aztar Corporation, a Delaware
corporation, ("Borrower"), the lenders from time to time party thereto (the
"Lenders"), and Bank of America National Trust and Savings Association,
as Administrative Agent for itself and for the Lenders; and
B. That certain Second Amended and Restated Loan
Agreement dated as of October 4, 1994 (as amended, extended, renewed,
supplemented or otherwise modified from time to time, the "TEGP Loan
Agreement") by and among Tropicana Enterprises, a Nevada general
partnership ("TEGP"), Hotel Ramada of Nevada, a Nevada corporation
("HRN"), the Banks, Lead Managers, Co-Agents, and Co-Managing Agent
referred to therein, and Bank of America National Trust and Savings
Association, as Administrative Agent for itself and for the Banks.
This Assignment is entered into between
_________________________, the "Assignor" in its capacity as a Lender
under the Aztar Loan Agreement and as a Bank under the TEGP Loan
Agreement, and ____________________________, the "Assignee." The
Assignor and Assignee hereby represent, warrant and agree as follows:
1. Definitions. Capitalized terms used but otherwise not defined
herein shall have the respective meanings assigned to them in the Loan
Agreements. In addition, as used in this Assignment, the following
capitalized terms shall have the meanings set forth below:
"Assigned Aztar Pro Rata Share" means that interest in and to
all the Assignor's rights and obligations under the Aztar Loan Agreement as
of the date hereof which represents the percentage interest specified in Item
2 of Schedule A to this Assignment.
"Assigned TEGP Pro Rata Share" means that interest in and
to all the Assignor's rights and obligations under the TEGP Loan Agreement
as of the date hereof which represents the percentage interest specified in
Item 2 of Schedule A to this Assignment.
"Aztar Loan Documents" means the "Loan Documents" as
such term is defined in the Aztar Loan Agreement.
"Aztar Note" means a Note issued by Borrower pursuant to
the Aztar Loan Agreement.
"Effective Date" means the effective date of this Assignment
as determined in accordance with Section 10 of this Assignment.
"Loan Agreements" means, collectively, the Aztar Loan
Agreement and the TEGP Loan Agreement.
"TEGP Loan Documents" means "Loan Documents" as such
term is defined in the TEGP Loan Agreement.
"TEGP Note" means the Master Note issued by TEGP
pursuant to the TEGP Loan Agreement.
2. Representations and Warranties of the Assignor. The
Assignor represents and warrants as follows:
(a) The Assignor is the legal and beneficial owner
of the Assigned Aztar Pro Rata Share and the Assigned TEGP Pro Rata
Share. The Assigned Aztar Pro Rata Share and the Assigned TEGP Pro
Rata Share are each free and clear of any adverse claim.
(b) The Assignor has full power and authority, and
has taken all action necessary, to execute and deliver this Assignment
and any and all other documents required to be executed by it in
connection with this Assignment and to fulfill its obligations under, and
to consummate the transactions contemplated by this Assignment, and
no governmental authorizations or other authorizations are required in
connection herewith.
(c) This Assignment constitutes the legal, valid and
binding obligation of the Assignor.
(d) The Assignor makes no representation or
warranty other than those expressly set forth above and assumes no
responsibility with respect to the financial condition of the Borrower or
its Subsidiaries, TEGP or HRN, the performance by Borrower or its
Subsidiaries of their obligations under the Aztar Loan Agreement and
the other Aztar Loan Documents or the performance by TEGP or HRN
of their respective obligations under the TEGP Loan Agreement and the
other TEGP Loan Documents, and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Loan Agreements or the execution, legality,
validity, enforceability, genuineness, or sufficiency of either Loan
Agreement or any Loan Document referred to therein.
3. Representations and Warranties of the Assignee. The
Assignee represents and warrants as follows:
(a) The Assignee has full power and authority, and
has taken all action necessary, to execute and deliver this Assignment
and any and all other documents required to be executed by it in
connection with this Assignment and to fulfill its obligations under, and
to consummate the transactions contemplated by this Assignment, and
no governmental authorizations or other authorizations are required in
connection herewith.
(b) The Assignee has independently and without
reliance upon the Administrative Agent or the Assignor and based on
such documents and information as the Assignee has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment. The Assignee will, independently and without reliance
upon the Administrative Agent or any Lender or Bank, and based upon
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 the Aztar Loan Agreement and/or the TEGP Loan
Agreement.
(c) The Assignee has received copies of the Loan
Agreements together with copies of the financial statements referred to
therein and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Assignment.
(d) The Assignee is an Eligible Assignee.
(e) The Assignee will perform in accordance with
their respective terms all of the obligations which, by the terms of the
Loan Agreements, are required to be performed by it as a Lender and as
a Bank.
(f) This Assignment constitutes the legal, valid and
binding obligation of the Assignor.
4. Assignment. On the terms set forth herein, the Assignor, as
of the Effective Date, hereby irrevocably sells, and assigns and transfers to
the Assignee all of the rights and obligations of the Assignor under (a) the
Aztar Loan Agreement, the other Aztar Loan Documents and Assignor's
Aztar Note to the extent of the Assigned Aztar Pro Rata Share, and (b) the
TEGP Loan Agreement, the TEGP Loan Documents and the TEGP Note, to
the extent of the Assigned TEGP Pro Rata Share, and the Assignee
irrevocably accepts such assignment of the rights and assumes such
obligations from the Assignor on such terms as of the Effective Date. As of
the Effective Date, the Assignee shall have the rights and obligations of a
"Lender" under the Aztar Loan Documents and a "Bank" under the TEGP
Loan Documents, respectively, and the Assignor shall to the extent
provided in this Assignment relinquish such rights and interest and be
released from such liabilities, duties and obligations under the Aztar Loan
Documents and the TEGP Loan Documents, respectively. The Assignee
hereby appoints and authorizes the Administrative Agent, the Issuing
Lender, and Swing Line Lender, as the case may be, to take such action and
to exercise such powers as delegated to the Administrative Agent, the
Issuing Lender, and Swing Line Lender, as applicable, as are delegated by
the Loan Agreements.
5. Payments.
(a) As of the Effective Date, the Assignee shall pay
to the Assignor, in immediately available funds, an amount equal to the
outstanding indebtedness owed to it by the Borrower and TEGP under
their respective Loan Agreements with respect to the Assigned Aztar
Pro Rata Share and the Assigned TEGP Pro Rata Share.
(b) From and after the Effective Date, the
Administrative Agent shall make all payments under the Loan
Agreements in respect of the Assigned Aztar Pro Rata Share and the
Assigned TEGP Pro Rata Share (including without limitation, all
payments of principal, interest and fees, if applicable, with respect to
thereto) to the Assignee. The Assignee and the Assignor shall make all
appropriate adjustments in payments under the Loan Agreements for
periods prior to the Effective Date between themselves.
6. Notes. The Assignor and the Assignee shall make appropriate
arrangements with the Borrower (and TEGP) concurrently with the
execution and delivery hereof so that a replacement or a new Aztar Note
(and discretionary TEGP note, if requested) are issued to the Assignor and
the Assignee as applicable reflecting their respective Aztar Pro Rata Share
(and TEGP Pro Rata Share).
7. Notices. All communications among the parties or notices in
connection herewith shall be in writing and may be hand delivered, telexed,
sent by telecopy, U.S. mail or courier service, to the notice address as set
forth on the signature pages hereof.
8. Counterparts. The Assignment may be executed in any
number of counterparts as by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
9. Governing Law. THIS ASSIGNMENT SHALL BE
DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REFERENCE TO THE PROVISIONS
THEREOF REGARDING CONFLICTS OF LAW.
10. Effective Date. This Assignment shall become effective on
the date (the "Effective Date") upon which all of the following conditions
are satisfied, provided that for all purposes hereof, the term "Settlement
Date" (as used in Schedule "A" hereto) means the later of (i) the Settlement
Date referred to in Schedule A and (ii) the Effective Date: (i) the execution
of a counterpart hereof by each of the Assignor and the Assignee; (ii) the
execution of a counterpart hereof by the Borrower, TEGP, HRN and the
Administrative Agent as evidence of their consent hereto to the extent
required under Section 11.8(b) of the Aztar Loan Agreement and Section
10.3(b) of the TEGP Loan Agreement; (iii) the receipt by the
Administrative Agent of the processing and recordation fee referred to in
Section 11.8 of the Aztar Loan Agreement; (iv) the Assignee shall have
been (or shall be deemed to have been) recorded in the Register as provided
in Section 11.8(d) of the Aztar Loan Agreement and Section 10.3(d) of the
TEGP Loan Agreement; (v) in the event the Assignee is a not a United
States person, the delivery by the Assignee to the Administrative Agent of
such forms, certificates or other evidence with respect to United States
federal income tax withholding matters as the Assignee may be required to
deliver to the Administrative Agent pursuant to Section 11.21 of the Aztar
Loan Agreement and Section 10.8 of the TEGP Loan Agreement, and
(vi) the receipt by the Administrative Agent of originals or telecopies of the
counterparts described above and authorization of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed and delivered by their respective officials,
officers or agents thereunto duly authorized, such execution being made as
of the Effective Date in the applicable spaces provided on Schedule A.
SCHEDULE A
TO THE COMMITMENT ASSIGNMENT AND ACCEPTANCE
1. Name and Date of Loan Agreements: Aztar Amended and
Restated Reducing Revolving Loan Agreement dated as of May ___, 1998,
as further defined in Paragraph A of this Assignment and the TEGP Second
Amended and Restated Loan Agreement dated as of October 4, 1994, as
further defined in Paragraph B of this Assignment.
2. Assigned Portions:
Aztar Revolving TEGP
Loan Commitment Term Loan
(a) Aggregate
Commitments/Loans of
All Lenders/Banks $_____________ $______________
(b) Assigned Pro
Rata Share ________% _______%
(c) Amount of Assigned
Pro Rata Share $______________ $______________
3. Settlement Date: _______________, ______
4. Payment Instructions:
ASSIGNOR: ASSIGNEE:
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
Attn:_________________ Attn:________________
Ref: _________________ Ref: ________________
5. Notice Address:
ASSIGNOR: ASSIGNEE:
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
Attn:________________ Attn:________________
Ref: ________________ Ref: ________________
Tel: ________________ Tel: ________________
Fax: ________________ Fax: ________________
6. SIGNATURES:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
as ASSIGNOR as ASSIGNEE
By: _____________________ By: __________________
_____________________ __________________
Printed Name & Title Printed Name & Title
Consented to in accordance
with Section 11.8 of the
Aztar Loan Agreement
AZTAR CORPORATION,
a Delaware corporation
By: _____________________
_____________________
Printed Name & Title
Consented to in accordance
with Section 10.3 (b) of the
TEGP Loan Agreement
TROPICANA ENTERPRISES,
a Nevada general partnership
By: Adamar of Nevada, Inc.,
a Nevada corporation,
its general partner
By: ______________________
______________________
Printed Name & Title
HOTEL RAMADA OF NEVADA,
a Nevada Corporation
By: ________________________
________________________
Printed Name & Title
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: ________________________
________________________
Printed Name & Title
EXHIBIT B
COMPLIANCE CERTIFICATE
TO: BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
Reference is made to that certain Amended and Restated
Reducing Revolving Loan Agreement (the "Loan Agreement") dated as of
May 28, 1998, by and among Aztar Corporation, a Delaware corporation
("Borrower"), the Lenders therein named, and Bank of America National
Trust and Savings Association, as Administrative Agent for itself and the
Lenders. Capitalized terms defined in the Loan Agreement and not other-
wise defined herein shall have the meanings given them in the Loan
Agreement.
This Compliance Certificate is delivered in accordance with
Section 7.2 of the Loan Agreement by a Senior Officer of Borrower with
respect to the Fiscal Quarter ended ______________, _____ (the "Test
Fiscal Quarter"). Computations indicating compliance with respect to the
covenants contained in Sections 6.9, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, and
6.17 of the Loan Agreement are set forth below:
I. Section 6.9 - Indebtedness and Guaranty Obligations. As of the
last day of the Test Fiscal Quarter (the "Determination Date"):
A. Aggregate Indebtedness consisting of Capital Lease
Obligations, or otherwise incurred to finance the purchase or construction
of capital assets or to refinance such Indebtedness was $_____________.
Maximum Permitted: $20,000,000
B. Aggregate notional amount of Indebtedness covered by one or
more Secured Swap Agreements was $______________.
Maximum Permitted: $180,000,000
II. Section 6.11 - Senior Leverage Ratio. As of the Determination
Date, the Senior Leverage Ratio was ____:1.00.
Maximum Permitted: _____:1.00
Senior Leverage Ratio is computed as follows:
(a) Average Quarterly Adjusted Senior Funded Debt as of the
Determination Date $______
divided by (b) Adjusted EBITDA for the fiscal period consisting of the Test
Fiscal Quarter plus the three immediately preceding Fiscal
Quarters (the "Test Period") $______
equals Senior Leverage Ratio [(a),(b)] ____:1.00
Component Calculations: See Appendix I attached hereto.
III. Section 6.12 - Total Leverage Ratio. As of the Determination
Date, the Total Leverage Ratio was ____:1.00.
Maximum Permitted: _____:1.00
Total Leverage Ratio is computed as follows:
(a) Average Quarterly Adjusted Funded Debt as of the Determination Date
$______
divided by (b) Adjusted EBITDA for the Test Period $______
equals Total Leverage Ratio [(a),(b)] ____:1.00
Component Calculations: See Appendix I attached hereto.
IV. Section 6.13 - Interest Coverage Ratio. As of the Determination
Date, the Interest Coverage Ratio was ____:1.00.
Minimum Required: _____:1.00
Interest Coverage Ratio is computed as follows:
(a) Adjusted EBITDA for the Test Period
$______
divided by (b)Interest Charges for the Test
Period (which is the sum of (x), (y) and (z) set
forth below):
(x) Cash Interest Expense for the Test Period
$______
plus (y) all interest currently payable in Cash
incurred during the Test Period which is
capitalized under Generally Accepted
Accounting Principles $______
plus (z) that portion of the rentals paid to TEGP by HRN
during the Test Period which is designated and used to service
interest payable under the TEGP Loan Agreement
$_______
equals (b) Interest Charges [(x) + (y) + (z)] $_______
Interest Coverage Ratio equals [(a) , (b)] ____:1.00
Component Calculations: See Appendix I attached hereto.
V. Section 6.14 - Minimum Adjusted EBITDA. For the Test Period,
actual Adjusted EBITDA was $____________.
Minimum Requirement: $120,000,000
Component Calculations: See Appendix I attached hereto.
VI. Section 6.15 - Capital Expenditures.
A. Maintenance Capital Expenditures for the Fiscal Year (or
portion thereof) ending on the Determination Date were
$___________________.
Maximum Permitted: The sum of (x) and
(y) set forth below:
(x) = $40,000,000
(y) = (i) $40,000,000 minus
(ii) Maintenance Capital Expenditures
made by Borrowers and the Restricted
Subsidiaries for the immediately
preceding Fiscal Year ($_______)
equals [(i) - (ii)] $______
Maximum Permitted: [(x) + (y)] $______
B. As of the Determination Date, Capital Expenditures financed
by Indebtedness permitted by Section 6.9(e) of the Loan Agreement were
$______________.
C. As of the Determination Date, Capital Expenditures to effect
the Jaffe Transaction were $_____________.
Maximum Permitted: Either (x) or (y) set forth
below:
(x) = $125,000,000
(y) = $__________
[Where (y) = (i) $300,000,000 minus (ii) all
other Basket Expenditures since the Closing
Date.]
D. If the Jaffe Transaction is consummated, Capital
Expenditures (other than those permitted by Sections 6.15(a) and (b) of the
Loan Agreement) giving effect thereto as of the Determination Date were
$_____________.
Maximum Permitted: Either (x) or (y) set forth
below:
(x) = $________________
(y) = $______________
[Where (x) = (i) $250,000,000 minus (ii) all
other Capital Expenditures (other than those
permitted by Sections 6.15(a) and (b) of the
Loan Agreement) since the Closing Date minus
(iii) all Acquisition Expenditures since the
Closing Date.]
[Where (y) = (i) $300,000,000 minus (ii) all
other Basket Expenditures since the Closing
Date.]
E. If the Jaffe Transaction is not consummated, Capital
Expenditures (other than those permitted by Sections 6.15(a) and 6.15(b) of
the Loan Agreement) were $_____________.
Maximum Permitted: Either (x) or (y) set forth
below:
(x) = $______________
(y) = $______________
[Where (x) = (i) $150,000,000 minus (ii) all
other Capital Expenditures (other than those
permitted by Sections 6.15(a) and 6.15(b) of the
Loan Agreement) and Acquisition Expenditures
since the Closing Date.]
[Where (y) = (i) $300,000,000 minus (ii) all
other Basket Expenditures since the Closing
Date.]
VII. Section 6.16 -Investments and Acquisitions.
A. As of the Determination Date, Acquisition Expenditures to
effect the Jaffe Transaction were $_______________.
Maximum Permitted: Either (x) or (y) set forth
below:
(x) = $125,000,000
(y) = $______________
[Where (y) = (i) $300,000,000 minus (ii) all
other Basket Expenditures since the Closing
Date.]
B. As of the Determination Date, Acquisition Expenditures
described in 6.16(m) of the Loan Agreement were $_____________.
Maximum Permitted: Either (x) or (y) set forth
below:
(x) = $50,000,000
(y) = $_________
[Where (y) = (i) $300,000,000 minus (ii) all
other Basket Expenditures since the Closing
Date.]
C. As of the Determination Date, the aggregate value of
Investments permitted by Section 6.16(n) of the Loan Agreement was
$____________.
Maximum Permitted: $100,000
VIII. Section 6.17 - Subsidiary Indebtedness. As of the Determination
Date and with respect to each of the following Significant Subsidiaries, if
any, the aggregate amount of Indebtedness and Guaranty Obligations
incurred in the ordinary course of such Significant Subsidiary's business
and not otherwise permitted by Sections 6.17(a) through (e)
("Non-Excluded Subsidiary Debt") was that amount set forth opposite such
Significant Subsidiary:
Amount of
Non-Excluded
Significant Subsidiary Subsidiary Debt
____________________________ $______________
____________________________ $______________
____________________________ $______________
____________________________ $______________
Maximum Permitted: $500,000 per Significant
Subsidiary
IX. A review of the activities of Borrower and its Subsidiaries during the
fiscal period covered by this Certificate has been made under the
supervision of the undersigned with a view to determining whether during
such fiscal period Borrower and its Restricted Subsidiaries performed and
observed all of their respective Obligations. To the best knowledge of the
undersigned, during the fiscal period covered by this Certificate, all
covenants and conditions have been so performed and observed and no
Default or Event of Default has occurred and is continuing, with the
exceptions set forth below in response to which Borrower and the
Restricted Subsidiaries have taken or propose to take the following actions
(if none, so state).
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
________________________________________
X. The undersigned Senior Officer of Borrower certifies that the
calculations made and the information contained herein are derived from
the books and records of Borrower and its Subsidiaries, as applicable, and
that each and every matter contained herein correctly reflects those books
and records.
XI. To the best knowledge of the undersigned no event or circumstance
has occurred that constitutes a Material Adverse Effect since the date the
most recent Compliance Certificate was executed and delivered, with the
exceptions set forth below (if none, so state).
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
________________________________________
Dated: _______________, _____
___________________________
___________________________
[Printed Name and Title of Senior
Officer of Aztar Corporation]
Appendix I
to
Compliance Certificate
Average Quarterly Adjusted Senior Funded Debt -- Component
Calculations
Average Quarterly Adjusted Senior Funded Debt as of the
Determination Date is the greater of the following:
(a) the principal amount of all Adjusted Senior Funded Debt
as of the Determination Date (as calculated below)
$_____
or (b) the Average Quarterly Senior Funded Debt as of the
Determination Date (as calculated below) $_____
the greater of (a) or (b) equals Average Quarterly Adjusted
Senior Funded Debt $_____
Adjusted Senior Funded Debt -- Component Calculations
In the above calculation, Adjusted Senior Funded Debt as of the
Determination Date is the sum of the following, without duplication and on
a consolidated basis:
(a) Adjusted Funded Debt as of the Determination Date (as
calculated below) $_____
minus (b) the principal amount of all Subordinated
Obligations on the Determination Date $_____
equals Adjusted Senior Funded Debt [(a) -(b)] $_____
Average Quarterly Senior Funded Debt -- Component
Calculations
In the above calculation, Average Quarterly Senior Funded Debt as
of the Determination Date is the sum of the following, without duplication
and on a consolidated basis:
(a) Average Quarterly Funded Debt as of the Determination
Date (as calculated below) $_____
minus (b) the average principal amount of all Subordinated
Obligations on the last day of each of the three 4 and 5 week
fiscal periods comprising the Test Fiscal Quarter
$_____
equals Average Quarterly Senior Funded Debt [(a) - (b)]
$_____
Average Quarterly Adjusted Funded Debt -- Component Calculations
Average Quarterly Adjusted Funded Debt as of the Determination
Date is the greater of the following:
(a) the principal amount of all Adjusted Funded Debt as of
the Determination Date (as calculated below) $_____
or (b) the
Average Quarterly Funded Debt as of the Determination Date
(as calculated below) $_____
the greater of (a) or (b) equals Average Quarterly Adjusted
Funded Debt $_____
Adjusted Funded Debt -- Component Calculations
In the above calculation, Adjusted Funded Debt as of the
Determination Date is the sum of the following, without duplication and on
a consolidated basis:
(a) all principal Indebtedness of Borrower and the Restricted
Subsidiaries and of TEGP for borrowed money (including
debt securities issued by Borrower, any of the Restricted
Subsidiaries or TEGP, but excluding in any event any
contingent obligations with respect to undrawn letters of
credit) on the Determination Date $_____
plus (b) the aggregate amount of the principal portion of all
Capital Lease Obligations of Borrower and the Restricted
Subsidiaries and of TEGP on the Determination Date
$_____
plus (c) all outstanding letters of credit on the Determination
Date (other than any letter of credit to the extent
collateralized by Cash, Cash Equivalents, a certificate of
deposit or other deposit account deposited with the issuing
bank as collateral security therefor) $_____
plus (d) all Guaranty Obligations of Borrower and the
Restricted Subsidiaries on the Determination Date with
respect to Indebtedness of any Person that is not a Restricted
Subsidiary $_____
plus (e) all other Guaranty Obligations of Borrower and the
Restricted Subsidiaries on the Determination Date to the
extent the amount thereof has been quantified and reflected
or disclosed in the most recent consolidated financial
statements of Borrower and the Restricted Subsidiaries
$_____
equals Adjusted Funded Debt [(a)+(b)+(c)+(d)+(e)]
$_____
Average Quarterly Funded Debt -- Component Calculations
In the above calculation, Average Quarterly Funded Debt as of the
Determination Date is the sum of the following, without duplication and on
a consolidated basis:
(a) the average of all principal Indebtedness of Borrower and
the Restricted Subsidiaries and of TEGP for borrowed
money (including debt securities issued by Borrower, any of
the Restricted Subsidiaries or TEGP, but excluding in any
event any contingent obligations with respect to undrawn
letters of credit) on the last day of each of the three 4 and 5
week fiscal periods comprising the Fiscal Quarter ending on
the Determination Date $_____
plus (b) the average of the aggregate amount of the principal
portion of all Capital Lease Obligations of Borrower and the
Restricted Subsidiaries and of TEGP on the last day of each
of the three 4 and 5 week fiscal periods comprising the Test
Fiscal Quarter $_____
equals Average Quarterly Funded Debt [(a)+(b)] $_____
Adjusted EBITDA -- Component Calculations
Adjusted EBITDA for the Test Period is calculated as follows, in
each case as determined in accordance with Generally Accepted
Accounting Principles, and in the case of items (d), (e), (f), (g), (h) and (i)
only to the extent reflected in the determination of item (a) for such Test
Period:
(a) Net Income for the Test Period $_____
plus (b) any extraordinary loss reflected in Net Income for the
Test Period $_____
minus (c) any extraordinary gain reflected in Net Income for the
Test Period ($____)
plus (d) Interest Expense for the Test Period (which is the sum of
(x) and (y) set forth below)
(x) all interest, fees, charges and related
expenses paid or payable (without
duplication) for the Test Period by
Borrower and the Restricted Subsidiaries
to a lender in connection with borrowed
money (including any obligations for
fees, charges and related expenses
payable to the issuer of any letter of
credit) or the deferred purchase price of
assets that are considered "interest
expense" under Generally Accepted
Accounting Principles $_____
plus (y) the portion of rent paid or
payable (without duplication) for the
Test Period by Borrower and the
Restricted Subsidiaries under Capital
Lease Obligations that should be treated
as interest in accordance with Financial
Accounting Standards Board Statement
No. 13
$______
Interest Expense [(x)+(y)] equals $_____
plus (e) the aggregate amount of federal and state taxes on or
measured by income for the Test Period (whether or not
payable during the Test Period) $_____
plus (f) depreciation, amortization and all other non-cash
expenses for the Test Period $_____
plus (g) Borrower's equity in any net loss of TEGP for the
Test Period $_____
minus (h) Borrower's equity in any net income of TEGP for
the Test Period ($____)
plus (i) that portion of the rentals paid to TEGP by HRN
which is designated and used to service principal and interest
payable under the TEGP Loan Agreement for the Test Period
$_____
plus (j) dividends or other income received in Cash during the
Test Period by Borrower or the Restricted Subsidiaries from
an Unrestricted New Venture Entity (but only to the extent of
earnings before interest, taxes, depreciation and amortization
of such Unrestricted New Venture Entity) $_____
equals Adjusted EBITDA [(a)+(b)-(c)+(d)+(e)+(f)+(g)-
(h)+(i)+(j)] $_____
EXHIBIT C
CONFIRMATION OF GUARANTY
This Confirmation of Guaranty ("Confirmation"), dated as of
May 28, 1998, is executed and delivered by the undersigned with
reference to (i) that certain Amended and Restated Reducing Revolving
Loan Agreement of even date herewith (the "Revolving Loan
Agreement"), by and among Aztar Corporation, a Delaware corporation
("Borrower"), Bank of America National Trust and Savings Association,
as Administrative Agent for the lenders (collectively, the "Revolving
Loan Agreement Lenders") party thereto (the "Revolving Loan
Administrative Agent"), and the Revolving Loan Agreement Lenders;
(ii) that certain Term Loan Agreement, of even date herewith (the
"Term Loan Agreement"), by and among Borrower, Bank of America
National Trust and Savings Association, as Administrative Agent for
the lenders (collectively, the "Term Loan Agreement Lenders") party
thereto (the "Term Loan Administrative Agent"), and the Term Loan
Agreement Lenders, and (iii) the Subsidiary Guaranty dated as of
October 4, 1994, as amended by that certain Global Collateral
Documents Amendment of even date herewith among the undersigned,
Bank of America National Trust and Savings Association, as
Administrative Agent for the Revolving Loan Agreement Lenders, Bank
of America National Trust and Savings Association, as Administrative
Agent for the Term Loan Agreement Lenders, and Bank of America
National Trust and Savings Association, as Collateral Agent for the
Revolving Loan Agreement Lenders and the Term Loan Agreement
Lenders, executed and delivered by the undersigned in favor of Bank of
America National Trust and Savings Association as Collateral Agent for
the ratable benefit of the Lender (as defined therein)(as so amended, the
"Subsidiary Guaranty").
In order to induce the Revolving Loan Agreement Lenders to
enter into the Revolving Loan Agreement and the Term Loan
Agreement Lenders to enter into the Term Loan Agreement, each of the
undersigned hereby consents to the execution, delivery and performance
by (i) Borrower, the Revolving Loan Administrative Agent and the
Revolving Loan Agreement Lenders of the Revolving Loan Agreement
and all documents, instruments and agreements now or hereafter
executed in connection therewith (collectively, the "Revolving Loan
Documents"), and (ii) Borrower, the Term Loan Administrative Agent
and the Term Loan Agreement Lenders of the Term Loan Agreement
and all documents, instruments and agreements now or hereafter
executed in connection therewith (collectively, the "Term Loan
Documents"). In connection therewith, each of the undersigned
expressly and knowingly affirms its liability under the Subsidiary
Guaranty, expressly agrees to be and remain liable under the terms of
the Subsidiary Guaranty for the obligations of Borrower to the
Revolving Loan Agreement Lenders and the Term Loan Agreement
Lenders, and acknowledges that it has no defense, offset or
counterclaim whatsoever against any of the Revolving Loan Agreement
Lenders or the Term Loan Agreement Lenders with respect to the
Subsidiary Guaranty.
Each of the undersigned further agrees that the Subsidiary
Guaranty shall remain in full force and effect and is hereby ratified and
confirmed and shall guaranty payment and performance of the
Guarantied Obligations (as defined in the Subsidiary Guaranty) as set
forth therein.
Each of the undersigned further agrees that the execution of
this Confirmation is not necessary for the continued validity and
enforceability of the Subsidiary Guaranty, but is executed to induce the
Revolving Loan Agreement Lenders to enter into the Revolving Loan
Agreement and the Term Loan Agreement Lenders to enter into the
Term Loan Agreement. Each of the undersigned further agrees that
none of the Revolving Loan Agreement Lenders, the Revolving Loan
Administrative Agent, the Term Loan Agreement Lenders, or the Term
Loan Administrative Agent shall have any obligation to notify it of any
actions or omissions to act with respect to such party's dealings with
Borrower.
IN WITNESS WHEREOF, each of the undersigned,
intending to be legally bound hereby, has caused this Confirmation to be
executed as of the date first above written.
ADAMAR OF NEW JERSEY, INC.,
a New Jersey corporation
By __________________________
Neil Ciarfalia
Treasurer
RAMADA EXPRESS, INC.,
a Nevada corporation
By ___________________________
Nelson W. Armstrong, Jr.
Vice President & Secretary
AZTAR INDIANA GAMING CORPORATION,
an Indiana corporation
By ____________________________
Nelson W. Armstrong, Jr.
Vice President & Secretary
AZTAR MISSOURI GAMING CORPORATION,
a Missouri corporation
By ____________________________
Nelson W. Armstrong, Jr.
Vice President & Secretary
ATLANTIC-DEAUVILLE INC.,
a New Jersey Corporation
By ____________________________
Neil Ciarfalia
Treasurer
ADAMAR GARAGE CORPORATION,
a Delaware corporation
By ____________________________
Neil Ciarfalia
Treasurer
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By ____________________________
Nelson W. Armstrong, Jr.
Vice President & Secretary
AZTAR DEVELOPMENT CORPORATION,
a Delaware corporation
By ____________________________
Neil Ciarfalia
Treasurer
MANCHESTER MALL, INC.,
a New Jersey corporation
By ____________________________
Neil Ciarfalia
Treasurer
RAMADA NEW JERSEY HOLDINGS
CORPORATION,
a Delaware corporation
By ____________________________
Neil Ciarfalia
Treasurer
RAMADA NEW JERSEY, INC.,
a New Jersey corporation
By ____________________________
Neil Ciarfalia
Treasurer
EXHIBIT D
GLOBAL COLLATERAL DOCUMENTS AMENDMENT
THIS GLOBAL COLLATERAL DOCUMENTS
AMENDMENT (this "Amendment"), dated as of May 28, 1998, is entered
into by and among Aztar Corporation, a Delaware corporation
("Borrower"), Adamar of New Jersey, Inc., a New Jersey corporation
("ANJI"), Ramada Express, Inc., a Nevada corporation ("REI"), Aztar
Indiana Gaming Corporation, an Indiana corporation ("AIGC"), Aztar
Missouri Gaming Corporation, a Missouri corporation ("AMGC"), Atlantic-
Deauville, Inc., a New Jersey Corporation ("ADI"), Adamar Garage
Corporation, a Delaware corporation ("AGC"), Manchester Mall, Inc., a
New Jersey corporation ("MMI"), Ramada New Jersey, Inc., a New Jersey
corporation ("RNJI"), Hotel Ramada of Nevada, a Nevada corporation
("HRN"), Ramada New Jersey Holdings Corporation, a Delaware
corporation, Aztar Development Corporation, a Delaware corporation,
Bank of America National Trust and Savings Association, as Administrative
Agent for the Revolving Loan Agreement Lenders, Bank of America
National Trust and Savings Association, as Administrative Agent for the
Term Loan Agreement Lenders, and Bank of America National Trust and
Savings Association, as Collateral Agent for the Revolving Loan Agreement
Lenders and the Term Loan Agreement Lenders, with reference to the
following facts:
RECITALS
A. Borrower and certain of its Subsidiaries (collectively,
the "Co-Borrower Subsidiaries"), on a joint and several basis, have
previously entered into each of: (i) that certain Reducing Revolving Loan
Agreement, dated as of October 4, 1994 (as amended, the "Prior Primary
Loan Agreement"), with the Administrative Agent and the lenders
(collectively, the "Prior Primary Loan Agreement Lenders") party thereto;
and (ii) that certain Supplemental Reducing Revolving Loan Agreement,
dated as of March 13, 1997 (as amended, the "Prior Supplemental Loan
Agreement"), with the Administrative Agent and the lenders (collectively,
the "Prior Supplemental Loan Agreement Lenders") party thereto, pursuant
to which the Prior Primary Loan Agreement Lenders and the Prior
Supplemental Loan Agreement Lenders provided Borrower and the Co-
Borrower Subsidiaries with certain secured reducing revolving loan and
letter of credit facilities.
B. The obligations of Borrower and the Co-Borrower
Subsidiaries to the Prior Primary Loan Agreement Lenders under the Prior
Primary Loan Agreement and to the Prior Supplemental Loan Agreement
Lenders under the Prior Supplemental Loan Agreement are guaranteed by
certain other Subsidiaries of Borrower pursuant to a certain Subsidiary
Guaranty (as defined in the Prior Primary Loan Agreement) and secured by
the Collateral provided under the Collateral Documents (as such terms are
defined in the Prior Primary Loan Agreement).
C. At Borrower's request, the credit facilities created
under the Prior Primary Loan Agreement and the Prior Supplemental Loan
Agreement will be transformed into two credit facilities: (i) a reducing
revolving credit facility in the amount of $250,000,000, to be evidenced by
that certain Amended and Restated Reducing Revolving Loan Agreement,
of even date herewith (the "Revolving Loan Agreement"), by and among
Borrower, the Administrative Agent and the lenders (collectively, the
"Revolving Loan Agreement Lenders") party thereto; and (ii) a term loan in
the original principal amount of $50,000,000 to be evidenced by that certain
Term Loan Agreement, of even date herewith (the "Term Loan
Agreement"), by and among Borrower, the Administrative Agent and the
lenders (collectively, the "Term Loan Agreement Lenders") party thereto,
with new lenders joining either credit facility and with differing
participation levels for the continuing lenders in the reducing revolving
credit facility. The Revolving Loan Agreement and the Term Loan
Agreement each contain a provision whereby the aggregate indebtedness
thereunder may be increased by $50,000,000, up to a total of $350,000,000.
D. In connection with the establishment of the two
transferred credit facilities, the Co-Borrower Subsidiaries will be released
as co-obligors under each of the Prior Primary Loan Agreement and the
Prior Supplemental Loan Agreement, but will become party to the
Subsidiary Guaranty. The Subsidiary Guaranty hereafter will apply to
Borrower's obligations under each of the Revolving Loan Agreement and
the Term Loan Agreement on a pari passu basis. The Collateral provided
under the Collateral Documents hereafter will secure the obligations of
Borrower under each of the Revolving Loan Agreement and the Term Loan
Agreement and the obligations of the Subsidiaries party to the Subsidiary
Guaranty (the "Subsidiary Guarantors") under the Subsidiary Guaranty, on
a pari passu basis pursuant to the Intercreditor Agreement (as defined in the
Revolving Loan Agreement).
E. The parties to this Amendment wish to amend the
Collateral Documents and the Subsidiary Guaranty as set forth below to
give effect to the foregoing intentions of the parties.
NOW, THEREFORE, in consideration of the above premises,
and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Defined Terms. Any and all initially capitalized terms used
in this Amendment (including, without limitation, in the Recitals hereto)
without definition shall have the respective meanings assigned thereto in the
Revolving Loan Agreement.
2. Excluded Assets. Notwithstanding anything to the contrary in
any of the Collateral Documents, the security interests and Liens created
thereby shall not attach to, and the Collateral thereunder shall not include
(i) any gaming license under any Gaming Law, (ii) any assets or capital
stock of Adamar of Nevada, (iii) any assets or 51% of the capital stock of
Hotel Ramada of Nevada or (iv) the gaming equipment or capital stock of
Aztar Missouri Gaming Corporation, except in the case of the assets
described in (ii) and (iii), as provided in Section 5.10 of the Revolving Loan
Agreement and Section 5.10 of the Term Loan Agreement.
3. Amendments to Collateral Documents and Subsidiary
Guaranty.
A. Amendments to Security Agreement. The Security
Agreement is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended to read in full as follows:
"This SECURITY AGREEMENT ('Agreement') dated as of October 4,
1994, is made by Aztar Corporation, a Delaware corporation ('Borrower'),
and those Significant Subsidiaries of Borrower, if any, that are parties
hereto, as indicated on the signature pages hereof, and/or that become
parties hereto in the manner provided in Section 23 hereof, and each of
them, jointly and severally, as Grantors, in favor of Bank of America
National Trust and Savings Association as the Collateral Agent for the
ratable benefit of (i) each of the lenders which are parties from time to time
to the Revolving Loan Agreement referred to below and (ii) each of the
lenders which are parties from time to time to the Term Loan Agreement
referred to below, as Secured Party, with reference to the following facts:"
(2) Amendment to Definition of Loan Agreement.
Recital A is hereby amended to read in full as follows:
"A. Pursuant to the Amended and Restated Reducing Revolving
Loan Agreement, dated as of May 28, 1998, by and among Borrower,
the lenders from time to time a party thereto (collectively, the
'Revolving Loan Agreement Banks'), and Bank of America National
Trust and Savings Association as Administrative Agent (as such
agreement may from time to time be amended, extended, renewed,
supplemented or otherwise modified, the 'Revolving Loan Agreement'),
the Revolving Loan Agreement Banks have agreed to extend a certain
$250,000,000 reducing revolving credit facility to Borrower; and
pursuant to the Term Loan Agreement, dated as of May 28, 1998, by
and among Borrower, the lenders from time to time a
party thereto (collectively the 'Term Loan Agreement Banks'), and Bank of
America National Trust and Savings Association as Administrative Agent
(as such agreement may from time to time be amended, extended, renewed,
supplemented or otherwise modified, the 'Term Loan Agreement'), the Term
Loan Agreement Banks have agreed to provide Borrower with a
$50,000,000 term loan. The Revolving Loan Agreement and the Term
Loan Agreement each contain a provision whereby the aggregate
indebtedness thereunder may be increased by $50,000,000, up to a total of
$350,000,000. (The Revolving Loan Agreement Banks and the Term Loan
Agreement Banks hereinafter are referred to collectively as the 'Banks', and
all references in this Agreement to the 'Loan Agreement' shall be deemed to
be references to the 'Revolving Loan Agreement'.)"
(3) Amendment to Definition of Secured
Obligations. The definition of "Secured Obligations" is hereby amended to
read in full as follows:
"'Secured Obligations' means, collectively: (i) any
and all present or future Obligations under the Revolving Loan Agreement
of any type or nature of Grantors or any one or more of them to the
Administrative Agent, the Revolving Loan Agreement Banks, or any one
or more of them, arising under or relating to the Loan Documents or
any one or more of them, 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
under the Revolving Loan Agreement, and including interest that accrues
after the commencement of any bankruptcy or insolvency proceeding by or
against any Grantor; and (ii) any and all present and future Obligations
under (and as defined in) the Term Loan Agreement of any type or nature
of Grantors or any one or more of them to the Administrative Agent under
(and as defined in) the Term Loan Agreement, the Term Loan Agreement
Banks or any one or more of them, arising under or relating to the Loan
Documents entered into in connection with (and as defined in) the Term
Loan Agreement, or any or more of them, whether due or to become due,
matured or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including Obligations of performance under the Term
Loan Agreement as well as Obligations of payment under the Term Loan
Agreement, and including interest that accrues after the commencement
of any bankruptcy or insolvency proceeding by or against any Grantor."
(4) Amendment to Definition of Secured Party.
The definition of "Secured Party" is hereby amended to read in full as
follows:
"'Secured Party' means the Collateral Agent, who shall hold the Liens and
security interests granted hereunder for the ratable benefit of each of (i)
the Revolving Loan Agreement Banks and (ii) the Term Loan Agreement
Banks. Subject to the terms and conditions of the Intercreditor Agreement,
any right, remedy, privilege or power of Secured Party shall be exercised by
the Collateral Agent."
(5) Amendment to Exhibit A. Exhibit A to the
Security Agreement (the Instrument of Joinder) is hereby amended to read
in full as set forth in Attachment "A" to this Amendment.
(6) Acknowledgment by Co-Borrower Subsidiaries.
Each of the Co-Borrower Subsidiaries acknowledges and agrees that, while
it is not a co-obligor with Borrower for any of Borrower's obligations under
either the Revolving Loan Agreement or the Term Loan Agreement, it
nevertheless shall remain a "Grantor" under (and as defined in) the Security
Agreement.
(7) HRN. HRN is deleted as a party to the Security
Agreement.
B. Amendments to Trademark Collateral Assignment.
The Trademark Collateral Assignment is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended to read in full as follows:
"This TRADEMARK COLLATERAL ASSIGNMENT (the 'Assignment' is
made and entered into as of October 4, 1994 by Aztar Corporation, a
Delaware corporation ('Borrower'), and those Significant Subsidiaries of
Borrower, if any, that are parties hereto, as indicated on the signature
pages hereof, and/or that become parties hereto in the manner provided in
Section 13 hereof, and each of them, jointly and severally, as Grantors, in
favor of Bank of America National Trust and Savings Association as the
Collateral Agent for the ratable benefit of (i) each of the lenders which
are parties from time to time to the Revolving Loan Agreement referred to
below and (ii) each of the lenders which are parties from time to time to
the Term Loan Agreement referred to below, as Secured Party, with reference
to the following facts:"
(2) Amendment to Definition of Loan Agreement.
Recital A is hereby amended to read in full as follows:
"A. Pursuant to the Amended and Restated Reducing
Revolving Loan Agreement, dated as of May 28, 1998, by and among
Borrower, the lenders from time to time a party thereto
(collectively, the 'Revolving Loan Agreement Banks'), and Bank of
America National Trust and Savings Association as Administrative
Agent (as such agreement may from time to time be amended, extended,
renewed, supplemented or otherwise modified, the 'Revolving Loan
Agreement'), the Revolving Loan Agreement Banks have agreed to extend
a certain $250,000,000 reducing revolving credit facility to Borrower;
and pursuant to the Term Loan Agreement, dated as of May 28, 1998, by
and among Borrower, the lenders from time to time a party thereto
(collectively the 'Term Loan Agreement Banks'), and Bank of America
National Trust and Savings Association as Administrative Agent
(as such agreement may from time to time be amended, extended, renewed,
supplemented or otherwise modified, the 'Term Loan Agreement'), the Term
Loan Agreement Banks have agreed to provide Borrower with a
$50,000,000 term loan. The Revolving Loan Agreement and the Term
Loan Agreement each contain a provision whereby the aggregate
indebtedness thereunder may be increased by $50,000,000, up to a total of
$350,000,000. (The Revolving Loan Agreement Banks and the Term Loan
Agreement Banks hereinafter are referred to collectively as the 'Banks', and
all references in this Agreement to the 'Loan Agreement' shall be deemed to
be references to the 'Revolving Loan Agreement'.)"
(3) Amendment to Definition of Secured
Obligations. The definition of "Secured Obligations" is hereby amended to
read in full as follows:
"'Secured Obligations' means, collectively: (i) any and
all present and future Obligations of any type or nature of Grantors or
any one or more of them to the Administrative Agent, the Revolving
Loan Agreement Banks, or any one or more of them, arising under or
relating to the Loan Documents entered into in connection with the
Revolving Loan Agreement or any one or more of them, 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 under such Loan Documents, and including
interest that accrues after the commencement of any bankruptcy or
insolvency proceeding by or against any Grantor; and (ii) any and all
present and future Obligations under (and as defined in) the Term Loan
Agreement of any type or nature of Grantors or any one or more of them
to the Administrative Agent under (and as defined in) the Term Loan
Agreement, the Term Loan Agreement Banks, or any one or more of them,
arising under or relating to the Loan Documents entered into in
connection with (and as defined in) the Term Loan Agreement, or any
one or more of them, 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 under the
Term Loan Agreement, and including interest that accrues after the
commencement of any bankruptcy or insolvency proceeding by or against
any Grantor."
(4) Amendment to Definition of "Secured Party".
The definition of "Secured Party" is hereby amended to read in full as
follows:
"'Secured Party' means the Collateral Agent who shall receive
and hold the assignments made hereunder for the ratable benefit of
each of (i) the Revolving Loan Agreement Banks and (ii) the Term
Loan Agreement Banks. Subject to the terms and conditions of the
Intercreditor Agreement, any right, remedy, privilege, or power of
Secured Party shall be exercised by the Collateral Agent."
(5) Amendment to Exhibit A. Exhibit A to the
Trademark Collateral Assignment (the Instrument of Joinder) is hereby
amended to read in full as set forth on Attachment "B" to this Amendment.
(6) Acknowledgment by Co-Borrower Subsidiaries.
Each of the Co-Borrower Subsidiaries acknowledges and agrees that, while
it is not a co-obligor with Borrower for any of Borrower's obligations under
either the Revolving Loan Agreement or the Term Loan Agreement, it
nevertheless shall remain a "Grantor" under (and as defined in) the
Trademark Collateral Assignment.
(7) HRN. HRN is deleted as a party to the
Trademark Collateral Assignment.
C. Amendment to Pledge Agreement (Nevada Gaming).
The Pledge Agreement (Nevada Gaming) is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended to read in full as follows:
"This NEVADA GAMING PLEDGE AGREEMENT ('Agreement'), dated
as of October 4, 1994, is made by AZTAR CORPORATION, a Delaware
corporation ('Aztar'), as Grantor, in favor of and for the benefit of BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as
the Collateral Agent for the ratable benefit of (i) each of the lenders which
are parties from time to time to the Revolving Loan Agreement referred to
below and (ii) each of the lenders which are parties from time to time to the
Term Loan Agreement referred to below, as Secured Party, with reference
to the following facts:"
(2) Amendment to Definition of Loan Agreement.
Recital A is hereby amended to read in full as follows:
"A. Pursuant to the Amended and Restated Reducing Revolving
Loan Agreement, dated as of May 28, 1998, by and among Aztar, the
lenders from time to time a party thereto (collectively, the
'Revolving Loan Agreement Banks'), and Bank of America National
Trust and Savings Association as Administrative Agent (as such agreement
may from time to time be amended, extended, renewed, supplemented or
otherwise modified, the 'Revolving Loan Agreement'), the Revolving
Loan Agreement Banks have agreed to extend a certain $250,000,000
reducing revolving credit facility to Aztar; and pursuant to the Term
Loan Agreement, dated as of May 28, 1998, by and among Aztar, the lenders
from time to time a party thereto (collectively the 'Term Loan Agreement
Banks'), and Bank of America National Trust and Savings Association as
Administrative Agent (as such agreement may from time to time be amended,
extended, renewed, supplemented or otherwise modified, the 'Term Loan
Agreement'), the Term Loan Agreement Banks have agreed to provide Aztar
with a $50,000,000 term loan. The Revolving Loan Agreement and the Term
Loan Agreement each contain a provision whereby the aggregate indebtedness
thereunder may be increased by $50,000,000, up to a total of $350,000,000.
(The Revolving Loan Agreement Banks and the Term Loan Agreement Banks
hereinafter are referred to collectively as the 'Banks', and all references
in this Agreement to the 'Loan Agreement' shall be deemed to be references
to the 'Revolving Loan Agreement'.)"
(3) Amendment to Definition of Secured Party.
The definition of Secured Party is hereby amended to read in full as
follows:
"'Secured Party' means the Collateral Agent, which shall
hold the pledges and security interests granted hereunder
for the ratable benefit of each of (i) the Revolving Loan Agreement
Banks and (ii) the Term Loan Agreement Banks. Subject to the
terms hereof and of the Intercreditor Agreement, any right, remedy,
privilege or power of Secured Party shall be exercised by the
Collateral Agent acting with the consent of the Requisite Banks."
D. Amendments to Pledge Agreement (General). The
Pledge Agreement (General) is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting all the words appearing after the word
"ASSOCIATION" on the tenth line and by substituting the following words
therefor:
"as the Collateral Agent for the ratable benefit of each of
(i) the lenders which are parties from time to time to the Revolving
Loan Agreement referred to below and (ii) the lenders which are parties
from time to time to the Term Loan Agreement referred to below, as
Secured Party, with reference to the following facts:"
(2) Amendment to Definition of Loan Agreement.
Recital A is hereby amended to read in full as follows:
"A. Pursuant to the Amended and Restated Reducing Revolving
Loan Agreement, dated as of May 28, 1998, by and among Parent, the
lenders from time to time a party thereto (collectively, the
'Revolving Loan Agreement Banks'), and Bank of America National
Trust and Savings Association as Administrative Agent (as such
agreement may from time to time be amended, extended, renewed,
supplemented or otherwise modified, the 'Revolving Loan Agreement'),
the Revolving Loan Agreement Banks have agreed to extend a certain
$250,000,000 reducing revolving credit facility to Parent; and pursuant
to the Term Loan Agreement, dated as of May 28, 1998, by and among
Parent, the lenders from time to time a party thereto (collectively
the 'Term Loan Agreement Banks'), and Bank of America National Trust
and Savings Association as Administrative Agent (as such agreement
may from time to time be amended, extended, renewed, supplemented or
otherwise modified, the 'Term Loan Agreement'), the Term Loan
Agreement Banks have agreed to provide Parent with a $50,000,000
term loan. The Revolving Loan Agreement and the Term Loan Agreement
each contain a provision whereby the aggregate indebtedness thereunder
may be increased by $50,000,000, up to a total of $350,000,000. (The
Revolving Loan Agreement Banks and the Term Loan Agreement Banks
hereinafter are referred to collectively as the 'Banks', and all references
in this Agreement to the 'Loan Agreement' shall be deemed to be references
to the 'Revolving Loan Agreement'.)"
(3) Amendment to Definition of Secured Party.
The definition of "Secured Party" is hereby amended to read in full as
follows:
"'Secured Party' means the Collateral Agent, which shall
hold the pledges and security interests granted hereunder for the
ratable benefit of each of (i) the Revolving Loan Agreement Banks and
(ii) the Term Loan Agreement Banks. Subject to the terms and conditions
of the Intercreditor Agreement, any right, remedy, privilege or power of
Secured Party shall be exercised by the Collateral Agent."
(4) Amendment to Secured Obligations Provision.
Section 4 of the Pledge Agreement (General) is hereby amended to read in
full as follows:
"4. Security for Obligations. This Agreement
and the pledge and security interests granted herein secure the
prompt payment, in full in cash, and full performance of: (i) all
Obligations under the Revolving Loan Agreement, whether for principal,
interest, fees, expenses or otherwise, including, without limitation,
all Obligations of Parent now or hereafter existing under the Loan
Documents entered into in connection with the Revolving Loan Agreement,
all Obligations of Grantors now or hereafter existing under this
Agreement and all interests that accrues on all or any part of any
of the Obligations of Parent and/or Grantors under the Revolving
Loan Agreement after the filing of any petition or pleading
against any Borrower, Grantor or any other Person for a proceeding under
any Debtor Relief Law; and (ii) all Obligations under (and as defined in)
the Term Loan Agreement, whether for principal, interest, fees, expenses or
otherwise, including, without limitation, all Obligations of Parent now or
hereafter existing under the Loan Documents entered into in connection
with (and as defined in) the Term Loan Agreement, all Obligations of
Grantors now or hereafter existing under this Agreement, and all interest
that accrues on all or any part of any of the Obligations of Parent and/or
Grantors after the filing of any petition or pleading against any Borrower,
Grantor or any other Person for a proceeding under any Debtor Relief
Law."
(5) Amendment to Exhibit A. Exhibit A to the
Pledge Agreement (General) is hereby amended to read in full as set forth
in Attachment "C" to this Amendment.
(6) Amendment to Schedule 1. Schedule 1
(Pledged Securities (General)) to the Pledge Agreement (General) is hereby
amended to read in full as set forth in Attachment "D" to this Amendment.
E. Amendment to Ramada Express Deed of Trust. The
Ramada Express Deed of Trust is being amended, concurrently with the
amendments to the other Collateral Documents effectuated hereby, pursuant
to, and as set forth in, that certain Second Amendment to Deed of Trust, of
even date herewith, by and between Bank of America National Trust and
Savings Association as Collateral Agent for the ratable benefit of each of
the Revolving Loan Agreement Lenders and the Term Loan Agreement
Lenders, as beneficiary, and REI, as trustor.
F. Amendments to Caruthersville Deed of Trust. The
Caruthersville Deed of Trust is being amended, concurrently with the
amendments to the other Collateral Documents effectuated hereby, pursuant
to, and as set forth in, that certain Third Amendment to Deed of Trust, of
even date herewith, by and between Bank of America National Trust and
Savings Association as Collateral Agent for the ratable benefit of each of
the Revolving Loan Agreement Lenders and the Term Loan Agreement
Lenders, as beneficiary, and AMGC, as trustor.
G. Amendments to Caruthersville Project First Preferred
Ship Mortgage. The First Preferred Ship Mortgage dated as of August 14,
1995, made by AMGC with respect to the Caruthersville Project is hereby
amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended to read in full as follows:
"THIS FIRST PREFERRED SHIP MORTGAGE ('Preferred Mortgage')
dated August 14, 1995, on the vessel CITY OF CARUTHERSVILLE,
No. 929687, made by Aztar Missouri Gaming Corporation, a Missouri
corporation ('Owner') with an office at 324 Ward Avenue, Caruthersville,
Missouri 63830, in favor of Security Bank of Pemiscot County, with an
office at 323 Ward Avenue, Caruthersville, Missouri 63830 (the
'Mortgagee'), as trustee for the benefit of Bank of America National Trust
and Savings Association as Collateral Agent for the ratable benefit of each
of (i) the lenders which are parties from time to time to the Reducing
Revolving Loan Agreement referred to below and (ii) the lenders which are
parties from time to time to the Term Loan Agreement referred to below,
with an address for purposes hereunder of Bank of America National Trust
and Savings Association, Credit Products (LA 3283), 555 South Flower
Street, 10th Floor, Los Angeles, California 90071, with reference to the
following facts:"
(2) Amendments to the Recitals. Recital A is
hereby amended to read in full as follows:
"A. Pursuant to that certain Amended and Restated Reducing
Revolving Loan Agreement, dated as of May 28, 1998, by and among Aztar
Corporation, a Delaware corporation ('Borrower'), the lenders from time to
time a party thereto (collectively, the 'Revolving Loan Agreement Banks')
and Bank of America National Trust and Savings Association as
Administrative Agent (as such agreement may from time to time be
amended, extended, renewed, supplemented or otherwise modified, the
'Reducing Revolving Loan Agreement'), the Revolving Loan Agreement
Banks have agreed to extend a certain $250,000,000 reducing revolving
credit facility to Borrower; and pursuant to the Term Loan Agreement,
dated as of May 28, 1998, by and among Borrower, the lenders from to
time a party thereto (collectively, the 'Term Loan Agreement Banks') and
Bank of America National Trust and Savings Association as Administrative
Agent (as such agreement may from time to time by amended, extended,
renewed, supplemented or otherwise modified, the 'Term Loan Agreement'),
the Term Loan Agreement Banks agree to provide Borrower with a
$50,000,000 Term Loan. The Revolving Loan Agreement and the Term
Loan Agreement each contain a provision whereby the aggregate
indebtedness thereunder may be increased by $50,000,000, up to a total of
$350,000,000. (The Revolving Loan Agreement Banks and the Term Loan
Agreement Banks hereinafter are referred to collectively as the 'Banks'.)"
Recital B is hereby amended to read in full as follows:
"B. Owner has guaranteed all of Borrower's obligations under
each of the Reducing Revolving Loan Agreement and the Term Loan Agreement
pursuant to that certain Subsidiary Guaranty ('Guaranty'), dated as of
October 4, 1994 executed by Owner and the other signatories thereto in
favor of Lender, a copy of which is attached hereto as Exhibit A, as
amended by that certain Global Collateral Documents Amendment, dated as
of May 28, 1998, executed by Owner and certain of its affiliates in favor of
the Collateral Agent."
Recital F is hereby amended to read in full as follows:
"F. The total amount of this Preferred Mortgage is equal to
the sum of (i) $250,000,000 plus interest, in respect of Borrower's
obligations under the Reducing Revolving Loan Agreement,
(ii) $50,000,000 plus interest, in respect of Borrower's
obligations under the Term Loan Agreement, and (iii) to the extent
that the principal amount of either or both of the Reducing Revolving
Loan Agreement or the Term Loan Agreement is increased by up to an
aggregate of $50,000,000, such amount plus interest and performance
of mortgage covenants, and the discharge amount is the same as the total
amount."
(3) Additional Amendments to Amount of Secured
Obligations. The first full paragraph on page 3 is hereby amended to read
in full as follows:
"TO HAVE AND TO HOLD all and singular the described vessel unto
Mortgagee, its successors and assigns, forever; upon the terms herein set
forth for the enforcement of the Guarantied Obligations, including, but not
limited to, the payment of up to $250,000,000 and interest, in respect of
Borrower's obligations under the Reducing Revolving Loan Agreement and
the related Loan Documents, and the payment of $50,000,000 and interest,
in respect of Borrower's obligations under the Term Loan Agreement and
the related Loan Documents and to the extent that the principal amount of
either or both of the Reducing Revolving Loan Agreement or the Term
Loan Agreement is increased by up to an aggregate of $50,000,000, such
amount plus interest."
In addition, Article IV is hereby amended by deleting the reference to
"$207,477,346.14", contained in the second paragraph thereof, and by
substituting the following therefor:
"$250,000,000, in respect of Borrower's obligations under
the Reducing Revolving Loan Agreement and the related Loan Documents,
$50,000,000, in respect of Borrower's obligations under the Term Loan
Agreement and the related Loan Documents and, to the extent that the
principal amount of either or both of the Reducing Revolving Loan
Agreement or the Term Loan Agreement is increased by up to an
aggregate of $50,000,000, such amount plus interest."
H. Amendments to Evansville Deed of Trust. The
Evansville Deed of Trust is being amended, concurrently with the
amendments to the other Collateral Documents effectuated hereby, pursuant
to, and as set forth in, that certain Second Amendment to Mortgage and
Assignment of Leases of even date herewith, executed by AIGC in favor of
Bank of America National Trust and Savings Association as Collateral
Agent for the ratable benefit of each of the Revolving Loan Agreement
Lenders and the Term Loan Agreement Lenders.
I. Amendments to Evansville Project Leasehold
Mortgage and Assignment of Leases and Rents. The Leasehold Mortgage
and the Assignment of Leases and Rents, each dated as of March 31, 1996
and made by AIGC in respect of the Evansville Property, are being
amended, concurrently with the amendments to the other Collateral
Documents effectuated hereby, pursuant to, and as set forth in, that certain
Second Amendment to Leasehold Mortgage of even date herewith, executed
by AIGC in favor of Bank of America National Trust and Savings
Association as Collateral Agent for the ratable benefit of each of the
Revolving Loan Agreement Lenders and the Term Loan Agreement
Lenders.
J. Amendments to Evansville Project First Preferred Ship
Mortgage. The First Preferred Mortgage dated as of February 29, 1996
made by AIGC with respect to the vessel City of Evansville is hereby
amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended to read in full as follows:
"THIS FIRST PREFERRED SHIP MORTGAGE ('Preferred Mortgage')
dated February 29, 1996, on the vessel City of Evansville, No. 1035577,
made by Aztar Indiana Gaming Corporation, an Indiana corporation
('Owner') with an office at Centrum Bldg., 318 Main Street, Suite 101,
Evansville, Indiana 47708, in favor of Security Bank of Pemiscot County,
with an office at 323 Ward Avenue, Caruthersville, Missouri 63830 (the
'Mortgagee'), as trustee for the benefit of Bank of America National Trust
and Savings Association as Collateral Agent for the ratable benefit of each
of (i) the lenders which are parties from time to time to the Reducing
Revolving Loan Agreement referred to below and (ii) the lenders which are
parties from time to time to the Term Loan Agreement referred to below,
with an address for purposes hereunder of Bank of America National Trust
and Savings Association, Credit Products (LA 3283), 555 South Flower
Street, 10th Floor, Los Angeles, California 90071, with reference to the
following facts:"
(2) Amendments to the Recitals. Recital A is
hereby amended to read in full as follows:
"A. Pursuant to that certain Amended and Restated Reducing
Revolving Loan Agreement, dated as of May 28, 1998, by and among Aztar
Corporation, a Delaware corporation ('Borrower'), the lenders from time to
time a party thereto (collectively, the 'Revolving Loan Agreement Banks')
and Bank of America National Trust and Savings Association as
Administrative Agent (as such agreement may from time to time be
amended, extended, renewed, supplemented or otherwise modified, the
'Reducing Revolving Loan Agreement'), the Revolving Loan Agreement
Banks have agreed to extend a certain $250,000,000 reducing revolving
credit facility to Borrower; and pursuant to the Term Loan Agreement,
dated as of May 28, 1998, by and among Borrower, the lenders from to
time a party thereto (collectively, the 'Term Loan Agreement Banks') and
Bank of America National Trust and Savings Association as Administrative
Agent (as such agreement may from time to time by amended, extended,
renewed, supplemented or otherwise modified, the 'Term Loan Agreement'),
the Term Loan Agreement Banks agree to provide Borrower with a
$50,000,000 Term Loan. The Revolving Loan Agreement and the Term
Loan Agreement each contain a provision whereby the aggregate
indebtedness thereunder may be increased by $50,000,000, up to a total of
$350,000,000. (The Revolving Loan Agreement Banks and the Term Loan
Agreement Banks hereinafter are referred to collectively as the 'Banks'.)"
Recital B is hereby amended to read in full as follows:
"B. Owner has guaranteed all of Borrower's obligations under
each of the Reducing Revolving Loan Agreement and the Term Loan Agreement
pursuant to that certain Subsidiary Guaranty ("Guaranty"), dated as of
October 4, 1994, executed by Owner and the other signatories thereto in
favor of Lender, a copy of which is attached hereto as Exhibit A, as
amended by that certain Global Collateral Documents Amendment, dated as
of May 28, 1998, executed by Owner and certain of its affiliates in favor of
the Collateral Agent.
Recital F is hereby amended to read in full as follows:
"F. The total amount of this Preferred Mortgage is equal to
the sum of (i) $250,000,000 plus interest, in respect of Borrower's
obligations under the Reducing Revolving Loan Agreement,
(ii) $50,000,000 plus interest, in respect of Borrower's obligations
under the Term Loan Agreement, and (iii) to the extent that the
principal amount of either or both of the Reducing Revolving Loan
Agreement or the Term Loan Agreement is increased by up to an
aggregate of $50,000,000, such amount plus interest and performance
of mortgage covenants, and the discharge amount is the same as
the total amount."
(3) Additional Amendment to Amount of Secured
Obligations. The first full paragraph on page 3 is hereby amended to read
in full as follows:
"TO HAVE AND TO HOLD all and singular the described vessel unto
Mortgagee, its successors and assigns, forever; upon the terms herein set
forth for the enforcement of the Guarantied Obligations, including, but not
limited to, the payment of up to $250,000,000 and interest, in respect of
Borrower's obligations under the Reducing Revolving Loan Agreement and
the related Loan Documents, the payment of $50,000,000 and interest, in
respect of Borrower's obligations under the Term Loan Agreement and the
related Loan Documents and to the extent that the principal amount of
either or both of the Reducing Revolving Loan Agreement or the Term
Loan Agreement is increased by up to an aggregate of $50,000,000, such
amount plus interest."
In addition, Article IV is hereby amended by deleting the reference to
"$207,477,346.14", contained in the second paragraph thereof, and by
substituting the following therefor:
"$250,000,000, in respect of Borrower's obligations under
the Reducing Revolving Loan Agreement and the related Loan Documents,
$50,000,000, in respect of Borrower's obligations under the Term Loan
Agreement and the related Loan Documents and, to the extent that the
principal amount of either or both of the Reducing Revolving Loan
Agreement or the Term Loan Agreement is increased by up to an aggregate
of $50,000,000, such amount plus interest."
K. Amendments to Mortgage and to Assignment of
Leases, Rents, Income and Profits on Ventnor Property. The Mortgage and
the Assignment of Leases, Rents, Income and Profits, each dated as of
December 2, 1994 and made by ANJI, ADI, MMI and RNJI in respect of
the Block C-9 Lots located in the city of Ventnor, New Jersey, is being
amended, concurrently with the amendments to the other Collateral
Documents effectuated hereby, pursuant to, and as set forth in, that certain
Second Amendment to Mortgage and Assignment of Leases, of even date
herewith, executed by ANJI, ADI, MMI and RNJI in favor of Bank of
America National Trust and Savings Association as Collateral Agent for the
ratable benefit of each of the Revolving Loan Agreement Lenders and the
Term Loan Agreement Lenders.
L. Amendments to Mortgage and to Assignment of
Leases, Rents, Income and Profits for Atlantic City Casinos, Garage and
Transportation Center. The Mortgage and the Assignment of Leases, Rents,
Income and Profits, each dated as of December 2, 1994 made by ANJI, ADI
and AGC relating to the Atlantic City Casinos, Garage and Transportation
Center, is being amended, concurrently with the amendment to the other
Collateral Documents effectuated hereby, pursuant to, and as set forth in,
that certain Second Amendment to Mortgage and Assignment of Leases, of
even date herewith, executed by ANJI, ADI and AGC in favor of Bank of
America National Trust and Savings Association as Collateral Agent for the
ratable benefit of each of the Revolving Loan Agreement Lenders and the
Term Loan Agreement Lenders.
M. Amendments to Subsidiary Guaranty.
The Subsidiary Guaranty is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting all words appearing after the word
"Association" on the eighth line thereof and by substituting the following
words therefor:
"as Collateral Agent for the ratable benefit of each of (i)
the lenders which are parties from time to time to the Reducing
Revolving Loan Agreement referred to below and (ii) the lenders which
are parties from time to time to the Term Loan Agreement referred to
below (which lenders are referred to herein collectively and
individually as "Lender"), with reference to the following facts:"
(2) Amendment to Recitals. Recital A is hereby
amended to read in full as follows:
"A. Pursuant to the Amended and Restated Reducing Revolving
Loan Agreement, dated as of May 28, 1998, by and among Aztar
Corporation, a Delaware corporation ('Borrower'), the lenders
from time to time party thereto (the 'Reducing Revolving Loan
Agreement Lenders') and Bank of America National Trust and Savings
Association, as Administrative Agent (such agreement, as it may
hereafter be amended, extended, renewed, supplemented, or otherwise
modified from time to time, being the 'Reducing Revolving Loan
Agreement'), the Revolving Loan Agreement Lenders are making a
certain $250,000,000 reducing revolving credit facility available
to Borrower; and pursuant to the Term Loan Agreement, dated as of
May 28, 1998, by and among Borrower, the lenders from time to time
a party thereto (collectively, the 'Term Loan Agreement Lenders'),
and Bank of America National Trust and Savings Association as
Administrative Agent (as such agreement may from time to time be
amended, extended, renewed supplemented or otherwise modified, the
'Term Loan Agreement'), the Term Loan Agreement Lenders have agreed to
provide Borrower with a $50,000,000 term loan. The Revolving Loan
Agreement and the Term Loan Agreement each contain a provision
whereby the aggregate indebtedness thereunder may be increased by
$50,000,000, up to a total of $350,000,000."
(3) Amendment to Definitions of "Guarantied
Obligations", "Guaranty" and "Lender". The definitions of "Guarantied
Obligations", "Guaranty" and "Lender" are hereby amended to read in full
as follows:
"'Guarantied Obligations' means all Obligations of Borrower
or any Party at any time and from time to time owed to Lender under
any one or more of the Loan Documents or any one or more of the Loan
Documents entered into in connection with (and as defined in) the Term
Loan Agreement (but not including Obligations owed to Lender under this
Subsidiary Guaranty), 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 bankruptcy
or insolvency proceeding by or against Borrower, any Guarantor or any other
Person."
"'Guarantors' means the Significant Subsidiaries of Borrower
that are parties hereto as indicated on the signature pages hereof, and
each of them, and any one or more of them jointly and severally."
"'Lender' means the Collateral Agent, the Reducing Revolving
Loan Agreement Lenders, and the Term Loan Agreement Lenders, and each
of them, and any one or more of them. Subject to the terms of the
Intercreditor Agreement, any right, remedy, privilege or power of Lender
may be exercised by the Collateral Agent, by the Requisite Lenders under
the Reducing Revolving Loan Agreement, or by any Lender party to the
Reducing Revolving Loan Agreement acting with the consent of such
Requisite Lenders."
(4) Amendment to Exhibit A. Exhibit A to the
Subsidiary Guaranty (the Instrument of Joinder) is hereby amended to read
in full as set forth on Attachment "E" to this Amendment.
(5) Acknowledgment by Co-Borrower Subsidiaries.
Each of the Co-Borrower Subsidiaries acknowledges and agrees that, while
it is not a co-obligor with Borrower for any of Borrower's obligations under
either the Revolving Loan Agreement or the Term Loan Agreement, it shall
be a "Guarantor" under (and as defined in) the Subsidiary Guaranty.
4. Joinder. Each of the undersigned agrees that, to the extent not
otherwise addressed by this Amendment, and to the extent such party is not
already a party to a Collateral Document or the Subsidiary Guaranty, it
shall be a party in the appropriate capacity to the Collateral Documents and
the Subsidiary Guaranty, as applicable with the same effect as if such party
had been an original signatory thereto.
5. Otherwise Not Affected. Except as expressly amended and
supplemented by this Amendment, the terms and conditions of the
Collateral Documents and the Subsidiary Guaranty shall remain unaltered,
are hereby reaffirmed, and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this
Amendment by their respective duly authorized officers as of the date first
above written.
AZTAR CORPORATION, a Delaware
corporation
ADAMAR OF NEW JERSEY, INC., a
New Jersey corporation
ATLANTIC-DEAUVILLE, INC., a New Jersey
corporation
ADAMAR GARAGE CORPORATION, a
Delaware corporation
AZTAR DEVELOPMENT CORPORATION, a
Delaware corporation
RAMADA NEW JERSEY HOLDINGS
CORPORATION, a Delaware corporation
RAMADA NEW JERSEY, INC., a New Jersey
corporation
MANCHESTER MALL, INC., a New Jersey
corporation
By_________________________________
Neil Ciarfalia
Treasurer
AZTAR INDIANA GAMING CORPORATION,
an Indiana corporation
AZTAR MISSOURI GAMING CORPORATION,
a Missouri corporation
RAMADA EXPRESS, INC., a Nevada corporation
HOTEL RAMADA OF NEVADA, a Nevada
corporation
By________________________________
Nelson W. Armstrong, Jr.
Vice President & Secretary
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent for the Revolving Loan Agreement Lenders
By____________________________________
Title:__________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent for the Term Loan Agreement Lenders
By____________________________________
Title:__________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral Agent for
the Revolving Loan Agreement Lenders and for the
Term Loan Agreement Lenders
By____________________________________
Title:__________________________________
EXHIBIT E
GLOBAL ASSIGNMENT AND RELEASE AGREEMENT
THIS GLOBAL ASSIGNMENT AND RELEASE AGREEMENT
("Agreement") dated as of May 28, 1998 is entered into by the Assignors and
Assignees described on the signature pages hereto with reference to (a) the
Reducing Revolving Loan Agreement dated as of October 4, 1994 (the "Aztar
Loan Agreement") among Aztar Corporation ("Aztar") and certain of its
Subsidiaries (the "Co-Borrower Subsidiaries") with such Co-Borrower
Subsidiaries as joint and several co-borrowers, the Banks therein named, and
Bank of America National Trust and Savings Association, as Managing Agent
and (b) the Second Amended and Restated Loan Agreement dated as of October
4, 1994 (the "Tropicana Loan Agreement") among Tropicana Enterprises
("Tropicana"), the Banks therein named, and Bank of America National Trust
and Savings Association, as Managing Agent. The Aztar Loan Agreement and
the Tropicana Loan Agreement are herein collectively referred to as the
"Existing Loan Agreements". The parties hereto agree with reference to the
following facts:
A. Each of the Assignors is party to the Aztar Loan Agreement with
the percentage interests in the credit facilities provided to the Co-
Borrower Subsidiaries thereunder set forth on Schedule A hereto. Each
of the Assignors is also party to the Tropicana Loan Agreement with the
percentage interests in the credit facilities provided to Tropicana
thereunder set forth on Schedule B hereto.
B. As of the date hereof, the principal amount of the Obligations
under the Aztar Loan Agreement and the principal amount of the
Obligations under the Tropicana Loan Agreement are as set forth on
Schedule C hereto.
C. Immediately following the effectiveness of this Agreement, (i) the
Aztar Loan Agreement shall be amended and restated, as to a portion
thereof, pursuant to an Amended and Restated Reducing Revolving Loan
Agreement (the "Amended Revolver") of even date herewith (under
which Aztar shall be the sole Borrower), (ii) a portion of the Aztar Loan
Agreement shall be evidenced by a Term Loan Agreement (the "Term
Loan Agreement") of even date herewith and (iii) the Tropicana Loan
Agreement shall be amended pursuant to an Amendment No. 1 to Loan
Agreement of even date herewith (collectively, the "Amended
Agreements").
D. In anticipation of the execution of the Amended Agreements, the
parties desire to make the assignments contemplated herein, so as to
adjust their respective percentage interests under the Amended
Agreements.
E. Certain of the Banks who will hereby assign their entire interest in
the Existing Loan Agreements as set forth on the signature page hereof
(the "Exiting Banks") shall hereby terminate their status as Banks under
the Existing Loan Agreements and shall not participate in the Amended
Agreements.
F. Pursuant to this Agreement, the Assignors will release the Co-
Borrower Subsidiaries as borrowers under the Aztar Loan Agreement
subject to their execution of the Subsidiary Guaranty under the Amended
Revolver and the Term Loan Agreement.
The parties hereto hereby severally represent, warrant, assign, accept and
agree as follows:
1. Definitions. Capitalized terms used but not defined herein
are used with the meanings set forth for such terms in the Aztar Loan
Agreement. As used in this Agreement, the following capitalized terms shall
have the meanings set forth below:
"Assignee" means (a) as to the Aztar Loan Agreement, those of
the Banks having a positive amount set forth opposite the name of that
Bank in (i) Column II of Schedule A hereto as to the Amended Revolver
and (ii) Column III of Schedule A hereto as to the Term Loan Agreement
and (b) as to the Tropicana Loan Agreement, those of the Banks having a
positive amount set forth opposite the name of that Bank in Column II of
Schedule B hereto.
"Assigned Pro Rata Share" means, as to each Bank and each of
the Amended Agreements, the amount and percentage interest assigned
or accepted by that Bank under that Loan Agreement, as detailed on
Schedules A and B.
"Assignor" means (a) as to the Aztar Loan Agreement, those of
the Banks having a positive amount set forth opposite the name of that
Bank in Column I of Schedule A hereto and (b) as to the Tropicana Loan
Agreement, those of the Banks having a positive amount set forth
opposite the name of that Bank in Column I of Schedule B hereto.
"Borrowers" means, as of the Effective Date, Aztar and
Tropicana.
"Effective Date" means the date upon which the Amended
Agreements become effective and the payments described in Section 6
have been made.
"Exiting Bank" means each Bank which hereby assigns its entire
interest in the Existing Loan Agreements.
"Loan Documents" means the Loan Documents described in the
Aztar Loan Agreement and the Tropicana Loan Agreement.
"Managing Agent" means Bank of America National Trust and
Savings Association, in its capacity as Managing Agent for each of the
Banks under the Existing Loan Agreements.
"Obligations" means, collectively, the obligations and
indebtedness of the Co-Borrower Subsidiaries and Tropicana,
respectively, under the Existing Loan Agreements.
"Pro Rata Shares" means, as the context requires, the percentage
interest of the relevant Bank of the commitments under the Aztar Loan
Agreement or Tropicana Loan Agreement.
2. Representations and Warranties of the Assignors. Each
Assignor severally represents and warrants, each for itself and not for any
other Assignor, to the Assignees as follows:
(a) As of the date hereof, the Pro Rata Shares of such Assignor
under the Loan Agreements are as set forth on Schedule A and Schedule
B, in each case without giving effect to assignments thereof which have
not yet become effective;
(b) Such Assignor is the legal and beneficial owner of such
Assignor's Assigned Pro Rata Share and such Assignor's Assigned Pro
Rata Share is free and clear of any adverse claim. Schedule C accurately
reflects the aggregate outstandings under the Existing Loan Agreements;
(c) Such Assignor has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement and any and
all other documents required or permitted to be executed or delivered by
it in connection with this Agreement and to fulfill its obligations under,
and to consummate the transactions contemplated by, this Agreement,
and no governmental authorizations or other authorizations are required
in connection therewith;
(d) This Agreement constitutes the legal, valid and binding
obligation of such Assignor.
The Assignors make no representation or warranty and assume no responsibility
with respect to the financial condition of Borrowers or the performance by
Borrowers of the Obligations, and assume no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Existing Loan Agreements or the execution, legality, validity, enforceability,
genuineness, or sufficiency of the Existing Loan Agreements or any Loan
Document other than as expressly set forth above.
3. Representations and Warranties of the Assignees. Each
Assignee hereby represents and warrants, for itself and not for any other
Assignee, to each Assignor as follows:
(a) Such Assignee has full power and authority, and has
taken all action necessary, to execute and deliver this Agreement, and
any and all other documents required or permitted to be executed or
delivered by it in connection with this Agreement and to fulfill its
obligations under, and to consummate the transactions contemplated by,
this Agreement, and no governmental authorizations or other
authorizations are required in connection therewith;
(b) This Agreement constitutes the legal, valid and
binding obligation of such Assignee;
(c) Such Assignee has independently and without
reliance upon the Managing Agent or any Assignor and based on such
documents and information as such Assignee has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Such Assignee will, independently and without reliance upon the
Managing Agent or any Bank, and based upon 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 the Amended
Agreements;
(d) Such Assignee has received copies of such of the
Existing Loan Agreements and the Amended Agreements, related loan
documents and financial statements of Borrowers and their Affiliates as
it has requested;
(e) Such Assignee will perform in accordance with their
respective terms all of the obligations which by the terms of the
Amended Agreements are required to be performed by it as a Bank; and
(f) Such Assignee is an Eligible Assignee.
4. Assignment and Acceptance; Release of Exiting Banks.
(a) On the Effective Date and on the terms set forth
herein, each Bank under the Aztar Loan Agreement hereby irrevocably sells,
assigns and transfers, as an Assignor, its Assigned Pro Rata Share under the
Aztar Loan Agreement (detailed as to percentage and amount in Column I of
Schedule A hereto):
(i) to each Bank which is an Assignee under the Amended Revolver, its
Assigned Pro Rata Share under the Amended Revolver (detailed as to
percentage and amount in Column II of Schedule A hereto); and
(ii) to each Bank which is an Assignee under the Term Loan Agreement,
its Assigned Pro Rata Share under the Term Loan Agreement (detailed as
to percentage and amount in Column III of Schedule A hereto).
Each Bank which is an Assignee under the Amended Revolver or the Term
Loan Agreement hereby irrevocably accepts, from each such Assignor, an
Assigned Pro Rata Share in the amount and percentage interest detailed in
Columns II and III, respectively, of Schedule A hereto.
(b) On the Effective Date and on the terms set forth
herein, each Bank under the Tropicana Loan Agreement hereby irrevocably
sells, assigns and transfers, as an Assignor, its Assigned Pro Rata Share under
the Tropicana Loan Agreement (detailed as to percentage and amount in
Column I of Schedule B hereto) to each Bank which is an Assignee under the
Tropicana Loan Agreement. Each Bank which is an Assignee under the
Tropicana Loan Agreement hereby irrevocably accepts, from each such
Assignor, an Assigned Pro Rata Share in the amount and percentage interest
detailed in Column II of Schedule B hereto.
(c) On the Effective Date, each Bank which is an
Exiting Bank hereby accepts termination of its status as a Bank under the
Existing Loan Agreements, and all of the other parties thereto hereby release
such Exiting Banks from their lending commitments and any other obligation
under the Existing Loan Agreements.
(d) As of the Effective Date, each Assignee shall have
the rights and obligations of a "Bank" under the Loan Documents. Each
Assignee hereby appoints and authorizes the Managing Agent to take such
action and to exercise such powers under the Existing Loan Agreements as are
delegated to the Managing Agent by the Existing Loan Agreements.
5. Release of Co-Borrower Subsidiaries. On the Effective
Date, each Co-Borrower Subsidiary is released from any further obligation as a
co-borrower under the Aztar Loan Agreement; provided that each such Co-
Borrower Subsidiary executes and delivers the Subsidiary Guaranty under the
Amended Revolver and the Term Loan Agreement.
6. Payment. On the Effective Date, and as a condition
precedent to the assignments contemplated hereby, (i) Borrowers shall pay to
each Bank through the Managing Agent all interest, fees, and other amounts
which have accrued and remain unpaid under the Existing Loan Agreements as
of the date hereof and (ii) the Assignees shall pay to the Assignors through
the Managing Agent such principal amounts outstanding under the Existing Loan
Agreements as are necessary to result in each Bank holding the percentage
interest in the Amended Revolver and Term Loan Agreement as set forth in
Columns II and III, respectively of Schedule A hereto (with any excess amount
advanced to Aztar as additional principal outstanding under the Amended
Revolver or Term Loan Agreement, as the case may be) and each Bank holding
the percentage interest in the Tropicana Loan Agreement as is set forth in
Column II of Schedule B hereto. The Managing Agent shall advise each Bank
of the amounts to be so paid and (in the absence of written objection from any
Bank) the advice of the Managing Agent shall be conclusively presumed to be
correct. The Managing Agent may require that each payment made by or to a
Bank be net of any amounts to be paid to or by that Bank. The Assignors and
the Assignees hereby agree that if any of them receives any payment of
interest, principal, fees or any other amount under the Existing Loan
Agreements, their respective Notes or any other Loan Documents which is for
the account of one of the other parties hereto, it shall hold the same in
trust for such party to the extent of such party's interest therein and shall
promptly pay the same to such party.
7. Notes. Concurrently herewith each Bank is redelivering its
promissory notes under the Existing Loan Agreements to counsel for the
Managing Agent for cancellation in consideration of the issuance of the new
promissory notes to be issued in connection with the Amended Agreements.
8. Further Assurances. The Assignors and the Assignees
further agree to execute and deliver such other instruments, and take such
other action, as any party hereto may reasonably request in connection with
the transactions contemplated by this Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF
NEVADA. FOR ANY DISPUTE ARISING IN CONNECTION WITH
THIS AGREEMENT, EACH ASSIGNEE HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEVADA.
10. Notices. All communications among the parties or notices
in connection herewith shall be in writing, and shall be delivered in the
manner set forth in the Aztar Loan Agreement.
11. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns; provided, however, that no Assignee shall assign its rights or
obligations under this Agreement without the prior written consent of each
Assignor and any purported assignment, absent such consent, shall be void.
Nothing contained in this Section shall restrict the assignment by any Assignee
of its rights under the Loan Documents following the Effective Date.
12. Consent of Managing Agent and Borrowers. By executing
this Agreement in the space provided below, Bank of America National Trust
and Savings Association consents (in its capacity as Managing Agent under
each of the Existing Loan Agreements) to each of the assignments described
herein, and waives the recordation fees payable to it to it as Managing Agent
pursuant to the Existing Loan Agreements in connection with such assignments.
Borrowers (while not a party to this Agreement) have signed this Agreement
below to evidence their consent to such assignments.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective officials, officers
or agents thereunto duly authorized as of the date first above written.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as
Managing Agent under each of the Loan
Agreements)
By: _____________________________
Title: ____________________________
"Assignors"
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
__________________________________
Scott L. Faber
Vice President
Address:
Bank of America National Trust and Savings
Association
555 South Flower Street, 11th Floor, #3283
Los Angeles, California 90071
Attn: Scott L. Faber
Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANKERS TRUST COMPANY
By
_________________________________
David Bell
Vice President
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn: David Bell
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9048
SOCIETE GENERALE
By
_________________________________
Donald L. Schubert
First Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
First Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
With a copy sent to:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Jane van Brussel
Telecopier: (310) 788-7106
Telephone: 9310) 551-1537
BANK OF SCOTLAND
By
_________________________________
Annie Chin-Tat
Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin-Tat
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
With a copy to:
Bank of Scotland
660 South Figueroa Street, Suite 1760
Los Angeles, California 90017
Attn: Kandis Jaffrey
Telecopier: (213) 489-3594
Telephone: (213) 629-3057
CREDIT LYONNAIS LOS ANGELES
BRANCH
By
_________________________________
Dianne M. Scott
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
With a copy to:
Ron Finn, Esquire
Legal Department
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopier: (212) 459-3187
Telephone: (212) 261-7050
PNC BANK, NATIONAL ASSOCIATION
By
_________________________________
Gary W. Wessels
Vice President
Address:
PNC Bank, N.A.
Two Tower Center, 16th Floor
East Brunswick, New Jersey 08816
Attn: Denise D. Killen
Telecopier: (732) 220-3270
Telephone: (732) 220-3262
ABN AMRO BANK, N.V.
By
_________________________________
Jeffrey A. French
Group Vice President and Director
By
_________________________________
Michael Tolentino
Assistant Vice President and Credit
Analyst
Address:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, California 94111-5812
Attn: Michael Tolentino
Telecopier: (415) 362-3524
Telephone: (415) 984-3722
IMPERIAL BANK, A CALIFORNIA
BANKING CORPORATION
By
_________________________________
_______________________________
[Printed Name and Title]
Address:
Imperial Bank
9920 South La Cienega Boulevard, 14th
Floor
Inglewood, California 90301
Attn: Steven K. Johnson
Telecopier: (310) 417-5997
Telephone: (310) 417-5657
FIRST SECURITY BANK N.A., as an
Assignor and an Exiting Bank
By: ___________________________
David Williams
Vice President
Address:
First Security Bank N.A.
Commercial Banking Division
15 East 100 South, Second Floor
Salt Lake City, Utah 84111
Attn: David Williams
Vice President
Telecopier: (801) 246-5532
Telephone: (801) 246-5540
MASSMUTUAL HIGH YIELD PARTNERS
LLC, as an Assignor and an Exiting Bank
By: ___________________________
Laura Hamel
Title:_______________________
Address:
MassMutual High Yield Partners LLC
c/o Massachusetts Mutual Life Insurance Co.
1295 State Street
Springfield, Massachusetts 01111
Attn: John Wheeler
_____________
Telecopier: (413) 744-6127
Telephone: (413) 744-6228
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC., as an Assignor and an
Exiting Bank
By: _________________________________
Jill Montanye
Title:_____________________________
Address:
Merrill Lynch Senior Floating Rate Fund Inc.
Area 1B
c/o Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, NJ 08536
Attn: Jill Montanye
_______________
Telecopier: (609) 282-3542
Telephone: (609) 282-3102
THE SUMITOMO BANK, LIMITED, as an
Assignor and an Exiting Bank
By:
___________________________________
Herbert W. Redding
Vice President
Address:
The Sumitomo Bank, Limited
233 South Wacker Drive, Suite 5400
Chicago, IL 60606-6448
Attn: Herbert W. Redding
Vice President
Telecopier: (312) 993-6255
Telephone: (312) 993-6202
"Assignees"
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
__________________________________
Scott L. Faber
Vice President
Address:
Bank of America National Trust and Savings
Association
555 South Flower Street, 11th Floor, #3283
Los Angeles, California 90071
Attn: Scott L. Faber
Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
__________________________________
Francis Griffin
Attorney-In-Fact
Address:
Bank of America National Trust and Savings
Association
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Attn: Francis Griffin
Telecopier: (312) 828-7448
Telephone: (312) 828-8244
With a copy to:
Bank of America National Trust and Savings
Association
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Attn: Catherine Beard
Telecopier: (312) 828-7448
Telephone: (312) 828-6389
BANKERS TRUST COMPANY
By
_________________________________
David Bell
Vice President
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn: David Bell
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9048
SOCIETE GENERALE
By
_________________________________
Donald L. Schubert
First Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
First Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
With a copy sent to:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Jane van Brussel
Telecopier: (310) 788-7106
Telephone: 9310) 551-1537
BANK OF SCOTLAND
By
_________________________________
Annie Chin-Tat
Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin-Tat
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
With a copy to:
Bank of Scotland
660 South Figueroa Street, Suite 1760
Los Angeles, California 90017
Attn: Kandis Jaffrey
Telecopier: (213) 489-3594
Telephone: (213) 629-3057
CREDIT LYONNAIS LOS ANGELES
BRANCH
By
_________________________________
Dianne M. Scott
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
With a copy to:
Ron Finn, Esquire
Legal Department
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopier: (212) 459-3187
Telephone: (212) 261-7050
PNC BANK, NATIONAL ASSOCIATION
By
_________________________________
Gary W. Wessels
Vice President
Address:
PNC Bank, N.A.
Two Tower Center, 16th Floor
East Brunswick, New Jersey 08816
Attn: Denise D. Killen
Telecopier: (732) 220-3270
Telephone: (732) 220-3262
ABN AMRO BANK, N.V.
By
_________________________________
Jeffrey A. French
Group Vice President and Director
By _______________________________
Michael Tolentino
Assistant Vice President and Credit
Analyst
Address:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, California 94111-5812
Attn: Michael Tolentino
Telecopier: (415) 362-3524
Telephone: (415) 984-3722
IMPERIAL BANK, A CALIFORNIA
BANKING CORPORATION
By _________________________________
_______________________________
[Printed Name and Title]
Address:
Imperial Bank
9920 South La Cienega Boulevard, 14th
Floor
Inglewood, California 90301
Attn: Steven K. Johnson
Telecopier: (310) 417-5997
Telephone: (310) 417-5657
KEYBANK NATIONAL ASSOCIATION
By
_________________________________
Mary K. Young
Commercial Banking Officer
Address:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, Washington 98104
Attn: Mary K. Young
Telecopier: (206) 684-6035
Telephone: (206) 684-6085
THE MITSUBISHI TRUST AND
BANKING CORPORATION, LOS
ANGELES AGENCY
By
_________________________________
Yasushi Satomi
Senior Vice President and Chief
Manager
Address:
The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency
801 South Figueroa Street, Suite 500
Los Angeles, California 90017
Attn: F. Frank Herrera
Telecopier: (213) 687-4631
Telephone: (213) 896-4652
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as Collateral
Manager
By
_________________________________
_________________________________
[Printed Name and Title]
Address:
Archimedes Funding, L.L.C.
c/o ING Capital Advisors, Inc.
333 South Grand Avenue, suite 4250
Los Angeles, California 90071
Attn: Mike Hatley
Vice President and Portfolio
Manager
Telecopier: (213) 346-3972
Telephone: (213) 346-3995
DEEPROCK & COMPANY,
By: Eaton Vance Management,
as Investment Advisor
By
_________________________________
_________________________________
[Printed Name and Title]
Address:
State Street Bank & Trust Company
Corporate Trust Division
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attn: Patrick McEnroe
Telecopier: (617) 664-5366 or (617) 664-
5367
Telephone: (617) 664-5407
and
Eaton Vance Management
Attention: Prime Rate Reserves
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Telecopier: (617) 695-9594
Telephone: (617) 348-0115
The undersigned hereby consent to the assignments described above and to the
release of the Exiting Banks from their lending commitments under the Loan
Agreements:
AZTAR CORPORATION
ADAMAR OF NEW JERSEY, INC.
By: _______________________
Neil Ciarfalia, Treasurer
RAMADA EXPRESS, INC.
AZTAR INDIANA GAMING CORPORATION
AZTAR MISSOURI GAMING CORPORATION
By: _______________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
TROPICANA ENTERPRISES
By: ADAMAR OF NEVADA
Its General Partner
By: _______________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
EXHIBIT F
INTERCREDITOR AND COLLATERAL AGENCY
AGREEMENT
THIS INTERCREDITOR AND COLLATERAL
AGENCY AGREEMENT (this "Agreement"), dated as of May 28,
1998, is entered into by and among Bank of America National Trust
and Savings Association ("Bank of America"), as Administrative
Agent for the Revolver Lenders (as hereinafter defined) Bank of
America, as Administrative Agent for the Term Lenders (as
hereinafter defined) and Bank of America, as Collateral Agent for
the Revolver Lenders and for the Term Lenders (the "Collateral
Agent"), with reference to the following facts:
RECITALS
A. Aztar Corporation, a Delaware corporation
("Borrower"), the Revolver Lenders (as defined below), and Bank of
America, as Administrative Agent, are parties to that certain
Amended and Restated Reducing Revolving Loan Agreement of
even date herewith (as amended through the date hereof, the
"Amended Revolver"), pursuant to which the Revolver Lenders have
provided Borrower with certain secured reducing revolving loan and
letter of credit facilities. Unless otherwise herein defined,
capitalized terms herein are used with the same meanings as set forth
in the Amended Revolver.
B. Borrower is concurrently entering into a Term
Loan Agreement of even date herewith among Borrower, the Term
Lenders (as defined below) and Bank of America, as Administrative
Agent (the "Term Loan Agreement"), which is to be secured by the
same Collateral and guaranteed by the same Persons as the Amended
Revolver.
C. Pursuant to this Agreement, the Revolver
Lenders and the Term Lenders (collectively, the "Lenders") (i) shall
agree as to the relative priority and enforcement rights of (a) their
respective Liens and security interests in the assets and properties of
Borrower and of certain Subsidiaries of Borrower, and (b) their
respective interests in the Subsidiary Guaranty and (ii) shall appoint
the Collateral Agent as their common collateral agent to take the
actions described herein with respect to the Collateral (as hereinafter
defined).
D. The execution of this agreement by Bank of
America, as Collateral Agent and representative of the Lenders, is
authorized by Section 10.1 of the Amended Revolver and Section
10.1 of the Term Loan Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
I.1 Definitions of Certain Terms. As used herein, the
following terms have the meanings set forth below:
"Administrative Agent" means (a) when used in the
context of the Amended Revolver, the Administrative Agent under
the Amended Revolver and (b) when used in the context of the Term
Loan Agreement, the Administrative Agent under the Term Loan
Agreement.
"Aggregate Permitted Obligations" means, as of each
date of determination, the sum of the Permitted Term Obligations
and the Permitted Revolver Obligations.
Amended Revolver" has the meaning specified in the
Recitals to this Agreement.
"Collateral" means, collectively, the Collateral
described in the Amended Revolver and the Collateral described in
the Term Loan Agreement.
"L/C Exposure" means, as of any date of
determination, the aggregate
maximum available amount which may be drawn under all Letters of
Credit which are outstanding under the Amended Revolver as of
such date of determination.
"Lenders" means each of the Lenders from time to time
party to the Amended Revolver or the Term Loan Agreement.
"Loan Agreements" means, collectively, the Term
Loan Agreement and the Amended Revolver.
"Loan Documents" means, collectively, the Loan
Documents described in the Amended Revolver and the Loan
Documents described in the Term Loan Agreement.
"Material Collateral" means any Collateral which may
not be released without the consent of all of the Lenders pursuant to
Section 11.26 of the Amended Revolver and Section 11.27 of the
Term Loan Agreement, in each case as in effect on the date hereof.
"Notice of Default" has the meaning set forth in
Section 2.1.
"Permitted Revolver Obligations" means Obligations
under the Amended Revolver to the extent that the same do not
exceed the sum of (a) the amount of the Commitment under the
Amended Revolver, as in effect on the date of this Agreement plus
(b) any increase thereto made in accordance with the provisions of
Section 2.8 of the Amended Revolver.
"Permitted Term Obligations" means Obligations
under the Term Loan Agreement to the extent that the same do not
exceed the sum of (a) the amount of the Commitment under the
Term Loan Agreement, as in effect on the date of this Agreement
plus (b) any increase thereto made in accordance with the provisions
of Section 2.6 of the Term Loan Agreement.
"Required Combined Lenders" means Lenders holding
65% or more of the combined lending commitments under the
Amended Revolver and the Term Loan Agreement (or, to the extent
that both of such lending commitments have then been terminated,
Lenders holding 65% of the Aggregate Permitted Obligations).
"Revolver Lenders" means the Lenders from time to
time party to the Amended Revolver.
"Subsidiary Guaranty" means the Subsidiary Guaranty,
as defined in the Amended Revolver and in the Term Loan
Agreement.
"Term Loan Agreement" has the meaning specified in
the Recitals to this Agreement.
"Term Lenders" means the Lenders party to the Term
Loan Agreement from time to time.
I.2 Terms Generally. The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." All references
herein to Articles and Sections shall be deemed references to
Articles and Sections of this Agreement unless the context shall
otherwise require.
I.3 Incorporation by Reference. Any provision of the
Amended Revolver that is incorporated by reference into this
Agreement shall be deemed to be amended in such respects as are
necessary to make such provision appropriate in the context of this
Agreement rather than the context of the Amended Revolver. Any
defined term used in such a provision which is defined in Section 1.1
of this Agreement shall be incorporated herein using the defined
term in this Agreement, and not the defined term in the Amended
Revolver.
ARTICLE II
SHARING OF LIENS AND GUARANTIES
II.1 Sharing of Liens and Subsidiary Guaranty. The
Collateral Agent is hereby appointed by the Revolver Lenders and
the Term Lenders to hold, on behalf of all of the Lenders, (a) the
Liens granted pursuant to the Collateral Documents and (b) the
rights under the Subsidiary Guaranty, in each case for the pari passu
and ratable benefit of all of the Lenders. Concurrently with
acceleration of the obligations under the Term Loan Agreement or
the Amended Revolver, the Administrative Agent for the respective
Lenders thereunder will deliver a notice thereof (a "Notice of
Default") to the Collateral Agent (or, if the Obligations are deemed
accelerated pursuant to Section 9.1(k) of the Amended Revolver or
Section 9.1(k) of the Term Loan Agreement, shall be deemed to have
delivered a Notice of Default). Upon any foreclosure of the Liens
under the Collateral Documents, upon the receipt by the Collateral
Agent of any payment under the Subsidiary Guaranty, or upon any
other realization of the benefits of the Collateral Documents or the
Subsidiary Guaranty, the Collateral Agent shall make any
distribution of the proceeds thereof in accordance with Section 5.1
through the respective Administrative Agents to the Lenders in
accordance with the following proportion, determined on the basis of
the principal obligations outstanding to the Lenders as of the date of
its first receipt (or deemed receipt) of a Notice of Default:
(i) the Term Lenders shall be entitled to distribution of an
amount which is proportionately equal to the amount which the
principal amount of the Permitted Term Obligations bear to the
Aggregate Permitted Obligations; and
(ii) the Revolver Lenders shall be entitled to distribution of an
amount which is proportionately equal to the amount which the
principal amount of the Permitted Revolver Obligations bear to
the Aggregate Permitted Obligations.
II.2 Subordination of Excess Amounts. To the extent that
the aggregate principal amount of the obligations under the Amended
Revolver exceeds the Permitted Revolver Obligations or the
aggregate principal amount of the obligations under the Term Loan
Agreement exceeds the Permitted Term Obligations (in each case as
of the date of the giving of a Notice of Default) such excess amounts
shall continue to be secured by the Collateral but shall be
subordinate and junior in right of payment from the proceeds of the
Liens of the Collateral Documents and the Subsidiary Guaranty to
the prior payment (ratably, as set forth above) of the Permitted
Revolver Obligations and the Permitted Term Obligations.
ARTICLE III
ENFORCEMENT OF LIENS AND SUBSIDIARY GUARANTY
III.1 No Independent Right of Action. Each of the Lenders
and each of the Administrative Agents agrees that no Lender or
Administrative Agent shall have any independent right of action
under the Collateral Documents or the Subsidiary Guaranty, and that
the rights and remedies of the Collateral Agent thereunder shall only
be exercised at the direction of the Required Combined Lenders
(notwithstanding the occurrence of any Default, Event of Default or
acceleration of the Obligations under the Amended Revolver or the
Term Loan Agreement). The Collateral Agent hereby agrees (and
each Lender and Administrative Agent acknowledges such
agreement) that it shall not enforce the Liens and security interests of
any individual Lender in the Collateral or make demand under the
Subsidiary Guaranty without the direction and consent of the
Required Combined Lenders.
III.2 Amendments to Collateral Documents and Subsidiary
Guaranty. Until the Collateral Agent has received (or is deemed to
have received) a Notice of Default, (a) the Collateral Agent shall not
enter into any amendment, modification or waiver of the terms of the
Collateral Documents or the Subsidiary Guaranty without the
consent of both the Requisite Lenders under the Amended Revolver
and the Requisite Lenders under the Term Loan Agreement and (b)
no release of (i) the TEGP Property shall be made without the
approval of the Requisite Lenders under the Term Loan Agreement
and the Requisite Lenders under the Amended Revolver and (ii) any
other Material Collateral shall be made without the approval of all of
the Lenders.
Following its receipt of a Notice of Default, (a) the
Collateral Agent shall not enter into any amendment, modification or
waiver of the terms of the Collateral Documents or the Subsidiary
Guaranty without the consent of the Required Combined Lenders
and (b) no release of (i) the TEGP Property without the approval of
the Required Combined Lenders and (ii) any other Material
Collateral shall be made without the approval of all of the Lenders.
ARTICLE IV
THE COLLATERAL AGENT
IV.1 Appointment of Collateral Agent. Each of the
Lenders hereby irrevocably appoints and authorizes Bank of
America to act as Collateral Agent pursuant to the terms of the Loan
Documents and this Agreement, and Bank of America agrees to act
as Collateral Agent for such Lenders, pursuant to the terms of the
Loan Documents and this Agreement.
IV.2 Other Agency Provisions. Sections 10.2, 10.3, 10.4,
10.5, 10.6, 10.7, 10.8, 10.9 and 10.10 of the Revolving Loan
Agreement are incorporated herein and made a part hereof by this
reference, provided that for the purposes of this Agreement all
references to the "Administrative Agent" contained in such Sections
of the Revolving Loan Agreement shall be deemed to be references
to the Collateral Agent.
ARTICLE V
PROCEEDS RECEIVED UNDER LOAN DOCUMENTS;
OTHER AMOUNTS RECEIVED FOLLOWING EVENT OF
DEFAULT
V.1 Application of Proceeds of Collateral and Subsidiary
Guaranty.
(a) Upon its receipt of any Notice of
Default, the Collateral Agent shall notify each of the
Administrative Agents thereof, and each Administrative Agent
shall promptly deliver to the Collateral Agent a certificate setting
forth the principal amount of the obligations owed to the
Lenders under its respective Loan Agreement and that portion of
such obligations which constitutes L/C Exposure as of the date
of such Notice of Default.
(b) Upon its receipt of any proceeds of the
Collateral or the Subsidiary Guaranty, the Collateral Agent shall
disburse such proceeds as follows:
(1) First, to the costs and expenses of
the Collateral Agent incurred in connection with the
enforcement of the Collateral Documents and Subsidiary
Guaranty (including the allocated costs of internal counsel to the
Collateral Agent) and to a reserve established by the Collateral
Agent for any reasonably anticipated future expenses;
(2) Second, to each of the
Administrative Agents for the ratable benefit of the Lenders in
accordance with the principal obligations which are owning to
them constituting Permitted Revolver Obligations and Permitted
Term Obligations, provided that the Collateral Agent shall
withhold from any such disbursement any amount allocable to
L/C Exposure until such amounts are fully liquidated (and shall
instead retain such amounts in an interest-bearing collateral
account for the benefit of the Lenders as their interest may
appear). In the event that any L/C Exposure is ultimately
discharged or eliminated (whether by expiration without drawing
of the related Letter of Credit or otherwise) the Collateral Agent
shall disburse the related amounts in the collateral account to the
Administrative Agents for the account of the Lenders as
aforesaid;
(3) Third, to the Lenders ratably in
accordance with the principal obligations owed to them which
do not constituted Permitted Term Obligations or Permitted
Revolver Obligations (until the payment in full of all
Obligations); and
(4) Finally, to the Person or Persons
otherwise legally entitled thereto.
V.2 Turnover of Collateral Received by Lenders. Each
Lender shall promptly put in the custody, possession or control of
the Collateral Agent for disposition or distribution in accordance
with the provisions of Section 5.1 any Collateral, or proceeds
therefrom, over which such Lender obtains custody, control or
possession. Until such time as each Lender shall have complied with
the provisions of the immediately preceding sentence, such Lender
shall be deemed to hold such Collateral or proceeds in trust for the
parties entitled thereto hereunder.
V.3 Ratable Sharing of Certain Amounts Received by
Lenders. Section 11.10 of the Amended Revolver is incorporated
herein and made a part hereof by this reference.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Collateral Agent and each Lender represents and
warrants to each of the other parties hereto that (a) the execution,
delivery and performance of this Agreement (i) have been duly
authorized by all requisite corporate action on its part and (ii) will
not contravene any provision of its charter or by-laws or any order of
any court or other governmental authority having applicability to it
or any applicable law, and (b) this Agreement has been duly
executed and delivered by it and constitutes its legal, valid and
binding obligation.
ARTICLE VII
INTERCREDITOR ARRANGEMENTS
VII.1 Bankruptcy Proceedings. Nothing contained herein
shall limit or restrict the independent right of any Lender to initiate
an action or actions in any proceeding under a Debtor Relief Law
and to appear or be heard on any matter before the bankruptcy or
other applicable court in any such proceeding. The Collateral Agent
is not entitled to initiate such actions on behalf of any Lender or to
appear and be heard on any matter before the bankruptcy or other
applicable court in any such proceeding as the representative of any
Lender, unless such action or appearance has been approved in
writing by such Lender. The Collateral Agent is not authorized in
any such proceeding to enter into any agreement for, or give any
authorization or consent with respect to, the postpetition usage of
Collateral, unless such agreement, authorization or consent has been
approved in writing by the Required Combined Lenders. This
Agreement shall survive the commencement of any proceeding under
a Debtor Relief Law.
VII.2 Waiver of Marshaling. Each of the Lenders waives
any right it may now or hereafter have to require the Collateral
Agent to marshal assets, to exercise rights or remedies in a particular
manner, or to forbear exercising such rights and remedies in any
particular manner or order.
VII.3 Further Assurances, etc. Each party hereto shall
execute and deliver such other documents and instruments, in form
and substance reasonably satisfactory to the other parties hereto, and
shall take such other action, in each case as any other party hereto
may reasonably have requested (at the cost and expense of
Borrower) to effectuate and carry out the provisions of this
Agreement, including by recording or filing this Agreement or such
other documents or instruments in such places as the requesting
party may reasonably deem desirable.
ARTICLE VIII
MISCELLANEOUS
VIII.1 Successors and Assigns. This Agreement shall be
binding on and inure to the benefit of the Collateral Agent, each of
the Lenders and their respective successors and permitted assigns
and participants pursuant to Section 11.8 of the Amended Revolver
and Section 11.8 of the Term Loan Agreement, as applicable.
VIII.2 Benefitted Parties. All understandings and agreements
contained herein are solely for the benefit of the Lenders and their
respective successors and assigns, and, notwithstanding the
execution of this Agreement by Borrower and the Subsidiary
Guarantors solely for the purpose of acknowledging and consenting
to such understandings and agreements, neither Borrower, the
Subsidiary Guarantors nor any other Person other than the Lenders
and their respective successors and assigns is intended to be
benefitted in any way by this Agreement.
VIII.3 Notices. Notices and other communications provided
for herein shall be delivered in the manner set forth in Section 11.6
of the Amended Revolver, with the understanding that all notices
and other communication to be conveyed hereunder (i) to the
Collateral Agent shall be sent to the notice address specified in the
Amended Revolver for the Administrative Agent, and (ii) to the
Subsidiary Guarantors shall be sent to the address set forth below
their signatures to this Agreement.
VIII.4 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND
NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF CALIFORNIA.
VIII.5 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 THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE
TRANSACTIONS RELATED HERETO, 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 A 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.
VIII.6 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original, but
all of which, when taken together, shall constitute but one and the
same instrument.
VIII.7 Complete Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior representations,
negotiations, writings, memoranda and agreements. To the extent
any provision of this Agreement conflicts with any other Loan
Document, the provisions of this Agreement shall be controlling.
IN WITNESS WHEREOF, the Collateral Agent, the
Administrative Agent for the Revolver Lenders and the
Administrative Agent for the Term Lenders have caused this
Agreement to be executed by their respective duly authorized
officers as of the date first above written.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Collateral
Agent
By: ____________________________________
Janice Hammond, Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent for the Revolver Lenders
By: ____________________________________
Janice Hammond, Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent for the Term Lenders
By: ____________________________________
Janice Hammond, Vice President
Acknowledged by and Agreed to:
Borrower:
AZTAR CORPORATION
By: __________________________
Neil Ciarfalia, Treasurer
The Subsidiary Guarantors:
ADAMAR OF NEW JERSEY, INC.
AZTAR DEVELOPMENT CORPORATION
ATLANTIC - DEAUVILLE, INC.
ADAMAR GARAGE CORPORATION
MANCHESTER MALL, INC.
RAMADA NEW JERSEY HOLDINGS
CORPORATION
RAMADA NEW JERSEY, INC.
By: __________________________
Neil Ciarfalia, Treasurer
AZTAR INDIANA GAMING CORPORATION
AZTAR MISSOURI GAMING CORPORATION
RAMADA EXPRESS, INC.
HOTEL RAMADA OF NEVADA
By: __________________________
Nelson W. Armstrong, Jr., Vice President &
Secretary
Address for the Subsidiary Guarantors:
2390 East Camelback Road, Suite 400
Phoenix, Arizona
Telecopier: (602) 381-4107
Telephone: (602) 381-4100
EXHIBIT G
PROMISSORY NOTE
$ May , 1998
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of ________________________________________ (the "Lender"), the principal
amount of ______________________________________________________________
AND NO/100 DOLLARS ($__________) or such lesser aggregate amount of
Advances as may be made by the Lender with respect to the Commitment under
the Loan Agreement referred to below, together with interest on the
principal amount of each Advance made hereunder and remaining unpaid from
time to time from the date of each such Advance until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Amended and Restated Reducing Revolving
Loan Agreement dated as of May ____, 1998, and among the undersigned, as
Borrower, the Lenders which are parties hereto, and Bank of America National
Trust and Savings Association, as Administrative Agent for the Lenders (as
amended, extended, renewed, supplemented or otherwise modified from time
to time, the "Loan Agreement"). Terms defined in the Loan Agreement and not
otherwise defined herein are used herein with the meanings given those terms
in the Loan Agreement. This is one of the Notes referred to in the Loan
Agreement, and any holder hereof is entitled to all of the rights, remedies,
benefits and privileges provided for in the Loan Agreement as originally
executed or as it may from time to time be supplemented, modified or
amended. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Loan Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of Advances from the date of each such Advance until payment in full
and shall accrue and be payable at the rates and on the dates set forth in
the Loan Agreement both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear
interest at the rate set forth in Section 3.9 of the Loan Agreement, to the
fullest extent permitted by applicable Law.
Each payment hereunder shall be made to the Administrative Agent at
the Administrative Agent's Office for the account of the Lender in immediately
available funds not later than 11:00 a.m. (San Francisco time) on the day of
payment (which must be a Banking Day). All payments received after
11:00 a.m. (San Francisco time) on any particular Banking Day shall be deemed
received on the next succeeding Banking Day. All payments shall be
made in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to this Note,
and such record shall be presumptive evidence of the amounts owing under
this Note.
The undersigned hereby promises to pay all costs and expenses
of any rightful holder hereof incurred in collecting the undersigned's
obligations hereunder or in enforcing or attempting to enforce any
of such holder's right hereunder, including reasonable attorneys' fees
and disbursements, whether or not an action is filed in connection
therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other
notice or formality, to the fullest extent permitted by applicable
Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE
LENDER, OR BY THE ADMINISTRATIVE AGENT ON ITS BEHALF, IN THE
STATE OF CALIFORNIA, AND SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LOCAL LAWS THEREOF.
AZTAR CORPORATION
a Delaware corporation
By:
Neil A. Ciarfalia
Treasurer
SCHEDULE OF COMMITTED ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Period Principal Principal Made by
Advance Paid Balance
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
EXHIBIT I
PRICING CERTIFICATE
TO: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
Reference is made to that certain Amended and Restated Reducing
Revolving Loan Agreement (the "Loan Agreement") dated as of May 28, 1998, by
and among Aztar Corporation, a Delaware corporation ("Borrower"), the Lenders
therein named, and Bank of America National Trust and Savings Association, as
Administrative Agent for itself and the Lenders. Capitalized terms defined
in the Loan Agreement and not otherwise defined herein shall have the meanings
given them in the Loan Agreement.
This Certificate ("Pricing Certificate") is delivered in
accordance with Section 7.1(c) of the Loan Agreement by a Senior Officer
of Borrower with respect to the Pricing Period commencing ___________, ____,
and ending on _____________, ____ (the "Subject Pricing Period").
Computations used to determine the Applicable Pricing Level for the Subject
Pricing Period are set forth below:
I. Applicable Pricing Level. Subject to later adjustment as provided
in the Loan Agreement, the Applicable Pricing Level for the Subject
Pricing Period shall be Level ______1/.
The Applicable Pricing Level set forth above was determined on the basis
of the following:
Pricing Ratio. As of the last day of the Fiscal Quarter
ended ____________, ____ (the "Determination Date"), the ratio of Average
Quarterly Funded Debt to Adjusted EBITDA was _______ : 1.00 (as calculated
below).
The foregoing ratio is computed as follows:
(a) Average Quarterly Funded Debt as of the
Determination Date (as calculated below) $_____
divided by (b) Adjusted EBITDA (as calculated below)
for the fiscal period consisting of the Fiscal Quarter
ending on the Determination Date and the three immediately
preceding Fiscal Quarters (the "Test Period") $_____
equals Pricing Ratio [(a),(b)] ___:1.00
Average Quarterly Funded Debt -- Component Calculations
In the above calculation, Average Quarterly Funded Debt as
of the Determination Date is the sum of the following, without duplication
and on a consolidated basis:
(a) the average of all principal Indebtedness of Borrower
and the Restricted Subsidiaries and of TEGP for borrowed
money (including debt securities issued by Borrower, any
of the Restricted Subsidiaries or TEGP, but excluding in
any event any contingent obligations with respect to
undrawn letters of credit) on the last day of each of the
three 4 and 5 week fiscal periods comprising the Fiscal
Quarter ending on the Determination Date (the
"Test Fiscal Quarter") $_____
plus (b) the average of the aggregate amount of the principal
portion of all Capital Lease Obligations of Borrower and the
Restricted Subsidiaries and of TEGP on the last day of each
of the three 4 and 5 week fiscal periods comprising the Test
Fiscal Quarter $_____
equals Average Quarterly Funded Debt [(a)+(b)] $_____
Adjusted EBITDA -- Component Calculations
In the above calculation, Adjusted EBITDA for the Test
Period is calculated as follows, in each case as determined in
accordance with Generally Accepted Accounting Principles, and in
the case of items (d), (e), (f), (g), (h) and (i) only to the
extent reflected in the determination of item (a) for such Test Period:
(a) Net Income for the Test Period $_____
plus (b) any extraordinary loss reflected in Net Income for the
Test Period $_____
minus (c) any extraordinary gain reflected in Net Income for the
Test Period ($____)
plus (d) Interest Expense for the Test Period (which is the
sum of(x) and (y) set forth below)
(x) all interest, fees, charges and related expenses
paid or payable (without duplication) for the Test
Period by Borrower and the Restricted Subsidiaries
to a lender in connection with borrowed money
(including any obligations for fees, charges and
related expenses payable to the issuer of any letter
of credit) or the deferred purchase price of assets
that are considered "interest expense" under
Generally Accepted Accounting Principles
$_____
plus (y) the portion of rent paid or payable (without
duplication) for the Test Period by Borrower and
the Restricted Subsidiaries under Capital Lease
Obligations that should be treated as interest in
accordance with Financial Accounting Standards
Board Statement No. 13
$______
Interest Expense [(x)+(y)] equals $_____
plus (e) the aggregate amount of federal and state taxes
on or measured by income for the Test Period (whether or
not payable during the Test Period) $_____
plus (f) depreciation, amortization and all other
non-cash expenses for the Test Period $_____
plus (g) Borrower's equity in any net loss of TEGP
for the Test Period $_____
minus (h) Borrower's equity in any net income of
TEGP for the Test Period ($____)
plus (i) that portion of the rentals paid to TEGP
by HRN which is designated and used to service
principal and interest payable under the TEGP
Loan Agreement for the Test Period $_____
plus (j) dividends or other income received in
Cash during the Test Period by Borrower or the
Restricted Subsidiaries from an Unrestricted New
Venture Entity (but only to the extent of earnings
before interest, taxes, depreciation and amortization
of such Unrestricted New Venture Entity) $_____
equals Adjusted EBITDA [(a)+(b)-(c)+(d)+(e)+(f)+(g)-(h)+(i)+(j)] $_____
II. I further certify that the calculations made and the information
contained herein are derived from the books and records of Borrower and
its Restricted Subsidiaries, as applicable, and that each and every matter
correctly reflects those books and records.
IN WITNESS WHEREOF, I have signed this Pricing Certificate on
this _______ day of __________, ____.
____________________________________
____________________________________
[Printed Name and Title of Senior
Officer of Aztar Corporation]
1/ Insert Level I, II, III, IV, V, VI or VII in accordance with the terms
of the Loan Agreement based upon the determination of the Pricing Ratio.
TERM LOAN AGREEMENT
Dated as of May 28, 1998
among
AZTAR CORPORATION
THE LENDERS HEREIN NAMED
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Administrative Agent
TABLE OF CONTENTS
Article 1 DEFINITIONS AND ACCOUNTING TERMS 2
1.1 Defined Terms
1.2 Use of Defined Terms
1.3 Accounting Terms
1.4 Rounding
1.5 Exhibits and Schedules
1.6 References to "Borrower and its Subsidiaries"
1.7 Miscellaneous Terms
Article 2 LOANS
2.1 Loans-General
2.2 Designation of Interest Periods
2.3 Voluntary Reduction of Commitment
2.4 Automatic Reduction of Commitment
2.5 Optional Termination of Commitment
2.6 Increase of Commitment
2.7 Administrative Agent's Right to Assume Funds Available for Advances
2.8 Collateral and Guaranty
2.9 Senior Indebtedness
Article 3 PAYMENTS AND FEES
3.1 Principal and Interest
3.2 Arrangement Fee
3.3 Upfront Fees
3.4 Agency Fees
3.5 Increased Commitment Costs
3.6 Eurodollar Costs and Related Matters
3.7 Late Payments
3.8 Computation of Interest and Fees
3.9 Non-Banking Days
3.10 Manner and Treatment of Payments
3.11 Funding Sources
3.12 Failure to Charge Not Subsequent Waiver
3.13 Administrative Agent's Right to Assume Payments Will be Made
by Borrower
3.14 Fee Determination Detail
3.15 Survivability
Article 4 REPRESENTATIONS AND WARRANTIES
4.1 Existence and Qualification; Power; Compliance With Laws
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations
4.3 No Governmental Approvals Required
4.4 Subsidiaries
4.5 Financial Statements
4.6 No Other Liabilities; No Material Adverse Changes
4.7 Title to Property
4.8 Intangible Assets
4.9 Public Utility Holding Company Act
4.10 Litigation
4.11 Binding Obligations
4.12 No Default
4.13 ERISA
4.14 Regulations T, U and X; Investment Company Act
4.15 Disclosure
4.16 Tax Liability
4.17 Projections
4.18 Hazardous Materials
4.19 Developed Properties
4.20 Gaming Laws
4.21 Security Interests
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
5.1 Payment of Taxes and Other Potential Liens
5.2 Preservation of Existence
5.3 Maintenance of Properties
5.4 Maintenance of Insurance
5.5 Compliance With Laws
5.6 Inspection Rights
5.7 Keeping of Records and Books of Account
5.8 Compliance With Agreements
5.9 Use of Proceeds
5.10 Future Collateral
5.11 New Significant Subsidiaries
5.12 Hazardous Materials Laws
5.13 Intercompany Notes
Article 6 NEGATIVE COVENANTS
6.1 Disposition of Property
6.2 Mergers
6.3 Restricted Payments
6.4 Indebtedness
6.5 Liens
6.6 Transactions with Affiliates
6.7 Significant Subsidiaries
6.8 Amendments to Subordinated Obligations
6.9 Amendments to Amended Revolver
Article 7 INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information
7.2 Compliance Certificates
Article 8 CONDITIONS
8.1 Initial Advances
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT
9.1 Events of Default
9.2 Remedies Upon Event of Default
Article 10 THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization
10.2 Administrative Agent and Affiliates
10.3 Proportionate Interest in any Collateral
10.4 Lenders' Credit Decisions
10.5 Action by Administrative Agent
10.6 Liability of Administrative Agent
10.7 Indemnification
10.8 Successor Administrative Agent
10.9 Foreclosure on Collateral
10.10 No Obligations of Borrower
Article 11 MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver
11.2 Amendments; Consents
11.3 Costs, Expenses and Taxes
11.4 Nature of Lenders' Obligations
11.5 Survival of Representations and Warranties
11.6 Notices
11.7 Execution of Loan Documents
11.8 Binding Effect; Assignment
11.9 Right of Setoff
11.10 Sharing of Setoffs
11.11 Indemnity by Borrower
11.12 Nonliability of the Lenders
11.13 No Third Parties Benefited
11.14 Confidentiality
11.15 Further Assurances
11.16 Integration
11.17 Governing Law
11.18 Severability of Provisions
11.19 Headings
11.20 Time of the Essence
11.21 Foreign Lenders and Participants
11.22 Hazardous Material Indemnity
11.23 Gaming Boards
11.24 Removal of a Lender
11.25 Release of Tropicana Collateral
11.26 Termination; Release of Liens
11.27 Other Lien Releases
11.28 Waiver of Right to Trial by Jury
11.29 Purported Oral Amendments
Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Confirmation of Guaranty
D - Global Collateral Documents Amendment
E - Global Assignment and Release
F - Intercreditor Agreement
G - Note
H-1- Opinion of Counsel
H-2- Opinion of Counsel
H-3- Opinion of Counsel
H-4- Opinion of Counsel
H-5- Opinion of Counsel
J - Request for Loan
K - Request for Re-Pricing
Schedules
1.1 Lender Commitments
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens and Negative Pledges
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.18 Environmental Matters
4.19 Developed Properties
TERM LOAN AGREEMENT
Dated as of May 28, 1998
This TERM LOAN AGREEMENT ("Agreement") is
entered into by and among Aztar Corporation, a Delaware
corporation ("Borrower"), 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 11.8 (collectively, the
"Lenders" and individually, a "Lender"), and Bank of
America National Trust and Savings Association, as
Administrative Agent with respect to the following:
A. Borrower (together with certain of its Subsidiaries,
as co-borrowers on a joint and several basis, herein the
"Co-Borrower Subsidiaries") has heretofore entered that
certain Reducing Revolving Loan Agreement dated as of
October 4, 1994 (as amended, the "Prior Revolver") with
the Administrative Agent and the lenders (the "Prior
Lenders") party thereto. The obligations of Borrower (and
the Co-Borrower Subsidiaries) are guaranteed by other
Subsidiaries of Borrower pursuant to a Subsidiary
Guaranty (as defined in the Prior Revolver) and secured
by the Collateral Documents (as defined in the Prior
Revolver).
B. Borrower has requested that the credit facility
created under the Prior Revolver be transformed into two
credit facilities: a reducing revolving credit facility to be
evidenced by an Amended and Restated Reducing
Revolving Loan Agreement of even date herewith (the
"Amended Revolver") and a $50,000,000 term credit
facility to be evidenced by this Agreement, with new
lenders joining either new credit facility and with differing
participation levels for the continuing lenders in the
reducing revolving credit facility. In connection
therewith, the Co-Borrower Subsidiaries will be released
as co-obligors under the Prior Revolver, but will become
party to the Subsidiary Guaranty. The Collateral (as
defined in the Prior Revolver) under the Collateral
Documents will continue to secure the obligations of
Borrower and the Subsidiary Guarantors with respect to
the Amended Revolver and this Agreement on a pari-passu
basis pursuant to an Intercreditor Agreement (defined
below). The Prior Lenders are willing to so transform the
credit facilities as requested by Borrower.
C. Concurrently herewith, pursuant to the Global
Assignment and Release (defined below), the Prior
Lenders have assigned, with the consent of Borrower,
their rights and obligations under the Prior Revolver to the
Lenders under this Agreement and to the Revolver
Lenders (defined below) under the Amended Revolver,
and the Lenders and Revolver Lenders, respectively, have
assumed such rights and obligations as evidenced,
respectively, by this Agreement and the Amended
Revolver. Pursuant to the Global Assignment and
Release, certain of the Prior Lenders will be released from
all further right and obligation under the Prior Revolver
and the Co-Borrower Subsidiaries will be released from
their obligations as co-borrowers under the Prior
Revolver.
D. Concurrently with the Prior Revolver, the Prior
Lenders also extended an amortizing loan credit facility to
Tropicana Enterprises ("TEGP"), a general partnership of
which a Subsidiary of Borrower is a 50% general partner,
pursuant to the Second Amended and Restated Loan
Agreement dated as of October 4, 1994 (the "Prior TEGP
Loan Agreement"). The Prior TEGP Loan Agreement is
secured by its own collateral and not by the Collateral
under the Collateral Documents. The Prior Lenders were
required to maintain the same Pro Rata Share of the
Commitment under the Prior Revolver as under the Prior
TEGP Loan Agreement and that requirement will continue
with respect to the Amended Revolver and the TEGP
Loan Agreement (defined below), but not with respect to
this Agreement. Pursuant to the Global Assignment and
Release, the Prior Lenders will also assign, with the
consent of TEGP, their respective rights and obligations
under the Prior TEGP Loan Agreement to the Lenders
under the TEGP Loan Agreement, and the Lenders will
assume such rights and obligations as evidenced by the
TEGP Loan Agreement.
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 National
Trust and Savings Association, 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
Borrower and the Lenders.
"Advance" means any advance made or to be made by any
Lender to Borrower as provided in Article 2, and includes
each Alternate Base Rate Advance and Eurodollar Rate
Advance.
"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 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 control 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.
"AIGC" means Aztar Indiana Gaming Corporation, an
Indiana corporation.
"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 Advance" means, for purposes of
Section 3.6, an Advance deemed extended by a Lender to
Borrower bearing interest at the Alternate Base Rate.
"Amended Revolver" has the meaning set forth in the
Recitals to this Agreement.
"AMGC" means Aztar Missouri Gaming Corporation, a
Missouri corporation.
"Amortization Amount" means (a) with respect to each
Amortization Date during the period commencing
September 30, 1999 and ending June 30, 2004, the sum of
(i) $125,000 plus (ii) an amount equal to .0025 (.25%)
times the amount of any increase in the Commitment
pursuant to Section 2.6 and (b) with respect to each
Amortization Date during the period commencing on
September 30, 2004 and ending on the Maturity Date, the
sum of (i) $11,875,000 plus (ii) an amount equal to
twenty-five percent (25%) of the result obtained by
subtracting (A) that portion of the Amortization Amounts
described in clause (a)(ii) above paid during the period
September 30, 1999 through June 30, 2004 from (B) the
amount of any increase in the Commitment pursuant to
Section 2.6.
"Amortization Date" means September 30, 1999 and each
Quarterly Payment Date thereafter.
"Ancillary Collateral Documents" means such ancillary
documents amending, or providing a memorandum for
recordation of, the Collateral Documents (including
amendments to each of the Deeds of Trust) as the
Administrative Agent reasonably determines are necessary
or desirable, as notified to Borrower at least two (2)
Banking Days prior to the Closing Date.
"ANI" means Adamar of Nevada, a Nevada corporation.
"ANJI" means Adamar of New Jersey, Inc., a New Jersey
corporation.
"Arranger" means BancAmerica Robertson Stephens.
"Atlantic City Deeds of Trust" means the deeds of trust
and assignment of rents and leases executed and delivered
by ANJI and certain Significant Subsidiaries covering the
Atlantic City Property in the form of Exhibit N to the
Prior Revolver, either as originally executed or as it may
from time to time be supplemented, modified, amended,
extended or supplanted.
"Atlantic City Property" means the real property and
improvements thereon known as the "Tropicana Casino
and Resort" and certain related property, comprised of
(a) a parcel of approximately 4 acres located in Atlantic
City, New Jersey on which the original casino-hotel is
located, (b) a parcel of approximately 3.1 acres located in
Atlantic City, New Jersey on which the expansion portion
of the casino-hotel is located, (c) a parcel of
approximately 1.1 acres located in Atlantic City,
New Jersey on which a transportation center is located,
(d) a parcel of approximately 1.1 acres located in Atlantic
City, New Jersey on which a parking garage is located,
(e) 23 parcels in "Block C-9" aggregating approximately
2.7 acres located in Atlantic City, New Jersey on which a
parking lot is constructed and (f) a parcel of approximately
3.5 acres located in Ventnor, New Jersey on which a
parking lot and minor structures are located.
"Average Life" means, as of the date of determination,
with respect to any debt security, the quotient obtained by
dividing (i) the sum of the products of (x) the numbers of
years (calculated to the nearest one-twelfth of a year) from
the date of determination to the dates of each successive
scheduled principal payment of such debt security
multiplied by (y) the amount of such principal payment by
(ii) 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, Arizona
or New York.
"Borrower" means Aztar Corporation, a Delaware
corporation, and its successors and permitted assigns.
"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.
"Capital Stock" means, with respect to any Person, any
and all shares, interests, participation or other equivalents
(however designated) of capital stock of such Person and
any rights (other than debt securities convertible into
capital stock), warrants or options to acquire such capital
stock.
"Caruthersville Deed of Trust" means the deed of trust
executed and delivered by AMGC covering the
Caruthersville Property in the form of Exhibit H to the
Prior Revolver, either as originally executed or as it may
from time to time be supplemented, modified, amended,
extended or supplemented.
"Caruthersville Property" means a fee simple parcel of
approximately 37 acres located in Caruthersville,
Missouri.
"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 of a Responsible Official" means a certificate
signed by a Responsible Official 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 50% or more
of the outstanding Common Stock, or (b) any event or
circumstance constituting a "change in control" or other
similar occurrence under documentation evidencing or
governing any Indebtedness of Borrower of $25,000,000
or more which results in an obligation of Borrower to
prepay, purchase, offer to purchase, redeem or defease all
or a portion of such Indebtedness. For purposes of the
foregoing, the term "Unrelated Person" means any Person
other than (i) a Subsidiary of Borrower or (ii) an employee
stock ownership plan or other employee benefit plan
covering the employees of Borrower and its Subsidiaries.
"Closing Date" means the time and Banking Day on which
the conditions set forth in Section 8.1 are satisfied or
waived. The Administrative Agent shall notify Borrower
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 the Collateral Agent as such
term is defined in the Intercreditor Agreement.
"Collateral Documents" means, collectively, the Security
Agreement, the Trademark Collateral Assignment, the
Pledge Agreement (Nevada Gaming), the Pledge
Agreement (General), the Deeds of Trust (in the case of
each of the foregoing, as amended by the Global
Collateral Documents Amendment or any Ancillary
Collateral Document) and any other security agreement,
pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and
delivered by Borrower or the Significant Subsidiaries to
secure the Obligations.
"Commitment" means, subject to Sections 2.3, 2.4
and 2.6, $50,000,000.00. As of the Closing Date, the
respective Pro Rata Shares of the Lenders with respect to
the Commitment are set forth in Schedule 1.1. From and
after the Closing Date, the Pro Rata Shares set forth in
Schedule 1.1 may be subject to assignment pursuant to
Section 11.8, with the portion of any Pro Rata Share so
assigned being reflected in the applicable Commitment
Assignment and Acceptance.
"Commitment Assignment and Acceptance" means a
commitment assignment and acceptance substantially in
the form of Exhibit A.
"Common Stock" means the common stock of Borrower
or its successor by merger.
"Completion Guaranty" means a Guaranty Obligation
given by Borrower or a Restricted Subsidiary to a holder
of Indebtedness of, or an obligee of, a New Venture Entity
which obligates Borrower or the Restricted Subsidiary
(a) to cause the completion of construction of a
New Venture, (b) to provide funding for all or a portion of
any construction cost overruns with respect thereto, and/or
(c) to cause the New Venture Entity to perform any of its
Contractual Obligations (other than in respect of the
repayment of any Indebtedness or other monetary
obligation of the New Venture Entity) to an obligee of the
New Venture Entity.
"Compliance Certificate" means a certificate in the form
of Exhibit B, properly completed and signed by a Senior
Officer of Borrower.
"Confirmation of Guaranty" means the confirmation of
guaranty with respect to the Subsidiary Guaranty executed
by each Significant Subsidiary as of the Closing Date, in
the form of Exhibit C, either as originally executed or as it
may from time to time be supplemented, modified,
amended, extended or supplanted.
"Consolidated Amortization Expense" means, for any
period, amortization expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period (including, without limitation, any amortization or
write-offs of deferred financing costs by Borrower and its
Restricted Subsidiaries during such period).
"Consolidated Depreciation Expense" means, for any
period, depreciation expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period.
"Consolidated Fixed Charge Coverage Ratio" means, as of
any Transaction Date, the ratio of (i) Consolidated
Operating Cash Flow for the four consecutive Fiscal
Quarters for which financial information in respect thereof
is available immediately prior to such Transaction Date to
(ii) Consolidated Fixed Charges which will accrue during
the then current Fiscal Quarter in which such Transaction
Date occurs (beginning on the first day of such quarter)
and the three Fiscal Quarters immediately subsequent to
the end of such current Fiscal Quarter, provided that, for
the purpose of calculating Consolidated Fixed Charges for
the period described in this clause (ii), (A) the interest rate
on any Indebtedness bearing interest at a rate that is
adjustable based on market rate levels shall be calculated
based on the assumption that the applicable market rate
level in effect on the Transaction Date shall remain
constant throughout such period at the market rate level in
effect on the Transaction Date, (B) adjustments that are
reasonably anticipated to occur during such period to
Consolidated Fixed Charges shall be included in such
calculation (including such adjustments that result from
the scheduled maturity of Indebtedness of Borrower and
its Restricted Subsidiaries) and (C) Indebtedness shall be
included in such calculation that is reasonably anticipated
to be created, incurred, assumed or guaranteed by, or to
otherwise become the obligation of, Borrower or any
Restricted Subsidiary; provided, however, that, for
purposes of calculating the Consolidated Fixed Charge
Coverage Ratio, Consolidated Operating Cash Flow and
Consolidated Fixed Charges shall (x) include the
consolidated operating cash flow and consolidated fixed
charges of any Person to be acquired by Borrower or any
of its Restricted Subsidiaries as a Restricted Subsidiary in
connection with the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio,
(y) include the consolidated operating cash flow and
consolidated fixed charges of any other Person acquired
during the period described in clause (i) above by
Borrower or by any of its Restricted Subsidiaries as a
Restricted Subsidiary and (z) exclude the consolidated
operating cash flow of any Person directly attributable to
the Property of such Person that was the subject of a
Disposition, on a pro forma basis for the four consecutive
Fiscal Quarters for which financial information in respect
thereof is available immediately prior to such Transaction
Date, in the case of calculating Consolidated Operating
Cash Flow, and for the then current Fiscal Quarter in
which such Transaction Date occurs and the three Fiscal
Quarters immediately subsequent to the end of such Fiscal
Quarter (on the same basis as described in clause (ii)
above), in the case of calculating Consolidated Fixed
Charges. For purposes of the foregoing proviso, the
consolidated operating cash flow and consolidated fixed
charges of any such Person shall be determined on the
same basis as such items are determined for Borrower.
For purposes of each pro forma determination of the
Consolidated Fixed Charge Coverage Ratio in connection
with Section 6.5(a), the proposed new Indebtedness shall
be deemed to be incurred on the first day of the Fiscal
Quarter in which the relevant Transaction Date occurs.
"Consolidated Fixed Charges" means, for any period, the
sum of Consolidated Interest Expense plus the TEGP
Payments.
"Consolidated Income Tax Expense" means, for any
period, the income tax expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period (other than income tax expense attributable to
Dispositions).
"Consolidated Interest Expense" means, for any period,
without duplication, (A) the sum of (i) the aggregate
amount of interest recognized by Borrower and its
Restricted Subsidiaries during such period in respect of
Indebtedness of Borrower and its Restricted Subsidiaries
(including, without limitation, all interest capitalized by
Borrower and its Restricted Subsidiaries during such
period and all commissions, discounts and other fees and
charges owed by Borrower and its Restricted Subsidiaries
with respect to letters of credit and bankers' acceptance
financing and the net costs associated with Swap
Agreements of Borrower and its Restricted Subsidiaries),
(ii) the aggregate amount of the interest component of
rentals in respect of Capital Lease Obligations recognized
by Borrower and its Restricted Subsidiaries during such
period, (iii) to the extent any Indebtedness of any Person
is guaranteed by Borrower or any of its Restricted
Subsidiaries, the aggregate amount of interest paid or
accrued by such Person during such period attributable to
any such Indebtedness, (iv) one-third of the rent expense
incurred under noncancelable operating leases (excluding
the TEGP Lease) during such period and (v) the aggregate
amount of Redeemable Dividends recognized by Borrower
and its Restricted Subsidiaries, whether or not declared
during such period, less (B) any amortization or write-off
of deferred financing costs by Borrower and its Restricted
Subsidiaries during such period; in each case after
elimination of intercompany accounts among Borrower
and its Restricted Subsidiaries and to the extent such
expense was deducted in calculating Consolidated Net
Income for such period, as determined in accordance with
Generally Accepted Accounting Principles.
"Consolidated Interest Income" means, for any period,
interest income from all sources of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period.
"Consolidated Net Income" means, for any period, the
aggregate net income of Borrower and its Subsidiaries for
such period on a consolidated basis, determined in
accordance with generally accepted accounting principles,
provided that there shall be excluded therefrom (i) gains
and losses from Dispositions or reserves relating thereto,
(ii) items classified as extraordinary or nonrecurring,
(iii) the income (or loss) of any Unrestricted New Venture
Entity or Joint Venture, except to the extent that the
aggregate amount of cash dividends or other distributions
actually paid during such period to Borrower or any
Restricted Subsidiary by such Unrestricted New Venture
Entity or Joint Venture in respect of its Capital Stock out
of funds legally available therefor exceeds the aggregate
amount of new Investments in such Unrestricted New
Venture Entity or Joint Venture by Borrower or any
Restricted Subsidiary during such period, (iv) except to
the extent includable pursuant to clause (iii), the income
(or loss) of any Person accrued or attributable to any
period prior to the date it becomes a Restricted Subsidiary
or is merged into or consolidated with Borrower or any of
its Restricted Subsidiaries or that Person's assets (or a
portion thereof) are acquired by Borrower or any of its
Restricted Subsidiaries and (v) the income of any
Restricted Subsidiary to the extent that such Restricted
Subsidiary is prevented by any Gaming Laws from paying
such income to Borrower or another Restricted Subsidiary.
"Consolidated Net Rent" means, for any period, without
duplication, an amount equal to the total of: (A) the rent
expense, net of intercompany rent, incurred by HRN
pursuant to the TEGP Lease plus (B) two-thirds of the rent
expense incurred under other noncancelable operating
leases.
"Consolidated Operating Cash Flow" means, for any
period, without duplication, Consolidated Net Income plus
(i) Consolidated Interest Expense plus (ii) Consolidated
Income Tax Expense plus (iii) Consolidated Depreciation
Expense plus (iv) Consolidated Amortization Expense
plus (v) Consolidated Net Rent plus (vi) equity in
unconsolidated Person's losses minus (vii) Consolidated
Interest Income plus (viii) other non-cash items reducing
such Consolidated Net Income, minus (ix) other non-cash
items increasing such Consolidated Net Income, for such
period, all as determined in accordance with Generally
Accepted Accounting Principles.
"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.
"Currency Agreement" means, with respect to any Person,
any foreign exchange contract, currency swap agreement,
option or futures contract or other similar agreement or
arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in currency values.
"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.
"Deeds of Trust" means (a) the Ramada Express Deed of
Trust, (b) the Atlantic City Deeds of Trust, (c) the
Caruthersville Deed of Trust and (d) the Evansville Deed
of Trust.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in
Section 9.1, or both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.7.
"Designated Deposit Account" means a deposit account to
be maintained by Borrower with Bank of America
National Trust and Savings Association, as from time to
time designated by Borrower 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 the Cayman Islands Eurodollar Market are
at the relevant time not accepting deposits of Dollars or if
the Administrative Agent determines in good faith that the
Cayman Islands Eurodollar Market does not represent at
the relevant time the effective pricing to the Lenders for
deposits of Dollars in the Cayman Islands Eurodollar
Market, such other Eurodollar Market as may from time to
time be selected by the Administrative Agent with the
approval of Borrower 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, golf
course, entertainment center or similar facility owned by
Borrower or any of the Restricted Subsidiaries (or owned
by a Person in which Borrower or any of the Restricted
Subsidiaries holds a Permitted Investment) and which is at
such date substantially complete and open for business,
other than the TEGP Property.
"Disposition" means the voluntary sale, transfer or other
disposition (including a Sale and Leaseback Transaction)
of any asset of Borrower or any of the Restricted
Subsidiaries other than (a) Cash, Cash Equivalents,
inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of Borrower
or a Restricted Subsidiary, (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
Borrower or a Restricted Subsidiary, or where Borrower
or the Restricted Subsidiary determines in good faith that
the failure to replace such equipment will not be
detrimental to the business of Borrower or the Restricted
Subsidiary, (c) a disposition to Borrower or a Restricted
Subsidiary, (d) an issuance of equity interests by a
Wholly-Owned Subsidiary to Borrower or to another
Wholly-Owned Subsidiary, (e) the issuance and sale of
equity interests in an Unrestricted New Venture Entity,
(f) a Permitted Investment and (g) a Restricted Payment
that is permitted under Section 6.4.
"Disqualified Stock" means any capital stock, warrants,
options or other rights to acquire capital stock (but
excluding any debt security which is convertible, or
exchangeable, for capital stock), which, by its terms (or by
the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at
the option of the holder thereof, in whole or in part, on or
prior to the Maturity Date; provided that the
aforementioned interests shall not be Disqualified Stock if
they are redeemable prior to the Maturity Date only (a) if
the board of directors of Borrower determines in its
judgment that as a result of a holder or beneficial owner
owning such interests (i) Borrower or a Subsidiary of
Borrower has lost or may lose any license or franchise
from any Gaming Board held by Borrower or any
Subsidiary of Borrower necessary to conduct any portion
of the business of Borrower or such Subsidiary of
Borrower or (ii) any Gaming Board has taken or may take
action to materially restrict or impair the operations of
Borrower or its Subsidiaries, which license, franchise or
action is conditioned upon some or all of the holders or
beneficial owners of such interests being licensed or found
qualified or suitable to own such interests or (b) because
the holders thereof have the right to require Borrower to
repurchase such capital stock upon the occurrences of a
Change of Control or Disposition (or other like event) if
the terms of such capital stock provide that Borrower may
not repurchase or redeem any such capital stock pursuant
to such provisions unless such repurchase or redemption is
permitted at the time under the Amended Revolver and
this Agreement..
"Distribution" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity
security or other equity security issued by a Person, (i) the
retirement, redemption, purchase or other acquisition for
Cash or for Property by such Person of any such security,
(ii) the declaration or (without duplication) payment by
such Person of any dividend in Cash or in Property on or
with respect to any such security, (iii) any Investment by
such Person in the holder of 5% or more of any such
security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and
(iv) any other payment in Cash or Property by such Person
constituting a distribution under applicable Laws with
respect to such security.
"Dollars" or "$" means United States dollars.
"Domestic Reference Lender" means Bank of America
National Trust and Savings Association.
"Eligible Assignee" means (a) another Lender, (b) with
respect to any Lender, any Affiliate of that 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 and extending credit 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 or funding
office 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 (including the New Jersey Casino Control
Commission).
"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
Borrower 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
Borrower pursuant to Section 2.1(b) 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
Borrower in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period shall be a
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) Borrower may not specify a Eurodollar Period that
extends beyond the next Amortization Date unless the
aggregate principal amount of the Eurodollar Loans
having a Eurodollar Period ending after such Amortization
Date does not exceed the Commitment (after giving effect
to any reduction thereto scheduled to be made on such
Amortization Date pursuant to Section 2.4); and
(d) No Eurodollar Period shall extend beyond the
Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar
Rate Loan, the interest rate 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 Loan" means any Loan consisting of the
group of Advances made by the Lenders pursuant to
Sections 2.1(a) or 2.1(b), 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
National Trust and Savings Association.
"Evansville Deed of Trust" means the deed of trust
executed and delivered by AIGC covering the Evansville
Property in the form of Exhibit H to the Prior Revolver,
either as originally executed or as it may from time to time
be supplemented, modified, amended, extended or
supplanted.
"Evansville Property" means (a) a fee simple parcel of
approximately 3.6 acres and (b) a leasehold parcel of
approximately 10.2 acres, in both cases located in
Evansville, Indiana.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing 11% Subordinated Debt" means the 11% Senior
Subordinated Notes due 2002 issued by Borrower.
"Existing 13 3/4% Subordinated Debt" means the 13 3/4%
Senior Subordinated Notes due 2004 issued by Borrower.
"Existing 13 3/4% Subordinated Debt Indenture" means
the Indenture governing the Existing 13 3/4%
Subordinated Debt, as in effect on the date of this
Agreement, and as the same may from time to time be
supplemented, modified, amended, renewed, extended or
supplanted with the written consent of the Requisite
Lenders.
"Existing Indentures" means the Existing 13 3/4%
Subordinated Debt Indenture and the indenture covering
the Existing 11% Subordinated Debt.
"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.
"Fiscal Quarter" means the fiscal quarter of Borrower
consisting of a 13 week or 14 week fiscal period ending on
or about each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of Borrower consisting
of a 52 week or 53 week fiscal period ending on the
Thursday nearest December 31.
"Funded Debt" means, as of any date of determination
(without duplication and on a consolidated basis), the sum
of (a) all principal Indebtedness of Borrower and the
Restricted Subsidiaries and of TEGP for borrowed money
(including debt securities issued by Borrower, any of the
Restricted Subsidiaries or TEGP, but excluding in any
event any contingent obligations with respect to undrawn
letters of credit) on that date plus (b) the aggregate amount
of the principal portion of all Capital Lease Obligations of
Borrower and the Restricted Subsidiaries and of TEGP on
that date.
"Gaming Board" means, collectively, (a) the Nevada
Gaming Commission, (b) the Nevada State Gaming
Control Board, (c) the New Jersey Casino Control
Commission, (d) the New Jersey Division of Gaming
Enforcement, (e) the Indiana Gaming Commission, (f) the
Missouri Gaming Commission and (g) any other
Governmental Agency that holds regulatory, licensing or
permit authority over gambling, gaming or casino
activities conducted by Borrower and the Restricted
Subsidiaries within its jurisdiction.
"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 Borrower and the Restricted Subsidiaries
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.
"Global Assignment and Release" means the global
assignment and release to be executed and delivered by
the Prior Lenders, the Revolver Lenders, the Lenders and
Borrower as of the Closing Date, in the form of Exhibit E.
"Global Collateral Documents Amendment" means the
Global Collateral Documents Amendment amending the
Collateral Documents to be executed by Borrower and the
Subsidiary Guarantors, in the form of Exhibit D, as of the
Closing Date, together with all ancillary amendments to
the Collateral Documents referred to therein.
"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,
or (c) any court or administrative tribunal of competent
jurisdiction.
"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 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes
thereto) of Borrower and the Restricted Subsidiaries.
"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.
"HRN" means Hotel Ramada of Nevada, a Nevada
corporation.
"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 value of such assets,
(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.
"Intercompany Notes" means the intercompany
promissory notes required pursuant to Section 5.13.
"Intercreditor Agreement" means the intercreditor
agreement to be executed and delivered by the
Administrative Agent, on behalf of the Lenders, and the
Term Loan Agent, on behalf of the Term Lenders, in the
form of Exhibit E.
"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.
"Investment" means, when used in connection with any
Person, any investment by or of that Person, whether by
means of purchase or other acquisition of stock or other
securities of any other Person or by means of a loan,
advance creating a debt, capital contribution, guaranty or
other debt or equity participation of interest in any other
Person, including any partnership and joint venture
interests of such Person. The amount of any Investment
shall be the amount actually invested (minus any return of
capital with respect to such Investment which has actually
been received in Cash or cash equivalents or has been
converted into Cash or cash equivalents), without
adjustment for subsequent increases or decreases in the
value of such Investment.
"Jaffe Partnership Interest" means the general partnership
interest in TEGP held, as of the Closing Date, by Persons
other than ANI.
"Jaffe Transaction" means the acquisition by Borrower or
any of its Subsidiaries of the Jaffe Partnership Interest.
"Joint Venture" means any Person (other than a Subsidiary
of Borrower) in which any Person other than Borrower or
any of its Subsidiaries has a joint or shared equity interest
with Borrower or any of its Subsidiaries.
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial
precedents.
"Lender" means each lender whose name is set forth in the
signature pages of this Agreement and each lender which
may hereafter become a party to this Agreement pursuant
to Section 2.6 or Section 11.8.
"Lender Disqualification" means, with
respect to any Lender:
(a) the failure of that Lender timely to file pursuant to
applicable Gaming Laws (i) any application requested of
the Lender by any Gaming Board in connection with
licensing required of that Lender as a lender to Borrower
or (ii) any required application or other papers in
connection with determination of the suitability of the
Lender as a lender to Borrower;
(b) the withdrawal by that Lender (except where
requested or permitted, without prejudice, by the Gaming
Board) of any such application or other required papers; or
(c) any final determination by a Gaming Board
pursuant to applicable Gaming Laws (i) that the Lender is
"unsuitable" as a lender to Borrower, (ii) that the Lender
shall be "disqualified" as a lender to Borrower or
(iii) denying a finding of suitability as a lender to
Borrower or denying the issuance to the Lender of any
license required under applicable Gaming Laws to be held
by all lenders to Borrower.
"License Revocation" means the revocation, failure to
renew or suspension of, or the appointment of a receiver,
supervisor or similar official with respect to, any casino,
gambling or gaming license issued by any Gaming Board
covering any casino or gaming facility of Borrower or any
Restricted Subsidiary.
"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
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
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, the Global
Assignment and Release (to the extent it relates to this
Agreement), this Agreement, the Notes, the Subsidiary
Guaranty, the Confirmation of Guaranty, the Collateral
Documents, the Unsecured Environmental Indemnity
(New Jersey), any Secured Swap Agreement, any Request
for Loan, any Compliance Certificate and any other
agreements of any type or nature hereafter executed and
delivered by Borrower or any of the Restricted
Subsidiaries to the Administrative Agent or to 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.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G or U.
"Material Adverse Effect" means any set of circumstances
or events which (a) has or could reasonably be expected to
have any material adverse effect whatsoever upon the
validity or enforceability of any Loan Document, (b) is or
could reasonably be expected to be material and adverse
to the business or condition (financial or otherwise) of
Borrower and the Restricted Subsidiaries, taken as a
whole or (c) materially impairs or could reasonably be
expected to materially impair the ability of Borrower and
the Significant Subsidiaries, taken as a whole, to perform
the Obligations, taken as a whole.
"Maturity Date" means June 30, 2005.
"Multiemployer Plan" means any employee benefit plan of
the type described in Section 4001(a)(3) of ERISA to
which Borrower or any of its ERISA Affiliates contribute
or are obligated to contribute.
"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrower or any of the
Restricted Subsidiaries 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 Section 6.8 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 Cash Proceeds" means, with respect to a Disposition,
(a) the Cash proceeds of such Disposition received by
Borrower of any of the Restricted Subsidiaries net of
(i) the expenses incurred by Borrower or such Restricted
Subsidiaries in connection therewith, (ii) the amount of
any Indebtedness secured by a Lien on the Property which
is the subject thereof which Borrower or such Restricted
Subsidiaries is required to discharge and (iii) the
reasonably estimated income, capital gains and other taxes
payable by Borrower in connection therewith and (b) all
Cash proceeds and collections of Cash received by
Borrower or such Restricted Subsidiaries with respect to
any promissory note or non-Cash Property received by
Borrower or such Restricted Subsidiaries upon such
Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and the Restricted
Subsidiaries for that period, determined in accordance
with Generally Accepted Accounting Principles,
consistently applied.
"New Subordinated Debt" means Indebtedness of
Borrower (and any Guaranty Obligation with respect
thereto given by one or more of the Restricted
Subsidiaries) that (a) is unsecured, (b) has no principal
due or sinking fund requirement applicable prior to
September 30, 2005 and (c) is issued pursuant to an
indenture or other agreement that contains subordination
provisions applicable to such Indebtedness and any such
Guaranty Obligation, including interest blockage
provisions, that (i) are substantially the same as those in
the Existing 13 3/4% Subordinated Debt Indenture,
(ii) are, taken as a whole, at least as favorable to holders
of senior indebtedness and less restrictive on Borrower
and the Restricted Subsidiaries or (iii) have been
approved, in their sole discretion, in writing by the
Requisite Lenders.
"New Venture" means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, golf
course, entertainment center or similar facility (or any site
or proposed site for any of the foregoing) owned or to be
owned by Borrower or any of the Restricted Subsidiaries
(or owned or to be owned by a Person in which Borrower,
any of the Restricted Subsidiaries or a New Venture Entity
owned directly or indirectly by Borrower or any of the
Restricted Subsidiaries holds a Permitted Investment) and
which is not at the Closing Date a Developed Property.
"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 the promissory note made by Borrower to a
Lender evidencing the Advances under that Lender's
Pro Rata Share of the Commitment, substantially in the
form of Exhibit G, either as originally executed or as the
same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Obligations" means all present and future obligations of
every kind or nature of Borrower or any Significant
Subsidiary 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 Borrower or any
Subsidiary or Affiliate of Borrower.
"Opinions of Counsel" means the favorable written legal
opinions of (a) Latham & Watkins, special counsel to
Borrower and the Restricted Subsidiaries, (b) Lionel
Sawyer & Collins, special Nevada counsel to Borrower
and the Restricted Subsidiaries, (c) Hankin, Sandson &
Sandman, special New Jersey counsel to Borrower and the
Restricted Subsidiaries, (d) Ice, Miller, Donadio & Ryan,
special Indiana counsel to Borrower and the Restricted
Subsidiaries and (e) Thompson Coburn, special Missouri
counsel to Borrower and the Restricted Subsidiaries,
substantially in the form of Exhibits H-1, H-2, H-3, H-4
and H-5, respectively, together with copies of all factual
certificates and legal opinions upon which such counsel
has relied.
"Party" means any Person other than the Administrative
Agent and the Lenders, which now or hereafter is a party
to any of the Loan Documents.
"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 Borrower or any
of its Subsidiaries or to which Borrower or any of its
Subsidiaries contributes or has an obligation to contribute.
"Permitted Investments" means (a) any Investment in
Borrower or in a Wholly-Owned Subsidiary, (b) any
Investment in short term high quality investments of a type
generally considered to be a "cash equivalent", (c) any
Investment by Borrower or any Restricted Subsidiary in a
Person, if as a result of such Investment (i) such Person
becomes a Wholly-Owned Subsidiary or (ii) such Person
is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, Borrower or a Wholly-Owned Subsidiary,
(d) any Investment made as a result of the receipt of non-
Cash consideration from a Disposition that was made
pursuant to and in compliance with Section 6.1, (e) any
acquisition of assets solely in exchange for the issuance of
equity interests (other than Disqualified Stock) of
Borrower; (f) Investments by Borrower or any Restricted
Subsidiary (whether in the form of Cash or in the form of
a transfer of Property) in one or more Unrestricted
New Venture Entities having an aggregate fair market
value (measured on the date each such Investment was
made and without giving effect to subsequent changes in
value), when taken together with all other Investments
made pursuant to this clause (f) that are at the time
outstanding (net of recoveries received thereon in Cash or
fair market value of Property by Borrower or any
Restricted Subsidiary), not to exceed $150,000,000; and
(g) other Investments in any Person having an aggregate
fair market value (measured on the date each such
Investment was made and without giving effect to
subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (g) that are
at the time outstanding (net of recoveries received thereon
in Cash or fair market value of Property by Borrower or
any Restricted Subsidiary), not to exceed $10,000,000.
"Permitted Liens" means, with respect to any Person,
(i) Liens for taxes, assessments, governmental charges or
claims which are not yet due and payable or are being
contested in good faith by such Person by appropriate
proceedings promptly instituted and diligently conducted
and for which a reserve or other appropriate provision, if
any, as shall be required in accordance with generally
accepted accounting principles shall have been made by
such Person; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen,
repairmen, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted
and for which a reserve or other appropriate provision, if
any, as shall be required in accordance with generally
accepted accounting principles shall have been made by
such Person; (iii) Liens incurred or deposits made by such
Person in the ordinary course of business in connection
with worker's compensation, unemployment insurance,
medical insurance and other types of social security and
deposits made by such Person in the ordinary course of
business in connection with other kinds of insurance;
(iv) Liens incurred or deposits made by such Person to
secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and
other obligations of a like nature incurred in the ordinary
course of business (exclusive of obligations for the
payment of borrowed money); (v) easements, rights-of-
way, restrictions, minor defects or irregularities in title and
other similar charges or encumbrances not interfering in
any material respect with the business of such Person or
any of its Subsidiaries incurred in the ordinary course of
business; (vi) Liens (including extensions and renewals
thereof) upon real or tangible personal property acquired
by such Person after the date of this Indenture; provided
that (a) any such Lien is created solely for the purpose of
securing Indebtedness representing, or incurred to finance,
refinance or refund, all costs (including the cost of
construction) of the item of Property subject thereto,
(b) the principal amount of the Indebtedness secured by
such Lien does not exceed 100% of such cost, (c) such
Lien does not extend to or cover any other Property other
than such item of Property and any improvements on such
item and (d) the incurrence of such Indebtedness is
permitted by Section 6.4; (vii) Liens upon specific items
of inventory or other goods and proceeds of such Person
securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such
Person in the ordinary course of business to facilitate the
purchase, shipment or storage of such inventory or other
goods; (viii) Liens securing reimbursement obligations
with respect to commercial letters of credit issued for the
account of such Person which encumber documents and
other Property relating to such commercial letters of credit
and the products and proceeds thereof; (ix) Liens in favor
of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection
with the importation of goods by such Person; (x) licenses,
leases or subleases granted to others not interfering in any
material adverse respect with the business of such Person
or any of its Subsidiaries; (xi) Liens encumbering Property
or assets of such Person under construction arising from
progress or partial payments by a customer of such Person
or one of its Subsidiaries relating to such Property or
assets; (xii) Liens encumbering customary initial deposits
and margin accounts, and other Liens incurred in the
ordinary course of business and which are within the
general parameters customary in the gaming industry, in
each case securing Swap Agreements or Currency
Agreements; (xiii) Liens encumbering deposits made to
secure obligations arising from statutory or regulatory
requirements of such Person or its Subsidiaries; (xiv) any
interest or title of a lessor in the Property subject to any
Capital Lease obligation or operating lease which, in each
case, is permitted under this Indenture; (xv) Liens securing
obligations to the Administrative Agent pursuant to the
compensation and indemnity provisions of this
Agreement; (xvi) purchase money liens securing payables
arising from the purchase by such Person or any of its
Subsidiaries of any equipment or goods in the ordinary
course of business, provided that such payables do not
constitute Indebtedness; (xvii) Liens arising out of
consignment or similar arrangements for the sale of goods
entered into by such Person or any of its Subsidiaries in
the ordinary course of business; (xviii) Liens for
judgments or orders not giving rise to a Default or Event
of Default; (xix) Liens consisting of any security deposit
required under the TEGP Lease; and (xx) Liens not
specified in the foregoing and not otherwise permitted by
Section 6.5, provided that the aggregate Indebtedness
secured by the Liens under this clause (xx) shall not
exceed $5,000,000 at any time.
"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, Governmental Agency, or
other entity.
"Pledge Agreement (Nevada Gaming)" means the pledge
agreement executed and delivered by Borrower in the
form of Exhibit E to the Prior Revolver, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or
supplanted.
"Pledge Agreement (General)" means the pledge
agreement executed and delivered by Borrower and the
Significant Subsidiaries (other than HRN), in the form of
Exhibit F to the Prior Revolver, either as originally
executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Pledged Collateral (Nevada Gaming)" means the
certificates evidencing (a) 100% of the shares of capital
stock of REI and (b) 49% of the shares of capital stock of
HRN.
"Pledged Collateral (General)" means (a) the certificates
evidencing all of the shares of capital stock held by
Borrower or any of the Significant Subsidiaries in all
Subsidiaries of Borrower other than (i) the shares of
capital stock comprising the Pledged Collateral (Nevada
Gaming), (ii) 100% of the shares of capital stock of ANI,
(iii) 51% of the shares of capital stock of HRN and
(iv) 100% of the shares of AMGC and (b) the
Intercompany Notes.
"Preferred Share Purchase Rights" shall have the meaning
given to the term "Rights" in the Rights Agreement dated
as of December 20, 1989 between Borrower and First
Interstate Bank of Arizona, N.A.
"Prior Revolver" has the meaning set forth in the Recitals
to this Agreement.
"Projections" means the financial projections contained in
the Confidential Information Memorandum distributed by
or on behalf of Borrower to the Lenders on or about
February 6, 1998.
"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 1.1, as such percentage may be
increased or decreased pursuant to a Commitment
Assignment and Acceptance executed in accordance with
Section 11.8.
"Qualified Capital Stock" means Capital Stock not
constituting Disqualified Stock.
"Quarterly Payment Date" means each June 30,
September 30, December 31 and March 31.
"Ramada Express Deed of Trust" means the deed of trust
executed and delivered by REI covering the Ramada
Express Property, in the form of Exhibit H to the Prior
Revolver, either as originally executed or as it may from
time to time be supplemented, modified, amended,
extended or supplanted.
"Ramada Express Property" means the real property and
improvements thereon known as the "Ramada Express
Hotel and Casino" located in Laughlin, Nevada, comprised
of approximately 27.7 acres and related easements and
appurtenances.
"Real Property" means, as of any date of determination,
all real Property then or theretofore owned, leased or
occupied by Borrower or any of the Restricted
Subsidiaries.
"Redeemable Dividend" means, for any dividend payable
with respect to Disqualified Stock, (i) to the extent such
dividend is fully deductible for federal income tax
purposes, the amount of such dividend and (ii) to the
extent such dividend may not be deductible, the quotient
of the amount of such dividend divided by the difference
between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0)
then applicable to the issuer of such Disqualified Stock.
"Reference Rate" means the rate of interest publicly
announced from time to time by the Domestic Reference
Lender in San Francisco, California (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.
"Regulations T, U and X" means Regulations T, U and X,
as at any time amended, of the Board of Governors of the
Federal Reserve System, or any other regulations in
substance substituted therefor.
"REI" means Ramada Express, Inc., a Nevada corporation.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit J, signed by a
Responsible Official of Borrower, on behalf of Borrower,
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 K, signed by a Responsible Official of Borrower,
on behalf of Borrower, and properly completed to provide
all information required to be included herein.
"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 65% 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 65% 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 Borrower or any of its
Subsidiaries as having been authorized by all necessary
corporate partnership and/or other action on the part of
Borrower or such Subsidiary.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" means, as of any date of
determination, all Subsidiaries of Borrower other than
Unrestricted New Venture Entities.
"Revolver" means the revolving credit facility extended to
Borrower under the Amended Revolver.
"Revolver Agent" means the Administrative Agent, as
such term is defined in the Amended Revolver.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any
such Person is a party, providing for the leasing to
Borrower or a Restricted Subsidiary of any Property,
whether owned at the date of this Agreement or thereafter
acquired, which has been or is to be sold or transferred by
Borrower or such Restricted Subsidiary to such Person or
to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property
if, after giving effect to such arrangement, Borrower or a
Restricted Subsidiary operates the business, if any, located
on such Property.
"Secured Swap Agreement" means a Swap Agreement
between Borrower and a Lender (or an Affiliate of a
Lender) that is, by its terms, secured by any of the
Collateral.
"Security Agreement" means the security agreement
executed and delivered by Borrower and the Significant
Subsidiaries (other than HRN), in the form of Exhibit K to
the Prior Revolver, either as originally executed or as it
may from time to time be supplemented, modified,
amended, extended or supplanted.
"Senior Officer" means the (a) chief executive officer,
(b) president, (c) executive vice president, (d) senior vice
president, (e) chief financial officer, (f) treasurer or
(g) assistant treasurer of Borrower.
"Significant Subsidiary" means (a) each Restricted
Subsidiary that holds title to any portion of the Ramada
Express Property, the Atlantic City Property, the
Caruthersville Property and the Evansville Property,
(b) each Restricted Subsidiary that holds title to any
Property acquired after the Closing Date which is required
to be pledged as future Collateral pursuant to Section 5.10
and (c) as of any date of determination, each other
Restricted Subsidiary that had on the last day of the Fiscal
Quarter then most recently ended total assets with a book
value or fair market value of $5,000,000 or more (except
ANI, so long as the Jaffe Transaction has not occurred).
"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, or the
existence or occurrence of circumstances affecting the
Designated Eurodollar Market generally that are beyond
the reasonable control of the Lenders.
"Subordinated Obligations" means (a) the Existing 11%
Subordinated Debt, (b) the Existing 13 3/4% Subordinated
Debt and (c) any New Subordinated Debt.
"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.
"Subsidiary Guaranty" means the continuing guaranty of
the Obligations executed and delivered by the Significant
Subsidiaries, in the form of Exhibit L to the Prior
Revolver, either as originally executed or as it may from
time to time be supplemented, modified, amended,
extended or supplanted.
"Supplemental Loan Agreement" means the $25,000,000
Supplemental Loan Agreement dated as of March 13,
1997 among Borrower and the lenders party thereto.
"Swap Agreement" means a written agreement between
Borrower and one or more financial institutions providing
for "swap", "cap", "collar" or other interest rate protection
with respect to any Indebtedness.
"TEGP" means Tropicana Enterprises, a Nevada general
partnership, in which ANI is a 50% general partner.
"TEGP Lease" means the Amended and Restated Lease
(Tropicana Hotel/Casino) dated November 1, 1984
between TEGP and HRN, as amended.
"TEGP Loan Agreement" means the Second Amended and
Restated Loan Agreement dated as of October 4, 1994
among TEGP, HRN, Bank of America National Trust and
Savings Association, as agent, and the lenders party
thereto, as amended pursuant to the TEGP Loan
Agreement Amendment and otherwise as amended from
time to time. The interests of Bank of America National
Trust and Savings Association, as agent, and the lenders
party thereto under the TEGP Loan Agreement are being
acquired on the Closing Date pursuant to the Global
Assignment and Release.
"TEGP Loan Agreement Amendment" means the
Amendment of even date herewith to the TEGP Loan
Agreement.
"TEGP Loan Refinancings" means any refinancings or
financings of, or related to, the TEGP Loan Agreement or
any refinancings thereof (including, but not limited to, any
Indebtedness owed to Borrower or any Restricted
Subsidiary in connection therewith or any refinancings
thereof), to the extent that the aggregate amount of such
Indebtedness incurred pursuant to such refinancings or
financings does not exceed the outstanding principal
amount under the TEGP Loan Agreement at the Closing
Date.
"TEGP Payments" means, for any period, that portion of
the lease payments made by HRN to TEGP pursuant to the
TEGP Lease that represents the sum of interest expense on
Indebtedness of TEGP payable to Persons other than
Borrower plus amounts distributed in respect of the Jaffe
Partnership Interest.
"TEGP Property" means the Tropicana Resort and Casino
in Las Vegas, Nevada, including the real Property,
improvements and related personal Property.
"Title Company" means Lawyers 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 Borrower
and the Significant Subsidiaries (other than HRN) in the
form of Exhibit M to the Prior Revolver, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or
supplanted.
"Transaction Date" means the date of the transaction
giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio or to make any other
determination for purposes of complying with the
provisions of this Agreement, provided that if such
transaction is related to or in connection with any
acquisition of any Person, the Transaction Date shall be
the date on which Borrower or any of its Subsidiaries
enters into an agreement with such Person to effect such
acquisition; provided, however, that if subsequent to the
entering of such agreement Borrower or any of its
Subsidiaries shall amend the terms of such acquisition
with respect to the consideration payable by Borrower or
any of its Subsidiaries in connection with such acquisition,
the Transaction Date shall be the date on which Borrower
or any of its Subsidiaries enters into an agreement with
such Person to effect such amendment. The second
proviso above shall not be applicable if, as of the
Transaction Date with respect to any acquisition,
Borrower could incur at least $1.00 of additional
Indebtedness under Section 6.4 when the Consolidated
Fixed Charge Coverage Ratio is calculated on the basis of
the amended terms of such acquisition and the
Indebtedness to be incurred by Borrower and its Restricted
Subsidiaries in connection therewith.
"Unrestricted New Venture Entity" means (a) any
New Venture Entity in which any single Person other than
Borrower and its Subsidiaries owns an equity interest that
is equal to or larger than the equity interest owned by
Borrower and its Subsidiaries and (b) any other
New Venture Entity (except a Restricted Subsidiary that
owns assets with a value in excess of $5,000,000 at the
time of designation) designated by Borrower to be an
Unrestricted New Venture Entity by written notice thereof
to the Administrative Agent; provided, however,
(i) Borrower may redesignate any Unrestricted
New Venture Entity as a Restricted Subsidiary by written
notice to the Administrative Agent, with such
redesignation to become effective upon the execution of
the Subsidiary Guaranty, the Security Agreement and any
other instruments, documents and agreements reasonably
requested by the Administrative Agent in connection
therewith by the former Unrestricted New Venture Entity
and (ii) if no Default or Event of Default exists, Borrower
may, with the prior written consent of the Requisite
Lenders and each Restricted Subsidiary, redesignate any
Restricted Subsidiary which is a New Venture Entity and
which has assets with a value not in excess of $5,000,000
as an Unrestricted New Venture Entity.
"Unsecured Environmental Indemnity (New Jersey)"
means the unsecured environmental indemnity executed
and delivered by ANJI and the Significant Subsidiaries
which execute the Atlantic City Deeds of Trust
substantially in the form of Exhibit O to the Prior
Revolver, either as originally executed or as it may from
time to time be supplemented, modified, amended,
extended or supplanted.
"Wholly-Owned Subsidiary" means any Restricted
Subsidiary of which 100% of the Capital Stock of, or
other ownership interest in, such Restricted Subsidiary is
at the time owned by Borrower or a Wholly-Owned
Subsidiary.
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 covenant
contained in Section 6.4(a) would then be calculated in a
different manner or with different components,
(a) Borrower and the Lenders agree to amend this
Agreement in such respects as are necessary to conform
those covenants as criteria for evaluating Borrower's
financial condition to substantially the same criteria as
were effective prior to such change in Generally Accepted
Accounting Principles and (b) Borrower shall be deemed
to be in compliance with the covenant contained in the
aforesaid Section if and to the extent that Borrower 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 7 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 Borrower 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 "Borrower and its Subsidiaries". Any
reference herein to "Borrower and its Subsidiaries" or the
like shall refer solely to Borrower during such times, if
any, as Borrower 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.
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 Borrower under the
Commitment in such amount as Borrower may request
that does not result in the aggregate principal amount
outstanding under the Notes exceeding the Commitment.
Amounts repaid may not be re-borrowed under this
Section 2.1(a) or under Section 2.1(b) below.
(b) Subject to the terms and conditions set forth in this
Agreement, on the effective date of any increase in the
Commitment pursuant to Section 2.6, each Lender which
has agreed to commit to a portion of such increase in the
Commitment shall, according to the amount of its agreed
increase in the Commitment, make an Advance to
Borrower under the Commitment in such amount as
Borrower may request that does not result in the aggregate
principal amount outstanding under the Notes exceeding
the Commitment. Any Lender that has not agreed in
writing to commit to a portion of such increase in the
Commitment shall have no obligation under this
Section 2.1(b).
(c) 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) amount of such
Loan, and (iii) the Interest Period for such Loan. Unless
the Administrative Agent has notified, in its sole and
absolute discretion, Borrower to the contrary, a Loan may
be requested by telephone by a Responsible Official of
Borrower, in which case Borrower 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 Borrower, and
Borrower hereby agrees to indemnify the Administrative
Agent from any loss, cost, expense or liability as a result
of so acting. In the case of the initial Loan to be made and
issued on the Closing Date, the related Request for Loan
to be delivered by Borrower shall be delivered to the
Administrative Agent no later than 12:00 noon (California
time), one day before the Closing Date.
(d) 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 of the Loan, the
applicable Interest Period, and that Lender's Pro Rata
Share of the Loan (in the case of a Loan under
Section 2.1(a)) or amount of its portion of the Loan (in the
case of a Loan under Section 2.1(b)). Not later than
11:00 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 8,
all Advances shall be credited on that date in immediately
available funds to the Designated Deposit Account.
(e) Unless the Requisite Lenders otherwise consent,
each Loan shall be not less than $3,000,000.
(f) The Advances made by each Lender shall be
evidenced by that Lender's Note.
(g) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(h) Borrower 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 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.
(i) If no Request for Loan or Request for Re-Pricing
(or telephonic request for Loan or re-pricing referred to in
the second sentence of Section 2.1(c), if applicable) has
been made within the requisite notice period 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 a Eurodollar Rate Loan with an Interest
Period of 3 months.
2.2 Designation of Interest Periods.
(a) Each request by Borrower 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(c), 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 Borrower 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 with respect to Eurodollar Rate Loans shall be in
effect at any one time.
(d) Nothing contained herein shall require any Lender
to fund any Eurodollar Rate Loan in the Designated
Eurodollar Market.
2.3 Voluntary Reduction of Commitment. Borrower shall
have the right, at any time and from time to time, without
penalty or charge, upon at least three (3) Banking Days'
prior written notice by a Responsible Official of Borrower
to the Administrative Agent, voluntarily to reduce,
permanently and irrevocably, in aggregate principal
amounts in an integral multiple of $1,000,000 but not less
than $5,000,000, or to terminate, all or a portion of the
Commitment. The Administrative Agent shall promptly
notify the Lenders of any reduction or termination of the
Commitment under this Section. Any voluntary reduction
of the Commitment under this Section shall be applied to
reduce the remaining Amortization Amounts, each in an
amount that is in the same proportion as such
Amortization Amount bears to the aggregate of such
remaining Amortization Amounts.
2.4 Automatic Reduction of Commitment. Subject to the
last sentence of Section 2.3, on each Amortization Date,
the Commitment shall automatically be reduced by the
Amortization Amount.
2.5 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
Borrower's 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 effective on the date
which is thirty (30) days subsequent to written notice from
the Administrative Agent to Borrower thereof.
2.6 Increase of Commitment. Borrower may, by
written notice to the Administrative Agent and the
Lenders, increase the Commitment up to $100,000,000;
provided that (a) the Commitment has not theretofore been
voluntarily reduced pursuant to Section 2.3, (b) the
effective date of such increase is not later than April 30,
1999, (c) the obligation to fund the increase in the
Commitment amount is assumed in writing by a Lender or
Lenders then party to this Agreement or by a Person or
Persons that is an Eligible Assignee, in each case
acceptable to Borrower and, in the latter case, reasonably
acceptable to the Administrative Agent, (d) the Eligible
Assignee executes and delivers an agreement of joinder to
this Agreement in form and substance satisfactory to
Borrower and the Administrative Agent, (e) the amount of
such increase, when aggregated with any increase
theretofore or concurrently made in the amount of the
Revolver pursuant to Section 2.8 of the Amended
Revolver, does not exceed $50,000,000 and (f) no such
increase shall increase the amount of the Commitment
held by any other Lender absent the express written
consent of that Lender. The Administrative Agent shall
promptly thereafter prepare and circulate to Borrower and
the Lenders a revised Schedule 1.1 reflecting such
increased Commitment, the revised Pro Rata Shares of the
Lenders.
2.7 Administrative Agent's Right to Assume Funds
Available for Advances. Unless the Administrative Agent
shall have been notified by any Lender no later than
10:00 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 Borrower a corresponding
amount. If the Administrative Agent has made funds
available to Borrower 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 Borrower and
Borrower 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 Borrower 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 Borrower may have against any
Lender as a result of any default by such Lender
hereunder.
2.8 Collateral and Guaranty. The Obligations shall be
secured by the Collateral pursuant to the Collateral
Documents and be guaranteed by the Significant
Subsidiaries pursuant to the Subsidiary Guaranty.
2.9 Senior Indebtedness. The Obligations shall be
"Senior Indebtedness" with respect to all Subordinated
Obligations.
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 3.7, 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 outstanding
Indebtedness evidenced by the Notes at any time exceeds
the Commitment shall be payable immediately;
(ii) the applicable Amortization Amount shall be payable
on each Amortization Date; 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 of a Eurodollar Rate Loan 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 on the date of prepayment (which must be
a Banking Day) 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 of a Eurodollar Rate
Loan shall be accompanied by payment of interest accrued
to the date of payment on the amount of principal paid and
(iv) any payment or prepayment of all or any part of any
Eurodollar Rate Loan on a day other than the last day of
the applicable Interest Period shall be subject to
Section 3.6(e). Any voluntary prepayment under this
Section shall be applied to the remaining Amortization
Amounts, each in an amount that is in the same proportion
as such Amortization Amount bears to the aggregate of
such remaining Amortization Amounts.
3.2 Arrangement Fee. On the Closing Date, Borrower
shall pay to the Arranger an arrangement fee in the amount
heretofore agreed upon by letter agreement dated
February 10, 1998 between Borrower and the Arranger.
Such arrangement fee is for the services of the Arranger in
arranging the credit facilities under this Agreement and is
fully earned when paid. The arrangement fee paid to the
Arranger is solely for its own account and is
nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall
further pay to the Administrative Agent, for the respective
accounts of the Lenders (other than the Administrative
Agent) pro rata according to their Pro Rata Share of the
Commitment, an upfront fee in an amount set forth in a
letter from the Arranger to each Lender and acknowledged
by that Lender and by Borrower as the applicable upfront
fee for such Lender. Such upfront fees are for the credit
facilities committed by each Lender under this Agreement
and are fully earned when paid. The upfront fees paid to
each Lender are solely for its own account and are
nonrefundable.
3.4 Agency Fees. Borrower shall pay to the
Administrative Agent an agency fee in such amounts and
at such times as heretofore agreed upon by letter
agreement dated February 10, 1998 between Borrower 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.
3.5 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, 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, Borrower 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 Borrower 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.
Any request for compensation by a Lender under this
Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the
corresponding costs or diminished rate of return on capital
have been incurred or sustained by the Lender. If
Borrower becomes obligated to pay any amount under this
Section to any Lender, that Lender will be subject to
removal in accordance with Section 11.24; provided that
Borrower shall have paid such amount to that Lender and
that Borrower, within the thirty (30) day period following
the date of such payment, shall have notified that Lender
in writing of its intent to so remove the Lender. Each
Lender's determination of such amounts shall be
conclusive in the absence of manifest error.
3.6 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, Borrower 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. 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, excluding (i) taxes imposed on or
measured in whole or in part by its overall net income,
gross income or gross receipts and franchise taxes
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," (ii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to
any change in any law, rule or regulation or any change in
the interpretation or administration of any law, rule or
regulation by any Governmental Agency) and (iii) 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 Borrower
with the appropriate form or forms required by
Section 11.21, 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 (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 Lender (with a copy to the
Administrative Agent), Borrower 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 Lender'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 and
setting forth in reasonable detail the additional amount or
amounts to be paid to it hereunder 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 Borrower. 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 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 3.6(e). Any such Alternate
Base Rate Advance shall bear interest, payable on each
Quarterly Payment Date, at a rate equal to the sum of the
Alternate Base Rate plus 1 1/4% (125 basis points). Each
Lender agrees to endeavor promptly to notify Borrower 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 Borrower of the cessation of
the Special Eurodollar Circumstance which gave rise to
such suspension.
(d) 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
(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 Borrower and the Lenders, whereupon until the
Administrative Agent notifies Borrower 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 unless (but
only if clause (2) above is the basis for such suspension)
Borrower notifies the Agent in writing that it elects to pay
the Enhanced Applicable Eurodollar Rate Margin with
respect to all Eurodollar Rate Loans made during such
period. The Enhanced Applicable Eurodollar Rate Margin
shall be the sum of (i) the Applicable Eurodollar Rate
Margin plus (ii) such interest rate margin as the Requisite
Lenders specify is necessary to adjust the Eurodollar Rate
to a rate which represents the effective pricing to such
Lenders for deposits of Dollars in the Designated
Eurodollar Market in the relevant amount for the
applicable Eurodollar Period and which adequately and
fairly reflects the cost to such Lenders of making the
applicable Eurodollar Rate Advances.
(e) Upon payment or prepayment of any Eurodollar
Rate Advance (other than as the result of a conversion
required under Section 3.6(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 Borrower (for a reason
other than the failure of a Lender to make an Advance) to
borrow on the date or in the amount specified for a
Eurodollar Rate Loan in any Request for Loan, Borrower
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
Advance 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.
(f) Each Lender agrees to endeavor promptly to notify
Borrower of any event of which it has actual knowledge,
occurring after the Closing Date, which will entitle such
Lender to compensation pursuant to clause (a) or clause
(b) of this Section 3.6, 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 3.6 shall set forth the basis upon which it has been
determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused
from making or continuing Eurodollar Rate Loans under
this Section:
(i) Borrower may at any time, upon at least four
(4) Eurodollar Banking Days' prior notice to the
Administrative Agent and such Lender and upon payment
in full of the amounts provided for in this Section through
the date of such payment plus any prepayment fee
required by Section 3.6(e), pay in full the affected
Eurodollar Rate Advances of such Lender or request that
such Eurodollar Rate Advances be converted to Alternate
Base Rate Advances; and
(ii) In the case where Borrower becomes
obligated to pay any amount under this Section 3.6 to any
Lender, or a Lender is excused from making or continuing
Eurodollar Rate Loans, that Lender will be subject to
removal in accordance with Section 11.24; provided that
Borrower shall have paid such amount to that Lender and
that Borrower, within the thirty (30) day period following
the date of such payment, shall have notified that Lender
in writing of its intent to so remove the Lender.
3.7 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 a fluctuating interest rate per annum at all times
equal to the sum of the Eurodollar Rate for a Eurodollar
Rate Loan with an Interest Period of 3 months plus 2.50%
(250 basis points) plus 2%, 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.
3.8 Computation of Interest and Fees. Computation of
interest on Eurodollar Rate Loans and all fees under this
Agreement shall be calculated on the basis of a year of
360 days and the actual number of days elapsed.
Borrower acknowledges that such latter calculation
method will result in a higher yield to the Lenders than a
method based on a year of 365 or 366 days. 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.
3.9 Non-Banking Days. If any payment to be made by
Borrower 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.
3.10 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments
pursuant to Sections 2.9, 3.5, 3.6, 11.3, 11.11 and 11.22)
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 each 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 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 of Advances made by it and payments received by
it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrower, be
presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall
be liable to any Party for any failure to keep such a record.
(d) Each payment of any amount payable by Borrower
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, gross income or gross receipts and franchise taxes
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," (ii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to
any change in any law, rule or regulation or any change in
the interpretation or administration of any law, rule or
regulation by any Governmental Agency) and (iii) 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 Borrower
with the appropriate form or forms required by
Section 11.21, 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 Borrower is obligated by
applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender
under this Agreement, Borrower 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
Borrower. If Borrower becomes obligated to pay any
amount under this Section to any Lender, that Lender will
be subject to removal in accordance with Section 11.24;
provided that Borrower shall have paid such amount to
that Lender and that Borrower, within the thirty (30) day
period following the date of such payment, shall have
notified that Lender in writing of its intent to so remove
the Lender.
3.11 Funding Sources. Nothing in this Agreement shall
be 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.
3.12 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 3.7), 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 3.7),
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.
3.13 Administrative Agent's Right to Assume Payments
Will be Made by Borrower. Unless the Administrative
Agent shall have been notified by Borrower prior to the
date on which any payment to be made by Borrower
hereunder is due that Borrower does not intend to remit
such payment, the Administrative Agent may, in its
discretion, assume that Borrower has 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 Borrower has 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.
3.14 Fee Determination Detail. The Administrative
Agent, and any Lender, shall provide reasonable detail to
Borrower 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.
3.15 Survivability. All of Borrower's obligations under
Sections 3.5 and 3.6 shall survive for ninety (90) days
following the date on which the Commitment is
terminated and all Loans hereunder are fully paid.
Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders, as of the
date hereof and as of the Closing Date, that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation duly formed, validly
existing and in good standing under the Laws of Delaware
and 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. Borrower 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. All outstanding shares of capital stock of
Borrower 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. Borrower 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, 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 Borrower and each
Significant Subsidiary 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 upon or with respect to any Property now owned
or leased or hereafter acquired by such Party;
(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; or
(e) Result in a breach of or constitute a default under,
or cause or permit the acceleration of any obligation owed
under, any indenture or loan or credit agreement or any
other Contractual Obligation to which such Party is a
party or by which such Party or any of its Property is
bound or affected;
and neither Borrower nor any Significant Subsidiary is in
violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit
agreement 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 Borrower and the Significant
Subsidiaries of the Loan Documents to which it is a Party.
All authorizations from, or filings with, any
Governmental Agency described in Schedule 4.3 will be
accomplished as of the Closing Date or such other date as
is specified in Schedule 4.3.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock
issued and outstanding, number of shares owned by
Borrower or a Subsidiary of Borrower (specifying such
owner) and jurisdictions of organization of all Subsidiaries
of Borrower and specifies which thereof, as of the Closing
Date, are Restricted Subsidiaries, Significant Subsidiaries
and Unrestricted New Venture Entities. Except as
described in Schedule 4.4 or Schedule 6.17, Borrower
does not own any capital stock, equity interest or debt
security which is convertible, or exchangeable, for capital
stock or equity interests in any Person. 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 Borrower, 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, except
for Permitted Liens.
(b) Each Significant Subsidiary is a corporation duly
formed, validly existing and in good standing under the
Laws of its jurisdiction of organization, is duly qualified
to do business as a foreign organization and is in good
standing as such in each jurisdiction in which the conduct
of its business or the ownership or leasing of its Properties
makes such qualification necessary (except where the
failure to be so duly qualified and in good standing does
not constitute a Material Adverse Effect), and has all
requisite power and authority to conduct its business and
to own and lease its Properties.
(c) Each Restricted Subsidiary is in compliance with
all Laws and other requirements applicable to its business
and has obtained all authorizations, consents, approvals,
orders, licenses, and permits from, and each such
Subsidiary 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 to be in such compliance, obtain such
authorizations, consents, approvals, orders, licenses, and
permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the
Lenders the audited consolidated financial statements of
Borrower and its Subsidiaries for the Fiscal Year ended
January 1, 1998. Such financial statements fairly present
in all material respects the financial condition, results of
operations and changes in financial position of Borrower
and its Subsidiaries as of such date and for such period in
conformity with Generally Accepted Accounting
Principles, consistently applied.
4.6 No Other Liabilities; No Material Adverse Changes.
Borrower and the Restricted Subsidiaries 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 included in the financial statements
described in Section 4.5, 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 January 1,
1998. 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. Borrower and the Restricted
Subsidiaries have valid title to the Property (other than
assets which are the subject of a Capital Lease Obligation)
reflected in the balance sheet described in Section 4.5(c),
other than items of Property or exceptions to title which
are in each case immaterial to Borrower and the Restricted
Subsidiaries, taken as a whole, and Property subsequently
sold or disposed of in the ordinary course of business, free
and clear of all Liens, other than Liens described in
Schedule 4.7 or permitted by Section 6.5.
4.8 Intangible Assets. Borrower and the Restricted
Subsidiaries own, or possess the right to use to the extent
necessary in their respective businesses, all material
trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets
that are used in the conduct of their businesses as now
operated, and no such Intangible Asset, to the best
knowledge of Borrower, 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 Borrower or any of its Subsidiaries at
any time within the five (5) year period ending on the
Closing Date.
4.9 Public Utility Holding Company Act. Neither
Borrower nor any Restricted Subsidiary 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
Borrower or any of the Restricted Subsidiaries of less than
$1,000,000, (c) matters of an administrative nature not
involving a claim or charge against Borrower or any of the
Restricted Subsidiaries and (d) matters set forth in
Schedule 4.10, there are as of the Closing Date no
actions, suits, proceedings or investigations pending as to
which Borrower or any of the Restricted Subsidiaries have
been served or have received notice or, to the best
knowledge of Borrower, threatened against or affecting
Borrower or any of the Restricted Subsidiaries or any
Property of any of them before any Governmental
Agency.
4.11 Binding Obligations. Each of the Loan Documents
to which Borrower or the Significant Subsidiaries 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) Neither Borrower 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) Neither Borrower nor any of the Restricted
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 Regulations T, U and X; 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 Regulations T, U and X. Neither Borrower
nor any of the Restricted Subsidiaries is or is required to
be registered as an "investment company" under the
Investment Company Act of 1940.
4.15 Disclosure. No written statement made by a Senior
Officer 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. Borrower and the Restricted
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 Borrower or any of the Restricted
Subsidiaries, except (a) such taxes, if any, as are being
contested in good faith by appropriate proceedings and as
to which adequate reserves (to the extent required by
Generally Accepted Accounting Principles) have been
established and maintained and (b) immaterial taxes so
long as no material Property of Borrower or any of the
Restricted Subsidiaries is in jeopardy of being seized,
levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best
knowledge of Borrower, the assumptions set forth in the
Projections are reasonable and consistent with each other
and with all facts known to Borrower, and 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.
This representation may not be relied upon by any Lender
that did not receive a copy of the Projections on or before
the Closing Date.
4.18 Hazardous Materials. Except as described in
Schedule 4.18, (a) neither Borrower nor any of the
Restricted Subsidiaries 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 Borrower, 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 have a Material
Adverse Effect, (c) no Real Property or any portion
thereof is or has been utilized by Borrower or any of the
Restricted Subsidiaries 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
Borrower or any of the Restricted Subsidiaries on any
Real Property, or transported to or from such Real
Property by Borrower or any of the Restricted
Subsidiaries, such use, generation, storage and
transportation are in compliance in all material respects
with all Hazardous Materials Laws.
4.19 Developed Properties. As of the Closing Date, the
facilities described on Schedule 4.19 comprise all of the
Developed Property owned by Borrower and the
Restricted Subsidiaries.
4.20 Gaming Laws. Borrower and the Restricted
Subsidiaries are in compliance with all applicable Gaming
Laws in all respects which are material to the operations,
businesses and prospects of Borrower and the Restricted
Subsidiaries, taken as a whole.
4.21 Security Interests. The Security Agreement creates a
valid first priority security interest in the Collateral
described therein securing the Obligations (subject only to
Permitted Liens 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 Collateral Agent
pursuant to Section 8.1 with the appropriate Governmental
Agency have been taken and completed. The Trademark
Collateral Assignment creates a valid first priority
collateral assignment of the Collateral described therein
securing the Obligations 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. The Pledge
Agreement (Nevada Gaming) creates a valid first priority
security interest in the Pledged Collateral (Nevada
Gaming) and upon delivery of the Pledged Collateral
(Nevada Gaming) to the Collateral Agent (or its designee)
in the State of Nevada all action necessary to perfect the
security interest so created has been taken and completed.
The Pledge Agreement (General) creates a valid first
priority security interest in the Pledged Collateral
(General) and upon delivery of the Pledged Collateral
(General) to the Collateral Agent (or its designee) all
action necessary to perfect the security interest so created
has been taken and completed. Each Deed of Trust
creates a valid Lien in the Collateral described therein
securing the Obligations, other than those arising under
Sections 4.18, 5.12 and 11.22, (subject only to Permitted
Liens 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, have been taken and completed.
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid or any portion of
the Commitment remains in force, Borrower shall, and
shall cause each of the Restricted Subsidiaries to, 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 Borrower and the Restricted Subsidiaries 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 (to the extent required by Generally
Accepted Accounting Principles) for the payment of the
same or (b) any immaterial tax so long as no material
Property of Borrower or any of the Restricted Subsidiaries
is in jeopardy of being seized, levied upon or forfeited.
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 except (a) where the failure to so
preserve and maintain the existence of any Restricted
Subsidiary and such authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits,
or registrations would not constitute a Material Adverse
Effect and (b) that a merger permitted by Section 6.2 shall
not constitute a violation of this covenant; 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
Borrower and the Restricted 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 Borrower and the Restricted Subsidiaries 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 Agencies with enforcement
authority, with all Requirements of Law noncompliance
with which constitutes a Material Adverse Effect, except
that Borrower and the Restricted Subsidiaries 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 Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Lender (through
the Administrative Agent), 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,
Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries
with any of their officers, key employees or accountants
and, upon request, furnish promptly to the Administrative
Agent or any Lender (through the Administrative Agent)
true copies of all financial information made available to
the board of directors or audit committee of the board of
directors of Borrower.
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 Borrower or any of the Restricted Subsidiaries.
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 solely to
refinance or retire existing Indebtedness of Borrower.
5.10 Future Collateral. Upon the acquisition by Borrower
or any Significant Subsidiary of (a) any capital stock of a
new Subsidiary, deliver the certificates evidencing such
capital stock in pledge to the Collateral Agent pursuant to
the Pledge Agreement (Nevada Gaming) or Pledge
Agreement (General), as the case may be, (b) upon
consummation of the Jaffe Transaction, deliver certificates
evidencing 100% of the shares of capital stock of ANI and
the remaining 51% of the shares of capital stock of HRN
to the Collateral Agent in pledge pursuant to the Pledge
Agreement (Nevada Gaming), subject to prior approvals
required under applicable Gaming Laws, and the Pledge
Agreement (General), as applicable, and (c) any fee
simple interest in real Property or any vessel, vehicle or
other Property which is not subject to the Lien of the
Collateral Documents, execute and deliver to the
Collateral Agent such Collateral Documents as are
appropriate therefor as requested by the Collateral Agent
to create a Lien thereon securing the Obligations and the
Obligations under the Amended Revolver subject in
priority only to Permitted Liens and Liens existing thereon
prior to such acquisition (and not done in contemplation
thereof); provided, however, that such Collateral
Documents shall not be required if Borrower delivers to
the Administrative Agent promptly following any such
acquisition an Officers' Certificate stating that the
aggregate fair market value of such Property plus the
aggregate fair market value of all other Property (except
(a) any gaming license issued under any Gaming Law,
(b) the assets and capital stock of ANI, (c) the assets and
51% of the capital stock of HRN and (d) the gaming
equipment and capital stock of AMGC) owned by
Borrower and the Restricted Subsidiaries that is not
subject to the Lien of the Collateral Documents is less
than $20,000,000.
5.11 New Significant Subsidiaries. Cause each of its
Restricted Subsidiaries which hereafter becomes a
Significant Subsidiary to execute and deliver to the
Administrative Agent an instrument of joinder of the
Subsidiary Guaranty, Security Agreement and the
Trademark Collateral Assignment.
5.12 Hazardous Materials Laws. Keep and maintain all
Real Property and each portion thereof in compliance in
all material respects with all applicable Hazardous
Materials Laws 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
Borrower relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous
Materials and (c) discovery by any Senior Officer of
Borrower 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 any applicable
Hazardous Materials Laws.
5.13 Intercompany Notes. Execute a promissory note
(in a form reasonably acceptable to the Administrative
Agent) evidencing any Indebtedness of Borrower or a
Restricted Subsidiary to any Restricted Subsidiary which
is in an amount of $5,000,000 or more, and cause each
payee of such promissory note to deliver the same to the
Collateral Agent with an endorsement in blank as Pledged
Collateral (General).
Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid or any portion of
the Commitment remains in force, Borrower shall not, and
shall not permit any of the Restricted Subsidiaries to,
unless the Administrative Agent (with the written approval
of the Requisite Lenders) otherwise consents:
6.1 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, (a) if,
giving effect thereto, the aggregate book value or fair
market value (whichever is greater) of all Dispositions
made since the Closing Date would exceed $60,000,000 or
(b) that is otherwise prohibited by clause (a) hereof unless
(i) at least 85% of the proceeds from such Disposition are
received in Cash; provided however, that the amount of
(A) any Indebtedness (as shown on Borrower's or such
Subsidiaries' most recent balance sheet or in the notes
thereto) of Borrower or any such Subsidiary that are
assumed by the transferee of any asset in connection with
any Disposition and (B) any deferred payment obligations
received by Borrower or any such Subsidiary as proceeds
of a Disposition that are concurrently with the Disposition
converted into Cash without recourse to Borrower or any
of its Subsidiaries, shall be deemed to be Cash for
purposes of this provision, (ii) Borrower or such
Subsidiary receives consideration at the time of such
Disposition at least equal to the fair market value of the
shares or assets sold (as determined by the Board of
Directors of Borrower and evidenced by a board
resolution) and (iii) the Net Cash Proceeds received by
Borrower or such Subsidiary from such Disposition are
applied as follows: (y) Borrower may, within 12 months
of such Disposition, invest such Net Cash Proceeds in
properties and assets that (as determined by the Board of
Directors) replace the properties and assets that were the
subject of the Disposition or in properties and assets that
will be used in the business of Borrower or its
Subsidiaries existing on the date of this Agreement or in a
business reasonably related thereto and (z) the amount of
such Net Cash Proceeds not invested as set forth in
clause (y) above shall on or prior to the first anniversary
of such Disposition be applied by Borrower to the
prepayment, on a pro rata basis with the prepayment of the
Notes and the permanent reduction of the Commitment
under the Amended Revolver on or prior to the Banking
Day following the date such Net Cash Proceeds are not so
invested, at a price equal to 100% of the principal amount
thereof, plus accrued interest thereon to the date of
prepayment.
6.2 Mergers. Merge or consolidate with or
into any Person, except:
(a) mergers and consolidations of a Subsidiary of
Borrower into Borrower or a Restricted Subsidiary (with
any of Borrower or the Restricted Subsidiary as the
surviving entity) or of Borrower or Restricted Subsidiaries
of Borrower with each other, provided that Borrower and
each of such Subsidiaries have executed such amendments
to the Loan Documents as the Administrative Agent may
reasonably determine are appropriate as a result of such
merger; and
(b) a merger or consolidation of Borrower or any
Restricted Subsidiary with any other Person, provided that
(i) either (A) Borrower or the Restricted Subsidiary is the
surviving entity, or (B) the surviving entity is a
corporation organized under the Laws of a State of the
United States of America or the District of Columbia and,
as of the date of such merger or consolidation, expressly
assumes, by an appropriate instrument, the Obligations of
Borrower or the Restricted Subsidiary, as the case may be,
(ii) giving effect thereto on a pro-forma basis, no Default
or Event of Default exists or would result therefrom, and
(iii) as a result thereof, no Change in Control has
occurred.
6.3 Restricted Payments. (a) Directly or indirectly,
(i) declare or pay any dividend on or make any
distribution or payment on its Capital Stock or to its
stockholders (in their capacity as stockholders) (other than
dividends or distributions payable solely in its Qualified
Capital Stock and, in the case of a Restricted Subsidiary,
dividends or distributions payable to Borrower or a
Wholly Owned Subsidiary), (ii) purchase, redeem or
otherwise acquire or retire for value, any shares of Capital
Stock of Borrower (except, in the case of a Restricted
Subsidiary, from Borrower) or any Subsidiary of
Borrower (other than a Wholly Owned Subsidiary),
(iii) acquire, retire or redeem any Indebtedness of or
otherwise make any Investment in any Affiliate of
Borrower (other than a Permitted Investment) or
(iv) purchase, redeem or otherwise acquire or retire for
value, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund or mandatory
redemption payment of a Subordinated Obligation or any
other Indebtedness of Borrower or of any Affiliate of
Borrower that is subordinated (whether pursuant to its
terms or by operation of law) in right of payment to the
Notes and which is scheduled to mature (after giving
effect to any and all unconditional (other than as to the
giving of notice) options to extend the maturity thereof) on
or after the Maturity Date, if at the time of any such
declaration, distribution, payment, purchase, redemption,
acquisition or retirement (collectively, the "Restricted
Payments") and after giving effect thereto (including,
without limitation, in calculating on a pro forma basis, as
if such proposed Restricted Payment had been made, the
Consolidated Fixed Charge Coverage Ratio of Borrower
for purposes of clause (y) below):
(x) any Event of Default shall have occurred and be
continuing; or
(y) Borrower could not incur at least $1.00 of
additional Indebtedness pursuant to Section 6.4(a); or
(z) the aggregate amount of Restricted Payments for all
such purposes made subsequent to the Closing Date would
exceed an amount equal to the sum of (i) 50% of
aggregate Consolidated Net Income (or if such aggregate
Consolidated Net Income shall be a deficit, minus 100%
of such deficit) accrued on a cumulative basis in the
period commencing on the Closing Date and ending on the
last day of the Fiscal Quarter immediately preceding the
relevant Transaction Date, (ii) the aggregate net proceeds,
including Cash and the fair market value of Property other
than Cash (as determined in good faith by the Board of
Directors of Borrower, whose determination shall be
conclusive, and evidenced by a resolution of such Board
of Directors filed with the Agent) received by Borrower
from the issuance or sale to any Person (other than a
Subsidiary of Borrower) during the period commencing on
the Closing Date and ending on such Transaction Date of
Qualified Capital Stock of Borrower (other than Capital
Stock of Borrower issued upon conversion of or in
exchange for securities of Borrower and Capital Stock of
Borrower issued in a transaction described in clause
(b)(iv) below, except to the extent of any payment to
Borrower in addition to the securities of Borrower
surrendered), (iii) to the extent not included in (ii) above,
the aggregate net proceeds, including Cash and the fair
market value of Property other than Cash (as determined
in good faith by the Board of Directors of Borrower,
whose determination shall be conclusive, and evidenced
by a resolution of such Board of Directors filed with the
Agent) received by Borrower from the issuance or sale to
any Person (other than a Subsidiary of Borrower) during
the period commencing on the Closing Date and ending on
such Transaction Date, of any debt securities evidencing
Indebtedness of Borrower or of any Disqualified Stock of
Borrower, if, and to the extent that, as of such Transaction
Date such debt securities or Disqualified Stock, as the case
may be, have been converted into, exchanged for or
satisfied by the issuance of Qualified Capital Stock of
Borrower, (iv) to the extent that any Restricted Investment
that was made after the date of this Agreement is sold for
Cash or otherwise liquidated or repaid for Cash, the lesser
of (A) the Cash return of capital with respect to such
Restricted Investment (less the expense of disposition, if
any) and (B) the initial amount of such Restricted
Investment, (v) 50% of any Cash dividends received by
Borrower or a Wholly-Owned Subsidiary after the date of
this Agreement from an Unrestricted New Venture Entity,
to the extent that such dividends were not otherwise
included in Consolidated Net Income of Borrower for
such period and (vi) to the extent that any Unrestricted
New Venture Entity is redesignated as a Restricted
Subsidiary after the date of this Agreement, the fair market
value of the Investment in such Subsidiary by Borrower or
any other Restricted Subsidiary as of the date of such
redesignation; provided, however, that, if Borrower and its
Restricted Subsidiaries have made any Investments during
the period commencing on the Closing Date and ending on
such Transaction Date, the proceeds of which Investments
were used, directly or indirectly, by the recipients thereof
to purchase Qualified Capital Stock of Borrower or other
securities that have been converted into, exchanged for or
satisfied by the issuance of Qualified Capital Stock of
Borrower, the aggregate amount determined under clauses
(ii) and (iii) shall be net of the aggregate amount of such
Investments.
(b) The provisions of this Section 6.3 shall not
prohibit:
(i) Borrower or any Restricted Subsidiary from paying
a dividend on its own Capital Stock within 60 days after
the declaration thereof if, on the date when the dividend
was declared, Borrower or such Restricted Subsidiary, as
the case may be, could have paid such dividend in
compliance with the other provisions of this Section 6.3;
(ii) Borrower or any Restricted Subsidiary from
redeeming or repurchasing its securities in the event that
the holder of such securities has failed to qualify or to be
found suitable or otherwise eligible under a Gaming Law
to remain as a holder of such securities;
(iii) Borrower or any Restricted Subsidiary from
redeeming or purchasing, for an amount not exceeding
$750,000 in the aggregate, all or a portion of the shares of
Class A preferred stock of Ramada New Jersey Holdings
outstanding on the Closing Date;
(iv) the redemption, repurchase, retirement, defeasance
or other payment or acquisition of any Subordinated
Obligation or Capital Stock of Borrower in exchange for,
or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of Borrower)
of, other Capital Stock of Borrower (other than any
Disqualified Stock); and
(v) the redemption, repurchase, retirement, defeasance
or other payment or acquisition of Subordinated
Obligations with the net cash proceeds from an incurrence
of New Subordinated Debt;
provided, however, that the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (b)(i) or (ii) shall be included in any
computation under Section 6.3(a) of the aggregate amount
of Restricted Payments made by Borrower and its
Restricted Subsidiaries, and the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (b)(iii), (iv) or (v) shall not be included in
any such computation;
(c) So long as no Event of Default shall have occurred
and be continuing, the provisions of this Section 6.3 shall
not prohibit Borrower and its Restricted Subsidiaries from:
(i) acquiring shares of Capital Stock of Borrower (A)
to eliminate fractional shares, (B )from an employee who
has purchased or otherwise acquired shares of Capital
Stock of Borrower under an employee stock option or
employee stock purchase agreement or other plan or
agreement reserving to Borrower the option to repurchase
the shares but in no event for a price greater than the
higher of fair market value or the price at which such
securities were sold by Borrower and (C) pursuant to a
court order, provided that the aggregate consideration paid
by Borrower and its Restricted Subsidiaries pursuant to
subclauses (A) and (B) above shall not exceed $1,000,000
in any Fiscal Year of Borrower;
(ii) declaring or paying any dividend on, or redeeming
or repurchasing, shares of the Series B Preferred Stock in
either case that is or becomes scheduled or required
pursuant to the Series B Preferred Stock outstanding as of
the Closing Date;
(iii) redeeming or purchasing the Preferred Share
Purchase Rights at a price not exceeding $0.01 per right
and $2,000,000 in the aggregate;
(iv) acquiring, retiring or redeeming any Indebtedness
of, or otherwise making any Investment in, TEGP in
connection with the TEGP Loan Agreement, except to the
extent that the aggregate amount of any such Investment in
TEGP in connection with the TEGP Loan Agreement
exceeds the outstanding principal amount owed to third
parties under the TEGP Loan Agreement at the Closing
Date;
(v) purchasing the TEGP Property or the Jaffe
Partnership Interest;
(vi) paying up to $75,000,000 on account of
Subordinated Obligations or for the purchase, redemption
or defeasance thereof; or
(vii) making any Restricted Payment not otherwise
permitted by this Section 6.3, provided that the aggregate
amount of Restricted Payments made pursuant to this
clause (vii) from and after the Closing Date shall not
exceed $30,000,000;
provided, however, that the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (c)(i), (ii), (iii) or (vii) shall be included in
any computation under Section 6.3(a) of the aggregate
amount of Restricted Payments made by Borrower and its
Restricted Subsidiaries, and the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (c)(iv), (v) or (vi) shall not be included in
any such computation.
6.4 Indebtedness. (a) Create, incur, assume, guarantee or
otherwise become liable with respect to, or become
responsible for the payment of, any Indebtedness unless,
after giving effect thereto, the Consolidated Fixed Charge
Coverage Ratio of Borrower is greater than 1.9 to 1.
(b) Notwithstanding the foregoing, Borrower and its
Restricted Subsidiaries may incur, create, assume,
guarantee or otherwise become liable with respect to, or
become responsible for the payment of, any or all of the
following: (i) Indebtedness not otherwise permitted
pursuant to clauses (ii) through (xii) below in an aggregate
amount at any time outstanding of up to $50,000,000; (ii)
Indebtedness incurred pursuant to Section 2.6 of this
Agreement, (iii) the Existing 11% Subordinated Debt and
the Existing 13 3/4% Subordinated Debt; (iv) Indebtedness
of Borrower and its Restricted Subsidiaries remaining
outstanding on the Closing Date giving effect to the
contemplated application of the proceeds; (v) Indebtedness
to Borrower or to a Restricted Subsidiary; (vi)
Indebtedness incurred by Borrower or any Restricted
Subsidiary in connection with (a) the construction of any
new facility or facilities related to the gaming business or
any related business of Borrower or any Restricted
Subsidiary or in connection with the expansion by
Borrower or any Restricted Subsidiary of any of its
existing facilities; provided, however, that the aggregate
principal amount of all such Indebtedness incurred on and
subsequent to the Closing Date shall not exceed
$100,000,000, (b) the maintenance, refurbishment or
replacement by Borrower or any Restricted Subsidiary in
the ordinary course of business of assets related to the
gaming business or any related business of Borrower or
any Restricted Subsidiary or (c) the acquisition of slot
machines, gaming tables or other similar gaming
equipment; (vii) Indebtedness under any revolving credit
facility in an aggregate amount of up to $300,000,000;
(viii) Indebtedness incurred to purchase the TEGP
Property or the Jaffe Partnership Interest or to refinance
any Indebtedness of TEGP; (ix) Indebtedness incurred in
respect of any security deposit under the TEGP Lease; (x)
Indebtedness under Currency Agreements or Swap
Agreements (including any Swap Agreements, the purpose
of which is to alter or replace, or lengthen or shorten the
maturity of, any Swap Agreement previously incurred
pursuant to this clause (x)), provided that such Currency
Agreements or Swap Agreements are related to payment
obligations on Indebtedness otherwise permitted by this
Section 6.4; (xi) Indebtedness incurred in respect of
performance bonds, bankers' acceptances, letters of credit
and surety bonds provided by Borrower or any Restricted
Subsidiary in the ordinary course of business; and (xii)
Indebtedness ("Replacement Indebtedness") the proceeds
of which are used to refinance (a) all or a portion of the
Notes, (b) any other permitted Indebtedness of Borrower
and its Restricted Subsidiaries or (c) permitted successor
or replacement Indebtedness, in each case in a principal
amount (or, if such Replacement Indebtedness does not
require Cash payments prior to maturity, with an original
issue price) not to exceed an amount equal to the
aggregate of the principal amount plus any prepayment
penalties, premiums and accrued and unpaid interest on
the Indebtedness so refinanced and customary fees,
expenses and costs related to the incurrence of such
Replacement Indebtedness, provided that, in the case of
this clause (xii), (1) if the Notes are refinanced in part,
such Replacement Indebtedness is expressly made pari
passu or subordinate in right of payment to the remaining
Notes, (2) if the Indebtedness to be refinanced is
subordinate in right of payment to the Notes, such
Replacement Indebtedness is subordinate in right of
payment to the Notes at least to the extent that the
Indebtedness to be refinanced is subordinate to the Notes,
(3) if the Indebtedness to be refinanced is pari passu in
right of payment to the Notes, such Replacement
Indebtedness is pari passu or subordinate in right of
payment to the Notes at least to the extent that the
Indebtedness to be refinanced is pari passu to the Notes
and (4) if the Notes are refinanced in part or if the
Indebtedness to be refinanced is subordinate in right of
payment to the Notes and scheduled to mature after the
maturity date of the Notes, such Replacement
Indebtedness determined as of the date of incurrence does
not mature prior to the final scheduled maturity date of the
Notes and the Average Life of such Replacement
Indebtedness is equal to or greater than the Average Life
of the remaining Notes.
6.5 Liens. Create, incur, assume or suffer to exist, any
Lien on or with respect to any of its Property or Capital
Stock, whether now owned or hereafter acquired, or
assign, or permit any Restricted Subsidiary to assign, any
right to receive income, other than: (i) Liens existing as of
the date of this Agreement or arising hereafter pursuant to
the Amended Revolver or this Agreement; (ii) Liens in
favor of Borrower; (iii) Liens securing Indebtedness
(including, without limitation, any obligation, contingent
or otherwise, for borrowed money of any Person secured
by any Lien in respect of Property of Borrower or any
Restricted Subsidiary, even though neither Borrower nor
any Restricted Subsidiary has assumed or become liable
for payment of such obligation) of Borrower or any
Restricted Subsidiary, provided that, with respect to any
Indebtedness that is pari passu with the Notes, the Notes
are secured by Liens equal and ratable to such Liens and,
with respect to Indebtedness that is subordinated to the
Notes, the Notes are secured by Liens that are senior to
such Liens; (iv) Permitted Liens and (v) any Lien on
shares of any equity security or any warrant or option to
purchase an equity security or any security which is
convertible into an equity security issued by Borrower or
any Restricted Subsidiary that holds, directly or indirectly
through a holding company or otherwise, a license under
any Gaming Law of the State of Nevada; provided that
this clause (v) shall apply only so long as the Gaming
Laws of the State of Nevada provide that the creation of
any restriction on the disposition of any of such securities
shall not be effective and, if such Gaming Laws at any
time cease to so provide, then this clause (v) shall be of no
further effect; and provided further that if at any time
Borrower creates or suffers to exist a Lien covering such
securities in favor of the holder of any other Indebtedness,
it will (subject to any approval required under the Gaming
Laws of the State of Nevada) concurrently grant a pari
passu Lien likewise covering such securities in favor of
the Administrative Agent for the benefit of the Lenders.
6.6 Transactions with Affiliates. Enter into any
transaction of any kind with any Affiliate of Borrower
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
Borrower and expressly authorized by a resolution of the
board of directors of Borrower which is approved by a
majority of the directors not having an interest in the
transaction, (c) transactions between or among Borrower
and the Restricted Subsidiaries, and (d) transactions on
overall terms at least as favorable to Borrower or the
Restricted Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal
bargaining power.
6.7 Significant Subsidiaries. Permit any Restricted
Subsidiary that is, as of the Closing Date, a Significant
Subsidiary to cease being a Restricted Subsidiary.
6.8 Amendments to Subordinated Obligations. Amend or
modify any of the subordination provisions contained in
Article Ten of the Existing Indentures (or the definitions
of terms used therein) or in the comparable subordination
provisions of any other indenture, agreement or instrument
evidencing or governing any Subordinated Obligation in
any respect that will or may adversely affect the interests
of the Lenders.
6.9 Amendments to Amended Revolver. Amend or
modify any term or provision of the Amended Revolver
that would (a) shorten the maturity date thereof,
(b) accelerate the scheduled reduction dates of the
commitment thereunder, (c) increase any scheduled
reduction amount thereunder or (d) increase any
mandatory prepayment thereunder.
Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any
Advance remains unpaid or any portion of the
Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the written approval of the
Requisite Lenders) otherwise consents, at Borrower's 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
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 Borrower 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 Borrower) 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 Borrower as fairly presenting the financial
condition, results of operations and cash flows of
Borrower 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;
(b) As soon as practicable, and in any event within
105 days after the end of each Fiscal Year, (i) the
consolidated balance sheet of Borrower 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 Borrower and its
Subsidiaries for such Fiscal Year and (ii) consolidating (in
accordance with past consolidating practices of Borrower)
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
balance sheet and consolidated statements shall be
accompanied by a report of independent public
accountants of recognized standing selected by Borrower
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. Unless such independent public
accountants do not, as a matter of firm policy, generally
provide similar information at the request of their audit
clients, 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 described in Sections 9.1(a), (b), (c), or (f) or, if,
in the opinion of such accountants, any such Default shall
exist, stating the nature and status of such Default;
(c) 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 Borrower by independent accountants in
connection with the accounts or books of Borrower or any
of its Subsidiaries, or any audit of any of them;
(d) 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
Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower
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 7.1;
(e) Such other data and information as from time to
time may be reasonably requested by the Administrative
Agent or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance
remains unpaid or any portion of the Commitment remains
outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to
the Lenders concurrently with the financial statements
required pursuant to Sections 7.1(a) and 7.1(b), a
Compliance Certificate signed by a Senior Officer.
Article 8
CONDITIONS
8.1 Initial Advances. 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) the Global Assignment and Release executed by all
parties thereto;
(2) 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
Borrower;
(3) Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's
Pro Rata Share of the Commitment;
(4) the Confirmation of the Guaranty executed by each
Significant Subsidiary;
(5) the Global Collateral Documents Amendment
executed by Borrower and each Significant Subsidiary
(other than HRN);
(6) such amendments to financing statements on
Form UCC-1 executed by Borrower and each Significant
Subsidiary (other than HRN) with respect to the Global
Collateral Documents Amendment as the Administrative
Agent may request;
(7) Ancillary Collateral Documents, executed by such
Parties as the Administrative Agent specifies;
(8) the Intercreditor Agreement executed by the
Revolver Agent;
(9) with respect to Borrower and each Significant
Subsidiary, such documentation as the Administrative
Agent may require to establish the due organization, valid
existence and good standing of Borrower and each such
Subsidiary, 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;
(10) the Opinions of Counsel;
(11) assurances from the Title Company that it is
prepared to issue such endorsements to the existing ALTA
lender's policies insuring the Lien of the Deeds of Trust as
may be reasonably requested by the Administrative Agent,
subject only to such exceptions as are reasonably
acceptable to the Administrative Agent, and with such
assurances as the Administrative Agent may reasonably
require from title re-insurers acceptable to the
Administrative Agent;
(12) such assurances as the Administrative Agent deems
appropriate that the relevant Gaming Boards have
approved the transactions contemplated by the Loan
Documents to the extent that such approval is required by
applicable Gaming Laws;
(13) written evidence that the Supplemental Loan
Agreement has been or will be concurrently terminated
and all Liens securing such facility have been or will be
concurrently released;
(14) a Certificate of a Responsible Official certifying
that incurrence by Borrower of the Obligations will not
violate the Existing 11% Subordinated Debt Indenture or
the Existing 13 3/4% Subordinated Debt Indenture;
(15) a Certificate of a Responsible Official signed by a
Senior Officer of Borrower certifying that the conditions
specified in Sections 8.1(g) and 8.1(h) have been satisfied;
and
(16) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent
reasonably may require.
(b) The arrangement fee payable pursuant to
Section 3.2 shall have been paid.
(c) The upfront fees payable pursuant to Section 3.3
shall have been paid.
(d) Any agency fees payable on the Closing Date
pursuant to Section 3.4 shall have been paid.
(e) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation
of the Loan Documents payable pursuant to Section 11.3,
and invoiced to Borrower prior to the Closing Date, shall
have been paid.
(f) Borrower shall have delivered to the trustees under
the Existing Indentures a written statement designating the
Obligations as "Designated Senior Indebtedness" under
such Indentures.
(g) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(h) Borrower 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.
(i) All legal matters relating to the Loan Documents
shall be satisfactory to Sheppard, Mullin, Richter &
Hampton LLP, special counsel to the Administrative Agent.
(j) The Closing Date shall have occurred on or before
June 12, 1998.
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON
EVENT OF DEFAULT
9.1 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) Borrower fails to pay any principal on any of the
Notes, or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under Section 3.6, or any portion
thereof, within five (5) 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) Borrower fails to comply with any of the covenants
contained in Article 6; or
(d) Borrower, any of the Significant Subsidiaries or
any other Party fails to perform or observe any other
covenant or agreement (not specified in clause (a), (b) or
(c) above) contained in any Loan Document on its part to
be performed or observed within ten (10) Banking Days
after the giving of notice by the Administrative Agent on
behalf of the Requisite Lenders of such Default; or
(e) Any representation or warranty of Borrower or any
of the Significant Subsidiaries made in any Loan
Document, or in any certificate or other writing delivered
by Borrower or such Significant Subsidiary 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
(f) Borrower or any of the Restricted Subsidiaries
(i) fails to pay the principal, or any principal installment,
of any present or future indebtedness (including the
Amended Revolver) for borrowed money of $25,000,000
or more, or any guaranty of present or future indebtedness
for borrowed money of $25,000,000 or more, 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 (including the Amended Revolver)
for borrowed money of $25,000,000 or more, or of any
guaranty of present or future indebtedness for borrowed
money of $25,000,000 or more, 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
Borrower or any Restricted Subsidiary to redeem or
purchase, or offer to redeem or purchase, all or any
portion of such indebtedness and any such failure to pay,
perform or observe described in clauses (i) or (ii) above
continues (without cure or waiver by the holders of such
indebtedness) for a period of thirty (30) days; or
(g) 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
(h) Any Loan Document, 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 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, in any such event
in the reasonable opinion of the Requisite Lenders, is
materially adverse to the interests of the Lenders; or any
Party thereto denies in writing that it has any or further
liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind same; or
(i) A final judgment against any of Borrower or any of
the Restricted Subsidiaries is entered for the payment of
money in excess of $1,000,000 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
(j) Borrower or any of the Significant Subsidiaries
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 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
(k) The occurrence of an Event of Default (as such
term is or may hereafter be specifically defined in any
other Loan Document) under any other Loan Document;
or
(l) 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
(m) Any Pension Plan maintained by Borrower or any
of its Restricted Subsidiaries is determined to have a
material "accumulated funding deficiency" as that term is
defined in Section 302 of ERISA and the result is a
Material Adverse Effect; or
(n) The occurrence of a License Revocation that
continues for three (3) consecutive calendar days affecting
gaming operations accounting for five percent (5%) or
more of the consolidated gross revenues of Borrower and
the Restricted Subsidiaries.
9.2 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 9.1(j): 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 Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(j): 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 Borrower.
(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 Borrower, which are
expressly waived by Borrower (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 Borrower and
any other Party and such other rights 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 Obligations owed to each
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. Regardless of how each Lender may treat
payments for the purpose of its own accounting, for the
purpose of computing Borrower's Obligations hereunder
and under the Notes, payments 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 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. Amounts due to a Lender under a Secured
Swap Agreement shall be considered a principal amount
for purposes of the preceding sentence. No application of
payments 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.
Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section
10.8, each Lender hereby irrevocably appoints and
authorizes the Administrative Agent to take such action as
agent on its behalf (including execution and delivery of
the Intercreditor Agreement) 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.
10.2 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 National Trust and
Savings Association in its individual capacity. Bank of
America National Trust and Savings Association (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
Borrower, any Subsidiary thereof, or any Affiliate of
Borrower 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 National Trust
and Savings Association (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.
10.3 Proportionate Interest in any Collateral. The
Collateral Agent, on behalf of the Lenders and the
Revolver Lenders, shall hold in accordance with the
Intercreditor Agreement and the Loan Documents all items
comprising the Collateral. 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 9.2(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.
10.4 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 Borrower 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.
10.5 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 Borrower 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 11.2), 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, and except that if the Requisite
Lenders (or all the Lenders, if required under
Section 11.2) 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 11.2), notwithstanding any other provision hereof.
10.6 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 Borrower and/or its
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 Borrower or its
Subsidiaries of any of the terms, conditions or covenants
of any of the Loan Documents or to inspect any Collateral
or the Property, books or records of Borrower or their
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 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
Borrower 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) Borrower and/or its
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.
10.7 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
and its 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, without limitation, 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
Borrower 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 Borrower or any other Party is required by
Section 11.3 to pay that cost or expense but fails to do so
upon demand. Nothing in this Section 10.7 shall entitle
the Administrative Agent to recover any amount from the
Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any of its
Subsidiaries. To the extent that the Administrative Agent
is later reimbursed such cost or expense by Borrower or
any of its Subsidiaries, it shall return the amounts paid to
it by the Lenders in respect of such cost or expense.
10.8 Successor Administrative Agent. The
Administrative Agent may, and at the request of the
Requisite Lenders shall, resign as Administrative Agent
upon thirty (30) days' notice to the Lenders and Borrower.
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 Borrower (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
Borrower, 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 10,
and Sections 11.3, 11.11 and 11.22, 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.
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 11.3, 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.
10.9 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 Collateral Agent (or
an Affiliate or designee thereof) pro rata for the benefit of
the Lenders and the Revolver Lenders in accordance with
the Intercreditor Agreement and shall be administered in
accordance with the standard form of collateral holding
participation agreement used by the Collateral Agent in
comparable syndicated credit facilities.
10.10 No Obligations of Borrower. Nothing contained in
this Article 10 shall be deemed to impose upon Borrower
any obligation in respect of the due and punctual
performance by the Administrative Agent of its
obligations to the Lenders under any provision of this
Agreement, and Borrower 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 Borrower to the
Administrative Agent for the account of the Lenders,
Borrower's 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.
Article 11
MISCELLANEOUS
11.1 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 8 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 or Letter of
Credit without prejudicing the Administrative Agent's or
the Lenders' rights to assert them in whole or in part in
respect of any other Loan.
11.2 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 Borrower or any other
Party therefrom, shall 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 the Borrower or any
Significant Subsidiary is a Party, signed by each such
Party, and, in the case of any amendment, modification or
supplement to Article 10, 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
fee or amount payable to any Lender under the Loan
Documents or to waive an Event of Default consisting of
the failure of Borrower to pay when due principal, interest
or any 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 fee, or to
extend the term of the Commitment, or to release the
Subsidiary Guaranty (except with respect to any
Significant Subsidiary which is the subject of a
Disposition permitted hereunder);
(c) to release any material portion of the Collateral
except (i) as expressly provided for in Sections 11.25,
11.26 and 11.27 , (ii) as otherwise expressly provided for
in any Loan Document;
(d) To amend the provisions of the definition of
"Requisite Lenders", Articles 8 or 9 or this Section 11.2,
or
(e) 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 11.2 shall apply
equally to, and shall be binding upon, all the Lenders and
the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrower 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. Borrower 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 the Lenders (as
a group), independent public accountants and other
outside experts retained by the Administrative Agent or
the Lenders (as a group), whether or not such costs and
expenses are incurred or suffered by the Administrative
Agent or the Lenders (as a group) in connection with or
during the course of any bankruptcy or insolvency
proceedings of Borrower 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
Borrower, the administrative costs of the Administrative
Agent reasonably attributable thereto. Borrower 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, gross income or gross receipts and
franchise taxes 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", (ii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to
any change in any law, rule or regulation or any change in
the interpretation or administration of any law, rule or
regulation by any Governmental Agency) or (iii) 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 Borrower
with the appropriate form or forms required by
Section 11.21, 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 11.11 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 11.3 shall bear
interest from the second Banking Day following the date
of demand for payment at the Default Rate.
11.4 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 Borrower or any Affiliate of any of Borrower. 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 Borrower, to replace
such a Lender in default.
11.5 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.
11.6 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 11.6. Except as otherwise
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.
11.7 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.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to
which Borrower is a Party will be binding upon and inure
to the benefit of Borrower, the Administrative Agent, each
of the Lenders, and their respective successors and
assigns, except that, except as permitted in Section 6.3,
Borrower may not assign its rights hereunder or
thereunder or any interest herein or therein without the
prior written consent of all the Lenders. 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.
(b) From time to time following the Closing Date, each
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 the assigning
Lender, shall be approved by the Administrative Agent
and Borrower (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 $3,000,000 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. For
purposes of this Section 11.8, a "Related Fund" shall
mean, with respect to any Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans
which is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such
investment advisor. 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.
Borrower agrees that it shall execute and deliver (against
delivery by the assigning Lender to Borrower 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 Borrower or the performance by Borrower 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 7.1 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 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
Borrower 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 Borrower
and the Lenders a revised Schedule 1.1 giving effect
thereto. Borrower, 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's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating
lenders or other financial institutions shall not be a Lender
hereunder for any purpose except, if the participation
agreement so provides, for the purposes of Sections 3.5,
3.6, 11.11 and 11.22 but only to the extent that the cost of
such benefits to Borrower do not exceed the cost which
Borrower would have incurred in respect of such Lender
absent the participation, (iv) Borrower, 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,
(v) 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
(vi) 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 any material
portion of the Collateral (except as otherwise expressly
provided for in any Loan Document).
(f) Notwithstanding anything in this Section 11.8 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.
11.9 Right of Setoff. If an Event of Default has occurred
and is continuing, the Administrative Agent may exercise
its rights under Article 9 of the Uniform Commercial Code
and other applicable Laws and the Administrative Agent
or any Lender may (but only with the consent of the
Requisite Lenders) to the extent permitted by applicable
Laws, apply any funds in any deposit account maintained
with it by Borrower and/or any Property of Borrower in its
possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees
that if it, through the exercise of any right of setoff,
banker's lien or counterclaim against Borrower, 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
the other Lender a participation in the Obligations held by
the other Lender and shall pay to the other Lender 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 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 Borrower or any Person claiming
through or succeeding to the rights of Borrower, 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 11.10 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. Borrower 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.
11.11 Indemnity by Borrower. Borrower agrees to
indemnify, save and hold harmless the Administrative
Agent and each Lender and their 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 Borrower, its Affiliates or any
of its officers, directors or stockholders relating to the
Commitment, the use or contemplated use of proceeds of
any Loan, or the relationship of Borrower 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
Borrower, but the failure to so promptly notify Borrower
shall not affect Borrower's obligations under this Section
unless such failure materially prejudices Borrower's rights
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 Borrower in
writing) contest the validity, applicability and amount of
such claim, demand, action or cause of action and shall
permit Borrower to participate in such contest. Any
Indemnitee that proposes to settle or compromise any
claim or proceeding for which Borrower may be liable for
payment of indemnity hereunder shall give Borrower
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
Borrower's 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 11.11 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 Borrower; 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 Indemnitee shall be
entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to
Borrower, 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 Borrower to any Indemnitee
under this Section 11.11 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.
11.12 Nonliability of the Lenders. Borrower
acknowledges and agrees that:
(a) Any inspections of any Property of Borrower made
by or through the Administrative Agent or the Lenders are
for purposes of administration of the Loan only and
Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(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 Borrower and the
Administrative Agent and the Lenders is, and shall at all
times remain, solely that of Borrower and the Lenders;
neither the Administrative Agent nor the Lenders shall
under any circumstance be construed to be partners or
joint venturers of Borrower or its 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
Borrower or its Affiliates, or to owe any fiduciary duty to
Borrower or its Affiliates; neither the Administrative
Agent nor the Lenders undertake or assume any
responsibility or duty to Borrower or its Affiliates to
select, review, inspect, supervise, pass judgment upon or
inform Borrower or its Affiliates of any matter in
connection with their Property or the operations of
Borrower or its Affiliates; Borrower and its 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
Borrower 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 Borrower and/or its
Affiliates and Borrower hereby indemnifies and holds the
Administrative Agent and the Lenders harmless on the
terms set forth in Section 11.11 from any such loss,
damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is
made for the purpose of defining and setting forth certain
obligations, rights and duties of Borrower, the
Administrative Agent and the Lenders in connection with
the Loans, and is made for the sole benefit of Borrower,
the Administrative Agent and the Lenders, and the
Administrative Agent's and the Lenders' successors and
assigns. Except as provided in Sections 11.8 and 11.11,
no other Person shall have any rights of any nature
hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from
Borrower pursuant to this Agreement in confidence,
except for disclosure: (a) to an Affiliate of that Lender
provided that the recipient has accepted such information
subject to a confidentiality agreement substantially similar
to this Section 11.14, (b) to other Lenders; (c) to legal
counsel and accountants for Borrower or any Lender;
(d) to other professional advisors to Borrower or any
Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement
substantially similar to this Section 11.14; (e) to regulatory
officials having jurisdiction over that Lender; (f) to any
Gaming Board having regulatory jurisdiction over
Borrower or its Subsidiaries, provided that each Lender
agrees to use its best efforts to notify Borrower of any
such disclosure unless prohibited by applicable Laws;
(g) as required by Law or legal process or in connection
with any legal proceeding to which that Lender and
Borrower are adverse parties; and (h) 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 11.14. For purposes
of the foregoing, "confidential information" shall mean
any information respecting Borrower or its Subsidiaries
reasonably considered by Borrower 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
Borrower to any Person not associated with Borrower
without a confidentiality agreement or obligation
substantially similar to this Section 11.14. 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 Borrower.
11.15 Further Assurances. Borrower and the Significant
Subsidiaries 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 Loan Document.
11.16 Integration. This Agreement, together with the
other Loan Documents and the letter agreements referred
to in Sections 3.2, 3.3 and 3.4, 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.
11.17 Governing Law. Except to the extent otherwise
provided therein, each Loan Document shall be governed
by, and construed and enforced in accordance with, the
local Laws of California.
11.18 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
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.
11.19 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.
11.20 Time of the Essence. Time is of the essence of the
Loan Documents.
11.21 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 Borrower (with a copy to the Administrative Agent),
within twenty (20) days after the Closing Date (or after
accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, 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 Borrower
pursuant to this Agreement) or Form 4224 (relating to all
payments to be made to such Lender by the Borrower
pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if
reasonably necessary, Form W-9) satisfactory to Borrower
and the Administrative Agent that no withholding under
the federal income tax laws is required with respect to
such Lender; provided that it is expressly acknowledged
and agreed that a Lender that is not a "bank" for purposes
of Section 881(c) of the Code and that is claiming
exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest" may, for purposes of
satisfying the foregoing requirement, deliver a Form W-8,
or any subsequent versions thereof or successors thereto
(and, if such Lender delivers a Form W-8, a certificate
representing that such 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 Borrower and is not a controlled foreign
corporation related to Borrower (within the meaning of
Section 864(d)(4) of the Code)). Thereafter and from time
to time, each such Lender shall (a) promptly submit to
Borrower (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 Borrower 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 Borrower 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 Borrower makes any deduction or
withholding for taxes from amounts payable to such
Lender. In the event that Borrower or the Administrative
Agent become aware that a participation has been granted
pursuant to Section 11.8(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 Borrower 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 Borrower and the
Administrative Agent as would be required under this
Section if such financial institution were a Lender.
11.22 Hazardous Material Indemnity. Borrower 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 Borrower), 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 Borrower or any of its
predecessors in title, whether prior to or during the term of
this Agreement, and whether by Borrower or any
predecessor in title or any employees, agents, contractors
or subcontractors of Borrower 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.
Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or
any of the other Loan Documents to the contrary, the
obligations of Borrower under this Section (and under
Sections 4.18 and 5.14) shall be unlimited corporate
obligations of Borrower and shall not be secured by any
deed of trust on any Real Property. Any obligation or
liability of Borrower to any Indemnitee under this
Section 11.22 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.
11.23 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 Borrower and its Subsidiaries,
including the provision of such documents or other
information as may be requested by any such Gaming
Board relating to Borrower or any of its Subsidiaries or to
the Loan Documents.
11.24 Removal of a Lender. Borrower shall have the
right to remove a Lender as a party to this Agreement in
accordance with this Section (a) under the circumstances
set forth in Sections 3.5, 3.6 and 3.10(d) or if any
participant permitted by Section 11.8(e) with respect to
such Lender makes a claim for payment under any of such
Sections and (b) if such Lender is the subject of a Lender
Disqualification provided that no Default or Event of
Default then exists. If Borrower is so entitled to remove a
Lender pursuant to this Section, upon notice from
Borrower, the Lender being removed shall execute and
deliver a Commitment Assignment and Acceptance
covering that Lender's Pro Rata Share of the Commitment
in favor of one or more Eligible Assignees designated by
Borrower (and acceptable to the Administrative Agent,
which acceptance shall not be unreasonably delayed or
withheld), subject to payment of a purchase price by such
Eligible Assignee equal to all principal and accrued
interest, fees and other amounts payable to such Lender
under this Agreement through the date of assignment.
11.25 Release of Tropicana Collateral. In the event that
the Jaffe Transaction is effected such that, pursuant to
Section 5.10, the TEGP Property becomes subject to the
Lien of the Collateral Documents, such Lien may be
released (so long as no Event of Default then exists under
this Agreement or the Amended Revolver) with the written
approval of (a) the Requisite Lenders and (b) the Requisite
Lenders under the Amended Revolver.
11.26 Termination; Release of Liens. Upon (a) the
expiration or termination of the Commitment, (b) the full
and final payment in Cash of the Loans, all interest and
fees with respect thereto, (c) the payment of all amounts
then demanded by any Lender or indemnitee under
Sections 3.5, 3.6, 11.11 and 11.22 and (d) the payment of
all other amounts then due under the Loan Documents, the
Administrative Agent is hereby authorized by the Lenders
to, and the Administrative Agent shall, upon the request of
Borrower, execute and deliver to Borrower discharges
from further compliance with the covenants contained in
Articles 5, 6 and 7 and releases of the Liens created by the
Collateral Documents, and shall return any Property
pledged to the Administrative Agent as Collateral for the
Obligations, notwithstanding the survival of any
provisions of this Agreement herein provided for.
11.27 Other Lien Releases. In addition to the provisions
of Section 11.25, each of the Lenders hereby authorizes
the Administrative Agent to, and the Administrative Agent
shall, release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) sold,
transferred or otherwise disposed of in connection with
any transaction not prohibited by the Loan Documents,
(ii) constituting Property leased to Borrower or its
Subsidiaries under a lease which has expired or been
terminated in a transaction not prohibited by the Loan
Documents or which will concurrently expire and which
has not been, and is not intended by Borrower or the
relevant Subsidiary to be, renewed or extended,
(iii) consisting of an instrument, if the Indebtedness
evidenced by such instrument has been finally repaid in
full and (iv) if approved or consented to by those of the
Lenders required by Section 11.2 or Section 11.25. If the
Collateral so released consists of capital stock of a
Significant Subsidiary, then the Administrative Agent shall
concurrently also release such Significant Subsidiary from
its obligations under the Subsidiary Guaranty. Upon the
request of the Administrative Agent, each Lender shall
promptly provide written confirmation of the authority of
the Administrative Agent to release such Liens upon any
one or more items of Collateral under this Section.
11.28 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.
11.29 Purported Oral Amendments. BORROWER
EXPRESSLY ACKNOWLEDGES THAT THIS
AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR
THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH
SECTION 11.2. BORROWER AGREES THAT IT 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 11.2 TO EFFECT AN
AMENDMENT, MODIFICATION, WAIVER OR
SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
above written.
AZTAR CORPORATION
By: NEIL A. CIARFALIA
Neil A. Ciarfalia
Treasurer
Address:
Aztar Corporation
2390 East Camelback Road
Suite 400
Phoenix, Arizona 85016
Attn: Neil A. Ciarfalia
Treasurer
Telecopier: (602) 381-4108
Telephone: (602) 381-4113
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
By: JANICE HAMMOND
Janice Hammond
Vice President
Address:
Bank of America National Trust and Savings Association
555 South Flower Street, 11th Floor, #20529
Los Angeles, California 90071
Attn: Janice Hammond, Vice President
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: FRANCIS GRIFFIN
Francis Griffin
Attorney-In-Fact
Address:
Bank of America National Trust and Savings Association
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Attn: Francis Griffin
Telecopier: (312) 828-7448
Telephone: (312) 828-8244
With a copy to:
Bank of America National Trust and Savings Association
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Attn: Catherine Beard
Telecopier: (312) 828-7448
Telephone: (312) 828-6389
ARCHIMEDES FUNDING, L.L.C., as a Lender
By: ING Capital Advisors, Inc., as Collateral Manager
By MICHAEL D. HATLEY
Michael D. Hatley
Senior Vice President
Address:
Archimedes Funding, L.L.C.
c/o ING Capital Advisors, Inc.
333 South Grand Avenue, suite 4250
Los Angeles, California 90071
Attn: Mike Hatley, Vice President and Portfolio Manager
Telecopier: (213) 346-3972
Telephone: (213) 346-3995
DEEPROCK & COMPANY, as a Lender
By: Eaton Vance Management,
as Investment Advisor
By PAYSON F. SWAFFIELD
Payson F. Swaffield
Vice President
[Printed Name and Title]
Address:
State Street Bank & Trust Company
Corporate Trust Division
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Patrick McEnroe
Telecopier: (617) 664-5366 or (617) 664-5367
Telephone: (617) 664-5407
and
Eaton Vance Management
Attention: Prime Rate Reserves
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Telecopier: (617) 695-9594
Telephone: (617) 348-0115
EXHIBIT A
COMMITMENT ASSIGNMENT AND ACCEPTANCE
This COMMITMENT ASSIGNMENT AND
ACCEPTANCE ("Assignment") dated as of ____________, ____ is made
with reference to that certain Term Loan Agreement dated as of May 28, 1998
(as amended, extended, renewed, supplemented or otherwise modified from
time to time, the "Loan Agreement") by and among Aztar Corporation, a
Delaware corporation, ("Borrower"), the lenders from time to time party
thereto (the "Lenders"), and Bank of America National Trust and Savings
Association, as Administrative Agent for itself and for the Lenders.
This Assignment is entered into between
_________________________, the "Assignor" in its capacity as a Lender
under the Loan Agreement and ____________________________, the
"Assignee." The Assignor and Assignee hereby represent, warrant and agree
as follows:
1. Definitions. Capitalized terms used but otherwise not
defined herein shall have the respective meanings assigned to them in
the Loan Agreement. In addition, as used in this Assignment, the
following capitalized terms shall have the meanings set forth below:
"Assigned Pro Rata Share" means that interest in and to all
the Assignor's rights and obligations under the Loan Agreement as of
the date hereof which represents the percentage interest specified in
Item 2 of Schedule A to this Assignment.
"Effective Date" means the effective date of this Assignment
as determined in accordance with Section 10 of this Assignment.
2. Representations and Warranties of the Assignor. The
Assignor represents and warrants as follows:
(a) The Assignor is the legal and beneficial
owner of the Assigned Pro Rata Share. The Assigned Pro Rata Share
is free and clear of any adverse claim.
(b) The Assignor has full power and
authority, and has taken all action necessary, to execute and deliver
this Assignment and any and all other documents required to be executed
by it in connection with this Assignment and to fulfill its obligations
under, and to consummate the transactions contemplated by this Assignment,
and no governmental authorizations or other authorizations are required
in connection herewith.
(c) This Assignment constitutes the legal,
valid and binding obligation of the Assignor.
(d) The Assignor makes no representation or
warranty other than those expressly set forth above and assumes no
responsibility with respect to the financial condition of the Borrower
or its Subsidiaries or the performance by Borrower or its Subsidiaries
of its obligations under the Loan Agreement and the other Loan Documents,
and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with the Loan Agreement or
the execution, legality, validity, enforceability, genuineness, or
sufficiency the Loan Agreement or any other Loan Document referred to
therein.
3. Representations and Warranties of the Assignee. The
Assignee represents and warrants as follows:
(a) The Assignee has full power and
authority, and has taken all action necessary, to execute and deliver
this Assignment and any and all other documents required to be executed
by it in connection with this Assignment and to fulfill its obligations
under, and to consummate the transactions contemplated by this Assignment,
and no governmental authorizations or other authorizations are required
in connection herewith.
(b) The Assignee has independently and
without reliance upon the Administrative Agent or the Assignor and based on
such documents and information as the Assignee has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment.
The Assignee will, independently and without reliance upon the Administrative
Agent or any Lender, and based upon 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 the Loan Agreement.
(c) The Assignee has received copies of the
Loan Agreement together with copies of the financial statements referred to
therein and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment.
(d) The Assignee is an Eligible Assignee.
(e) The Assignee will perform in accordance
with their respective terms all of the obligations which, by the terms of the
Loan Agreement, are required to be performed by it as a Lender.
(f) This Assignment constitutes the legal,
valid and binding obligation of the Assignor.
4. Assignment. On the terms set forth herein, the Assignor, as
of the Effective Date, hereby irrevocably sells, and assigns and transfers
to the Assignee all of the rights and obligations of the Assignor under
the Loan Agreement, the other Loan Documents and Assignor's Note to the
extent of the Assigned Pro Rata Share, and the Assignee irrevocably accepts
such assignment of the rights and assumes such obligations from the
Assignor on such terms as of the Effective Date. As of the Effective Date,
the Assignee shall have the rights and obligations of a "Lender" under the
Loan Documents, and the Assignor shall to the extent provided in this
Assignment relinquish such rights and interest and be released from such
liabilities, duties and obligations under the Loan Documents . The Assignee
hereby appoints and authorizes the Administrative Agent, to take such action
and to exercise such powers as delegated to the Administrative Agent as
are delegated by the Loan Agreement.
5. Payments.
(a) As of the Effective Date, the Assignee
shall pay to the Assignor, in immediately available funds, an amount equal
to the outstanding indebtedness owed to it by the Borrower under the Loan
Agreement with respect to the Assigned Pro Rata Share.
(b) From and after the Effective Date, the
Administrative Agent shall make all payments under the Loan Agreement in
respect of the Assigned Pro Rata Share (including without limitation, all
payments of principal, interest and fees, if applicable, with respect to
thereto) to the Assignee. The Assignee and the Assignor shall make all
appropriate adjustments in payments under the Loan Agreement for periods
prior to the Effective Date between themselves.
6. Notes. The Assignor and the Assignee shall make
appropriate arrangements with the Borrower concurrently with the execution
and delivery hereof so that a replacement or a new Note are issued to the
Assignor and the Assignee as applicable reflecting their respective Pro Rata
Share.
7. Notices. All communications among the parties or notices
in connection herewith shall be in writing and may be hand delivered,
telexed, sent by telecopy, U.S. mail or courier service, to the notice
address as set forth on the signature pages hereof.
8. Counterparts. The Assignment may be executed in any
number of counterparts as by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute
but one and the same instrument.
9. Governing Law. THIS ASSIGNMENT SHALL BE
DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REFERENCE TO THE PROVISIONS THEREOF
REGARDING CONFLICTS OF LAW.
10. Effective Date. This Assignment shall become effective on
the date (the "Effective Date") upon which all of the following
conditions are satisfied, provided that for all purposes hereof,
the term "Settlement Date" (as used in Schedule "A" hereto) means
the later of (i) the Settlement Date referred to in Schedule A and
(ii) the Effective Date: (i) the execution of a counterpart hereof
by each of the Assignor and the Assignee; (ii) the execution of a
counterpart hereof by the Borrower and the Administrative Agent as
evidence of their consent hereto to the extent required under
Section 11.8(b) of the Loan Agreement; (iii) the receipt by the
Administrative Agent of the processing and recordation fee referred
to in Section 11.8 of the Loan Agreement; (iv) the Assignee shall
have been (or shall be deemed to have been) recorded in the Register
as provided in Section 11.8(d) of the Loan Agreement; (v) in the
event the Assignee is a not a United States person, the delivery by
the Assignee to the Administrative Agent of such forms, certificates
or other evidence with respect to United States federal income tax
withholding matters as the Assignee may be required to deliver to the
Administrative Agent pursuant to Section 11.21 of the Loan Agreement,
and (vi) the receipt by the Administrative Agent of originals or
telecopies of the counterparts described above and authorization of
delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this agreement to be executed and delivered by their respective officials,
officers or agents thereunto duly authorized, such execution being made as
of the Effective Date in the applicable spaces provided on Schedule A.
SCHEDULE A
TO THE COMMITMENT ASSIGNMENT AND
ACCEPTANCE
1. Name and Date of Loan Agreement: Term
Loan Agreement dated as of May ___, 1998.
2. Assigned Portions:
Term
Loan Commitment
(a) Aggregate Commitments/Loans of All Lenders
$______________
(b) Assigned Pro Rata Share ________%
(c) Amount of Assigned Pro Rata Share $______________
3. Settlement Date: _______________, ______
4. Payment Instructions:
ASSIGNOR: ASSIGNEE:
________________________ _______________________
________________________ _______________________
________________________ _______________________
Attn:_________________ Attn:________________
Ref: _________________ Ref: ________________
5. Notice Address:
ASSIGNOR: ASSIGNEE:
________________________ _______________________
________________________ _______________________
________________________ _______________________
Attn:________________ Attn:________________
Ref: ________________ Ref: ________________
Tel: ________________ Tel: ________________
Fax: ________________ Fax: ________________
6. SIGNATURES:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
as ASSIGNOR as ASSIGNEE
By: _____________________ By: ____________________
_____________________ ____________________
Printed Name & Title Printed Name & Title
Consented to in accordance
with Section 11.8 of the
Loan Agreement
AZTAR CORPORATION,
a Delaware corporation
By: _____________________
_____________________
Printed Name & Title
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: ________________________
________________________
Printed Name & Title
EXHIBIT B
COMPLIANCE CERTIFICATE
TO: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative
Agent
Reference is made to that certain Term Loan
Agreement (the "Loan Agreement") dated as of May 28,
1998, by and among Aztar Corporation, a Delaware
corporation ("Borrower"), the Lenders therein named, and
Bank of America National Trust and Savings Association,
as Administrative Agent for itself and the Lenders.
Capitalized terms defined in the Loan Agreement and not
otherwise defined herein shall have the meanings given
them in the Loan Agreement.
This Certificate ("Compliance Certificate")
is delivered in accordance with Section 7.2 of the Loan
Agreement by a Senior Officer of Borrower. This
Certificate is delivered with respect to the Fiscal Quarter
ended ______________, _____ (the "Test Fiscal
Quarter").
I. A review of the activities of Borrower and its
Subsidiaries during the fiscal period covered by this
Certificate has been made under the supervision of the
undersigned with a view to determining whether during
such fiscal period Borrower and its Restricted Subsidiaries
performed and observed all of their respective Obligations.
To the best knowledge of the undersigned, during the
fiscal period covered by this Certificate, all covenants and
conditions have been so performed and observed and no
Default or Event of Default has occurred and is
continuing, with the exceptions set forth below in
response to which Borrower and the Restricted
Subsidiaries have taken or propose to take the following
actions (if none, so state).
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_____________________________________________
II. The undersigned Senior Officer of Borrower
certifies that the information contained herein is derived
from the books and records of Borrower and its
Subsidiaries, as applicable, and that each and every matter
contained herein correctly reflects those books and
records.
III. To the best knowledge of the undersigned no event
or circumstance has occurred that constitutes a Material
Adverse Effect since the date the most recent Compliance
Certificate was executed and delivered, with the
exceptions set forth below (if none, so state).
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_____________________________________________
Dated: _______________, _____
_______________________________________
_______________________________________
[Printed Name and Title of
Senior
Officer of Aztar
Corporation]
EXHIBIT G
PROMISSORY NOTE
$_______________ May ___, 1998
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of _____________________________________________ (the
"Lender"), the principal amount of
_____________________________________________________ AND
NO/100 DOLLARS ($_________________), payable as hereinafter set forth.
The undersigned promises to pay interest on the principal amount hereof
remaining unpaid from time to time from the date hereof until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Term Loan Agreement dated as of May
___, 1998, by and among the undersigned, as Borrower, the Lenders which are
parties thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent for the Lenders (as amended, extended, renewed,
supplemented or otherwise modified from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings given those terms in the Loan
Agreement. This is one of the Notes referred to in the Loan Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as
it may from time to time be supplemented, modified or amended. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms
and conditions therein specified.
The principal indebtedness evidenced by this Note shall be
payable in installments as provided in the Loan Agreement and in any
event on June 30, 2005.
Interest shall be payable on the outstanding daily unpaid
principal amount of the Advance from the date thereof until payment in
full and shall accrue and be payable at the rates and on the dates set
forth in the Loan Agreement both before and after default and before and
after maturity and judgment, with interest on overdue principal and
interest to bear interest at the rate set forth in Section 3.7 of the
Loan Agreement, to the fullest extent permitted by applicable Law.
Each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office for the account of the Lender in
immediately available funds not later than 11:00 a.m. (San Francisco time)
on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (San Francisco time) on any particular Banking Day shall be
deemed received on the next succeeding Banking Day. All payments shall be
made in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of payments
of principal and interest received by it with respect to this Note, and such
record shall be presumptive evidence of the amounts owing under this Note.
The undersigned hereby promises to pay all costs and expenses
of any rightful holder hereof incurred in collecting the undersigned's
obligations hereunder or in enforcing or attempting to enforce any of such
holder's rights hereunder, including reasonable attorneys' fees and
disbursements, whether or not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for
payment, dishonor, notice of dishonor, protest, notice of protest and any
other notice or formality, to the fullest extent permitted by applicable
Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED
BY THE LENDER, OR BY THE ADMINISTRATIVE AGENT ON ITS
BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LOCAL LAWS THEREOF.
AZTAR CORPORATION,
a Delaware
corporation
By:__________________________
Neil A. Ciarfalia
Treasurer
SCHEDULE OF ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Interest Amount of Unpaid Notation
Period Principal Principal Made by
Paid Balance
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
AMENDMENT NO. 1 TO LOAN AGREEMENT
This Amendment No. 1 to Loan Agreement (this
"Amendment"), dated as of May 28, 1998 is entered into with
reference to the Second Amended and Restated Loan Agreement
dated as of October 4, 1994, among Tropicana Enterprises, a
Nevada general partnership ("Borrower"), Hotel Ramada of
Nevada, a Nevada corporation ("HRN"), the Banks, Lead
Managers, Co-Agents, and Co-Managing Agent referred to therein,
and Bank of America National Trust and Savings Association, as
Managing Agent (the "Loan Agreement"). Capitalized terms used
but not defined herein have the meanings set forth for those
terms in the Loan Agreement.
Borrower, HRN, and the Administrative Agent, acting
with the consent of the Banks under the Loan Agreement, hereby
agree as follows:
1.Titles. It is hereby agreed that Bank of America National
Trust and Savings Association (together with each successor
thereto appointed in accordance with the terms of the Loan
Agreement) shall serve as the administrative agent for the
Banks under the Loan Agreement (in such capacity, the
"Administrative Agent"), and is hereby appointed in that
capacity by each of the Banks. Each reference contained in the
Loan Agreement and the other Loan Documents to the term
"Managing Agent" shall be deemed a reference to the
"Administrative Agent", and Bank of America National Trust and
Savings Association (and each successor) shall be entitled to
exercise each of the powers, shall be subject to all of the
duties, and shall be entitled to all of the indemnities and
exculpations, formerly ascribed to the Managing Agent. Each
reference to the Lead Managers, Co-Agents and Co-Managing Agent
in the Loan Agreement and other Loan Documents shall be deemed
eliminated and, in lieu thereof, reference shall therein be
made to Bankers Trust Company and Societe Generale, as
Documentation Agents, and Bank of Scotland, Credit Lyonnais
Los Angeles Branch and PNC Bank, National Association as Co-
Agents.
2.Definitions. Section 1.1 of the Loan Agreement is hereby
amended so that the following definitions included therein are
amended to read in full as follows:
"Discretionary Notes" means any of the Discretionary
Notes issued by Borrower to a Bank evidencing that
Bank's Pro Rata Share of the Loans, substantially in
the form of Exhibit C-2 hereto.
"Master Note" shall mean the Master Note dated as of
May __, 1998 made by Borrower in favor of the
Administrative Agent to collectively evidence the
Loans made by all of the Banks, substantially in the
form of Exhibit "C-1" hereto, either as originally
executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or
supplanted.
"Notes means, collectively, the Master Note and any
Discretionary Notes, in each case either as
originally executed or as the same may from time to
time be supplemented, modified, amended, renewed,
extended or supplanted.
"Other Loan Agreement" means the Amended and Restated
Reducing Revolving Loan Agreement among Aztar
Corporation, the Lenders therein named, and Bank of
America National Trust and Savings Association, as
Administrative Agent, either as originally executed
or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
It is understood and agreed that the use of the term
"Bank" in the Loan Agreement and the other Loan Documents
shall not infer that present or future members of the
group of Banks are or must be national banks organized
under the National Bank Act, or any other form of
commercial bank.
3.Section 10.3(b) - Assignments. Section 10.3(b) of the Loan
Agreement is hereby amended to read in full as follows (with
emphasis denoting the change from the existing text of the Loan
Agreement):
"(b) From time to time, each Bank may assign
all or any portion of its Note to one or more
Eligible Assignees; provided that (i) such Eligible
Assignee, if not then a Bank or an Affiliate of the
assigning Bank, shall be approved by each of the
Administrative Agent, HRN and Borrower (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 of the assigning Bank,
to another Bank or of the entire Note of the
assigning Bank, the assignment shall not assign a
Pro Rata Share that, when added to the pro rata share
of the obligations under the Other Loan Agreement
being concurrently assigned to the same Eligible
Assignee, is equivalent to less than $10,000,000,
(iv) assignment of a Pro Rata Share must be
concurrent with an assignment to the same Eligible
Assignee of the same pro rata share of the assigning
Bank's pro rata share of the Other Loan Agreement and
(v) 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 Bank for
all purposes of this A/R Loan Agreement, with the Pro
Rata Share of the Commitment therein set forth and,
to the extent of such Pro Rata Share, the assigning
Bank shall be released from its further obligations
under this A/R Loan Agreement. Borrower agrees that
it shall execute and deliver (against delivery by the
assigning Bank to Borrower of its Discretionary Note)
to such assignee Bank, a Discretionary Note
evidencing that assignee Bank's Pro Rata Share of the
Loans, and to the assigning Bank, a Discretionary
Note evidencing the remaining balance Pro Rata Share
retained by the assigning Bank."
4.Section 10.13. A new Section 10.13 is hereby added to the
Loan Agreement, to read as follows:
"Section 10.13 Withdrawal of Jaffe Group.
Notwithstanding anything to the contrary contained in
this Agreement, the Notes or any of the other Loan
Documents, each of the Administrative Agent and the
Banks hereby irrevocably (i) consents to the
acquisition by Aztar Corporation or any Subsidiary of
Aztar Corporation (as the term "Subsidiary" is
defined in the Other Loan Agreement) of the 50%
general partnership interest in the Borrower not
owned by Adamar as of the effective date of this
Amendment and the withdrawal of the Jaffe Group as
partners of Borrower and from the partnership
consisting of Borrower and (ii) acknowledges,
confirms and agrees, without limiting the provisions
of Section 8.16 of this Agreement, Section 25 of the
Master Note and Section 6 of the Discretionary Notes,
that no member of the Jaffe Group has, or after such
acquisition of such partnership interest and such
withdrawal as partners and from the partnership shall
have, any personal liability for any of the Loans or
any other indebtedness, obligations or liabilities at
any time outstanding or arising under this Agreement,
the Notes or any of the other Loan Documents."
5.Cross References to Notes. The cross references set forth in
Section 8.20 of the Loan Agreement to "Sections 8, 9 or 14(c)
of that Bank's Note" shall hereafter be deemed references to
Section 7, 8 and 13(c) of the Master Note.
6.Certain Exhibits. The form of Exhibit C to the Loan
Agreement is hereby replaced with Exhibits C-1 and C-2 to this
Amendment.
7.Master Note and Discretionary Notes. Concurrently with the
execution of this Amendment, Borrower will issue a single
Master Note to the Administrative Agent to collectively
evidence the Loans made by all of the Banks under the Loan
Agreement, and the Master Note will supersede and replace each
of the Notes heretofore issued pursuant to the Loan Agreement.
Each of Banks party to the Loan Agreement as in effect prior to
this Amendment shall surrender its old Note to Borrower within
a reasonable time following the execution of this Amendment,
but the failure of any Bank to so surrender its Note shall not
affect the fact that such old Note has been superseded by the
Master Note. Borrower agrees that it shall promptly issue a
Discretionary Note to each Bank which requests the same from
time to time shall to evidence its Loans under the Loan
Agreement.
8.Confirmation As to Principal Outstanding. Borrower
confirms that, as of the date of this Amendment, the aggregate
principal amount of the outstanding Loans is Sixty-Two Million
Two Hundred Seventy-Eight Thousand Four Hundred Thirty-Three
and 79/100 Dollars ($62,278,433.79).
9.Typographical Errors. The first word in Section 5.23(c) of
the Loan Agreement is corrected to read "Waive." The cross-
references in Section 8.20 of the Loan to "Section 11.25" are
corrected to read "Section 11.24."
10.Representation and Warranty. Borrower and HRN hereby
represent and warrant to the Administrative Agent and each of
the Banks that each of the representations and warranties set
forth in Article 4 of the Loan Agreement (other than those
which expressly relate to a particular date) are true and
correct as of the date hereof, and giving effect to the
transactions contemplated to occur as of the date hereof, and
no Default or Event of Default has occurred and remains
continuing or will result from the execution and delivery of
this Amendment.
11.Conditions Precedent. The following shall be conditions
precedent to the effectiveness of this Amendment:
(a) The Administrative Agent shall have received the
written consent of each of the Banks to its execution and
delivery of this Amendment;
(b) The Jaffe Group shall have executed and
delivered a written reaffirmation of the Subordination
Agreement substantially in the form of Exhibit A hereto;
(c) Borrower shall have issued the Master Note to
the Administrative Agent, and shall have issued
Discretionary Notes to each Bank requesting a
Discretionary Note;
(d) Borrower shall have executed an Amendment to the
Deed of Trust, substantially in the form of Exhibit B
hereto;
(e) The Administrative Agent shall have received a
legal opinion of counsel to Borrower and HRN with respect
to the due authorization, execution and delivery of this
Amendment by Borrower and HRN, the enforceability thereof
and such related matters as the Administrative Agent may
reasonably request;
(f) The Administrative Agent shall have received
such certificates with respect to the authorization of
this Amendment under Borrower's Partnership Agreement as
it may reasonably request;
(g) The Administrative Agent shall have received
such estoppel certificates with respect to the HRN Master
Lease as it may reasonably request;
(h) The Administrative Agent shall have received a
CLTA 110.5 endorsement to its policy of title insurance
assuring the continued priority and perfection of the Deed
of Trust which is in a form acceptable to the
Administrative Agent;
(i) No Default or Event of Default shall have
occurred and remain continuing and the Administrative
Agent shall have received a certificate to that effect
from Borrower; and
(j) A Global Assignment and Release, substantially
in the form of Exhibit D hereto, shall have been executed
by each of the Banks concurrently herewith.
12.Confirmation. In all other respects, the terms of the Loan
Agreement and the other Loan Documents are hereby confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above
written.
"Borrower"
TROPICANA ENTERPRISES, a Nevada
general partnership
By: ADAMAR OF NEVADA, general
partner
By: N. ARMSTRONG
Title: V.P. Secretary
"HRN"
HOTEL RAMADA OF NEVADA, a Nevada
corporation
By: N. ARMSTRONG
Title: V.P. Secretary
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By: JANICE HAMMOND
Janice Hammond
Vice President
Address:
Bank of America National Trust and
Savings Association
555 South Flower Street, 11th Floor,
#20529
Los Angeles, California 90071
Attn: Janice Hammond, Vice President
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: SCOTT L. FABER
Scott L. Faber
Vice President
Outstanding principal amount as of the
date of this Amendment: $12,302,921.10
Address:
Bank of America National Trust and
Savings Association
555 South Flower Street, 11th Floor,
#3283
Los Angeles, California 90071
Attn: Scott L. Faber, Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn:William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANKERS TRUST COMPANY, as
Documentation Agent and as a Bank
By GINA S. THOMPSON
Gina S. Thompson
Outstanding principal amount as of the
date of this Amendment: $10,950,809.55
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn:David Bell
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9048
SOCIETE GENERALE, as Documentation
Agent and as a Bank
By DONALD L. SCHUBERT
Donald L. Schubert
First Vice President
Outstanding principal amount as of the
date of this Amendment: $10,950,809.55
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn:Donald L. Schubert
First Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
With a copy sent to:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Jane van Brussel
Telecopier: (310) 788-7106
Telephone: 9310) 551-1537
BANK OF SCOTLAND, as Co-Agent and as a
Bank
By ANNIE CHIN TAT
Annie Chin Tat
Vice President
Outstanding principal amount as of the
date of this Amendment: $5,375,851.96
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin-Tat
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
With a copy to:
Bank of Scotland
660 South Figueroa Street, Suite 1760
Los Angeles, California 90017
Attn: Kandis Jaffrey
Telecopier: (213) 489-3594
Telephone: (213) 629-3057
CREDIT LYONNAIS LOS ANGELES BRANCH, as
Co-Agent and as a Bank
By DIANNE M. SCOTT
Dianne M. Scott
Vice President and Manager
Outstanding principal amount as of the
date of this Amendment: $5,375,851.96
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
With a copy to:
Ron Finn, Esquire
Legal Department
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopier: (212) 459-3187
Telephone: (212) 261-7050
PNC BANK, NATIONAL ASSOCIATION, as Co-
Agent and as a Bank
By GARY W. WESSELS
Gary W. Wessels
Vice President
Outstanding principal amount as of the
date of this Amendment: $5,375,851.96
Address:
PNC Bank, N.A.
Two Tower Center, 16th Floor
East Brunswick, New Jersey 08816
Attn: Denise D. Killen
Telecopier: (732) 220-3270
Telephone: (732) 220-3262
ABN AMRO BANK, N.V., as a Bank
By JEFFREY A. FRENCH
Jeffrey A. French
Group Vice President and Director
By M. TOLENTINO
Michael Tolentino
Assistant Vice President and
Credit Analyst
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, California 94111-5812
Attn: Michael Tolentino
Telecopier: (415) 362-3524
Telephone: (415) 984-3722
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION, as a Bank
By STEVEN K. JOHNSON
Steven K. Johnson
Senior Vice President
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
Imperial Bank
9920 South La Cienega Boulevard, 14th
Floor
Inglewood, California 90301
Attn: Steven K. Johnson
Telecopier: (310) 417-5997
Telephone: (310) 417-5657
KEYBANK NATIONAL ASSOCIATION, as a
Bank
By MARY K. YOUNG
Mary K. Young
Commercial Banking Officer
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, Washington 98104
Attn: Mary K. Young
Telecopier: (206) 684-6035
Telephone: (206) 684-6085
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY, as a
Bank
By Y. SATOMI
Yasushi Satomi
Senior Vice President and Chief
Manager
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency
801 South Figueroa Street, Suite 500
Los Angeles, California 90017
Attn: F. Frank Herrera
Telecopier: (213) 687-4631
Telephone: (213) 896-4652
<PAGE>
Exhibit A - Reaffirmation of Subordination
Exhibit B - Amendment to Deed of Trust
Exhibit C-1 - Master Note
Exhibit C-2 - Discretionary Notes
Exhibit D - Global Assignment and Release
<PAGE>
EXHIBIT A-1
REAFFIRMATION OF
SUBORDINATION AGREEMENT
(Jaffe Deed of Trust--Loan)
THIS AGREEMENT is made and entered into as of May 28,
1998, by and among TROPICANA ENTERPRISES, a Nevada general
partnership, owner of the land hereinafter described and
hereinafter referred to as "Owner", HOTEL RAMADA OF NEVADA, a
Nevada corporation hereinafter referred to as "HRN," and
Beneficiaries (as defined below). As used herein,
"Beneficiaries" means the following present owners and holders
of the Deed of Trust and Promissory Note first hereinafter
described: Cary S. Glenner and Ronald Krefman, as Co-Trustees
of the RMS, Jr. Gift Discretionary B Trust under agreement
dated January 3, 1997; Richard M. Seidel, Jr. and Cary S.
Glenner, as Co-Trustees of the RMS, Jr. Discretionary B Trust
under agreement dated January 3, 1997; Richard M. Seidel, Jr.
and Cary S. Glenner, as Co-Trustees of the KK Gift
Discretionary B Trust under agreement dated January 3, 1997;
Richard M. Seidel, Jr. and Ronald Krefman, as Co-Trustees of
the KK Discretionary B Trust under agreement dated January 3,
1997; Richard M. Seidel, Jr. and Cary S. Glenner, as
Co-Trustees of the JSB Gift Discretionary B Trust under
agreement dated January 3, 1997; Richard M. Seidel, Jr. and
Francis J. Bomher, as Co-Trustees of the JSB Discretionary B
Trust under agreement dated January 3, 1997; Richard M.
Seidel, Jr. and Francis J. Bomher, as Co-Trustees of the LG
Gift Discretionary B Trust under agreement dated January 3,
1997; Richard M. Seidel, Jr. and Cary S. Glenner, as
Co-Trustees of the LG Discretionary B Trust under agreement
dated January 3, 1997; Richard M. Seidel, Jr. and Ben S. Jaffe,
as Co-Trustees of the EW Discretionary B Trust under agreement
dated January 3, 1997; Richard M. Seidel, Jr. and Ben S. Jaffe,
as Co-Trustees of the DW Discretionary B Trust under agreement
dated January 3, 1997; Richard M. Seidel, Jr. and Ben S. Jaffe,
as Co-Trustees of the JM Discretionary B Trust under agreement
dated January 3, 1997; Richard M. Seidel, Jr. and Kathy Weiss,
as Co-Trustees of the BJW Descendants Discretionary B Trust for
Kathy Weiss under agreement dated January 3, 1997; Ben S.
Jaffe, as Trustee of the Eugene Trust B Discretionary Trust for
Jean under agreement dated June 15, 1987; Ben S. Jaffe, as
Trustee of the Eugene Trust B Discretionary Trust for Lynn
under agreement dated June 15, 1987; and Ben S. Jaffe, as
Trustee of the Eugene Trust B Discretionary Trust for Ben under
agreement dated June 15, 1987.
W I T N E S S E T H:
WHEREAS, Eugene Jaffe and Evelyn Jaffe, his wife,
Betty Jane Weiss and her then husband Robert A. Weiss, Judith
Jaffe Seidel and Richard M. Seidel, her husband, Lynn Susan
Dooley and Joseph Thomas Dooley, her husband, and Jean Ann
Edwards and her now deceased husband Frank James Edwards, III,
and Ben S. Jaffe, did execute a Deed of Trust, dated June 25,
1968, to Title Insurance and Trust Company, a California
corporation, as trustee, encumbering various real properties
more particularly described therein, including specifically,
that certain real property and improvements situated in the
County of Clark, State of Nevada more particularly described on
that certain exhibit marked Exhibit A, affixed hereto and by
this reference incorporated herein and made a part hereof, to
secure a note in the original principal sum of $7,400,000, of
even date therewith (the "Jaffe Note"), in favor of Ben Jaffe,
which Deed of Trust was recorded July 1, 1968, in the office of
the County Recorder of Clark County, Nevada, in Book 883, as
Document No. 709115, Official Records (the "Jaffe Deed of
Trust").
WHEREAS, BEN JAFFE died on the 10th day of August,
1968 and his estate was probated in the Eighth Judicial
District Court of the State of Nevada, in and for the County of
Clark, in proceedings No. A57614.
WHEREAS, the Jaffe Note and Jaffe Deed of Trust were
transferred to Eugene Jaffe and Elsie Jaffe, as Co-Trustees
under the Trust A and the Residuary Trust, each created under
the Last Will and Testament of Ben Jaffe ("Previous
Beneficiaries"), pursuant to the terms of that certain
Promissory Note Transfer Agreement dated November 1, 1982 and
confirmed by Order Approving Co-Executors' Final Account and
Report, Order Approving and Ratifying Actions of Co-Executors,
Order Providing for Distribution of Additional Income after
February 2, 1983 and Authorizing Payment of Fees for Attorney
for Absent Heirs dated April 15, 1983 and filed in proceeding
No. A57614, described hereinabove, on April 15, 1983.
WHEREAS, the terms of the Jaffe Note were amended by
that certain Note Amendment Agreement dated December 15, 1982
and recorded on June 13, 1983 in the office of the County
Recorder of Clark County, Nevada, in Book 1749, as Document
No. 1708846, Official Records.
WHEREAS, the Jaffe Note and Jaffe Deed of Trust have
been transferred to Beneficiaries.
WHEREAS, Owner and HRN did execute a Deed of Trust
and Security Agreement with Assignment of Rents dated
November 19, 1984 (the "Original Bank Deed of Trust"), recorded
November 20, 1984, in the office of the Recorder of Clark
County, Nevada, in Book 2024, Document No. 1983548, Official
Records, for the benefit of the predecessors-in-interest of
Senior Beneficiary (as defined below).
WHEREAS, the parties hereto (or their predecessors-
in-interest) previously executed, delivered and recorded that
certain Subordination Agreement dated November 19, 1984 (the
"Original Subordination") and recorded on November 20, 1984, in
the office of the County Recorder of Clark County in Book 2024,
as Document No. 1983544, Official Records, pursuant to which
the lien of the Jaffe Deed of Trust was subordinated to the
lien of the Original Bank Deed of Trust.
WHEREAS, Owner, HRN and Previous Beneficiaries
previously executed that certain Reaffirmation of Subordination
Agreement dated October 4, 1994 (the "October 1994
Reaffirmation"), recorded October 5, 1994 in Book 941005 as
Instrument No. 00645 in the Official Records of Clark County,
Nevada.
WHEREAS, as more particularly described in the
October 1994 Reaffirmation, the October 1994 Reaffirmation was
entered into substantially concurrently with (i) that certain
Second Amended and Restated Loan Agreement dated October 4,
1994 (as modified from time to time, the "Loan Agreement"),
which amended and restated in its entirety the Original Loan
Agreement so defined in the October 1994 Reaffirmation, and
(ii) an Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents dated October 4, 1994 (as
modified from time to time, the "Bank Deed of Trust"), which
amended and restated in its entirety the Original Bank Deed of
Trust and which was recorded October 5, 1994 in Book 941005 as
Instrument No. 00644 in the Official Records of Clark County,
Nevada.
WHEREAS, substantially concurrently herewith Bank of
America National Trust and Savings Association, a national
banking association, as "Administrative Agent" for the Banks so
defined in the Loan Agreement (in such capacity, "Senior
Beneficiary"), has executed (i) that certain Amendment No. 1 to
Loan Agreement of even date herewith (the "Loan Agreement
Amendment"), which amends the Loan Agreement, and (ii) that
certain First Amendment to Amended and Restated Deed of Trust
and Security Agreement with Assignment of Rents (the "Bank Deed
of Trust Amendment"), which amends the Bank Deed of Trust for
the purpose of providing continued security for the Loan
Agreement as amended.
WHEREAS, it is a condition precedent to the
effectiveness of such Loan Agreement Amendment and Bank Deed of
Trust Amendment that the parties hereto reaffirm the terms and
provisions of the Original Subordination.
WHEREAS, Beneficiaries are willing to reaffirm that
the Bank Deed of Trust, as modified by the Bank Deed of Trust
Amendment, constitutes a lien or charge upon the real property
described on Exhibit A hereto and all other collateral
described in the Bank Deed of Trust which is unconditionally
prior and superior to the lien or charge of the Jaffe Deed of
Trust.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which consideration is hereby
acknowledged, and in order to induce Senior Beneficiary to
enter into the amendments described above, it is hereby
reaffirmed, declared, understood and agreed as follows:
(1) That the Bank Deed of Trust as amended by the
Bank Deed of Trust Amendment, and any renewals or extensions
thereof, is and shall at all times unconditionally be and
remain a lien or charge upon the real property described on
Exhibit A hereto and all other collateral described in the Bank
Deed of Trust, prior and superior to the lien or charge of the
Jaffe Deed of Trust.
(2) That Senior Beneficiary would not enter into the
amendments described above without this reaffirmation of
subordination agreement.
(3) Beneficiaries declare, agree and acknowledge
that:
a. They have reviewed and understand (i) all
provisions of the Loan Agreement Amendment and (ii) all
provisions of the Bank Deed of Trust Amendment; and
b. They (or their predecessors-in-interest)
have previously intentionally and unconditionally waived,
relinquished and subordinated the lien or charge of the
Jaffe Deed of Trust in favor of the lien or charge upon
the real property described on Exhibit A hereto and all
other collateral described in the Bank Deed of Trust and
hereby reaffirm such waiver, relinquishment and
subordination with respect to the Bank Deed of Trust and
all collateral described in the Bank Deed of Trust and
understand that, in reliance upon, and in consideration
of, this waiver, relinquishment and subordination, certain
agreements have been entered into which would not have
been entered into but for said reliance upon the Original
Subordination as reaffirmed hereby.
This document may be executed in counterparts with
the same force and effect as if the parties had executed one
instrument, and each such counterpart shall constitute an
original hereof.
IN WITNESS WHEREOF, the parties have hereunto set
their hands as of the day and year first above written.
OWNER:
TROPICANA ENTERPRISES,
a Nevada general partnership
By: ADAMAR OF NEVADA,
a Nevada corporation,
its general partner
By:____________________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
HRN:
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By______________________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
BENEFICIARIES:
_____________________________________
CARY S. GLENNER,
as authorized agent for each of the Beneficiaries
pursuant to the delegation of authorities,
discretions and powers under that certain
Delegation of Trustees Powers Over Bond Notes
dated December 29, 1997, executed by all of
the Beneficiaries
<PAGE>
ACKNOWLEDGMENTS
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by NELSON W. ARMSTRONG, JR. as Vice President and
Secretary of Adamar of Nevada, a Nevada corporation, as general
partner of Tropicana Enterprises, a Nevada general partnership.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by NELSON W. ARMSTRONG, JR. as Vice President and
Secretary of Hotel Ramada of Nevada, a Nevada corporation.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ILLINOIS )
) ss.
COUNTY OF _______________ )
On this the _______ day of ________________, 1998,
personally appeared before me, a Notary Public, CARY S.
GLENNER, known to me to be the person described in and who
acknowledged that he executed the foregoing instrument.
_______________________________
Notary Public
<PAGE>
EXHIBIT "A"
(Legal Description)
All that certain real property, situated in the
County of Clark, State of Nevada, and described as follows:
The Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M.
EXCEPTING from the hereinabove described property that portion
of the Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M., more particularly described as follows:
COMMENCING at the Northwest corner of said Section;
THENCE South 87 degrees 36' East a distance of 50.06 feet to a point on
the East right of way line of U.S. Highway No. 91, this point
being the true point of beginning;
THENCE South 87 degrees 36' East along the North line of said Section a
distance of 1267.20 feet to a point;
THENCE South 0 degrees 25'00" East a distance of 101.41 feet to a
point;
THENCE South 89 degrees 45'02" West a distance of 1265.75 feet to a
point;
THENCE North 0 degrees 22'00" West a distance of 159.98 feet to the
TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of the Northwest
Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section
28, Township 21 South, Range 61 East, M.D.B. & M., as conveyed
to the State of Nevada for public highway by Deed dated
December 15, 1952 and recorded August 11, 1953 as Document
No. 411231, Clark County, Nevada Records.
FURTHER EXCEPTING THEREFROM that portion as conveyed to Clark
County for road purposes by Document No. 104313 and recorded
April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed
to Clark County for road and public utility purposes by
Document No. 262900, recorded February 22, 1973 in Book 303 and
by Document No. 551260, recorded February 4, 1976 in Book 592
of Official Records, Clark County, Nevada.
<PAGE>
EXHIBIT A-2
JAFFE TRUSTEES REAFFIRMATION OF
SUBORDINATION AGREEMENT
(Jaffe Financing Statement)
THIS AGREEMENT is made as of May 28, 1998, by the
Junior Trustees (as defined below), Tropicana Enterprises, a
Nevada general partnership (hereinafter called "Owner"), and
Hotel Ramada of Nevada, a Nevada corporation (hereinafter
called "HRN"), in favor of Bank of America National Trust and
Savings Association, a national banking association
(hereinafter called "Lender"), as "Administrative Agent" for
the "Banks," as those terms are defined in that certain Second
Amended and Restated Loan Agreement dated October 4, 1994 among
Owner, HRN, Lender (as Administrative Agent), and each of the
Banks and Co-Agents which executed such agreement (as modified
from time to time, the "Second Amended Loan Agreement"). As
used herein, "Junior Trustees" means, collectively: Cary S.
Glenner and Ronald Krefman, as Co-Trustees of the RMS, Jr. Gift
Discretionary B Trust under agreement dated January 3, 1997;
Richard M. Seidel, Jr. and Cary S. Glenner, as Co-Trustees of
the RMS, Jr. Discretionary B Trust under agreement dated
January 3, 1997; Richard M. Seidel, Jr. and Cary S. Glenner, as
Co-Trustees of the KK Gift Discretionary B Trust under
agreement dated January 3, 1997; Richard M. Seidel, Jr. and
Ronald Krefman, as Co-Trustees of the KK Discretionary B Trust
under agreement dated January 3, 1997; Richard M. Seidel, Jr.
and Cary S. Glenner, as Co-Trustees of the JSB Gift
Discretionary B Trust under agreement dated January 3, 1997;
Richard M. Seidel, Jr. and Francis J. Bomher, as Co-Trustees of
the JSB Discretionary B Trust under agreement dated January 3,
1997; Richard M. Seidel, Jr. and Francis J. Bomher, as
Co-Trustees of the LG Gift Discretionary B Trust under
agreement dated January 3, 1997; Richard M. Seidel, Jr. and
Cary S. Glenner, as Co-Trustees of the LG Discretionary B Trust
under agreement dated January 3, 1997; Richard M. Seidel, Jr.
and Ben S. Jaffe, as Co-Trustees of the EW Discretionary B
Trust under agreement dated January 3, 1997; Richard M.
Seidel, Jr. and Ben S. Jaffe, as Co-Trustees of the DW
Discretionary B Trust under agreement dated January 3, 1997;
Richard M. Seidel, Jr. and Ben S. Jaffe, as Co-Trustees of the
JM Discretionary B Trust under agreement dated January 3, 1997;
Richard M. Seidel, Jr. and Kathy Weiss, as Co-Trustees of the
BJW Descendants Discretionary B Trust for Kathy Weiss under
agreement dated January 3, 1997; Ben S. Jaffe, as Trustee of
the Eugene Trust B Discretionary Trust for Jean under agreement
dated June 15, 1987; Ben S. Jaffe, as Trustee of the Eugene
Trust B Discretionary Trust for Lynn under agreement dated
June 15, 1987; and Ben S. Jaffe, as Trustee of the Eugene
Trust B Discretionary Trust for Ben under agreement dated
June 15, 1987.
W I T N E S S E T H:
WHEREAS, Eugene Jaffe and Evelyn Jaffe, his wife,
Betty Jane Weiss and her then husband Robert A. Weiss, Judith
Jaffe Seidel and Richard M. Seidel, her husband, Lynn Susan
Dooley and Joseph Thomas Dooley, her husband, and Jean Ann
Edwards and her now deceased husband Frank James Edwards, III,
and Ben S. Jaffe, did execute a Deed of Trust, dated June 25,
1968, to Title Insurance and Trust Company, a California
corporation, as trustee, encumbering various real properties
more particularly described therein, including specifically,
that certain real property and improvements situated in the
County of Clark, State of Nevada described on Exhibit A
thereto, to secure a note in the original principal sum of
$7,400,000, of even date therewith (the "Jaffe Note"), in favor
of Ben Jaffe, which Deed of Trust was recorded July 1, 1968, in
the office of the County Recorder of Clark County, Nevada, in
Book 883, as Document No. 709115, Official Records (the "Jaffe
Deed of Trust"); and
WHEREAS, BEN JAFFE died on the 10th day of August,
1968 and his estate was probated in the Eighth Judicial
District Court of the State of Nevada, in and for the County of
Clark, in proceedings No. A57614; and
WHEREAS, the Jaffe Note and Jaffe Deed of Trust were
transferred to Eugene Jaffe and Elsie Jaffe as Co-Trustees
under the Trust A and the Residuary Trust, each created under
the Last Will and Testament of Ben Jaffe (hereinafter the
"Previous Trustees"), pursuant to the terms of that certain
Promissory Note Transfer Agreement dated November 3, 1982 and
confirmed by Order Approving Co-Executors' Final Account and
Report, Order Approving and Ratifying Actions of Co-Executors,
Order Providing for Distribution of Additional Income after
February 2, 1983 and Authorizing Payment of Fees for Attorney
for Absent Heirs dated April 15, 1983 and filed in proceeding
No. A57614, described hereinabove, on April 15, 1983; and
WHEREAS, the terms of the Jaffe Note were amended by
that certain Note Amendment Agreement dated December 15, 1982
and recorded on June 13, 1983 in the office of the County
Recorder of Clark County, Nevada, in Book 1749, as Document
No. 1708846, Official Records; and
WHEREAS, in connection with the Jaffe Deed of Trust
and Jaffe Note, Eugene Jaffe, Lynn Susan Dooley, Jean Ann
Edwards, Ben S. Jaffe, Judith Jaffe Seidel and Betty Jane
Weiss, as Debtors, did previously execute a Nevada Uniform
Commercial Code Financing Statement in favor of Ben Jaffe (as
predecessor in interest to the Junior Trustees), dated June 24,
1968 and filed on August 9, 1968 in Book 889, Instrument
No. 714389 in the Office of the Recorder of Clark County,
Nevada, covering the Collateral (the "Jaffe Financing
Statement"); and
WHEREAS, the Jaffe Note, Jaffe Deed of Trust and
Jaffe Financing Statement have been transferred to Junior
Trustees; and
WHEREAS, Owner and HRN did execute a Deed of Trust
and Security Agreement with Assignment of Rents dated
November 19, 1984 (the "Original Bank Deed of Trust"), recorded
November 20, 1984, in the office of the Recorder of Clark
County, Nevada, in Book 2024, Document No. 1983548, Official
Records, for the benefit of the predecessors-in-interest of
Lender; and
WHEREAS, in connection with the Jaffe Financing
Statement, Previous Trustees and Owner executed, delivered and
recorded that certain Jaffe Trustees Subordination Agreement
dated November 19, 1984 and recorded on November 20, 1984 in
the office of the County Recorder of Clark County in Book 2024,
as Document No. 1983545, Official Records (the "Original
Subordination"); and
WHEREAS, Owner, HRN and Previous Trustees previously
executed that certain Jaffe Trustees Reaffirmation of
Subordination Agreement dated October 4, 1994 (the
"October 1994 Reaffirmation"), recorded October 5, 1994 in Book
941005 as Instrument No. 00646 in the Official Records of Clark
County, Nevada; and
WHEREAS, as more particularly described in the
October 1994 Reaffirmation, the October 1994 Reaffirmation was
entered into substantially concurrently with (i) that certain
Second Amended and Restated Loan Agreement dated October 4,
1994 (as modified from time to time, the "Loan Agreement"),
which amended and restated in its entirety the Original Loan
Agreement so defined in the October 1994 Reaffirmation, and
(ii) an Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents dated October 4, 1994 (as
modified from time to time, the "Bank Deed of Trust"), which
amended and restated in its entirety the Original Bank Deed of
Trust and which was recorded October 5, 1994 in Book 941005 as
Instrument No. 00644 in the Official Records of Clark County,
Nevada; and
WHEREAS, substantially concurrently herewith Lender
has executed (i) that certain Amendment No. 1 to Loan Agreement
of even date herewith (the "Loan Agreement Amendment"), which
amends the Loan Agreement, and (ii) that certain First
Amendment to Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents (the "Bank Deed of Trust
Amendment"), which amends the Bank Deed of Trust for the
purpose of providing continued security for the Loan Agreement
as amended; and
WHEREAS, it is a condition precedent to the
effectiveness of such Loan Agreement Amendment and Bank Deed of
Trust Amendment that the parties hereto reaffirm the terms and
provisions of the Original Subordination; and
WHEREAS, the Junior Trustees are willing to reaffirm
that the Bank Deed of Trust, as modified by the Bank Deed of
Trust Amendment, constitutes a lien or charge upon the real
property described on Exhibit A hereto and all other real and
personal property described in the Bank Deed of Trust (the
"Collateral"), which is unconditionally prior and superior to
the lien or charge of the Jaffe Financing Statement;
NOW, THEREFORE, in consideration of the mutual
benefits accruing to the parties hereto and other good and
valuable considerations, the receipt and sufficiency of which
consideration is hereby acknowledged, and in order to induce
Lender to enter into the amendments described above, it is
hereby declared, understood and agreed as follows:
(1) That Lender would not enter into the amendments
described above without this Reaffirmation of Subordination
Agreement.
(2) The Bank Deed of Trust as amended by the Bank
Deed of Trust Amendment, and any renewals or extensions
thereof, is and at all times shall unconditionally be and
remain a lien or charge on the Collateral, prior and superior
to the lien or charge of the Jaffe Financing Statement.
(3) The Junior Trustees declare, agree and
acknowledge that:
c. They have reviewed and understand (i) all
provisions of the Loan Agreement Amendment and (ii) all
provisions of the Bank Deed of Trust Amendment; and
d. They (or their predecessors-in-interest)
have previously intentionally and unconditionally waived,
relinquished and subordinated the lien or charge of the
Jaffe Financing Statement in favor of the lien or charge
upon the real property described on Exhibit A and the
Collateral of the Bank Deed of Trust and hereby reaffirm
such waiver, relinquishment and subordination and
understand that, in reliance upon, and in consideration
of, this waiver, relinquishment and subordination, certain
agreements have been entered into which would not have
been entered into but for said reliance upon the Original
Subordination as reaffirmed hereby.
This document may be executed in counterparts with
the same force and effect as if the parties had executed one
instrument, and each such counterpart shall constitute an
original hereof.
IN WITNESS WHEREOF, the parties have hereunto set
their hands as of the day and year first above written.
OWNER:
TROPICANA ENTERPRISES,
a Nevada general partnership
By: ADAMAR OF NEVADA,
a Nevada corporation,
its general partner
By:____________________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
HRN:
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By______________________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
JUNIOR TRUSTEES:
_____________________________________
CARY S. GLENNER,
as authorized agent for each of the Junior Trustees
pursuant to the delegation of authorities,
discretions and powers under that certain
Delegation of Trustees Powers Over Bond Notes
dated December 29, 1997, executed by all of
the Junior Trustees
<PAGE>
ACKNOWLEDGMENTS
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by NELSON W. ARMSTRONG, JR. as Vice President and
Secretary of Adamar of Nevada, a Nevada corporation, as general
partner of Tropicana Enterprises, a Nevada general partnership.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by NELSON W. ARMSTRONG, JR. as Vice President and
Secretary of Hotel Ramada of Nevada, a Nevada corporation.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ILLINOIS )
) ss.
COUNTY OF _______________ )
On this the _______ day of ________________, 1998,
personally appeared before me, a Notary Public, CARY S.
GLENNER, known to me to be the person described in and who
acknowledged that he executed the foregoing instrument.
_______________________________
Notary Public
<PAGE>
EXHIBIT "A"
(Legal Description)
All that certain real property, situated in the
County of Clark, State of Nevada, and described as follows:
The Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M.
EXCEPTING from the hereinabove described property that portion
of the Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M., more particularly described as follows:
COMMENCING at the Northwest corner of said Section;
THENCE South 87 degrees 36' East a distance of 50.06 feet to a point on
the East right of way line of U.S. Highway No. 91, this point
being the true point of beginning;
THENCE South 87 degrees 36' East along the North line of said Section a
distance of 1267.20 feet to a point;
THENCE South 0 degrees 25'00" East a distance of 101.41 feet to a
point;
THENCE South 89 degrees 45'02" West a distance of 1265.75 feet to a
point;
THENCE North 0 degrees 22'00" West a distance of 159.98 feet to the
TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of the Northwest
Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section
28, Township 21 South, Range 61 East, M.D.B. & M., as conveyed
to the State of Nevada for public highway by Deed dated
December 15, 1952 and recorded August 11, 1953 as Document
No. 411231, Clark County, Nevada Records.
FURTHER EXCEPTING THEREFROM that portion as conveyed to Clark
County for road purposes by Document No. 104313 and recorded
April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed
to Clark County for road and public utility purposes by
Document No. 262900, recorded February 22, 1973 in Book 303 and
by Document No. 551260, recorded February 4, 1976 in Book 592
of Official Records, Clark County, Nevada.
<PAGE>
EXHIBIT B
FIRST AMENDMENT TO
AMENDED AND RESTATED DEED OF TRUST
AND SECURITY AGREEMENT
WITH ASSIGNMENT OF RENTS
This First Amendment to Amended and Restated Deed of
Trust and Security Agreement with Assignment of Rents, dated as
of May 28, 1998 ("Amendment"), is by and among TROPICANA
ENTERPRISES, a Nevada general partnership, as Debtor and
Trustor (hereinafter referred to as "Trustor"), HOTEL RAMADA OF
NEVADA, a Nevada corporation, as an Additional Debtor
(hereinafter referred to as "Additional Debtor"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association, as "Administrative Agent" (as defined in
the Loan Agreement Amendment described below) for the "Banks"
(as defined in the Loan Agreement described below), as
Beneficiary and Secured Party (hereinafter referred to as
"Beneficiary"). This Amendment is a first amendment to that
certain Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents dated October 4, 1994 (the
"Original Deed of Trust"), executed by Trustor and Additional
Debtor for the benefit of Beneficiary and recorded October 5,
1994 in Book 941005 as Instrument No. 00644 in the Official
Records of Clark County, Nevada. The Original Deed of Trust,
as modified from time to time (including by this Amendment), is
referred to herein as the "Deed of Trust."
In consideration of the foregoing, and for other
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Trustor, Additional Debtor and
Beneficiary hereby agree as follows:
1. Recitals and Certain Definitions.
1.1 This Amendment is entered into a. with reference
to that certain Second Amended and Restated Loan Agreement
dated October 4, 1994, among Trustor, Additional Debtor,
Beneficiary and the Banks so defined therein (the "Original
Loan Agreement"), and b. in conjunction with an Amendment No. 1
to Loan Agreement of even date herewith among Trustor,
Additional Debtor and Beneficiary (the "Loan Agreement
Amendment") and certain other documents of even date herewith
that are described in the Loan Agreement Amendment and/or that
are otherwise being executed with reference thereto
(collectively, together with the Loan Agreement Amendment, this
Amendment and the Master Note and Discretionary Notes described
below, the "Modification Documents"). The Original Loan
Agreement, as modified from time to time (including by the Loan
Agreement Amendment), is referred to herein as the "Loan
Agreement."
1.2 The Modification Documents modify obligations
that are presently secured by the Deed of Trust, including
without limitation certain obligations evidenced by the "Notes"
so defined in the Original Loan Agreement and the Original Deed
of Trust (the "Original Notes"), each executed by Trustor.
Such modifications include, without limitation, an extension of
the maturity date of the Loan (as defined in the Original Deed
of Trust) and a change to the interest rate(s) applicable
thereto. Capitalized terms used and not otherwise defined
herein have the meanings set forth for them in the Loan
Agreement Amendment or, if not defined therein, have the
meanings set forth for them in the Original Loan Agreement.
1.3 As further described in the Loan Agreement
Amendment, Beneficiary has been appointed as the
"Administrative Agent" for the Banks under the Loan Agreement,
and the Loan Agreement Amendment provides that each reference
to the "Managing Agent" in any Loan Document (including without
limitation in the Deed of Trust) shall be deemed a reference to
the "Administrative Agent."
1.4 Also as further described in the Loan Agreement
Amendment, the Original Notes have been superseded and replaced
by a single "Master Note" of even date herewith that is so
defined in the Loan Agreement Amendment, which Master Note, in
the face principal amount of $62,278,433.79, has been made by
Trustor to the order of Beneficiary to collectively evidence
the Loans made by all of the Banks that were formerly evidenced
by a separate promissory note in favor of each Bank.
Notwithstanding the fact that the Master Note collectively
evidences all of such Loans, the Loan Agreement Amendment
further provides for the issuance of supplemental
"Discretionary Notes" (as defined in the Loan Agreement
Amendment) made by Trustor to a particular Bank, if requested
by that Bank, to evidence that Bank's Pro Rata Share of the
Loans. As used in this Amendment, "Notes" means, collectively,
the Master Note and any Discretionary Notes, in each case as
originally executed or as the same may from time to time be
supplemented, amended, renewed, extended, supplanted or
otherwise modified.
2. Modification of Secured Obligations. The Deed of
Trust is hereby modified to provide that it secures, in
addition to all other obligations now secured thereby,
a. Trustor's obligations under the Original Notes and under all
other existing Loan Documents that are presently secured by the
Deed of Trust, as such obligations and documents are
supplemented and/or otherwise modified pursuant to the
Modification Documents, b. Additional Debtor's obligations
under the existing Loan Documents that are presently secured by
the Deed of Trust, as such obligations and documents are
supplemented and/or otherwise modified pursuant to the
Modification Documents, c. Trustor's obligations under the
Master Note and under any Discretionary Notes that are executed
by Trustor from time to time, and d. all other obligations of
Trustor and/or Additional Debtor to Beneficiary, Trustee and/or
the Banks, as applicable, under all other Modification
Documents.
3. Addresses for Notices. All notices, demands,
approvals and other communications to Trustor and/or
Beneficiary with respect to the Deed of Trust shall be in
writing and be delivered to the appropriate party at its
address as follows:
If to Trustor:
Tropicana Enterprises
c/o Tropicana Hotel/Casino
3801 Las Vegas Boulevard South
Las Vegas, Nevada 89109
If to Beneficiary:
Bank of America NT&SA
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Jon Varnell, Managing Director
with a copy to:
Bank of America NT&SA
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby, Managing Director
Addresses for notice may be changed from time to time by
written notice to all other parties. All communications shall
be effective when actually received; provided, however, that
nonreceipt of any communication as the result of a change of
address of which the sending party was not notified or as the
result of a refusal to accept delivery shall be deemed receipt
of such communication.
4. No Other Amendment. Except as expressly modified
hereby, the Deed of Trust remains in full force and effect.
5. Miscellaneous. This Amendment shall bind, and
shall inure to the benefit of, the successors and assigns of
the parties. This document may be executed in counterparts
with the same force and effect as if the parties had executed
one instrument, and each such counterpart shall constitute an
original hereof.
IN WITNESS WHEREOF, Trustor, Additional Debtor and
Beneficiary have caused this Amendment to be duly executed as
of the date first written above.
"Trustor and Debtor":
TROPICANA ENTERPRISES,
a Nevada general partnership,
By:ADAMAR OF NEVADA,
a Nevada corporation, general
partner
By:____________________________
Nelson W.
Armstrong, Jr.
Vice President and
Secretary
"Additional Debtor":
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By:_________________________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
"Beneficiary":
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
By:_________________________________
Janice Hammond, Vice President
ACKNOWLEDGMENTS
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by NELSON W. ARMSTRONG, JR. as Vice President and
Secretary of Adamar of Nevada, a Nevada corporation, as general
partner of Tropicana Enterprises, a Nevada general partnership.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by NELSON W. ARMSTRONG, JR. as Vice President and
Secretary of Hotel Ramada of Nevada, a Nevada corporation.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by JANICE HAMMOND, as Vice President of Bank of America
National Trust and Savings Association, a national banking
association.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
<PAGE>
Exhibit C-1
MASTER NOTE
$62,278,433.79 May 28, 1998
Las Vegas, Nevada
FOR VALUE RECEIVED, TROPICANA ENTERPRISES, a Nevada
general partnership ("Borrower"), promises to pay to the order
of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent for the Banks under the Loan Agreement
described below ("the Banks", each of which is a direct
beneficiary of this Master Note) the principal amount of SIXTY-
TWO MILLION TWO HUNDRED SEVENTY-EIGHT THOUSAND FOUR HUNDRED
THIRTY-THREE AND 79/100 DOLLARS ($62,278,433.79), payable as
hereinafter set forth. The undersigned promises to pay inter-
est on the principal amount hereof remaining unpaid from time
to time from the date hereof until the date of payment in full,
payable as hereinafter set forth.
1. The Loan Agreement and the Other Loan Agreement;
Incorporated Terms and Provisions. This Note is the Master
Note referred to in and delivered pursuant to the Second
Amended and Restated Loan Agreement dated as of October 4,
1994, among Borrower, the Banks, Lead Managers, Co-Agents and
Co-Managing Agents referred to therein, and Bank of America
National Trust and Savings Association, as Managing Agent, as
amended by Amendment No. 1 to Loan Agreement dated as of
May 28, 1998 (the "Loan Agreement") pursuant to which Bank of
America National Trust and Savings Association has been
appointed as Administrative Agent for the Banks. Terms defined
in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan
Agreement.
Concurrently with the execution and delivery of the
Loan Agreement, the Banks, Bankers Trust Company and Societe
Generale, as Documentation Agents, Bank of Scotland, Credit
Lyonnais Los Angeles Branch and PNC Bank, National Association,
as Co-Agents, and the Administrative Agent have entered into an
Amended and Restated Reducing Revolving Loan Agreement of even
date herewith (as supplemented, modified, amended, renewed,
extended or supplanted from time to time, the "Other Loan
Agreement") with Aztar Corporation, a Delaware corporation
("Parent"). Certain other terms and provisions of the Other
Loan Agreement are incorporated herein by reference as set
forth below.
2. Privileges of the Banks. Each Bank is a ratable
holder and entitled to the benefits of this Master Note. The
Banks are also entitled to all of the rights, remedies,
benefits and privileges provided for in the Loan Agreement as
originally executed or as it may from time to time be supple-
mented, modified or amended. The Loan Agreement, among other
things, contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events upon the
terms and conditions therein specified.
3. Amortization. The principal indebtedness
evidenced by this Master Note shall be payable on the last day
of each calendar month (the "Amortization Date") during the
periods described below by the amount set forth opposite that
period, provided that the then remaining principal indebtedness
outstanding under this Master Note shall be payable on June 30,
2003 (such maturity date, or such later maturity date as may
then be in effect is referred to herein as the "Maturity
Date").
Period Amount
May 31, 1998 thru Dec. 31, 1998 $256,246.00
Jan. 31, 1999 thru Dec. 31, 1999 $274,770.08
Jan. 31, 2000 thru Dec. 31, 2000 $294,633.25
Jan. 31, 2001 thru Dec. 31, 2001 $315,932.25
Jan. 31, 2002 thru Dec. 31, 2002 $341,721.31
Jan. 31, 2003 thru May 31, 2003 $365,641.80
The principal indebtedness evidenced by this Master Note may be
prepaid at any time, and from time to time, in whole or in part
without premium or penalty, provided that, subject to Section 8
hereof each prepayment shall be applied to installments due
hereunder in the inverse order of their maturity.
4. Extension of Maturity Date; Mandatory Assignment
of this Master Note. During the period commencing on April 1,
1999 and ending on May 31, 1999, Borrower may by written
request delivered to the Administrative Agent (with sufficient
copies thereof for the Banks) request that the Maturity Date of
this Master Note be extended for one year, provided that a
similar request for extension of the Other Loan Agreement is
concurrently submitted by Parent pursuant to Section 2.11 of
the Other Loan Agreement.
The Administrative Agent shall promptly forward the
request for extension, and any accompanying materials, to the
Holder and the other Banks. The Holder, in its sole and
absolute discretion, shall determine whether to grant the
request for extension. Each Bank, in its sole and absolute
discretion, shall determine whether to grant the request for
extension. Borrower at its option may offer to pay an
extension fee to each Bank which consents to such extension,
but if such a fee is offered, it shall be a fee offered ratably
to each consenting Bank in accordance with that Bank's Pro Rata
Share. The Banks agree to use their best efforts to respond to
the request for extension within thirty Banking Days after
receipt of the request for extension; failure to respond shall
in no event be deemed to be a consent to the extension.
If all of the Banks notify the Administrative Agent
in writing that they consent to the requested extension, the
Administrative Agent shall notify Borrower and the Banks in
writing of such an extension and the Maturity Date shall
(subject to payment of any agreed-upon extension fee)
automatically be extended for one year. The Administrative
Agent shall notify Borrower and the Banks in writing of such an
extension.
If Banks holding at least 75% of the Loans consent to
the request for extension, but one or more Banks (each a
"Non-Consenting Bank") notify the Administrative Agent that it
will not consent to the request for extension (or fail to
notify the Administrative Agent in writing of its consent to
the extension), Borrowers may cause such Non-Consenting Bank to
be removed as a Bank under the Loan Agreement pursuant to
Section 8.20 thereof. If such removal is accomplished by
assignment to an Eligible Assignee and such Eligible Assignee
notifies the Administrative Agent in writing that it consents
to the request for extension, then the request for extension
shall be granted with the effect as set forth above. If such
removal is accomplished by an assignment of the Loans of the
Non-Consenting Bank being removed to the remaining Banks
pursuant to Section 8.20(b) of the Loan Agreement, then the
Administrative Agent shall notify all of the Banks in writing
thereof and each Bank shall have the right to notify the
Administrative Agent within ten Banking Days after receipt of
such notice that such Bank elects to be treated as a
Non-Consenting Bank, in which case it shall be so treated as
aforesaid.
If a request for extension is made during the April
1, 1999 through May 31, 1999 period as aforesaid and the
requested extension is granted by the Banks, Borrower shall
have the right to request a further one year extension of the
Maturity Date during the period from April 1, 2000 through May
31, 2000. All of the procedures and conditions applicable to
the earlier request for extension shall apply to any such
request for extension.
If either or both of the requested extensions is
granted, the principal amount payable on each Amortization Date
in the period from June 30, 2003 through December 31, 2003
shall be $365,641.80, the principal amount payable on each
Amortization Date in the period from January 31, 2004 through
December 31, 2004 shall be $391,236.73 and the amount payable
on each Amortization Date in the period from January 31, 2005
through May 31, 2005 shall be $418,623.30.
5. Interest Rates; General. Subject to Section 6
hereof, interest shall be payable on the principal amount
hereof remaining unpaid from time to time from the date thereof
until payment in full. Interest shall accrue at a fluctuating
rate per annum equal to the Alternate Base Rate plus the
Applicable Alternate Base Rate Margin (in each case, as defined
in the Other Loan Agreement) unless:
a. Borrower elects to have interest calculated
with respect to all or a portion of the Loan with reference to
the "Eurodollar Rate" in accordance with Section 7 hereof; or
b. the "Default Rate" is then applicable under
Section 10 hereof.
Each change in the interest rate under this Section 5 due to a
change in the Alternate Base Rate shall take effect
simultaneously with the corresponding change in the Alternate
Base Rate. Interest shall accrue and be payable both before
and after default and before and after maturity and judgment,
with interest on overdue interest to bear interest at the
Default Rate described in the Other Loan Agreement, to the
fullest extent permitted by applicable law.
6. Limitation on Maximum Rates of Interest. The
Other Loan Agreement provides for determination of interest
rates based upon (a) the Alternate Base Rate plus the
Applicable Alternate Base Rate Margin or (b) the Eurodollar
Rate plus the Applicable Eurodollar Rate Margin. The
Applicable Alternate Base Rate Margin and the Applicable
Eurodollar Rate Margin are determined on the basis of certain
financial performance ratios relating to Aztar Corporation and
its subsidiaries. While this Note refers to the Other Loan
Agreement for the determination of interest rates indices and
margins, in no event shall (a) the Applicable Alternate Base
Rate Margin relative to the Loans evidenced by this Note exceed
1.00% per annum or (b) the Applicable Eurodollar Rate Margin
relative to the Loans evidenced by this Note exceed 2.25% per
annum.
7. Eurodollar Rate Loans. By request to the
Administrative Agent, Borrower may elect to have interest with
respect to all or one or more portions of the Loans (each a
"Eurodollar Tranche") calculated on the basis of the then
applicable Eurodollar Rate plus the Applicable Eurodollar
Margin (in each case as defined and as determined in the Other
Loan Agreement). Each such request shall be made pursuant to a
Request for Rate Designation in the form previously supplied by
the Administrative Agent to Borrower or another form acceptable
to the Administrative Agent (or pursuant to a telephonic or
other request submitted in the manner described in Section 2.1
of the Other Loan Agreement). The Eurodollar Rate and the
Applicable Eurodollar Margin for each Eurodollar Tranche shall
be determined as set forth in the Other Loan Agreement,
provided that:
a. Unless the Administrative Agent and the
Requisite Banks otherwise consent, there shall be no more than
ten (10) Interest Periods with respect to Eurodollar Tranches
in effect at any one time.
b. No Eurodollar Tranche may be requested
during the existence of any Event of Default or any event or
circumstance which, with the giving of notice or the passage of
time, or both, would constitute an Event of Default.
c. Nothing contained herein shall require any
Bank to fund any portion of the Loans in the Designated
Eurodollar Market (as defined and as determined in the Other
Loan Agreement).
8. Incorporation of Certain Eurodollar Provisions
of the Other Loan Agreement. The provisions of Sections 3.8 of
the Other Loan Agreement (which Section sets forth the manner
in which Eurodollar Loans are made and the interest rates
therefor are calculated) are hereby incorporated by reference
as though set forth herein in full, mutatis mutandis.
Capitalized terms used in Section 3.8 of the Other Loan
Agreement are used (for the purposes of such incorporated
provisions only) with the meanings set forth for those terms in
the Other Loan Agreement.
9. Increased Commitment Costs. If any Bank
determines in good faith that the introduction after the date
hereof 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 Authority charged with the
interpretation or administration thereof, or compliance by that
Bank (or its Eurodollar Lending Office (as defined and as
determined in the Other Loan Agreement)) or any corporation
controlling that Bank, 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, affects or
would affect the amount of capital required or expected to be
maintained by that Bank or any corporation controlling that
Bank and (taking into consideration that Bank's or such
corporation's policies with respect to capital adequacy and
that Bank'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 the Loan Agreement or this Master Note, then,
within ten (10) Banking Days after demand by that Bank,
Borrower shall pay to that Bank, from time to time as specified
in good faith by that Bank, additional amounts sufficient to
compensate that Bank in light of such circumstances, to the
extent reasonably allocable to such obligations under the Loan
Agreement or this Master Note, provided that Borrower 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. Any
request for compensation by a Bank under this Section shall set
forth the basis upon which it has been determined that such an
amount is due from Borrower, a calculation of the amount due,
and a certification that the corresponding costs or diminished
rate of return on capital have been incurred or sustained by
that Bank. If Borrower becomes obligated to pay a material
amount under this Section to any Bank, that Bank will be
subject to removal in accordance with Section 8.20 of the Loan
Agreement; provided that Borrower shall have paid such amount
to the Bank and that Borrower, within the thirty (30) day
period following the date of such payment, shall have notified
that Bank in writing of its intent to so remove the Bank. Each
Bank's determination of such amounts shall be conclusive in the
absence of manifest error.
10. Default Interest. If any installment of
principal or interest or any fee or cost or other amount
payable hereunder or under any Loan Document to the Banks is
not paid when due, it shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the
sum of the Alternate Base Rate plus the Applicable Alternate
Base Rate Margin plus 2% (the "Default Rate"), 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 and shall be payable upon demand.
11. Payment of Interest. All interest hereunder
which is calculated with reference to the Alternate Base Rate
and which has accrued on each September 30, December 31,
March 31 and June 30, and on the date of any prepayment of this
Master Note, shall be due and payable on that day. All
interest accrued on the portion of the Loans for which interest
is calculated on the basis of the Eurodollar Rate shall be due
and payable:
a. For Eurodollar Tranches with Eurodollar
Periods of a term of three months or less on the last day
of the related Eurodollar Period; and
b. For each other Eurodollar Tranche, on the
date which is three months after the date such Eurodollar
Tranche began (and, in the event that all of the Banks
have approved a Eurodollar Tranche with a Eurodollar
Period 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.
12. Computation of Interest and Fees. Computation
of interest on Alternate Base Rate Loans shall be calculated on
the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed; computation of interest on
Eurodollar Rate Tranches and all fees under this Agreement
shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed. Borrower acknowledges that such
latter calculation method will result in a higher yield to the
Banks than a method based on a year of 365 or 366 days.
Interest shall accrue on the Loans for the day on which they
are made; interest shall not accrue on Loans, or any portion
thereof, for the day on which the Loans or such portion is
paid. 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,
and any amount paid as interest hereunder which would otherwise
be in excess of such maximum permitted amount shall be treated
instead as a payment of principal.
13. Non-Banking Days. If any payment to be made by
Borrower or HRN 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.
14. Manner and Treatment of Payments.
a. Each payment hereunder (except payments
pursuant to Sections 8 and 9 of this Master Note) or under
any other Loan Document shall be made to the
Administrative Agent, at the Administrative Agent's
Office, for the account of the Banks, 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 the
Administrative Agent for the account of the Banks shall be
immediately paid by the Administrative Agent to the Banks
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 avail-
able to the account of a the Banks on that Banking Day,
the Administrative Agent shall reimburse the Banks for the
cost to the Banks of funding the amount of such payment at
the Federal Funds Rate (as defined and as determined in
the Other Loan Agreement). All payments shall be made in
lawful money of the United States of America.
b. Each payment or prepayment on account of
the Loans shall be applied pro rata to the Banks in
accordance with each Banks' Pro Rata Share.
c. Each payment of any amount payable by
Borrower or HRN under the Loan Agreement, this Master Note
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
Authority, central bank or comparable authority, excluding
(i) taxes imposed on or measured in whole or in part by
its overall net income or gross receipts and franchise
taxes imposed on the Banks, 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," (ii) any
withholding taxes or other taxes based on net income
imposed by the United States of America (other than
withholding taxes and taxes based on net income resulting
from or attributable to any change in any law, rule or
regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Authority) and (iii) any withholding taxes or
other taxes based on net income imposed by the United
States of America for any period with respect to which it
has failed to provide Borrower with the appropriate form
or forms required by Section 10.8 of the Loan Agreement,
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 Borrower is obligated by applicable laws to
make any deduction or withholding on account of Taxes from
any amount payable to any of the Banks under this
Agreement, Borrower shall (i) make such deduction or
withholding and pay the same to the relevant Governmental
Authority and (ii) pay such additional amount to the Banks
as is necessary to result in the Banks receiving a net
after-Tax amount equal to the amount to which the Banks
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 any of
the Banks on account of such Taxes, the relevant Banks
shall promptly refund such excess to Borrower. If
Borrower becomes obligated to pay a material amount under
this Section to any Bank, that Bank will be subject to
removal in accordance with Section 8.20; provided that
Borrower shall have paid such amount to that Bank and that
Borrower, within the thirty (30) day period following the
date of such payment, shall have notified the Bank in
writing of its intent to so remove the Bank.
15. Funding Sources. Nothing in the Loan Documents
shall be deemed to obligate any Bank to obtain the funds for
its Pro Rata Share of the Loans in any particular place or man-
ner or to constitute a representation by any Bank that it has
obtained or will obtain such funds in any particular place or
manner.
16. Failure to Charge Not Subsequent Waiver. Any
decision by the Administrative Agent or any Bank not to require
payment of any interest (including interest arising under
Section 10), 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 Bank's right to
require full payment of any interest (including interest
arising under Section 10), 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.
17. Administrative Agent's Right to Assume Payments
Will be Made by Borrower. Unless the Administrative Agent
shall have been notified by Borrower prior to the date on which
any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payments, the
Administrative Agent may, in its discretion, assume that
Borrower has remitted such payments when so due and the
Administrative Agent may, in its discretion and in reliance
upon such assumption, make available to each Bank on such
payment date an amount equal to each Bank's share of such
assumed payments. If Borrower has not in fact remitted such
payment to the Administrative Agent, the Banks shall forthwith
on demand repay to the Administrative Agent the amount of such
assumed payment made available to the Banks, together with
interest thereon in respect of each day from and including the
date such amount was made available by the Administrative Agent
to the Banks to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
18. Fee Determination Detail. The Banks, shall
provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Banks under this Master
Note has been determined, concurrently with demand for such
payment.
19. Survivability. All of Borrower's obligations
under Sections 8 and 9 shall survive for ninety (90) days fol-
lowing the date on which all Loans hereunder are fully paid.
20. The Bank's Records. The Banks shall use its
best efforts to keep a record of payments received by it with
respect to this Master Note, and such record shall be
presumptive evidence of the amounts owing under this Master
Note. The Banks may make notations on the attached Schedule B
of such payments or may use any other manner of recordation of
payments which the Banks deem appropriate. Subject to
Section 9.7(g) of the Loan Agreement, such record shall, as
against Borrower, be presumptive evidence of the amounts owing
under this Master Note. Notwithstanding the foregoing sen-
tence, the Banks shall not be liable to Borrower or HRN for any
failure to keep such a record.
21. Collateral. This Master Note is secured, inter
alia by that the Second Amended Deed of Trust and Security
Agreement With Assignment of Rents referred to in the Loan
Agreement, as amended by Amendment No. 1 thereto dated as of
the date of this Master Note, and as the same may hereafter be
amended.
22. Costs of Collection. The undersigned hereby
promises to pay all costs and expenses of each Bank incurred in
collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any Bank's rights
hereunder, including attorneys' fees and disbursements, whether
or not an action is filed in connection therewith.
23. Waiver. The undersigned hereby waives
presentment, demand for payment, dishonor, notice of dishonor,
protest, notice of protest and any other notice or formality,
to the fullest extent permitted by applicable laws.
24. Governing Laws. This Master Note shall be
delivered to and accepted by the Administrative Agent on behalf
of each of the Banks in the State of Nevada, and shall be
governed by, and construed and enforced in accordance with, the
local laws thereof.
25. Non-Recourse. Notwithstanding anything in this
Master Note, the Loan Agreement, the Deed of Trust or any other
Loan Document or Expansion Financing Document to the contrary,
(i) no general partner of Borrower (including, specifically,
any member of the Jaffe Group, as defined in the Borrower's
Partnership Agreement or Adamar), shall have personal liability
for or be liable or subject to any deficiency judgment for,
payment of any portion of the obligations evidenced by this
Master Note or any other sums payable to Administrative Agent
or the Banks under this Master Note, the Loan Agreement, the
Deed of Trust or any other Loan Document or Expansion Financing
Document, it being expressly covenanted and agreed that no
personal liability or responsibility is assumed or at any time
shall be asserted or enforced against any of the partners of
Borrower, or their respective heirs, successors or assigns, on
account of any representation, warranty, covenant, obligation,
understanding or agreement contained in this Master Note or any
Loan Document or Expansion Financing Document, and (ii) HRN
shall not have any personal liability for the payment of any
sums to Administrative Agent or the Banks under this Master
Note, the Loan Agreement and the Loan Documents except as
specifically set forth in the Assignment of HRN Master Lease
Rents.
Without limiting or affecting in any manner
whatsoever the exculpatory provisions of this Section 25, and
subject to the provisions thereof, Administrative Agent and the
Banks, in exercising their rights, powers and remedies under
the Loan Documents, including the rights, powers and remedies
described in Section 8.8 of the Loan Agreement, may enforce the
Loan Documents against Borrower by any proceeding in law or in
equity and recover all amounts owing to Administrative Agent or
the Banks from Borrower under the Loan Documents solely and
exclusively from the Collateral and Borrower's other assets,
whether now owned or hereafter acquired, and in the event that
any suit shall be brought against Borrower upon the Notes or
any other Loan Documents, whether before or after maturity, by
acceleration or passage of time, or otherwise, for damages or a
money judgment, any such judgment obtained in, or as a result
of, such suit shall be enforceable and/or enforced solely and
exclusively against the Collateral and the other assets of
Borrower (such assets not including any right to require any
partner of Borrower to contribute funds, debt or equity, to
Borrower, whether the capital account of such partner be
positive or negative, it being understood that the exculpation
of the partners of Borrower under this Section 25 shall extend
to any obligation of such partners to Borrower in their
capacity as partners).
TROPICANA ENTERPRISES, a Nevada
general partnership
By: Adamar of Nevada, a Nevada
corporation
Its: General Partner
By:________________________
Its: ________________________
<PAGE>
PAYMENTS OF PRINCIPAL
Date Amount of Unpaid Notation
Principal Paid Principal Made by
Balance
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
<PAGE>
Exhibit C-2
DISCRETIONARY PROMISSORY NOTE
$______________ ______________
Las Vegas, Nevada
FOR VALUE RECEIVED, TROPICANA ENTERPRISES, a Nevada
general partnership ("Borrower"), promises to pay to the order
of __________________ ("the Bank") the principal amount of
_____________________ ($________________), payable as
hereinafter set forth. The undersigned promises to pay inter-
est on the principal amount hereof remaining unpaid from time
to time from the date hereof until the date of payment in full,
payable as hereinafter set forth.
1. The Loan Agreement and the Other Loan Agreement;
Incorporated Terms and Provisions. This Note is one of the
Discretionary Notes referred to in and delivered pursuant to
the Second Amended and Restated Loan Agreement dated as of
October 4, 1994, among Borrower, the Banks, Lead Managers, Co-
Agents and Co-Managing Agents referred to therein, and Bank of
America National Trust and Savings Association, as Managing
Agent (the "Loan Agreement") as amended by Amendment No. 1
dated as of May 28, 1998, pursuant to which Bank of America
National Trust and Savings Association has been appointed as
Administrative Agent for the Banks. . Terms defined in the
Loan Agreement and not otherwise defined herein are used herein
with the meanings defined for those terms in the Loan
Agreement.
2. Relationship to Master Note. This Discretionary
Note evidences Loans made by the Bank to Borrower pursuant to
the Loan Agreement and the Master Note referred to in the Loan
Agreement, and shall not be duplicatively enforced with the
Master Note. Principal and interest hereunder shall be made in
the manner, on the dates and at the rates set forth in the
Master Note.
3. Costs of Collection. The undersigned hereby
promises to pay all costs and expenses of the Bank incurred in
collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of the Bank's rights
hereunder, including attorneys' fees and disbursements, whether
or not an action is filed in connection therewith.
4. Waiver. The undersigned hereby waives
presentment, demand for payment, dishonor, notice of dishonor,
protest, notice of protest and any other notice or formality,
to the fullest extent permitted by applicable laws.
5. Governing Laws. This Discretionary Note shall
be delivered to and accepted by the Bank, or by the
Administrative Agent on its behalf, in the State of Nevada, and
shall be governed by, and construed and enforced in accordance
with, the local laws thereof.
6. Non-Recourse. Notwithstanding anything in this
Discretionary Note, the Loan Agreement, the Deed of Trust or
any other Loan Document or Expansion Financing Document to the
contrary, (i) no general partner of Borrower (including,
specifically, any member of the Jaffe Group, as defined in the
Borrower's Partnership Agreement or Adamar), shall have
personal liability for or be liable or subject to any
deficiency judgment for, payment of any portion of the
obligations evidenced by this Discretionary Note or any other
sums payable to Administrative Agent or the Bank under this
Discretionary Note, the Loan Agreement, the Deed of Trust or
any other Loan Document or Expansion Financing Document, it
being expressly covenanted and agreed that no personal
liability or responsibility is assumed or at any time shall be
asserted or enforced against any of the partners of Borrower,
or their respective heirs, successors or assigns, on account of
any representation, warranty, covenant, obligation,
understanding or agreement contained in this Discretionary Note
or any Loan Document or Expansion Financing Document, and
(ii) HRN shall not have any personal liability for the payment
of any sums to Administrative Agent or the Bank under this
Discretionary Note, the Loan Agreement and the Loan Documents
except as specifically set forth in the Assignment of HRN
Master Lease Rents.
Without limiting or affecting in any manner
whatsoever the exculpatory provisions of this Section 6, and
subject to the provisions thereof, Administrative Agent and the
Banks, in exercising their rights, powers and remedies under
the Loan Documents, including the rights, powers and remedies
described in Section 8.8 of the Loan Agreement, may enforce the
Loan Documents against Borrower by any proceeding in law or in
equity and recover all amounts owing to Administrative Agent or
the Banks from Borrower under the Loan Documents solely and
exclusively from the Collateral and Borrower's other assets,
whether now owned or hereafter acquired, and in the event that
any suit shall be brought against Borrower upon the Notes or
any other Loan Documents, whether before or after maturity, by
acceleration or passage of time, or otherwise, for damages or a
money judgment, any such judgment obtained in, or as a result
of, such suit shall be enforceable and/or enforced solely and
exclusively against the Collateral and the other assets of
Borrower (such assets not including any right to require any
partner of Borrower to contribute funds, debt or equity, to
Borrower, whether the capital account of such partner be
positive or negative, it being understood that the exculpation
of the partners of Borrower under this Section 6 shall extend
to any obligation of such partners to Borrower in their
capacity as partners).
TROPICANA ENTERPRISES, a Nevada
general partnership
By: Adamar of Nevada, a Nevada
corporation
Its: General Partner
By:________________________
Its: ______________________
PAYMENTS OF PRINCIPAL
Unpaid
Amount of Principal Notation
Date Principal Paid Balance Made by
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
<PAGE>
EXHIBIT D
GLOBAL ASSIGNMENT AND RELEASE AGREEMENT
THIS GLOBAL ASSIGNMENT AND RELEASE AGREEMENT
("Agreement") dated as of May 28, 1998 is entered into by the
Assignors and Assignees described on the signature pages hereto
with reference to (a) the Reducing Revolving Loan Agreement
dated as of October 4, 1994 (the "Aztar Loan Agreement") among
Aztar Corporation ("Aztar") and certain of its Subsidiaries
(the "Co-Borrower Subsidiaries") with such Co-Borrower
Subsidiaries as joint and several co-borrowers, the Banks
therein named, and Bank of America National Trust and Savings
Association, as Managing Agent and (b) the Second Amended and
Restated Loan Agreement dated as of October 4, 1994 (the
"Tropicana Loan Agreement") among Tropicana Enterprises
("Tropicana"), the Banks therein named, and Bank of America
National Trust and Savings Association, as Managing Agent. The
Aztar Loan Agreement and the Tropicana Loan Agreement are
herein collectively referred to as the "Existing Loan
Agreements". The parties hereto agree with reference to the
following facts:
A. Each of the Assignors is party to the Aztar Loan
Agreement with the percentage interests in the credit
facilities provided to the Co-Borrower Subsidiaries
thereunder set forth on Schedule A hereto. Each of the
Assignors is also party to the Tropicana Loan Agreement
with the percentage interests in the credit facilities
provided to Tropicana thereunder set forth on Schedule B
hereto.
B. As of the date hereof, the principal amount of the
Obligations under the Aztar Loan Agreement and the
principal amount of the Obligations under the Tropicana
Loan Agreement are as set forth on Schedule C hereto.
C. Immediately following the effectiveness of this
Agreement, (i) the Aztar Loan Agreement shall be amended
and restated, as to a portion thereof, pursuant to an
Amended and Restated Reducing Revolving Loan Agreement
(the "Amended Revolver") of even date herewith (under
which Aztar shall be the sole Borrower), (ii) a portion of
the Aztar Loan Agreement shall be evidenced by a Term Loan
Agreement (the "Term Loan Agreement") of even date
herewith and (iii) the Tropicana Loan Agreement shall be
amended pursuant to an Amendment No. 1 to Loan Agreement
of even date herewith (collectively, the "Amended
Agreements").
D. In anticipation of the execution of the Amended
Agreements, the parties desire to make the assignments
contemplated herein, so as to adjust their respective
percentage interests under the Amended Agreements.
E. Certain of the Banks who will hereby assign their
entire interest in the Existing Loan Agreements as set
forth on the signature page hereof (the "Exiting Banks")
shall hereby terminate their status as Banks under the
Existing Loan Agreements and shall not participate in the
Amended Agreements.
F. Pursuant to this Agreement, the Assignors will
release the Co-Borrower Subsidiaries as borrowers under
the Aztar Loan Agreement subject to their execution of the
Subsidiary Guaranty under the Amended Revolver and the
Term Loan Agreement.
The parties hereto hereby severally represent, warrant, assign,
accept and agree as follows:
1. Definitions. Capitalized terms used but
not defined herein are used with the meanings set forth for
such terms in the Aztar Loan Agreement. As used in this
Agreement, the following capitalized terms shall have the
meanings set forth below:
"Assignee" means (a) as to the Aztar Loan Agreement,
those of the Banks having a positive amount set forth
opposite the name of that Bank in (i) Column II of
Schedule A hereto as to the Amended Revolver and
(ii) Column III of Schedule A hereto as to the Term Loan
Agreement and (b) as to the Tropicana Loan Agreement,
those of the Banks having a positive amount set forth
opposite the name of that Bank in Column II of Schedule B
hereto.
"Assigned Pro Rata Share" means, as to each Bank and
each of the Amended Agreements, the amount and percentage
interest assigned or accepted by that Bank under that Loan
Agreement, as detailed on Schedules A and B.
"Assignor" means (a) as to the Aztar Loan Agreement,
those of the Banks having a positive amount set forth
opposite the name of that Bank in Column I of Schedule A
hereto and (b) as to the Tropicana Loan Agreement, those
of the Banks having a positive amount set forth opposite
the name of that Bank in Column I of Schedule B hereto.
"Borrowers" means, as of the Effective Date, Aztar
and Tropicana.
"Effective Date" means the date upon which the
Amended Agreements become effective and the payments
described in Section 6 have been made.
"Exiting Bank" means each Bank which hereby assigns
its entire interest in the Existing Loan Agreements.
"Loan Documents" means the Loan Documents described
in the Aztar Loan Agreement and the Tropicana Loan
Agreement.
"Managing Agent" means Bank of America National Trust
and Savings Association, in its capacity as Managing Agent
for each of the Banks under the Existing Loan Agreements.
"Obligations" means, collectively, the obligations
and indebtedness of the Co-Borrower Subsidiaries and
Tropicana, respectively, under the Existing Loan
Agreements.
"Pro Rata Shares" means, as the context requires, the
percentage interest of the relevant Bank of the
commitments under the Aztar Loan Agreement or Tropicana
Loan Agreement.
2. Representations and Warranties of the Assignors.
Each Assignor severally represents and warrants, each for
itself and not for any other Assignor, to the Assignees as
follows:
a. As of the date hereof, the Pro Rata Shares of
such Assignor under the Loan Agreements are as set forth
on Schedule A and Schedule B, in each case without giving
effect to assignments thereof which have not yet become
effective;
b. Such Assignor is the legal and beneficial owner
of such Assignor's Assigned Pro Rata Share and such
Assignor's Assigned Pro Rata Share is free and clear of
any adverse claim. Schedule C accurately reflects the
aggregate outstandings under the Existing Loan Agreements;
c. Such Assignor has full power and authority, and
has taken all action necessary, to execute and deliver
this Agreement and any and all other documents required or
permitted to be executed or delivered by it in connection
with this Agreement and to fulfill its obligations under,
and to consummate the transactions contemplated by, this
Agreement, and no governmental authorizations or other
authorizations are required in connection therewith;
d. This Agreement constitutes the legal, valid and
binding obligation of such Assignor.
The Assignors make no representation or warranty and assume no
responsibility with respect to the financial condition of
Borrowers or the performance by Borrowers of the Obligations,
and assume no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Existing Loan Agreements or the execution, legality, validity,
enforceability, genuineness, or sufficiency of the Existing
Loan Agreements or any Loan Document other than as expressly
set forth above.
3. Representations and Warranties of the Assignees.
Each Assignee hereby represents and warrants, for itself and
not for any other Assignee, to each Assignor as follows:
(a) Such Assignee has full power and authority,
and has taken all action necessary, to execute and deliver
this Agreement, and any and all other documents required
or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its
obligations under, and to consummate the transactions
contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in
connection therewith;
(b) This Agreement constitutes the legal, valid
and binding obligation of such Assignee;
(c) Such Assignee has independently and without
reliance upon the Managing Agent or any Assignor and based
on such documents and information as such Assignee has
deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Such Assignee
will, independently and without reliance upon the Managing
Agent or any Bank, and based upon 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 the Amended Agreements;
(d) Such Assignee has received copies of such
of the Existing Loan Agreements and the Amended
Agreements, related loan documents and financial
statements of Borrowers and their Affiliates as it has
requested;
(e) Such Assignee will perform in accordance
with their respective terms all of the obligations which
by the terms of the Amended Agreements are required to be
performed by it as a Bank; and
(f) Such Assignee is an Eligible Assignee.
4. Assignment and Acceptance; Release of Exiting
Banks.
(a) On the Effective Date and on the terms set
forth herein, each Bank under the Aztar Loan Agreement hereby
irrevocably sells, assigns and transfers, as an Assignor, its
Assigned Pro Rata Share under the Aztar Loan Agreement
(detailed as to percentage and amount in Column I of Schedule A
hereto):
(i) to each Bank which is an Assignee under the Amended
Revolver, its Assigned Pro Rata Share under the Amended
Revolver (detailed as to percentage and amount in Column
II of Schedule A hereto); and
(ii) to each Bank which is an Assignee under the Term Loan
Agreement, its Assigned Pro Rata Share under the Term Loan
Agreement (detailed as to percentage and amount in Column
III of Schedule A hereto).
Each Bank which is an Assignee under the Amended Revolver or
the Term Loan Agreement hereby irrevocably accepts, from each
such Assignor, an Assigned Pro Rata Share in the amount and
percentage interest detailed in Columns II and III,
respectively, of Schedule A hereto.
(b) On the Effective Date and on the terms set
forth herein, each Bank under the Tropicana Loan Agreement
hereby irrevocably sells, assigns and transfers, as an
Assignor, its Assigned Pro Rata Share under the Tropicana Loan
Agreement (detailed as to percentage and amount in Column I of
Schedule B hereto) to each Bank which is an Assignee under the
Tropicana Loan Agreement. Each Bank which is an Assignee under
the Tropicana Loan Agreement hereby irrevocably accepts, from
each such Assignor, an Assigned Pro Rata Share in the amount
and percentage interest detailed in Column II of Schedule B
hereto.
(c) On the Effective Date, each Bank which is
an Exiting Bank hereby accepts termination of its status as a
Bank under the Existing Loan Agreements, and all of the other
parties thereto hereby release such Exiting Banks from their
lending commitments and any other obligation under the Existing
Loan Agreements.
(d) As of the Effective Date, each Assignee
shall have the rights and obligations of a "Bank" under the
Loan Documents. Each Assignee hereby appoints and authorizes
the Managing Agent to take such action and to exercise such
powers under the Existing Loan Agreements as are delegated to
the Managing Agent by the Existing Loan Agreements.
5. Release of Co-Borrower Subsidiaries. On
the Effective Date, each Co-Borrower Subsidiary is released
from any further obligation as a co-borrower under the Aztar
Loan Agreement; provided that each such Co-Borrower Subsidiary
executes and delivers the Subsidiary Guaranty under the Amended
Revolver and the Term Loan Agreement.
6. Payment. On the Effective Date, and as a
condition precedent to the assignments contemplated hereby, (i)
Borrowers shall pay to each Bank through the Managing Agent all
interest, fees, and other amounts which have accrued and remain
unpaid under the Existing Loan Agreements as of the date hereof
and (ii) the Assignees shall pay to the Assignors through the
Managing Agent such principal amounts outstanding under the
Existing Loan Agreements as are necessary to result in each
Bank holding the percentage interest in the Amended Revolver
and Term Loan Agreement as set forth in Columns II and III,
respectively of Schedule A hereto (with any excess amount
advanced to Aztar as additional principal outstanding under the
Amended Revolver or Term Loan Agreement, as the case may be)
and each Bank holding the percentage interest in the Tropicana
Loan Agreement as is set forth in Column II of Schedule B
hereto. The Managing Agent shall advise each Bank of the
amounts to be so paid and (in the absence of written objection
from any Bank) the advice of the Managing Agent shall be
conclusively presumed to be correct. The Managing Agent may
require that each payment made by or to a Bank be net of any
amounts to be paid to or by that Bank. The Assignors and the
Assignees hereby agree that if any of them receives any payment
of interest, principal, fees or any other amount under the
Existing Loan Agreements, their respective Notes or any other
Loan Documents which is for the account of one of the other
parties hereto, it shall hold the same in trust for such party
to the extent of such party's interest therein and shall
promptly pay the same to such party.
7. Notes. Concurrently herewith each Bank is
redelivering its promissory notes under the Existing Loan
Agreements to counsel for the Managing Agent for cancellation
in consideration of the issuance of the new promissory notes to
be issued in connection with the Amended Agreements.
8. Further Assurances. The Assignors and the
Assignees further agree to execute and deliver such other
instruments, and take such other action, as any party hereto
may reasonably request in connection with the transactions
contemplated by this Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LOCAL LAWS OF THE STATE OF NEVADA. FOR ANY DISPUTE ARISING
IN CONNECTION WITH THIS AGREEMENT, EACH ASSIGNEE HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEVADA.
10. Notices. All communications among the
parties or notices in connection herewith shall be in writing,
and shall be delivered in the manner set forth in the Aztar
Loan Agreement.
11. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties and their
respective successors and assigns; provided, however, that no
Assignee shall assign its rights or obligations under this
Agreement without the prior written consent of each Assignor
and any purported assignment, absent such consent, shall be
void. Nothing contained in this Section shall restrict the
assignment by any Assignee of its rights under the Loan
Documents following the Effective Date.
12. Consent of Managing Agent and Borrowers.
By executing this Agreement in the space provided below, Bank
of America National Trust and Savings Association consents (in
its capacity as Managing Agent under each of the Existing Loan
Agreements) to each of the assignments described herein, and
waives the recordation fees payable to it to it as Managing
Agent pursuant to the Existing Loan Agreements in connection
with such assignments. Borrowers (while not a party to this
Agreement) have signed this Agreement below to evidence their
consent to such assignments.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective
officials, officers or agents thereunto duly authorized as of
the date first above written.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as Managing Agent
under each of the Loan Agreements)
By: _____________________________
Title: ____________________________
"Assignors"
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: __________________________________
Scott L. Faber
Vice President
Address:
Bank of America National Trust and
Savings Association
555 South Flower Street, 11th Floor,
#3283
Los Angeles, California 90071
Attn:Scott L. Faber
Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn:William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANKERS TRUST COMPANY
By_________________________________
David Bell
Vice President
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn:David Bell
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9048
SOCIETE GENERALE
By_________________________________
Donald L. Schubert
First Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
First Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
With a copy sent to:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Jane van Brussel
Telecopier: (310) 788-7106
Telephone: 9310) 551-1537
BANK OF SCOTLAND
By_________________________________
Annie Chin-Tat
Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin-Tat
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
With a copy to:
Bank of Scotland
660 South Figueroa Street, Suite 1760
Los Angeles, California 90017
Attn: Kandis Jaffrey
Telecopier: (213) 489-3594
Telephone: (213) 629-3057
CREDIT LYONNAIS LOS ANGELES BRANCH
By_________________________________
Dianne M. Scott
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
With a copy to:
Ron Finn, Esquire
Legal Department
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopier: (212) 459-3187
Telephone: (212) 261-7050
PNC BANK, NATIONAL ASSOCIATION
By_________________________________
Gary W. Wessels
Vice President
Address:
PNC Bank, N.A.
Two Tower Center, 16th Floor
East Brunswick, New Jersey 08816
Attn: Denise D. Killen
Telecopier: (732) 220-3270
Telephone: (732) 220-3262
ABN AMRO BANK, N.V.
By_________________________________
Jeffrey A. French
Group Vice President and Director
By_________________________________
Michael Tolentino
Assistant Vice President and
Credit Analyst
Address:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, California 94111-5812
Attn: Michael Tolentino
Telecopier: (415) 362-3524
Telephone: (415) 984-3722
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By _________________________________
_______________________________
[Printed Name and Title]
Address:
Imperial Bank
9920 South La Cienega Boulevard, 14th
Floor
Inglewood, California 90301
Attn: Steven K. Johnson
Telecopier: (310) 417-5997
Telephone: (310) 417-5657
FIRST SECURITY BANK N.A., as an
Assignor and an Exiting Bank
By:___________________________
David Williams
Vice President
Address:
First Security Bank N.A.
Commercial Banking Division
15 East 100 South, Second Floor
Salt Lake City, Utah 84111
Attn: David Williams
Vice President
Telecopier: (801) 246-5532
Telephone: (801) 246-5540
MASSMUTUAL HIGH YIELD PARTNERS LLC, as
an Assignor and an Exiting Bank
By:___________________________
Laura Hamel
Title:_______________________
Address:
MassMutual High Yield Partners LLC
c/o Massachusetts Mutual Life
Insurance Co.
1295 State Street
Springfield, Massachusetts 01111
Attn: John Wheeler
_____________
Telecopier: (413) 744-6127
Telephone: (413) 744-6228
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC., as an Assignor and an
Exiting Bank
By:_________________________________
Jill Montanye
Title:_____________________________
Address:
Merrill Lynch Senior Floating Rate
Fund Inc.
Area 1B
c/o Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, NJ 08536
Attn: Jill Montanye
_______________
Telecopier: (609) 282-3542
Telephone: (609) 282-3102
THE SUMITOMO BANK, LIMITED, as an
Assignor and an Exiting Bank
By:___________________________________
Herbert W. Redding
Vice President
Address:
The Sumitomo Bank, Limited
233 South Wacker Drive, Suite 5400
Chicago, IL 60606-6448
Attn: Herbert W. Redding
Vice President
Telecopier: (312) 993-6255
Telephone: (312) 993-6202
"Assignees"
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: __________________________________
Scott L. Faber
Vice President
Address:
Bank of America National Trust and
Savings Association
555 South Flower Street, 11th Floor,
#3283
Los Angeles, California 90071
Attn: Scott L. Faber
Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: __________________________________
Francis Griffin
Attorney-In-Fact
Address:
Bank of America National Trust and
Savings Association
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Attn: Francis Griffin
Telecopier: (312) 828-7448
Telephone: (312) 828-8244
With a copy to:
Bank of America National Trust and
Savings Association
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Attn: Catherine Beard
Telecopier: (312) 828-7448
Telephone: (312) 828-6389
BANKERS TRUST COMPANY
By_________________________________
David Bell
Vice President
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn: David Bell
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9048
SOCIETE GENERALE
By_________________________________
Donald L. Schubert
First Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
First Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
With a copy sent to:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Jane van Brussel
Telecopier: (310) 788-7106
Telephone: 9310) 551-1537
BANK OF SCOTLAND
By_________________________________
Annie Chin-Tat
Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin-Tat
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
With a copy to:
Bank of Scotland
660 South Figueroa Street, Suite 1760
Los Angeles, California 90017
Attn: Kandis Jaffrey
Telecopier: (213) 489-3594
Telephone: (213) 629-3057
CREDIT LYONNAIS LOS ANGELES BRANCH
By_________________________________
Dianne M. Scott
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
With a copy to:
Ron Finn, Esquire
Legal Department
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopier: (212) 459-3187
Telephone: (212) 261-7050
PNC BANK, NATIONAL ASSOCIATION
By_________________________________
Gary W. Wessels
Vice President
Address:
PNC Bank, N.A.
Two Tower Center, 16th Floor
East Brunswick, New Jersey 08816
Attn: Denise D. Killen
Telecopier: (732) 220-3270
Telephone: (732) 220-3262
ABN AMRO BANK, N.V.
By_________________________________
Jeffrey A. French
Group Vice President and Director
By
_______________________________
Michael Tolentino
Assistant Vice President and
Credit Analyst
Address:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, California 94111-5812
Attn: Michael Tolentino
Telecopier: (415) 362-3524
Telephone: (415) 984-3722
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By _________________________________
_______________________________
[Printed Name and Title]
Address:
Imperial Bank
9920 South La Cienega Boulevard, 14th
Floor
Inglewood, California 90301
Attn: Steven K. Johnson
Telecopier: (310) 417-5997
Telephone: (310) 417-5657
KEYBANK NATIONAL ASSOCIATION
By_________________________________
Mary K. Young
Commercial Banking Officer
Address:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, Washington 98104
Attn: Mary K. Young
Telecopier: (206) 684-6035
Telephone: (206) 684-6085
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By_________________________________
Yasushi Satomi
Senior Vice President and Chief
Manager
Address:
The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency
801 South Figueroa Street, Suite 500
Los Angeles, California 90017
Attn: F. Frank Herrera
Telecopier: (213) 687-4631
Telephone: (213) 896-4652
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as
Collateral Manager
By_________________________________
_________________________________
[Printed Name and Title]
Address:
Archimedes Funding, L.L.C.
c/o ING Capital Advisors, Inc.
333 South Grand Avenue, suite 4250
Los Angeles, California 90071
Attn: Mike Hatley
Vice President and
Portfolio Manager
Telecopier: (213) 346-3972
Telephone: (213) 346-3995
DEEPROCK & COMPANY,
By: Eaton Vance Management,
as Investment Advisor
By_________________________________
_________________________________
[Printed Name and Title]
Address:
State Street Bank & Trust Company
Corporate Trust Division
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attn: Patrick McEnroe
Telecopier: (617) 664-5366 or (617)
664-5367
Telephone: (617) 664-5407
and
Eaton Vance Management
Attention: Prime Rate Reserves
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Telecopier: (617) 695-9594
Telephone: (617) 348-0115<PAGE>
The undersigned hereby consent to the assignments described
above and to the release of the Exiting Banks from their
lending commitments under the Loan Agreements:
AZTAR CORPORATION
ADAMAR OF NEW JERSEY, INC.
By: _______________________
Neil Ciarfalia, Treasurer
RAMADA EXPRESS, INC.
AZTAR INDIANA GAMING CORPORATION
AZTAR MISSOURI GAMING CORPORATION
By: _______________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
TROPICANA ENTERPRISES
By: ADAMAR OF NEVADA
Its General Partner
By: _______________________
Nelson W. Armstrong, Jr.
Vice President and Secretary
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet at July 2, 1998 and the Consolidated Statement of
Operations for the year-to-date period ended July 2, 1998 and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUL-2-1998
<CASH> 33,604
<SECURITIES> 0
<RECEIVABLES> 61,377
<ALLOWANCES> 21,492
<INVENTORY> 6,477
<CURRENT-ASSETS> 101,506
<PP&E> 1,196,017
<DEPRECIATION> 295,455
<TOTAL-ASSETS> 1,072,381
<CURRENT-LIABILITIES> 99,226
<BONDS> 495,596
6,867
0
<COMMON> 491
<OTHER-SE> 446,365
<TOTAL-LIABILITY-AND-EQUITY> 1,072,381
<SALES> 26,652
<TOTAL-REVENUES> 399,993
<CGS> 26,741
<TOTAL-COSTS> 205,986
<OTHER-EXPENSES> 18,342
<LOSS-PROVISION> 6,684
<INTEREST-EXPENSE> 30,382
<INCOME-PRETAX> 9,405
<INCOME-TAX> 2,830
<INCOME-CONTINUING> 4,337
<DISCONTINUED> 0
<EXTRAORDINARY> (1,346)
<CHANGES> 0
<NET-INCOME> 2,991
<EPS-PRIMARY> .06
<EPS-DILUTED> .06
</TABLE>
