UNITED STATES
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 January 23, 2000
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 0-20538
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ISLE OF CAPRI CASINOS, INC.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware 41-1659606
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1641 Popps Ferry Road, Biloxi, Mississippi 39532
- ------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (228) 396-7000
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
--
As of March 2, 2000, the Company had a total of 30,266,239 shares of Common
Stock outstanding.
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ISLE OF CAPRI CASINOS, INC.
FORM 10-Q
INDEX
PAGE
<C><S> <C> <C>
PART I FINANCIAL INFORMATION
- ------
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEETS, JANUARY 23, 2000
(UNAUDITED) AND APRIL 25, 1999 . . . . . . . . . . . . . . . . . .1
CONSOLIDATED STATEMENTS OF OPERATIONS FOR
THE THREE AND NINE MONTHS ENDED JANUARY 23, 2000
AND JANUARY 24, 1999 (UNAUDITED) . . . . . . . . . . . . . . . . .2
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE NINE MONTHS ENDED JANUARY 23, 2000
(UNAUDITED). . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR
THE NINE MONTHS ENDED JANUARY 23, 2000 AND
JANUARY 24, 1999 (UNAUDITED) . . . . . . . . . . . . . . . . . . .4
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS . . . . . . . . . .17
PART II OTHER INFORMATION
- -------
ITEM 1. LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . .25
ITEM 2. CHANGES IN SECURITIES . . . . . . . . . . . . . . . . . . . . . .26
ITEM 3. DEFAULTS UPON SENIOR SECURITIES . . . . . . . . . . . . . . . . .26
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
ITEM 5. OTHER INFORMATION . . . . . . . . . . . . . . . . . . . . . . . .26
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K. . . . . . . . . . . . . . . . .27
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
EXHIBIT LIST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
</TABLE>
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<TABLE>
<CAPTION>
ISLE OF CAPRI CASINOS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except per share data)
<S> <C> <C>
January 23, April 25,
ASSETS 2000 1999
------ ------------ -----------
(Unaudited)
Current assets:
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 82,533 $ 85,117
Accounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,697 5,935
Notes receivable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,149 -
Income tax receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7,509
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,684 4,684
Prepaid expenses and other assets . . . . . . . . . . . . . . . . . . . . . . . 6,851 5,771
------------ -----------
Total current assets . . . . . . . . . . . . . . . . . . . 118,914 109,016
Property and equipment - net. . . . . . . . . . . . . . . . . . . . . . . . . . . . 447,935 411,176
Other assets:
Investment in and advances to joint ventures. . . . . . . . . . . . . . . . . . 2,268 1,851
Property held for development or sale . . . . . . . . . . . . . . . . . . . . . 3,782 5,532
Licenses and other intangible assets, net of accumulated amortization of
$11,138 and $8,960, respectively . . . . . . . . . . . . . . . . . . . . 61,230 63,408
Goodwill, net of accumulated amortization of $9,924 and $8,144, respectively. . 51,038 52,818
Berthing, concession, and leasehold rights, net of accumulated amortization of
$2,384 and $2,149, respectively. . . . . . . . . . . . . . . . . . . . . 3,884 4,119
Deferred financing costs, net of accumulated amortization of $2,984 and
$1,178, respectively . . . . . . . . . . . . . . . . . . . . . . . . . . 17,656 19,351
Restricted cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,389 5,480
Prepaid deposits and other. . . . . . . . . . . . . . . . . . . . . . . . . . . 3,340 3,733
------------ -----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . $ 713,436 $ 676,484
============ ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current liabilities:
Current maturities of long-term debt. . . . . . . . . . . . . . . . . . . . . . $ 8,811 $ 5,883
Accounts payable, trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,525 20,102
Accrued liabilities:
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,439 2,033
Payroll and related . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,839 23,867
Property and other taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 13,213 11,700
Income tax payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,278 -
Progressive jackpots and slot club awards . . . . . . . . . . . . . . . . . 6,881 5,351
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,213 9,888
------------ -----------
Total current liabilities. . . . . . . . . . . . . . . . . 98,199 78,824
Long-term debt, less current maturities . . . . . . . . . . . . . . . . . . . . . . 517,528 526,873
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,057 4,689
Minority interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,386 4,143
Stockholders' equity:
Preferred stock, $.01 par value; 2,050,000 shares authorized; none issued . . . - -
Common stock, $.01 par value; 45,000,000 shares authorized; shares issued and
outstanding: 23,950,089 and 23,568,562, respectively . . . . . . . . . . 239 236
Class B common stock, $.01 par value; 3,000,000 shares authorized, none
issued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - -
Additional paid-in capital. . . . . . . . . . . . . . . . . . . . . . . . . . . 65,413 63,146
Retained earnings (deficit) . . . . . . . . . . . . . . . . . . . . . . . . . . 16,614 (1,427)
------------ -----------
Total stockholders' equity . . . . . . . . . . . . . . . . 82,266 61,955
------------ -----------
Total liabilities and stockholders' equity . . . . . . . . $ 713,436 $ 676,484
============ ===========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<TABLE>
<CAPTION>
ISLE OF CAPRI CASINOS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Three Months Ended Nine Months Ended
January 23, January 24, January 23, January 24,
2000 1999 2000 1999
-------------------- ------------------- ------------- -------------
Revenue
Casino . . . . . . . . . . . . . . . . . . . . . $ 139,001 $ 101,893 $ 408,814 $ 297,744
Rooms. . . . . . . . . . . . . . . . . . . . . . 2,568 2,167 8,013 7,988
Pari-mutuel commissions and fees . . . . . . . . 5,477 5,542 13,826 13,514
Food, beverage and other . . . . . . . . . . . . 6,678 5,518 20,273 16,879
-------------------- ------------------- ------------- -------------
Total revenue. . . . . . . . . . . . . . 153,724 115,120 450,926 336,125
Operating Expenses
Casino . . . . . . . . . . . . . . . . . . . . . 27,498 19,629 77,702 55,821
Rooms. . . . . . . . . . . . . . . . . . . . . . 1,251 798 3,699 2,793
Gaming taxes . . . . . . . . . . . . . . . . . . 28,448 20,912 82,196 61,288
Pari-mutuel. . . . . . . . . . . . . . . . . . . 4,076 4,083 10,542 10,193
Food and beverage. . . . . . . . . . . . . . . . 4,167 3,262 12,476 10,429
Marine and facilities. . . . . . . . . . . . . . 8,353 7,227 26,898 20,577
Marketing and administrative . . . . . . . . . . 47,511 34,343 138,889 101,417
Accrued litigation settlement (reversal) . . . . - (4,215) - (4,215)
Valuation allowance. . . . . . . . . . . . . . . - 5,097 - 5,097
Preopening expenses. . . . . . . . . . . . . . . - 3,320 3,420 3,320
Depreciation and amortization. . . . . . . . . . 9,336 8,762 27,261 25,894
-------------------- ------------------- ------------- -------------
Total operating expenses . . . . . . . . 130,640 103,218 383,083 292,614
-------------------- ------------------- ------------- -------------
Operating income . . . . . . . . . . . . . . . . 23,084 11,902 67,843 43,511
Interest expense . . . . . . . . . . . . . . . . (13,649) (11,676) (39,214) (35,701)
Interest income. . . . . . . . . . . . . . . . . 1,162 710 2,705 2,349
Gain on disposal . . . . . . . . . . . . . . . . - - 3,106 -
Minority interest. . . . . . . . . . . . . . . . (1,053) 1,670 (2,244) 2,197
Equity in income (loss)
of unconsolidated joint ventures. . . . . . (417) (479) 220 (1,140)
-------------------- ------------------- ------------- -------------
Income before income taxes . . . . . . . . . . . 9,127 2,127 32,416 11,216
Income tax provision . . . . . . . . . . . . . . 4,246 1,082 14,375 5,551
-------------------- ------------------- ------------- -------------
Net income . . . . . . . . . . . . . . . . . . . $ 4,881 $ 1,045 $ 18,041 $ 5,665
==================== =================== ============= =============
Net income per common share - basic. . . . . . . $ 0.20 $ 0.04 $ 0.76 $ 0.24
Net income per common share - assuming dilution. $ 0.19 $ 0.04 $ 0.71 $ 0.24
Weighted average basic shares. . . . . . . . . . 23,893 23,569 23,740 23,569
Weighted average diluted shares. . . . . . . . . 25,938 23,684 25,353 23,663
</TABLE>
See notes to consolidated financial statements
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<TABLE>
<CAPTION>
ISLE OF CAPRI CASINOS, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(In thousands)
<S> <C> <C> <C> <C> <C>
Shares of Additional Retained Total
Common Common Paid-in Earnings Stockholders'
Stock Stock Capital (Deficit) Equity
---------- ----------- --------- ---------- --------------
Balance, April 25, 1999. . . . . . . . . . . . . 23,568,562 $ 236 $ 63,146 $ (1,427) $ 61,955
Exercise of stock options and warrants. 381,527 3 2,267 - 2,270
Net income. . . . . . . . . . . . . . . - - - 18,041 18,041
---------- ----------- --------- ---------- --------------
Balance, January 23, 2000 (Unaudited). . . . . . 23,950,089 $ 239 $ 65,413 $ 16,614 $ 82,266
========== =========== ========= ========== ==============
</TABLE>
See notes to consolidated financial statements
<PAGE>
<TABLE>
<CAPTION>
ISLE OF CAPRI CASINOS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(In thousands)
<S> <C> <C>
Nine Months Ended
January 23, January 24,
2000 1999
------------------- -------------
Operating Activities:
Net Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 18,041 $ 5,665
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization. . . . . . . . . . . . . . . 27,261 25,894
Deferred income taxes. . . . . . . . . . . . . . . . . . . 4,368 -
Amortization of bond discount and deferred financing costs 1,806 1,736
Valuation allowance. . . . . . . . . . . . . . . . . . . . - 5,097
Gain on disposal of assets . . . . . . . . . . . . . . . . (3,106) -
Equity in (income) loss of unconsolidated joint ventures . (220) 1,140
Minority interest. . . . . . . . . . . . . . . . . . . . . 2,244 (2,197)
Changes in current assets and liabilities:
Accounts receivable . . . . . . . . . . . . . . . 1,867 (4,164)
Income tax receivable . . . . . . . . . . . . . . 7,509 6,265
Prepaid expenses and other assets . . . . . . . . (957) 266
Accounts payable and accrued expenses . . . . . . 15,468 17,495
------------------- -------------
Net cash provided by operating activities. . . . . . . . . . . . . 74,281 57,197
Investing activities:
Purchase of property and equipment . . . . . . . . . . . . . . . . (60,063) (73,243)
Net cash paid for acquisitions . . . . . . . . . . . . . . . . . . - 500
Proceeds from disposals of property and equipment. . . . . . . . . 6,065 -
Investments in and advances to joint ventures. . . . . . . . . . . (198) -
Decrease in restricted cash. . . . . . . . . . . . . . . . . . . . 2,091 37,461
Deposits and other . . . . . . . . . . . . . . . . . . . . . . . . (357) (2,726)
Notes receivable . . . . . . . . . . . . . . . . . . . . . . . . . (20,149) -
------------------- -------------
Net cash used in investing activities. . . . . . . . . . . . . . . (72,611) (38,008)
Financing activities:
Proceeds from debt . . . . . . . . . . . . . . . . . . . . . . . . - 6,589
Principal payments on debt and cash paid to retire debt. . . . . . (6,413) (9,496)
Deferred financing costs . . . . . . . . . . . . . . . . . . . . . (111) (7)
Proceeds from sale of stock and exercise of options and warrants . 2,270 -
------------------- -------------
Net cash used in financing activites . . . . . . . . . . . . . . . (4,254) (2,914)
Net increase (decrease) in cash and cash equivalents . . . . . . . (2,584) 16,275
Cash and cash equivalents at beginning of period . . . . . . . . . 85,117 52,460
------------------- -------------
Cash and cash equivalents at end of period . . . . . . . . . . . . $ 82,533 $ 68,735
=================== =============
Supplemental disclosure of cash flow information:
Cash payments (receipts) for:
Interest . . . . . . . . . . . . . . . . . . . . . . . . . $ 26,369 $ 28,353
Income taxes - net of refunds. . . . . . . . . . . . . . . (1,933) 2,663
Supplemental schedule of noncash investing and financing
activities:
Property and equipment funded through accounts payable . . . . . . 944 43
Discount on note payable . . . . . . . . . . . . . . . . . . . . . - 95
</TABLE>
See notes to consolidated financial statements
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
Basis of Presentation
Isle of Capri Casinos, Inc., (the "Company" or "Isle of Capri"), formerly
known as Casino America, Inc., was incorporated as a Delaware corporation on
February 14, 1990 and changed its name to Isle of Capri Casinos, Inc. on October
1, 1998. The Company, through its subsidiaries, is engaged in the business of
developing, owning and operating riverboat, dockside and land-based casinos and
related facilities. The Company has licenses to conduct and currently conducts
gaming operations in Biloxi, Vicksburg and Tunica, Mississippi, in Bossier City
and Lake Charles, Louisiana, and in Black Hawk, Colorado through its
subsidiaries.
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments, consisting
of normal recurring adjustments considered necessary for a fair presentation
have been included. Operating results for the nine month period ended January
23, 2000 are not necessarily indicative of the results that may be expected for
the fiscal year ending April 30, 2000. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Company's annual report on Form 10-K for the fiscal year ended April 25, 1999.
The consolidated financial statements of the Company include the accounts
of Isle of Capri Casinos, Inc. and its subsidiaries. All material intercompany
balances and transactions have been eliminated in consolidation.
The preparation of financial statements in conformity with generally
accepted accounting principles necessarily requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements as well as revenues and expenses during the reporting period. Actual
amounts when ultimately realized could differ from those estimates.
Earnings per Common Share
The following table sets forth the computation of basic and diluted earnings per
share:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Three Months Ended Nine Months Ended
January 23, January 24, January 23, January 24,
2000 1999 2000 1999
------------------- ------------------ ------------ ------------
Numerator:
Net income. . . . . . . . . . . . . . . . . . $ 4,881 $ 1,045 $ 18,041 $ 5,665
=================== ================== ============ ============
Numerator for basic earnings per share -
income available to common stockholders $ 4,881 $ 1,045 $ 18,041 $ 5,665
Effect of diluted securities. . . . . . . . . - - - -
------------------- ------------------ ------------ ------------
Numerator for diluted earnings per share-
income available to common stockholders
after assumed conversions. . . . . . $ 4,881 $ 1,045 $ 18,041 $ 5,665
=================== ================== ============ ============
Denominator:
Denominator for basic earnings per share -
weighted - average shares . . . . . . . 23,893 23,569 23,740 23,569
Effect of dilutive securities
Employee stock options. . . . . . . . . 1,880 115 1,610 95
Warrants. . . . . . . . . . . . . . . . 165 - 3 -
------------------- ------------------ ------------ ------------
Dilutive potential common shares. . . . . . . 2,045 115 1,613 95
------------------- ------------------ ------------ ------------
Denominator for diluted earnings per share
adjusted weighted - average shares and
assumed conversions . . . . . . . . . . 25,938 23,684 25,353 23,663
=================== ================== ============ ============
Basic earnings per share. . . . . . . . . . . $ 0.20 $ 0.04 $ 0.76 $ 0.24
=================== ================== ============ ============
Diluted earnings per share. . . . . . . . . . $ 0.19 $ 0.04 $ 0.71 $ 0.24
=================== ================== ============ ============
</TABLE>
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. Property and Equipment
Property and equipment is recorded at cost. Depreciation is computed using
the straight-line method over the following estimated useful lives:
<TABLE>
<CAPTION>
<S> <C>
Years
-------
Slot Machines. . . . . . . . . . 3
Furniture, fixtures, and equipment 5-10
Leasehold improvements . . . . . . 10-39.5
Riverboats and floating pavilions. 25
Buildings and improvements . . . . 39.5
</TABLE>
Effective April 26, 1999, Isle of Capri increased its estimate of the
useful lives of all land-based buildings and improvements from 25 years to 39.5
years to more appropriately reflect the expected useful lives of those assets.
Isle of Capri also reduced its estimate of the useful lives of slot machines
from 5 years to 3 years due to technological changes. These two changes
increased net income for the three months ended January 23, 2000 by $113,000,
but did not change earnings per basic share. Earnings per diluted share changed
by $0.01 for the three months ended January 23, 2000. For the nine months ended
January 23, 2000, these two changes increased net income by $3,000, but did not
change the earnings per basic share or earnings per diluted share. Excluding
the changes in useful lives, net income, earnings per basic share, and earnings
per diluted share would have been $4,767,000, $0.20, and $0.18, respectively,
for the three months ended January 23, 2000. For the nine months ended
January 23, 2000, net income, earnings per basic share and earnings per diluted
share would have been $18,038,000, $0.76, and $0.71, respectively, excluding
the changes in useful lives.
3. Other Assets
Licenses and other intangible assets
Licenses and other intangible assets principally represent the license
value attributed to the Louisiana gaming licenses acquired through the Company's
acquisition of St. Charles Gaming Company, Inc. ("SCGC"), Grand Palais
Riverboat, Inc. ("GPRI") and Louisiana Riverboat Gaming Partnership ("LRGP").
These assets are being amortized over a twenty-five-year period using the
straight-line method.
Goodwill
Goodwill reflects the excess purchase price the Company paid in
acquiring the net identifiable tangible and intangible assets of SCGC, GPRI and
LRGP. Goodwill is being amortized over a twenty-five-year period using the
straight-line method.
Restricted cash
Restricted cash primarily represented cash proceeds from the 13% First
Mortgage Notes due 2004 with Contingent Interest issued by Isle of Capri Black
Hawk, L.L.C. ("Isle-Black Hawk") (the "First Mortgage Notes") held in trust by
The Bank of New York, as trustee for Isle-Black Hawk, a majority-owned
subsidiary of the Company. These funds were held in three separate accounts
(Construction Disbursement, Completion Reserve and Interest Reserve) with usage
restricted by an indenture between Isle-Black Hawk and the trustee, dated August
20, 1997 governing the First Mortgage Notes (the "Indenture"). As of January 23,
2000 these accounts were closed and the balances therein were released to Isle-
Black Hawk. In addition, the Company has other restricted cash totaling $3.4
million related to various operating deposits.
4. Isle of Capri Black Hawk, L.L.C.
On April 25, 1997, a wholly-owned subsidiary of the Company, Casino America
of Colorado, formed Isle-Black Hawk, a limited liability company, with Blackhawk
Gold, Ltd., a wholly-owned subsidiary of Nevada Gold & Casinos, Inc. Isle-Black
Hawk owns a casino in Black Hawk, Colorado, which opened on December 30, 1998.
Isle-Black Hawk has begun to construct a hotel containing approximately 237
rooms at the site of the Isle-Black Hawk. The Company has a 57% ownership
interest in Isle-Black Hawk. As a consolidated subsidiary of the Company, the
operating results of Isle-Black Hawk are reflected in the consolidated results
of the Company. Prior to December 30, 1998, Isle-Black Hawk was a development
stage company.
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
5. Capri Cruises, L.L.C.
On April 20, 1998, the Company signed an agreement with Commodore Holdings
Limited, parent company of Commodore Cruise Line, to create a joint venture
named Capri Cruises to operate cruise ships in strategic markets. Cruise
operations began in early June 1998. As of January 23, 2000, the Company had
invested $3.0 million into this 50/50 unconsolidated joint venture, which is
operating one cruise ship from the Port of New Orleans.
6. Acquisitions
Isle of Capri - Tunica
In March 1999, the Company acquired the original Harrah's casino facility
located in Tunica County, Mississippi for $9.5 million. The Company invested an
additional $24.0 million to equip, renovate and open this facility as an Isle of
Capri casino. The Company opened the Isle-Tunica on July 26, 1999 with
approximately 875 slot machines, 15 table games and its two trademark
restaurants. The Company also plans to invest approximately $40.0 million more
to construct an on-site hotel with up to 250 rooms and two live entertainment
theaters with combined seating for 1,800 people. Construction of the hotel is
currently underway and construction of the theaters is scheduled to begin during
the first half of 2000.
Lady Luck Gaming Corporation/Gemini, Inc.
On March 2, 2000 the Company acquired Lady Luck Gaming Corporation ("Lady
Luck") in a merger transaction pursuant to which Lady Luck became a wholly-owned
subsidiary of the Company. Lady Luck's common stockholders received cash
in the amount of $12.00 per share for an aggregate share consideration of
approximately $59 million. Lady Luck operates dockside riverboat casinos and
hotels in Lula and Natchez, Mississippi; owns a 50% interest in the Lady Luck
Casino and Hotel in Bettendorf, Iowa; and on October 29, 1999, acquired the Miss
Marquette Casino in Marquette, Iowa for $41.7 million. In November 1999, the
Company made a secured loan of approximately $21.0 million to Lady Luck in order
to assist Lady Luck in consummating its acquisition of the Miss Marquette
riverboat in Marquette, Iowa. The Company also completed the acquisition of
certain intellectual property for $31.0 million contemporaneously with the
merger. The Company expects to complete the acquisition of the Las Vegas
casino and hotel upon receipt of regulatory approval in Nevada. The acquisition
price for the Las Vegas facility is $14.5 million.
BRDC, Inc.
On March 2, 2000 the Company merged with BRDC, Inc. ("BRDC") which owned a
50% interest in Lady Luck's Bettendorf, Iowa facility that was not owned by Lady
Luck and related real estate in exchange for 6.3 million shares of the Company's
common stock, subject to post-closing adjustment in certain circumstances. BRDC
was owned by members of the family of Bernard Goldstein, the Company's Chairman
and Chief Executive Officer, including Robert Goldstein, a member of the
Company's board of directors.
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
7. Long-Term Debt
<TABLE>
<CAPTION>
<S> <C> <C>
January 23, April 25,
2000 1999
--------------- ----------
Long-term debt consists of the following: (In thousands)
8 3/4 % senior subordinated notes (described below). . . . . . . . . . . . . . . . . $ 390,000 $ 390,000
Variable rate Term Loan (7.82% at April 25, 1999), due in quarterly installments
ranging from $833,333 to $4,166,667, not including interest, through April 2004. 47,500 50,000
12 1/2 % note payable, due in monthly installments of $125,000, including interest,
beginning October 1997 through October 2005. . . . . . . . . . . . . . . . . . . 6,007 6,527
8 % note payable , due in monthly installments of $66,667, including interest,
through July 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,753 2,283
8 % note payable , due in monthly installments of $11,365, including interest,
through December 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,222 1,250
11% note payable, issued by Isle of Capri Black Hawk, L.L.C., due August 2004;
non-recourse to Isle of Capri Casinos, Inc.. . . . . . . . . . . . . . . . . . . 964 1,522
13% First Mortgage Notes, issued by Isle of Capri Black Hawk, L.L.C., due
August 2004; non-recourse to Isle of Capri Casinos, Inc. . . . . . . . . . . . . 75,000 75,000
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,893 6,174
--------------- ----------
526,339 532,756
Less: current maturities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,811 5,883
--------------- ----------
Long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 517,528 $ 526,873
=============== ==========
</TABLE>
On April 23, 1999, the Company issued $390,000,000 of 8 3/4 % Senior
Subordinated Notes due 2009 (the "Senior Subordinated Notes"). The Senior
Subordinated Notes are guaranteed by all of the Company's significant
subsidiaries, excluding the subsidiaries that own and operate the Isle-Black
Hawk. Interest on the Senior Subordinated Notes is payable semi-annually on
each April 15 and October 15 through maturity. The Senior Subordinated Notes
are redeemable, in whole or in part, at the Company's option at any time on or
after April 15, 2004 at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest to the
applicable redemption date, if redeemed during the 12-month period beginning on
April 15 of the years indicated below:
<TABLE>
<CAPTION>
<S> <C>
Year Percentage
---- -----------
2004. . . . . . . . 104.375%
2005. . . . . . . . 102.917%
2006. . . . . . . . 101.458%
2007 and thereafter 100.000%
</TABLE>
The Company issued the Senior Subordinated Notes under an indenture between
the Company, the subsidiary guarantors and a trustee. The indenture, among other
things, restricts the ability of the Company and its restricted subsidiaries to
borrow money, make restricted payments, use assets as security in other
transactions, enter into transactions with affiliates, or pay dividends on or
repurchase its stock or its restricted subsidiaries' stock. The Company is also
restricted in its ability to issue and sell capital stock of its subsidiaries
and in its ability to sell assets in excess of specified amounts or merge with
or into other companies.
A substantial part of the proceeds from the Senior Subordinated Notes was
used to prepay long-term debt, including all of the $315,000,000 of 12 1/2 %
Senior Secured Notes due 2003. The proceeds were also used to pay prepayment
premiums, accrued interest and other transaction fees and costs.
Simultaneously, with the issuance of the Senior Subordinated Notes, the
Company entered into a $175.0 million five-year Senior Credit Facility (the
"Senior Credit Facility") comprised of a $50.0 million term loan and a $125.0
million revolver, which had no draws against it as of January 23, 2000. The
Senior Credit Facility is secured by liens on substantially all of the Company's
assets and guaranteed by all of its significant restricted subsidiaries,
excluding Casino America of Colorado, Inc., Isle-Black Hawk, and their
subsidiaries. The Company used the initial borrowings under the Senior Credit
Facility to repay certain existing debt and for working capital and for other
general corporate purposes. This credit facility was subsequently replaced as
forth in Note 11.
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
7. Long-Term Debt (Continued)
On August 20, 1997, Isle-Black Hawk issued $75 million of 13% First
Mortgage Notes due 2004 with contingent interest, which is non-recourse debt to
the Company. Interest on the First Mortgage Notes is payable semi-annually on
February 28 and August 31 of each year, commencing February 28, 1998.
Additionally, contingent interest is payable on the First Mortgage Notes on each
interest payment date, in an aggregate principal amount of 5% of the
Consolidated Cash Flow (as defined in the Indenture governing the First Mortgage
Notes). The First Mortgage Notes are redeemable at the option of Isle-Black
Hawk, in whole or in part, at any time on or after August 1, 2001 at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest to the redemption date, if redeemed during the
12-month period beginning on August 31 of the years indicated below:
<TABLE>
<CAPTION>
<S> <C>
Year Percentage
---- -----------
2001. . . . . . . . 106.500%
2002. . . . . . . . 103.200%
2003 and thereafter 100.000%
</TABLE>
Beginning December 1999, Isle-Black Hawk will be required to offer to
purchase, at the price of 101% of the aggregate principal amount thereof,
the maximum principal amount of the First Mortgage Notes that may be purchased
with 50% of the Isle-Black Hawk's excess cash flow, as defined.
On August 31, 1999, Isle-Black Hawk deferred its first contingent interest
payment totaling $516,000. This amount was fully accrued as of August 31, 1999.
The amount of contingent interest expense recorded for the three and nine months
ended January 23, 2000 was $290,000 and $756,000, respectively.
Isle of Capri has $4.5 million available in bank lines of credit other than
the Senior Credit Facility. As of January 23, 2000, Isle of Capri had no
outstanding balances under these lines of credit.
Isle-Black Hawk obtained a letter of credit as a requirement to obtain a
building permit from the City of Black Hawk (the "City"). The letter of credit,
totaling $2.1 million, can be drawn upon by the City if for any reasons
Isle-Black Hawk fails to complete the hotel project. The letter of credit is
secured by a deposit held in trust of $1.1 million, which was funded by Isle of
Capri, and the balance is secured by Isle of Capri's open line of credit with
the bank.
Substantially all of Isle of Capri's assets are pledged as collateral for
long-term debt under the Senior Credit Facility. At January 23, 2000, Isle of
Capri was in compliance with all debt covenants.
8. Contingencies
One of the Company's subsidiaries has been named, along with numerous
manufacturers, distributors and gaming operators, including many of the
country's largest gaming operators, in a consolidated class action lawsuit
pending in Las Vegas, Nevada. These gaming industry defendants are alleged to
have violated the Racketeer Influenced and Corrupt Organizations Act by engaging
in a course of fraudulent and misleading conduct intended to induce people to
play their gaming machines based upon a false belief concerning how those gaming
machines actually operate and the extent to which there is actually an
opportunity to win on any given play. The suit seeks unspecified compensatory
and punitive damages. A motion for certification of the class is currently
pending before the court and no discovery as to the merits of the alleged claims
has begun. The Company is unable at this time to determine what effect, if any,
the suit would have on its financial position or results of operations.
However, the gaming industry defendants are committed to defend vigorously all
claims asserted in the consolidated action.
In November 1999, the Isle-Vicksburg was named as a defendant in an action
brought by individuals who own property adjacent to the Big Black River in the
eastern part of Warren County, Mississippi and several other parties. Also
named as defendants in the action are two other operators in the Vicksburg
market and one of the largest banks in the State of Mississippi. The complaint
alleges that the defendants entered into an agreement to conduct a campaign
opposing a gaming application for a site on the Big Black River. The plaintiffs
allege that because of this agreement trade was improperly restrained and
competition in the gaming business was reduced. The plaintiffs further allege
that the defendants conspired for the purpose of injuring the plaintiffs'
property rights. The Company previously settled a lawsuit which asserted
similar claims.
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
8. Contingencies (Continued)
In May 1998, the Company was named as a defendant in an action brought by
several persons who had a contractual right to acquire property in Cripple
Creek, Colorado which they sold to one of the Company's subsidiaries in 1995.
The plaintiffs allege that the Company breached its purported agreement to
construct a casino facility on the property by the end of 1995. In December
1998, the Company's motion to dismiss the complaint was granted by the United
States District Court in Denver, Colorado. The plaintiffs have appealed this
decision to the Tenth Circuit Court of Appeals. The Company intends to
vigorously defend all claims and allegations in the action.
In August 1997, a lawsuit was filed which seeks to nullify a contract to
which Louisiana Riverboat Gaming Partnership is a party. Pursuant to the
contract, Louisiana Riverboat Gaming Partnership pays a fixed amount plus a
percentage of revenue to various local governmental entities, including the City
of Bossier and the Bossier Parish School Board, in lieu of payment of a
per-passenger boarding fee. Summary judgment in favor of Louisiana Riverboat
Gaming Partnership was granted on June 4, 1998. That judgment was not appealed
and is now final. On June 11, 1998, a similar suit was filed and judgment was
rendered in the Company's favor on September 16, 1999 by the lower court. The
case has been appealed, and is currently pending. The Company intends to
vigorously defend this suit.
The Company is engaged in various other litigation matters and has a number
of unresolved claims. Although the ultimate liability of this litigation and
these claims cannot be determined at this time, the Company believes that they
will not have a material adverse effect on the Company's consolidated financial
position or results of operations.
9. Preopening Expenses
Preopening expenses of $3.4 million and $3.3 million represent salaries,
benefits, training, marketing and other costs incurred in connection with the
openings of the Isle-Tunica on July 26, 1999 and the Isle-Black Hawk on December
30, 1998, respectively.
10. Valuation Allowance
In the third quarter ended January 24, 1999, the Company recorded a
valuation allowance totaling $5.1 million. The valuation allowance reflects the
write-down of assets held for development or sale of $2.4 million related to its
two original riverboat casino vessels and land the Company was planning to
develop in Cripple Creek, Colorado. During the third quarter ended January 24,
1999, the Company entered an agreement to sell one of its two original
riverboats for less than the recorded value. This sale closed during fiscal
year 2000, however, the Company had adjusted the valuation allowance related
to both riverboats to reflect the fair value, based on the agreed upon sales
price as of the third quarter ended January 24, 1999. Also, management delayed
its plans to develop a casino on land it owns in Cripple Creek, Colorado.
Accordingly, during the third quarter ended January 24, 1999, management
established a valuation allowance on the land it owns in Cripple Creek to
reflect the fair value as the carrying value. Additionally, the valuation
allowance included $2.7 million related to future obligations under an operating
lease related to its Cripple Creek, Colorado project.
11. Subsequent Events
On March 2, 2000 Isle of Capri Casinos, Inc. amended and restated its
Senior Credit Facility in connection with the acquisition of Lady Luck Gaming
Corporation and BRDC, Inc., as well as to provide financing for the pending
acquisitions of the Flamingo Hilton Riverboat Casino and of Davis Gaming
Boonville, Inc. The previous $175.0 million Senior Credit Facility was expanded
under the Amended and Restated agreement to a $600.0 million Senior Credit
Facility, including a $125.0 million revolver, which was undrawn as of the date
of this filing. On March 2, 2000, Isle of Capri drew $475.0 million under its
Amended and Restated Senior Credit Facility in connection with the acquisition
of Lady Luck and BRDC. A portion of the initial $475.0 million draw was also
used to repay outstanding amounts under the existing credit facility and to fund
the redemption of Lady Luck notes and preferred stock.
On March 2, 2000 the Company acquired Lady Luck Gaming Corporation in a
merger transaction pursuant to which Lady Luck became a wholly-owned subsidiary
of the Company. Lady Luck's common stockholders received cash in the amount of
$12.00 per share for an aggregate share consideration of approximately $59
million. Lady Luck operates dockside riverboat casinos and hotels in Lula and
Natchez, Mississippi; owns a 50% interest in the Lady Luck Casino and Hotel in
Bettendorf, Iowa; and on October 29, 1999, acquired the Miss Marquette Casino in
Marquette, Iowa for $41.7 million. In November 1999, the Company made a secured
loan of approximately $21.0 million to Lady Luck in order to assist Lady Luck in
consummating its acquisition of the Miss Marquette riverboat in Marquette, Iowa.
The Company also completed the acquisition of certain intellectual property for
$31.0 million contemporaneously with the merger. The Company expects to
complete the acquisition of the Las Vegas casino and hotel upon receipt of
regulatory approval in Nevada. The acquisition price for the Las Vegas
facility is $14.5 million.
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
11. Subsequent Events (Continued)
On March 2, 2000 the Company merged with BRDC, Inc. ("BRDC") which owned a
50% interest in Lady Luck's Bettendorf, Iowa facility that was not owned by Lady
Luck and related real estate in exchange for 6.3 million shares of the Company's
common stock, subject to post-closing adjustment in certain circumstances.
BRDC was owned by members of the family of Bernard Goldstein, the Company's
Chairman and Chief Executive Officer, including Robert Goldstein, a member of
the Company's board of directors.
In February 2000, the Company entered into a definitive agreement to
acquire certain assets of the Flamingo Hilton Riverboat Casino in Kansas City,
Missouri from Flamingo Hilton Riverboat, L.P., a subsidiary of Hilton Hotels
Corporation for $33.5 million in cash less certain assumed liabilities. Isle
of Capri expects to complete this acquisition during its first fiscal 2001
quarter ending July 2000, and the closing is subject to a due diligence review
and receipt of all regulatory approvals. Isle of Capri anticipates investing up
to an additional $15.0 million in this project, primarily to re-theme the casino
into an Isle of Capri Casino. Isle of Capri intends to fund this acquisition and
improvements through its Amended and Restated Senior Credit Facility.
Additionally, in February 2000, the Company entered into a definitive
agreement to acquire Davis Gaming Boonville, Inc., which has a preliminary
approval to develop a gaming facility in Boonville, Missouri. If the
transaction closes, Isle of Capri intends to develop a casino project in
Boonville with a total expected investment of approximately $75.0 million
which includes the purchase price to be paid for Davis Gaming Boonville,
Inc. Isle of Capri expects to complete this acquisition during the fourth
quarter of its fiscal 2000, subject to a due diligence review and receipt of
all regulatory approvals, including from the City of Boonville and the State
of Missouri. Isle of Capri expects to begin construction on this project
four months after receiving the necessary approvals and intends to fund this
development through its Amended and Restated Senior Credit Facility.
In February 2000, Isle-Black Hawk made its first contingent interest
payment totaling $1.0 million as required by the Isle-Black Hawk's First
Mortgage Notes. This amount was fully accrued as of the third quarter
ended January 23, 2000.
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
12. Consolidating Condensed Financial Information
Certain of the Company's subsidiaries have fully and unconditionally
guaranteed the payment of all obligations under the Company's $390 million
8 3/4 % Senior Subordinated Notes due 2009. The following table presents the
consolidating condensed financial information of Isle of Capri Casinos, Inc., as
the parent company, its guarantor subsidiaries and its non-guarantor
subsidiaries for the three and nine months ended January 23, 2000 and January
24, 1999 and as of January 23, 2000 and April 25, 1999.
ISLE OF CAPRI CASINOS, INC.
CONSOLIDATING CONDENSED GUARANTOR, NONGUARANTOR AND PARENT COMPANY
FINANCIAL INFORMATION
FOR THE THREE AND NINE MONTHS ENDED JANUARY 23, 2000 AND JANUARY 24, 1999 AND
BALANCE SHEET AS OF JANUARY 23, 2000 AND APRIL 25, 1999
(UNAUDITED)
(In Thousands)
<TABLE>
<CAPTION>
(b)
<S> <C> <C> <C> <C> <C>
Isle of Capri (a) Non-Wholly
Casinos, Inc. Wholly Owned Consolidating
Guarantor Owned Non- and Isle of Capri
(Parent Guarantor Guarantor Eliminating Casinos, Inc.
Obligor) Subsidiaries Subsidiaries Entries Consolidated
--------------- -------------- -------------- --------------- ---------------
As of January 23, 2000
Balance Sheet
- ----------------------------
Current assets . . . . . . . . . . $ 44,371 $ 60,264 $ 14,279 $ - $ 118,914
Intercompany receivables . . . . . 212,309 94,825 7 (307,141) -
Investments in subsidiaries. . . . 259,582 - - (257,314) 2,268
Property and equipment, net. . . . 5,360 351,114 91,461 - 447,935
Other assets . . . . . . . . . . . 35,382 105,216 3,721 - 144,319
--------------- -------------- ------------- --------------- --------------
Total assets . . . . . . . . . . . $ 557,004 $ 611,419 $ 109,468 $ (564,455) $ 713,436
=============== ============== ============= =============== ==============
Current liabilities. . . . . $ 27,697 $ 53,624 $ 16,878 $ - $ 98,199
Intercompany payable . . . . 23,892 278,662 4,586 (307,140) -
Long-term debt,
less current maturities 435,403 7,125 75,000 - 517,528
Deferred income taxes. . . . (12,253) 21,310 - - 9,057
Minority interest. . . . . . - - - 6,386 6,386
Stockholders' equity . . . . 82,265 250,698 13,004 (263,701) 82,266
--------------- --------------- ------------- -------------- --------------
Total liabilities and
Stockholders' equity . . . . $ 557,004 $ 611,419 $ 109,468 $ (564,455) $ 713,436
=============== ============== ============= =============== ==============
</TABLE>
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
<TABLE>
<CAPTION>
(b)
<S> <C> <C> <C> <C> <C>
Isle of Capri (a) Non-Wholly
Casinos, Inc. Wholly Owned Consolidating
Guarantor Owned Non- and Isle of Capri
(Parent Guarantor Guarantor Eliminating Casinos, Inc.
Obligor) Subsidiaries Subsidiaries Entries Consolidated
--------------- -------------- -------------- --------------- ---------------
For the three months ended
January 23, 2000
Statement of Operations
- ----------------------------------
Revenue:
Casino. . . . . . . . . . . . $ - $ 116,040 $ 22,961 $ - $ 139,001
Room, food, beverage
and other. . . . . . . . 286 13,394 1,043 - 14,723
--------------- -------------- -------------- --------------- ---------------
Total revenue. . . . . . . . . . . 286 129,434 24,004 - 153,724
Operating expenses:
Casino. . . . . . . . . . . . - 24,260 3,238 - 27,498
Gaming taxes. . . . . . . . . - 23,833 4,615 - 28,448
Rooms, food, beverage
and other. . . . . . . . 1,662 53,246 10,450 - 65,358
Depreciation and
amortization . . . . . . 269 8,500 567 - 9,336
--------------- -------------- -------------- --------------- ---------------
Total operating expenses . . . . . 1,931 109,839 18,870 - 130,640
--------------- -------------- -------------- --------------- ---------------
Operating income (loss). . . . . . (1,645) 19,595 5,134 - 23,084
Interest expense, net. . . . . . . (1,319) (8,482) (2,686) - (12,487)
Minority interest. . . . . . . . . - - - (1,053) (1,053)
Equity in income (loss) of
unconsolidated joint venture. 12,087 10,575 - (23,079) (417)
--------------- -------------- -------------- --------------- ---------------
Income (loss) before
income taxes. . . . . . . . . 9,123 21,688 2,448 (24,132) 9,127
Income tax provision . . . . . . . 4,246 - - - 4,246
--------------- -------------- -------------- --------------- ---------------
Net income (loss). . . . . . . . . $ 4,877 $ 21,688 $ 2,448 $ (24,132) $ 4,881
=============== ============== ============== =============== ===============
For the nine months ended
January 23, 2000
Statement of Operations
- ----------------------------------
Revenue:
Casino. . . . . . . . . . . . $ - $ 346,168 $ 62,646 $ - $ 408,814
Rooms, food, beverage
and other. . . . . . . . 663 38,042 3,407 - 42,112
--------------- -------------- -------------- --------------- ---------------
Total revenue. . . . . . . . . . . 663 384,210 66,053 - 450,926
Operating expenses:
Casino. . . . . . . . . . . . - 68,840 8,862 - 77,702
Gaming taxes. . . . . . . . . - 69,778 12,418 - 82,196
Rooms, food, beverage
and other. . . . . . . . 4,861 161,091 29,972 - 195,924
Depreciation and
amortization . . . . . . 744 24,960 1,557 - 27,261
--------------- -------------- -------------- --------------- ---------------
Total operating expenses . . . . . 5,605 324,669 52,809 - 383,083
--------------- -------------- -------------- --------------- ---------------
Operating income (loss). . . . . . (4,942) 59,541 13,244 - 67,843
Interest expense, net. . . . . . . (2,913) (25,569) (8,027) - (36,509)
Gain on disposal . . . . . . . . . 3,106 - - - 3,106
Minority interest. . . . . . . . . - - - (2,244) (2,244)
Equity in income (loss) of
unconsolidated joint venture. 37,158 28,056 - (64,994) 220
--------------- -------------- -------------- --------------- ---------------
Income (loss) before
income taxes. . . . . . . . . 32,409 62,028 5,217 (67,238) 32,416
Income tax provision . . . . . . . 14,375 - - - 14,375
--------------- -------------- -------------- --------------- ---------------
Net income (loss). . . . . . . . . $ 18,034 $ 62,028 $ 5,217 $ (67,238) $ 18,041
=============== ============== ============== =============== ===============
</TABLE>
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
<TABLE>
<CAPTION>
(b)
<S> <C> <C> <C> <C> <C>
Isle of Capri (a) Non-Wholly
Casinos, Inc. Wholly Owned Consolidating
Guarantor Owned Non- and Isle of Capri
(Parent Guarantor Guarantor Eliminating Casinos, Inc.
Obligor) Subsidiaries Subsidiaries Entries Consolidated
--------------- -------------- -------------- --------------- ---------------
For the nine months ended
January 23, 2000
Statement of Cash Flows
- ----------------------------------
Net cash provided by (used in)
operating activities. . . . . $ 40,386 $ 57,848 $ 13,203 $ (37,156) $ 74,281
Net cash provided by (used in)
investing activities. . . . . (53,108) (46,607) (10,052) 37,156 (72,611)
Net cash used in
financing activities. . . . . (1,766) (1,930) (558) - (4,254)
--------------- -------------- -------------- --------------- ---------------
Net increase (decrease) in cash
and cash equivalents. . . . . (14,488) 9,311 2,593 - (2,584)
Cash and cash equivalents at
beginning of the period . . . 35,826 38,374 10,917 - 85,117
--------------- -------------- -------------- --------------- ---------------
Cash and cash equivalents at
end of the period . . . . . . $ 21,338 $ 47,685 $ 13,510 $ - $ 82,533
=============== ============== ============== =============== ===============
For the three months ended
January 24, 1999
Statement of Operations
- ----------------------------------
Revenue:
Casino. . . . . . . . . . . . $ - $ 97,457 $ 4,436 $ - $ 101,893
Rooms, food, beverage
and other. . . . . . . . 70 13,018 231 (92) 13,227
--------------- -------------- -------------- --------------- ---------------
Total revenue. . . . . . . . . . . 70 110,475 4,667 (92) 115,120
Operating expenses:
Casino. . . . . . . . . . . . - 19,061 568 - 19,629
Gaming taxes. . . . . . . . . - 19,960 952 - 20,912
Rooms, food, beverage
and other. . . . . . . . 6,699 41,513 5,795 (92) 53,915
Depreciation and
amortization . . . . . . 802 7,726 234 - 8,762
--------------- -------------- -------------- --------------- ---------------
Total operating expenses . . . . . 7,501 88,260 7,549 (92) 103,218
--------------- -------------- -------------- --------------- ---------------
Operating income (loss). . . . . . (7,431) 22,215 (2,882) - 11,902
Interest expense, net. . . . . . . (1,497) (8,468) (1,001) - (10,966)
Minority interest. . . . . . . . . - - - 1,670 1,670
Equity in income (loss) of
unconsolidated joint venture. 11,059 11,471 - (23,009) (479)
--------------- -------------- -------------- --------------- ---------------
Income (loss) before
income taxes. . . . . . . . . 2,131 25,218 (3,883) (21,339) 2,127
Income tax provision . . . . . . . 1,082 - - - 1,082
--------------- -------------- -------------- --------------- ---------------
Net income (loss). . . . . . . . . $ 1,049 $ 25,218 $ (3,883) $ (21,339) $ 1,045
=============== ============== ============== =============== ===============
</TABLE>
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
<TABLE>
<CAPTION>
(b)
<S> <C> <C> <C> <C> <C>
Isle of Capri (a) Non-Wholly
Casinos, Inc. Wholly Owned Consolidating
Guarantor Owned Non- and Isle of Capri
(Parent Guarantor Guarantor Eliminating Casinos, Inc.
Obligor) Subsidiaries Subsidiaries Entries Consolidated
--------------- -------------- -------------- --------------- ---------------
For the nine months ended
January 24, 1999
Statement of Operations
- ----------------------------------
Revenue:
Casino. . . . . . . . . . . . $ - $ 293,308 $ 4,436 $ - $ 297,744
Rooms, food, beverage
and other. . . . . . . . 193 38,213 231 (256) 38,381
--------------- -------------- -------------- --------------- ---------------
Total revenue. . . . . . . . . . . 193 331,521 4,667 (256) 336,125
Operating expenses:
Casino. . . . . . . . . . . . - 55,253 568 - 55,821
Gaming taxes. . . . . . . . . - 60,336 952 - 61,288
Rooms, food, beverage
and other. . . . . . . . 10,372 133,700 5,795 (256) 149,611
Depreciation and
amortization . . . . . . 2,381 23,279 234 - 25,894
--------------- -------------- -------------- --------------- ---------------
Total operating expenses . . . . . 12,753 272,568 7,549 (256) 292,614
--------------- -------------- -------------- --------------- ---------------
Operating income (loss). . . . . . (12,560) 58,953 (2,882) - 43,511
Interest expense, net. . . . . . . (4,670) (26,407) (2,275) - (33,352)
Minority interest. . . . . . . . . - - - 2,197 2,197
Equity in income (loss) of
unconsolidated joint venture. 28,444 25,662 - (55,246) (1,140)
--------------- -------------- -------------- --------------- ---------------
Income (loss) before
income taxes. . . . . . . . . 11,214 58,208 (5,157) (53,049) 11,216
Income tax provision . . . . . . . 5,551 - - - 5,551
--------------- -------------- -------------- --------------- ---------------
Net income (loss). . . . . . . . . $ 5,663 $ 58,208 $ (5,157) $ (53,049) $ 5,665
=============== ============== ============== =============== ===============
For the nine months ended
January 24, 1999
Statement of Cash Flows
- ----------------------------------
Net cash provided by (used in)
operating activities. . . . . $ 40,793 $ 42,988 $ 3,281 $ (29,865) $ 57,197
Net cash provided by (used in)
investing activities. . . . . (33,036) (35,299) 462 29,865 (38,008)
Net cash provided by (used in)
financing activities. . . . . (2,025) (2,382) 1,493 - (2,914)
--------------- -------------- -------------- --------------- ---------------
Net increase in cash
and cash equivalents. . . . . 5,732 5,307 5,236 - 16,275
Cash and cash equivalents at
beginning of the period . . . 20,020 31,893 547 - 52,460
--------------- -------------- -------------- --------------- ---------------
Cash and cash equivalents at
end of the period . . . . . . $ 25,752 $ 37,200 $ 5,783 $ - $ 68,735
=============== ============== ============== =============== ===============
</TABLE>
<PAGE>
ISLE OF CAPRI CASINOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
<TABLE>
<CAPTION>
(b)
<S> <C> <C> <C> <C> <C>
Isle of Capri (a) Non-Wholly
Casinos, Inc. Wholly Owned Consolidating
Guarantor Owned Non- and Isle of Capri
(Parent Guarantor Guarantor Eliminating Casinos, Inc.
Obligor) Subsidiaries Subsidiaries Entries Consolidated
--------------- -------------- -------------- --------------- ---------------
As of April 25, 1999
Balance Sheet
- ----------------------------
Current assets . . . . . . . . . . $ 36,599 $ 60,679 $ 11,738 $ - $ 109,016
Intercompany receivables . . . . . 220,578 159,361 - (379,939) -
Investments in subsidiaries. . . . 233,541 - - (231,690) 1,851
Property and equipment, net. . . . 6,605 324,194 80,377 - 411,176
Other assets . . . . . . . . . . . 44,377 103,916 6,148 - 154,441
--------------- -------------- -------------- ---------------- --------------
Total assets . . . . . . . . . . . $ 541,700 $ 648,150 $ 98,263 $ (611,629) $ 676,484
=============== ============== ============== ================ ==============
Current liabilities. . . . . . . . $ 13,395 $ 56,074 $ 9,419 $ (64) $ 78,824
Intercompany payable . . . . . . . 24,593 349,994 5,289 (379,876) -
Long-term debt,
less current maturities . . . 441,757 9,348 75,768 - 526,873
Deferred income taxes. . . . . . . - 4,689 - - 4,689
Minority interest. . . . . . . . . - - - 4,143 4,143
Stockholders' equity . . . . . . . 61,955 228,045 7,787 (235,832) 61,955
--------------- -------------- -------------- ---------------- --------------
Total liabilities and
stockholders' equity . . . . . . . $ 541,700 $ 648,150 $ 98,263 $ (611,629) $ 676,484
=============== ============== ============== ================ ==============
</TABLE>
(a) Certain of the Company's wholly owned subsidiaries were guarantors on
the 8 3/4 % Senior Subordinated Notes, including the following: Riverboat
Corporation of Mississippi, Riverboat Corporation of Mississippi Vicksburg, Isle
of Capri - Tunica, Inc., Louisiana Riverboat Gaming Partnership, St.Charles
Gaming Company, Inc., Grand Palais Riverboat, Inc., and PPI, Inc.
(b) The following non-wholly owned subsidiaries were not guarantors on the
8 3/4 % Senior Subordinated Notes: Isle of Capri Black Hawk, L.L.C. and Isle of
Capri Black Hawk Capital Corp.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
You should read the following discussion together with the financial
statements, including the related notes, the other financial information in this
report.
The following discussion includes "forward-looking statements" within the
meaning of section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. In particular,
statements concerning the effects of increased competition in the Company's
markets, the effects of regulatory and legislative matters, the Company's plans
to make capital investments at its facilities, including, without limitation,
its plans to acquire the Flamingo Casino in Kansas City, Missouri, to
acquire Davis Gaming Boonville, Inc. and to develop hotels at the Isle-Lake
Charles, the Isle-Black Hawk and the Isle-Tunica and the expansion of other
non-gaming amenities at all of the Company's facilities, including the
conversion of the recently acquired Lady Luck facilities to Isle of Capri
themed casinos, are forward-looking statements. Although the Company believes
that the expectations are reasonable, there can be no assurance that such
expectations are reasonable or that they will be correct. Actual results may
vary materially from those expected. Important factors that could cause actual
results to differ with respect to the Company's planned capital expenditures
principally include a lack of available capital resources, construction and
development risks such as shortages of materials or labor and unforeseen delays
resulting from a failure to obtain necessary approvals.
General
Isle of Capri's results of operations for the nine fiscal months ended
January 23, 2000 reflect the consolidated operations of all of Isle of Capri's
subsidiaries, including the Isle-Lake Charles, the Isle-Bossier City, the
Isle-Biloxi, the Isle-Vicksburg, the Isle-Tunica and the Isle-Black Hawk.
Isle of Capri believes that its historical results of operations may
not be indicative of its future results of operations because of the substantial
present and expected future increase in competition for gaming customers in each
of Isle of Capri's markets, as new casinos open and existing casinos add to or
enhance their facilities, and because of its recent acquisition of Lady Luck and
related amendment of its Senior Credit Facility.
Isle of Capri also believes that its operating results are affected by
seasonality. Seasonality has historically caused the operating results for Isle
of Capri's first and fourth fiscal quarters ending in July and April,
respectively, to be notably better than the operating results for the second and
third fiscal quarters ending October and January, respectively.
Results of Operations
Three Fiscal Months Ended January 23, 2000 Compared to Three Fiscal Months Ended
January 24, 1999 - Consolidated Company
Total revenue for the quarter ended January 23, 2000 was $153.7 million,
which included $139.0 million of casino revenue, $2.6 million of room revenue,
$5.5 million of pari-mutuel commissions and $6.7 million of food, beverage and
other revenue. This compares to total revenue for the previous quarter ended
January 24, 1999 of $115.1 million, which included $101.9 million of casino
revenue, $2.2 million of room revenue, $5.5 million of pari-mutuel commissions
and $5.5 million of food, beverage and other revenue. Casino revenue increased
primarily as a result of the commencement of operations at the Isle-Black Hawk
on December 30, 1998 and the Isle-Tunica on July 26, 1999, increased market
share at the Isle-Lake Charles, and the effects of opening a 124-room hotel at
the Isle-Vicksburg and a 305-room hotel at the Isle-Bossier City. Room revenue
increased as a result of the opening of new hotel rooms at the Isle-Vicksburg
and the Isle-Bossier City. Food, beverage and other revenue has increased as a
result of the opening of the Isle-Black Hawk and the Isle-Tunica; and the new
hotel rooms at the Isle-Vicksburg and the Isle-Bossier City. Pari-mutuel
commissions and fees remained level compared to the prior year. Revenue does
not reflect the retail value of any complimentaries.
Casino operating expenses for the quarter ended January 23, 2000 totaled
$27.5 million, or 19.8% of casino revenue, versus $19.6 million, or 19.3% of
casino revenue, for the quarter ended January 24, 1999. These expenses are
primarily comprised of salaries, wages and benefits and other operating expenses
of the casinos. Casino operating expenses as a percentage of casino revenue have
increased slightly primarily as a result of lower than expected casino revenues
at the Isle-Tunica.
<PAGE>
Operating expenses for the quarter ended January 23, 2000 also included
room expenses of $1.3 million from the hotels at the Isle-Lake Charles, the
Isle-Bossier City, the Isle-Biloxi and the Isle-Vicksburg compared to $0.8
million for the quarter ended January 24, 1999. These expenses are those
directly relating to the cost of providing hotel rooms. Other costs of the
hotels are shared with the casinos and are presented in their respective expense
categories. Room expenses increased primarily as a result of the opening of the
Isle-Vicksburg hotel in February 1999 and the opening of the new 305-room deluxe
Isle-Bossier City hotel in late June 1999.
State and local gaming taxes paid in Louisiana, Mississippi and Colorado
totaled $28.4 million for the quarter ended January 23, 2000, compared to
$20.9 million for the quarter ended January 24, 1999, which is consistent with
each state's gaming tax rate for the applicable fiscal years.
Food, beverage and other expenses totaled $4.2 million for the quarter
ended January 23, 2000, compared to $3.3 million for the quarter ended
January 24, 1999. These expenses have increased as a result of the opening
of the Isle-Black Hawk and the Isle-Tunica. These expenses consist primarily
of the cost of goods sold, salaries, wages and benefits and operating expenses
of these departments. Food and beverage operating expenses as a percentage of
food, beverage and other revenues increased from 59.1% for the quarter ended
January 24, 1999 to 62.4% for the quarter ended January 23, 2000. Food and
beverage operating margins were lower primarily due to increased food cost
related to certain seafood items which are featured in most of the Company's
restaurants.
Marine and facilities expenses totaled $8.4 million for the quarter ended
January 23, 2000, versus $7.2 million for the quarter ended January 24, 1999.
These expenses include salaries, wages and benefits, operating expenses of the
marine crews, insurance, housekeeping and general maintenance of the riverboats
and floating pavilions. Marine and facilities expenses have increased due to the
opening of the Isle-Black Hawk, the Isle-Tunica and the new hotels at the
Isle-Vicksburg and the Isle-Bossier City.
Marketing and administrative expenses totaled $47.5 million, or 30.9% of
total revenue, for the quarter ended January 23, 2000, versus $34.3 million,
or 29.8% of total revenue, for the quarter ended January 24, 1999. Marketing
expenses include salaries, wages and benefits of the marketing and sales
departments, as well as promotions, advertising, special events and
entertainment. Administrative expenses include administration and human
resource department expenses, rent, new development activities, professional
fees and property taxes. Marketing and administrative expenses have increased
due primarily to the opening of the Isle-Black Hawk, the Isle-Tunica and the
new hotels at the Isle-Vicksburg and the Isle-Bossier City. These expenses
as a percentage of total revenue increased slightly as a result of increased
marketing efforts at the Isle-Tunica and the Isle-Biloxi.
The prior year third quarter results of operations include the reversal of
an accrued litigation settlement of $4.2 million related to the boarding tax
liability at the Isle-Bossier City. The Isle of Capri also recorded a
write-down of the assets held for development or sale of $2.4 million related to
its two original riverboat casino vessels and land the Isle of Capri was
planning to develop in Cripple Creek, Colorado. During the third quarter ended
January 24, 1999, the Isle of Capri entered an agreement to sell one of its two
original riverboats for less than the recorded value. The value of both
riverboats was adjusted to reflect the fair value, based on the agreed upon
sales price. Also, management delayed its plans to develop a casino on land it
owns in Cripple Creek, Colorado. Accordingly, management established a
valuation allowance on the land it owns in Cripple Creek to reflect the fair
value as the carrying value. Future obligations under an operating lease of
$2.7 million related to its Cripple Creek, Colorado project, were also
written-off.
Depreciation and amortization expense was $9.3 million for the quarter
ended January 23, 2000 and $8.8 million for the quarter ended January 24, 1999.
These expenses relate to property and equipment, berthing and concession rights
and the amortization of intangible assets. These expenses include depreciation
and amortization expense related to assets placed into service since the quarter
ended January 24, 1999, including the Isle-Black Hawk, the Isle-Tunica and the
new hotels at the Isle-Vicksburg and Isle-Bossier City. Effective April 26,
1999, the first day of fiscal year 2000, the Company changed the estimated
useful lives used for depreciating its slot machines and land-based buildings,
from five years to three years and from twenty-five years to thirty-nine and
one-half years, respectively. The change in estimated useful lives was
implemented to more accurately reflect actual expected useful lives of those
assets based on recent historical data.
Interest expense was $12.5 million for the quarter ended January 23, 2000,
net of capitalized interest of $0.3 million and interest income of $1.2 million,
versus $11.0 million for the quarter ended January 24, 1999, net of capitalized
interest of $2.4 million and interest income of $0.7 million. Interest expense
primarily relates to indebtedness incurred in connection with the acquisition of
property, equipment, leasehold improvements and berthing and concession rights.
Additionally, interest expense of $2.4 million, net of capitalized interest of
$0.3 million and interest income of $0.1 million related to Black Hawk LLC is
included in the quarter ended January 24, 1999. This excludes intercompany
interest expense of $0.1 million. This compares to interest expense of $0.9
million, net of capitalized interest of $1.6 million and interest income of $0.2
million, for the quarter ended January 24, 1999.
<PAGE>
Isle of Capri's effective tax rate was 46.5% for the quarter ended
January 23, 2000 and 50.9% for the quarter ended January 24, 1999, which
includes the effects of non-deductible goodwill amortization for income
tax purposes.
Three Fiscal Months Ended January 23, 2000 Compared to Three Fiscal Months Ended
January 24, 1999-By Casino Location
Isle-Lake Charles
For the quarter ended January 23, 2000, the Isle-Lake Charles had total
revenue of $44.9 million, of which $43.5 million was casino revenue, compared to
total revenue of $39.6 million, of which $38.3 million was casino revenue, for
the quarter ended January 24, 1999. Operating income for the quarter ended
January 23, 2000 totaled $9.1 million, or 20.2% of total revenue, compared to
operating income of $6.9 million, or 17.1% of total revenue, for the quarter
ended January 24, 1999. The increase in revenue, operating income and operating
income margin is related primarily to increased market share.
Isle-Bossier City
For the quarter ended January 23, 2000, the Isle-Bossier City had total
revenue of $37.0 million, of which $34.9 million was casino revenue, compared to
total revenue of $29.4 million, of which $28.2 million was casino revenue, for
the quarter ended January 24, 1999. The increase in revenue relates primarily to
the opening of a new 305-room hotel at the Isle-Bossier City in late June 1999.
Operating income for the quarter ended January 23, 2000 totaled $8.7 million, or
23.7% of total revenue, compared to $6.0 million, or 20.4% of total revenue, for
the quarter ended January 24, 1999. The increase in operating income and
operating income margin is primarily a result of the opening of the new 305-room
hotel.
Isle-Biloxi
For the quarter ended January 23, 2000, the Isle-Biloxi had total revenue
of $19.9 million, of which $17.6 million was casino revenue, compared to total
revenue of $21.9 million, of which $19.0 million was casino revenue, for the
quarter ended January 24, 1999. Total revenue decreased compared to the quarter
ended January 24, 1999 primarily due to increased competition from the opening
of a new competitor and expansion of existing competitors in the Biloxi market.
Operating income for the quarter ended January 23, 2000 totaled $2.9 million, or
14.5% of total revenue, compared to $4.3 million, or 19.7% of total revenue, for
the quarter ended January 24, 1999. The decrease in operating income and
operating income margin is due primarily to decreased revenue and increased
marketing costs related to increased competition in the Biloxi market and the
inclusion of $0.6 million of insurance proceeds related to Hurricane Georges in
the quarter ended January 24, 1999.
Isle-Vicksburg
For the quarter ended January 23, 2000, the Isle-Vicksburg had total
revenue of $15.3 million, of which $14.4 million was casino revenue, compared to
total revenue of $12.4 million, of which $11.8 million was casino revenue, for
the quarter ended January 24, 1999. Casino revenues and total revenues increased
primarily due to the opening of a 124-room hotel at the Isle-Vicksburg in
February 1999. Operating income for the quarter ended January 23, 2000 totaled
$3.5 million, or 22.8% of total revenue, compared to $2.0 million, or 16.0% of
total revenue, for the quarter ended January 24, 1999. The increase in operating
income and operating income margin is due primarily to the opening of the
Isle-Vicksburg's new hotel.
Isle-Black Hawk
For the quarter ended January 23, 2000, the Isle-Black Hawk had total
revenue of $24.0 million, of which $23.0 million was casino revenue, compared to
total revenue of $4.7 million, of which $4.4 million was casino revenue, for the
quarter ended January 24, 1999. Operating income for the quarter totaled $6.1
million or 25.3% of total revenue, compared to $0.6 million, or 12.9% of total
revenue, for the quarter ended January 24, 1999. The increase in revenues and
operating income are due to the fact that Isle-Black Hawk began operations on
December 30, 1998 and thus had only one month of operating activity in the
previous year comparable quarter.
Isle-Tunica
For the quarter ended January 23, 2000, the Isle-Tunica had total revenue
of $5.9 million, of which $5.7 million was casino revenue. The Isle-Tunica
incurred an operating loss for the quarter of $2.6 million, or 43.3% of total
revenue, primarily due to lower than expected casino revenues and high operating
costs. The Isle-Tunica began operations on July 26, 1999 and thus has no
comparable operating results for the quarter ending January 24, 1999.
<PAGE>
Nine Fiscal Months Ended January 23, 2000 Compared to Nine Fiscal Months Ended
January 24, 1999 - Consolidated Company
Total revenue for the nine months ended January 23, 2000, was $450.9
million, which included $408.8 million of casino revenue, $8.0 million of room
revenue, $13.8 million of pari-mutuel commissions and $20.3 million of food,
beverage and other revenue. This compares to total revenue for the previous nine
months ended January 24, 1999 of $336.1 million, which included $297.7 million
of casino revenue, $8.0 million of room revenue, $13.5 million of pari-mutuel
commissions and $16.9 million of food, beverage and other revenue. Casino
revenue increased primarily as a result of the commencement of operations at the
Isle-Black Hawk on December 30, 1998 and the Isle-Tunica on July 26, 1999,
increased market share at the Isle-Lake Charles, and the effects of opening a
124-room hotel at the Isle-Vicksburg and a 305-room hotel at the Isle-Bossier
City. Room revenue remained flat, despite the addition of new rooms, due to
increased complimentary room nights given to the Company's more active data base
customers. Food, beverage and other revenue increased as a result of the
opening of the Isle-Black Hawk and the Isle-Tunica and the new hotel rooms at
the Isle-Vicksburg and the Isle-Bossier City. Pari-mutuel commissions and fees
were up slightly compared to the prior year as a result of adverse weather
conditions experienced in the previous year. Revenue does not reflect the
retail value of any complimentaries.
Casino operating expenses for the nine months ended January 23, 2000,
totaled $77.7 million, or 19.0% of casino revenue, versus $55.8 million, or
18.7% of casino revenue, for the nine months ended January 24, 1999. These
expenses are primarily comprised of salaries, wages and benefits and other
operating expenses of the casinos. Casino operating expenses as a percentage
of casino revenue have increased slightly primarily as a result of lower than
expected casino revenues at the Isle-Tunica.
Operating expenses for the nine months ended January 23, 2000, also
included room expenses of $3.7 million from the hotels at the Isle-Lake Charles,
the Isle-Bossier City, the Isle-Biloxi and the Isle-Vicksburg compared to $2.8
million for the nine months ended January 24, 1999. These expenses are those
directly relating to the cost of providing hotel rooms. Other costs of the
hotels are shared with the casinos and are presented in their respective expense
categories. Room expenses increased primarily as a result of the opening of the
Isle-Vicksburg hotel in February 1999 and start up costs incurred in connection
with the opening of the new 305-room deluxe Isle-Bossier City hotel in late June
1999.
State and local gaming taxes paid in Louisiana, Mississippi and Colorado
totaled $82.2 million for the nine months ended January 23, 2000, compared to
$61.3 million for the nine months ended January 24, 1999, which is consistent
with each state's gaming tax rate for the applicable fiscal years.
Food, beverage and other expenses totaled $12.5 million for the nine
months ended January 23, 2000, compared to $10.4 million for the nine months
ended January 24, 1999. These expenses have increased as a result of the opening
of the Isle-Black Hawk and the Isle-Tunica. These expenses consist primarily of
the cost of goods sold, salaries, wages and benefits and operating expenses of
these departments. Food and beverage operating expenses as a percentage of
food, beverage and other revenues decreased slightly from 61.8% for the nine
months ending January 24, 1999 to 61.5% for the nine months ended January 23,
2000. Food and beverage operating margins have improved as a result of continued
payroll and inventory cost control efforts, offset recently by higher food costs
related to certain seafood items featured in most of the Company's restaurants.
Marine and facilities expenses totaled $26.9 million for the nine months
ended January 23, 2000, versus $20.6 million for the nine months ended
January 24, 1999. These expenses include salaries, wages and benefits,
operating expenses of the marine crews, insurance, housekeeping and general
maintenance of the riverboats and floating pavilions. Marine and facilities
expenses have increased due to the opening of the Isle-Black Hawk, the
Isle-Tunica and the new hotels at the Isle-Vicksburg and the Isle-Bossier City.
Marketing and administrative expenses totaled $138.9 million, or 30.8% of
total revenue, for the nine months ended January 23, 2000, versus $101.4
million, or 30.2% of total revenue, for the quarter ended January 24, 1999.
Marketing expenses include salaries, wages and benefits of the marketing and
sales departments, as well as promotions, advertising, special events and
entertainment. Administrative expenses include administration and human
resource department expenses, rent, new development activities, professional
fees and property taxes. Marketing and administrative expenses have increased
due primarily to the opening of the Isle-Black Hawk, the Isle-Tunica and the
new hotels at the Isle-Vicksburg and the Isle-Bossier City. These expenses
as a percentage of total revenue increased slightly as a result of increased
marketing efforts at the Isle-Tunica and the Isle-Biloxi.
Preopening expenses of $3.4 million for the nine months ended January 23,
2000 represent salaries, benefits, training, marketing and other costs incurred
in connection with the opening of the Isle-Tunica on July 26, 1999. Preopening
expenses of $3.3 million for the nine months ended January 24, 1999 represent
salaries, benefits, training, marketing and other costs incurred in connection
with the opening of the Isle-Black Hawk on December 30, 1998.
Isle of Capri's results of operations for the nine months ended January 23,
2000 include a $3.1 million gain on disposal related to the sale of an option to
purchase 135 acres of land adjacent to the Pompano Park facility.
The results of operations for the prior year ended January 24, 1999,
include the reversal of an accrued litigation settlement of $4.2 million related
to the boarding tax liability at the Isle-Bossier City. The Isle of Capri also
recorded a write-down of the assets held for development or sale of $2.4 million
related to its two original riverboat casino vessels and land the Isle of Capri
was planning to develop in Cripple Creek, Colorado. During the nine months
ended January 24, 1999, the Isle of Capri entered an agreement to sell one of
its two original riverboats for less than the recorded value. The value of both
riverboats was adjusted to reflect the fair value, based on the agreed upon
sales price. Also, management has delayed its plans to develop a casino on land
its owns in Cripple Creek, Colorado. Accordingly, management has established a
valuation allowance on the land it owns in Cripple Creek to reflect the fair
value as the carrying value. Future obligations under an operating lease of
$2.7 million related to its Cripple Creek, Colorado project, were also
written-off.
<PAGE>
Depreciation and amortization expense was $27.3 million for the nine months
ended January 23, 2000 and $25.9 million for the nine months ended January 24,
1999. These expenses relate to property and equipment, berthing and concession
rights and the amortization of intangible assets. These expenses include
depreciation and amortization expense related to assets placed into service
since the quarter ended January 24, 1999, including the Isle-Black Hawk, the
Isle-Tunica and the new hotels at the Isle-Vicksburg and Isle-Bossier City.
Effective April 26, 1999, the first day of fiscal year 2000, the Company changed
the estimated useful lives used for depreciating its slot machines and
land-based buildings, from five years to three years and from twenty-five years
to thirty-nine and one-half years, respectively. The change in estimated useful
lives was implemented to more accurately reflect actual expected useful lives of
those assets based on recent historical data.
Interest expense was $36.5 million for the nine months ended January 23,
2000, net of capitalized interest of $1.5 million and interest income of $2.7
million, versus $33.4 million for the nine months ended January 24, 1999,
net of capitalized interest of $6.3 million and interest income of $2.3 million.
Interest expense primarily relates to indebtedness incurred in connection with
the acquisition of property, equipment, leasehold improvements and berthing and
concession rights. Additionally, interest expense of $7.2 million, net of
capitalized interest of $0.6 million and interest income of $0.3 million related
to Isle-Black Hawk, is included in the nine months ended January 23, 2000.
This excludes intercompany interest expense of $0.3 million. This compares to
interest expense of $2.1 million, net of capitalized interest of $4.8 million
and interest income of $0.8 million, for the nine months ended January 24, 1999.
Isle of Capri's effective tax rate was 44.3% for the nine months ended
January 23, 2000 and 49.5% for the quarter ended January 24, 1999, which
includes the effects of non-deductible goodwill amortization for income tax
purposes.
Nine Fiscal Months Ended January 23, 2000 Compared to Nine Fiscal Months Ended
January 24, 1999-By Casino Location
Isle-Lake Charles
For the nine months ended January 23, 2000, the Isle-Lake Charles had total
revenue of $133.3 million, of which $128.9 million was casino revenue, compared
to total revenue of $117.4 million, of which $112.2 million was casino revenue,
for the nine months ended January 24, 1999. Operating income for the nine months
ended January 23, 2000 totaled $25.6 million, or 19.2% of total revenue,
compared to operating income of $20.2 million, or 17.2% of total revenue, for
the nine months ended January 24, 1999. The increase in revenue, operating
income and operating income margin is related primarily to increased market
share which has resulted partially from construction disruption at a nearby
competitor and partially from the increased use of the Isle-Lake Charles' player
database and entertainment center.
Isle-Bossier City
For the nine months ended January 23, 2000, the Isle-Bossier City had total
revenue of $107.5 million, of which $101.9 million was casino revenue, compared
to total revenue of $91.2 million, of which $87.1 million was casino revenue,
for the nine months ended January 24, 1999. Operating income for the nine months
ended January 23, 2000, totaled $24.4 million, or 22.7% of total revenue,
compared to $18.6 million, or 20.4% of total revenue, for the nine months ended
January 24, 1999. The increase in revenues, operating income and operating
income margin is primarily a result of the opening of the new 305-room hotel in
late June 1999.
Isle-Biloxi
For the nine months ended January 23, 2000, the Isle-Biloxi had total
revenue of $65.1 million, of which $56.8 million was casino revenue, compared to
total revenue of $68.5 million, of which $58.0 million was casino revenue, for
the nine months ended January 24, 1999. Operating income for the nine months
ended January 23, 2000 totaled $12.3 million, or 18.9% of total revenue,
compared to $13.9 million, or 20.3% of total revenue, for the nine months ended
January 24, 1999. Total revenue, operating income and operating margin
decreased compared to the prior year nine months ended January 24, 1999
primarily due to increased competition from the opening of a new competitor and
expansion of existing competitors in the Biloxi market and the inclusion of $0.6
million of insurance proceeds related to Hurricane Georges in the quarter ended
January 24, 1999.
Isle-Vicksburg
For the nine months ended January 23, 2000, the Isle-Vicksburg had total
revenue of $46.5 million, of which $43.4 million was casino revenue, compared to
total revenue of $37.6 million, of which $35.9 million was casino revenue, for
the nine months ended January 24, 1999. Operating income for the nine months
ended January 23, 2000, totaled $11.4 million, or 24.5% of total revenue,
compared to $6.9 million, or 18.2% of total revenue, for the nine months ended
January 24, 1999. Revenues, operating income and operating margin increased due
to the opening of a 124-room hotel at the Isle-Vicksburg in February 1999.
<PAGE>
Isle-Black Hawk
For the nine months ended January 23, 2000, the Isle-Black Hawk had total
revenue of $66.1 million, of which $62.6 million was casino revenue, compared to
total revenue of $4.7 million, of which $4.4 million was casino revenue, for the
nine months ended January 24, 1999. Operating income for the nine months ended
January 23, 2000, totaled $15.9 million, or 24.1% of total revenue, compared to
$0.6 million, or 12.9% of total revenue, for the quarter ended January 24, 1999.
The increase in revenues and operating income are due to the fact that
Isle-Black Hawk began operations on December 30, 1998 and thus had only one
month of operating activity in the previous year comparable nine month period.
Isle-Tunica
For the nine months ended January 23, 2000, the Isle-Tunica had total
revenue of $15.7 million, of which $15.1 million was casino revenue. The
Isle-Tunica incurred an operating loss for the nine months ended January 23,
2000, that totaled $4.0 million, or 25.6% of total revenue, primarily due to
lower than expected casino revenues and high operating costs. The Isle-Tunica
began operations on July 26, 1999 and thus has no comparable operating results
for the quarter ending January 24, 1999.
Liquidity and Capital Resources
At January 23, 2000, Isle of Capri had cash and cash equivalents of $82.5
million, compared to $85.1 million at April 25, 1999. The decrease in cash is
primarily a result of cash expenditures for capital improvement projects offset
by cash flow from operating activities. During the nine months ended January 23,
2000, Isle of Capri's operating activities provided $74.3 million of cash,
compared to $57.2 million of cash provided by operating activities in the nine
months ended January 24, 1999. The increase in cash from operating activities
was primarily due to increased revenues generated from the openings of the
Isle-Black Hawk, the Isle-Tunica and the new hotels at the Isle-Vicksburg and
the Isle-Bossier City.
Isle of Capri invested $60.1 million in property and equipment in the nine
months ended January 23, 2000, primarily for the development of the Isle-Tunica,
the development of a 305-room deluxe hotel at the Isle-Bossier City, a 250-room
deluxe hotel at the Isle-Lake Charles, a 237-room hotel at the Isle-Tunica and
the development of a 235-room hotel at the Isle-Black Hawk. This compares to
$73.2 million invested in property and equipment in the nine months ended
January 24, 1999, primarily related to the development of the Isle-Black Hawk,
which commenced operations on December 30, 1998 and the development of a
124-room hotel at the Isle-Vicksburg.
On March 2, 2000 Isle of Capri acquired Lady Luck in a merger transaction.
Lady Luck's common stockholders received cash in the amount of $12 per share
for an aggregate share consideration of approximately $59 million. Isle of
Capri intends to invest approximately $35.0 million over the next 12 months to
convert the Lady Luck casinos into Isle of Capri casinos. The Company funded
the acquisition of Lady Luck using amounts drawn under through its Amended and
Restated Senior Credit Facility.
Simultaneously, with the Lady Luck acquisition discussed above, Isle of
Capri acquired the other 50% interest in Lady Luck's Bettendorf, Iowa facility
not owned by Lady Luck and related real estate in exchange for 6.3 million
shares of Isle of Capri common stock, subject to post-closing adjustment in
certain circumstances. This interest was owned by members of the family of
Bernard Goldstein, Isle of Capri's Chairman and Chief Executive Officer,
including Robert Goldstein, a member of the Company's board of directors.
<PAGE>
In February 2000, Isle of Capri entered into a definitive agreement to
acquire certain assets of the Flamingo Hilton Riverboat Casino in Kansas City,
Missouri from Flamingo Hilton Riverboat, L.P., a subsidiary of Hilton Hotels
Corporation for $33.5 million cash less certain assumed liabilities. Isle of
Capri expects to complete this acquisition during its first fiscal 2001
quarter ending July 2000, and the closing is subject to a due diligence review
and receipt of all regulatory approvals. Isle of Capri anticipates investing
up to an additional $15.0 million in this project, primarily to re-theme the
casino into an Isle of Capri Casino. Isle of Capri intends to fund the
acquisition and improvements through its Amended and Restated Senior Credit
Facility.
Additionally, in February 2000, Isle of Capri entered into a definitive
agreement to acquire Davis Gaming Boonville, Inc., which has preliminary
approval to develop a gaming facility site in Boonville, Missouri. If the
transaction closes Isle of Capri intends to develop a casino project in
Boonville with a total expected investment of approximately $75.0 million which
includes the purchase price to be paid for Davis Gaming Boonville, Inc. Isle
of Capri expects to complete this acquisition during the fourth quarter of its
fiscal 2000, subject to a due diligence review and receipt of all regulatory
approvals, including from the City of Boonville and the State of Missouri.
Isle of Capri expects to begin construction on this project four months after
receiving the necessary approvals and intends to fund this development through
its Amended and Restated Senior Credit Facility.
On March 2, 2000 Isle of Capri Casinos, Inc. amended and restated its
Senior Credit Facility in connection with its acquisition of Lady Luck Gaming
Corporation and BRDC, Inc., as well as to provide financing for the pending
acquisitions of the Flamingo Hilton Riverboat Casino and of Davis Gaming
Boonville, Inc. The previous $175.0 million Senior Credit Facility was expanded
under the Amended and Restated agreement to a $600.0 million Senior Credit
Facility, including a $125.0 million revolver, which is undrawn as of the date
of this filing.
Isle of Capri anticipates that a significant portion of its principal
near-term capital requirements will relate to the expansion of the Isle-Tunica,
the Isle-Lake Charles and the Isle-Black Hawk. Isle of Capri is in the process
of investing an additional amount of approximately $40.0 million to construct an
on-site hotel at the Isle-Tunica with approximately 235 rooms and two live
entertainment theaters with combined seating for 1,800 people. The hotel is
currently under construction and the site work necessary for the construction of
the theaters has begun. Isle of Capri has also begun construction of an on-site
250-room deluxe hotel at the Isle-Lake Charles, with an estimated cost of
approximately $33.0 million. Additionally, the Isle-Black Hawk is continuing
the construction of a hotel containing approximately 237 rooms at the Isle-Black
Hawk for approximately $29.0 million. Isle of Capri is assisting Isle-Black
Hawk with the financing of the development of this hotel and plans to loan $5.0
million with interest payable in cash and another $5.0 million with interest
payable in kind (with additional notes). Additionally, Isle of Capri has agreed
to contribute up to $10.0 million in additional equity to supplement funds
generated from Isle-Black Hawk operations to complete the hotel.
Isle of Capri has applied to the Missouri Gaming Commission for approval
to develop and operate a riverboat casino in St. Louis County, Missouri. In
addition, following completion of the Lady Luck acquisition, the Company has an
application pending to develop and operate a riverboat casino in Jefferson
County, Missouri. The Jefferson County application was previously submitted by
Lady Luck Gaming Corporation. The Company's St. Louis and Jefferson County
applications are among three applications which are currently pending for
development in the South St. Louis metropolitan area. The Company believes that
no more than one project will be selected for development in that area. If Isle
of Capri is successful in obtaining approval to develop either the St. Louis or
Jefferson County project, it intends to begin construction of the facility as
soon as possible. Isle of Capri intends to fund this development with its
Amended and Restated Senior Credit Facility.
Isle of Capri has applied for a license from the Louisiana Gaming Control
Board to develop and operate a riverboat casino in St. Bernard Parish,
Louisiana. If Isle of Capri is successful in obtaining this license, it
intends to begin construction as soon as possible. This Isle of Capri
intends to fund this development with its Amended and Restated Senior
Credit Facility.
In June 1999, PPI, Inc. sold its option to purchase 135 acres of property,
adjacent to its Pompano Park Harness Racing Track, for $16.3 million. The sale
resulted in a gain on disposal of approximately $3.1 million.
All of Isle of Capri's development plans are subject to obtaining permits,
licenses and approvals from appropriate regulatory and other agencies and, in
certain circumstances, negotiating acceptable leases. In addition, many of its
plans are preliminary, subject to continuing refinement or otherwise subject to
change.
Isle of Capri anticipates that capital improvements approximating $18.9
million will be made during fiscal 2000 (approximately $11.8 million of which
have been made as of the end of the third quarter) to maintain its existing
facilities and remain competitive in its markets. Isle of Capri expects that
available cash and cash from future operations, as well as borrowings under
its Senior Credit Facility, will be adequate to fund future expansion, planned
capital expenditures, service debt and meet working capital requirements. There
is no assurance that Isle of Capri will have the capital resources to make all
of the expenditures described above or that planned capital investments will be
sufficient to allow Isle of Capri to remain competitive in its existing markets.
In addition, the indenture governing the 8 3/4 % Senior Subordinated Notes
restricts, among other things, Isle of Capri's ability to borrow money, create
liens, make restricted payments and sell assets.
Isle of Capri's Amended and Restated Senior Credit Facility limits,
among other things, Isle of Capri's ability to borrow money, make capital
expenditures, use assets as security in other transactions, make restricted
payments or restricted investments, incur contingent obligations, sell assets
and enter into leases and transactions with affiliates. In addition, the Senior
Credit Facility requires Isle of Capri to meet certain financial ratios and
tests, including: a minimum consolidated net worth test, a maximum consolidated
total leverage test, a maximum consolidated senior leverage test and a minimum
consolidated fixed charge coverage test.
Isle of Capri must repay all amounts borrowed under its Amended and
Restated Senior Credit Facility by March 2007. Isle of Capri is required to make
quarterly principal payments on the $475.0 million term loan portion of its
Senior Credit Facility which began in March 2000. Such payments are initially
$3.4 million per quarter and will increase by $1.25 million per quarter in July
of each year that the term loan is outstanding. In addition, Isle of Capri will
be required to make substantial quarterly interest payments on the outstanding
balance of its Senior Credit Facility and interest payments of $17.1 million
semi-annually on its 8 3/4 % Senior Subordinated Notes.
Isle of Capri is highly leveraged and may be unable to obtain additional
debt or equity financing on acceptable terms. As a result, limitations on Isle
of Capri's capital resources could delay or cause Isle of Capri to abandon
certain plans for capital improvements at its existing properties and
development of new properties. Isle of Capri will continue to evaluate its
planned capital expenditures at each of its existing locations in light of the
operating performance of the facilities at such locations.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
One of our subsidiaries has been named, along with numerous manufacturers,
distributors and gaming operators, including many of the country's largest
gaming operators, in a consolidated class action lawsuit pending in Las Vegas,
Nevada. These gaming industry defendants are alleged to have violated the
Racketeer Influenced and Corrupt Organizations Act by engaging in a course of
fraudulent and misleading conduct intended to induce people to play their gaming
machines based upon a false belief concerning how those gaming machines actually
operate and the extent to which there is actually an opportunity to win on any
given play. The suit seeks unspecified compensatory and punitive damages. A
motion for certification of the class is currently pending before the court and
no discovery as to the merits of the alleged claims has begun. We are unable at
this time to determine what effect, if any, the suit would have on our financial
position or results of operations. However, the gaming industry defendants are
committed to defend vigorously all claims asserted in the consolidated action.
In November 1999, the Isle-Vicksburg was named as a defendant in an action
brought by individuals who own property adjacent to the Big Black River in the
eastern part of Warren County, Mississippi and several other parties. Also named
as defendants in the action are two other operators in the Vicksburg market and
one of the largest banks in the State of Mississippi. The complaint alleges that
the defendants entered into an agreement to conduct a campaign opposing a gaming
application for a site on the Big Black River. The plaintiffs allege that
because of this agreement trade was improperly restrained and competition in the
gaming business was reduced. The plaintiffs further allege that the defendants
conspired for the purpose of injuring the plaintiffs' property rights. The
Company previously settled a lawsuit which asserted similar claims.
In May 1998, we were named as a defendant in an action brought by several
persons who had a contractual right to acquire property in Cripple Creek,
Colorado which they sold to one of our subsidiaries in 1995. The plaintiffs
allege that we breached our purported agreement to construct a casino facility
on the property by the end of 1995. In December 1998, our motion to dismiss the
complaint was granted by the United States District Court in Denver, Colorado.
The plaintiffs have appealed this decision to the Tenth Circuit Court of
Appeals. We intend to vigorously defend all claims and allegations in the
action.
In August 1997, a lawsuit was filed which seeks to nullify a contract to
which Louisiana Riverboat Gaming Partnership is a party. Pursuant to the
contract, Louisiana Riverboat Gaming Partnership pays a fixed amount plus
a percentage of revenue to various local governmental entities, including
the City of Bossier and the Bossier Parish School Board, in lieu of payment
of a per-passenger boarding fee. Summary judgment in favor of Louisiana
Riverboat Gaming Partnership was granted on June 4, 1998. That judgment was
not appealed and is now final. On June 11, 1998, a similar suit was filed
and judgment was rendered in our favor on September 16, 1999 by the lower
court. The case has been appealed, and is currently pending. We intend to
vigorously defend this suit.
We are engaged in various other litigation matters and have a number of
unresolved claims. Although the ultimate liability of this litigation and these
claims cannot be determined at this time, we believe that they will not have a
material adverse effect on our consolidated financial position or results of
operations.
<PAGE>
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION
None.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Documents Filed as Part of this Report.
--------------------------------------------
1. Exhibits.
--------
A list of the exhibits included as part of this Form 10-Q
is set forth in the Exhibit Index that immediately
precedes such exhibits, which is incorporated herein by
reference.
2. Reports on Form 8-K.
-----------------------
During the quarter ended January 23, 2000,
the Company filed the following report on Form 8-K:
Current Report on Form 8-K filed on December 30, 1999,
regard Item 5 which filed the merger agreement by and
among BRDC, Inc., the shareholders of BRDC, Inc. and
Isle of Capri Casinos, Inc. as an exhibit.
<PAGE>
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 hereunto duly authorized.
ISLE OF CAPRI CASINOS, INC.
Dated: March 7, 2000 /s/ Rexford A. Yeisley
--------------------------
Rexford A. Yeisley, Chief Financial Officer
(Principal Financial and Accounting Officer)
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------ -------
10.74 Amended and Restated Credit Agreement, dated as of March 2, 2000,
among Isle of Capri Casinos, Inc., the lenders listed therein,
CIBC Inc. as swing line lender, Canadian Imperial Bank of
Commerce, as administrative agent and issuing lender, Bankers
Trust Company as co-arranger and syndication agent for Lenders,
The CIT Group/Equipment Financing, Inc. and documentation agent
for lenders and CIBC World Markets Corp as lead arranger.
27 Financial Data Schedule.
LA1:871673.8 6
LA1:871673.8
ISLE OF CAPRI CASINOS, INC.
$600,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of March 2, 2000 and
entered into by and among ISLE OF CAPRI CASINOS, INC., a Delaware corporation
(the "Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "Lender" and collectively as
"Lenders"), CIBC INC. ("CIBC Inc."), as swing line lender (in such capacity, the
"Swing Line Lender"), CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), as agent for
Lenders (in such capacity, the "Administrative Agent") and as issuing lender
with respect to any Letter of Credit (in such capacity, the "Issuing Lender"),
BANKERS TRUST COMPANY, as co-arranger and syndication agent for Lenders (in such
capacities, the "Syndication Agent"), THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as documentation agent for Lenders (in such capacity, the "Documentation Agent")
and CIBC WORLD MARKETS CORP., as lead arranger (in such capacity, the "Lead
Arranger").
R E C I T A L S
---------------
WHEREAS, Company, Swing Line Lender, Administrative Agent and certain
Lenders are party to the Existing Credit Agreement (capitalized terms used
herein without definition shall have the meanings set forth therefor in
subsection 1.1 of this Agreement);
WHEREAS, Company and Lenders desire to increase the aggregate amount that can be
borrowed under the Existing Credit Agreement by increasing the aggregate amount
available under the existing tranche of term loans and adding two additional
tranches of term loans, and to make certain other amendments to the terms and
provisions of the Existing Credit Agreement;
WHEREAS, Company intends to use all of the proceeds of such tranches of term
loans to fund:
(i) the refinancing of all of the outstanding term loans under the
Existing Credit Agreement;
(ii) the acquisition by Company of all of the outstanding shares of common
stock (including unexercised options) of Lady Luck (the "Lady Luck Common
Stock") for up to $12.00 per share in Cash, totaling $58,572,036.00, the
redemption of all of the outstanding shares of series A mandatory cumulative
redeemable preferred stock of Lady Luck and accrued dividends thereon at par,
totaling $23,537,870.64 (the "Redemption"), plus the assumption by Company of
$173,557,230.90 of net Indebtedness of Lady Luck (such acquisition is
hereinafter referred to as the "Lady Luck Acquisition");
(iii) the acquisition by Company, concurrently with the Lady Luck
Acquisition, of certain Real Property Assets relating to the Bettendorf Gaming
Facilities and all of the capital stock of BRDC in exchange for up to 6,300,000
shares of common stock of Company (totaling approximately $59,800,000) and the
assumption of approximately $18,400,000 of Indebtedness; provided that up to
--------
$10,000,000 of the consideration paid by Company may be in Cash at the option of
BRDC (such acquisitions are hereinafter referred to collectively as the
"Bettendorf Acquisition");
(iv) the acquisition by Company, concurrently with the Lady Luck
Acquisition, of all of the outstanding capital stock of Marco Polo and all of
the intellectual property and certain other assets owned by Gemini related to
Lady Luck for $31,000,000 in Cash (such acquisitions are hereinafter referred to
collectively as the "Las Vegas Acquisition"; and together with the Lady Luck
Acquisition and the Bettendorf Acquisition, the "Primary Acquisition");
(v) the acquisition by Company or any of its Restricted Subsidiaries,
subsequent to the Lady Luck Acquisition, of the Lady Luck Casino & Hotel in Las
Vegas, Nevada (the "Las Vegas Facility") for up to $14,500,000 in Cash (the
"Secondary Acquisition"); and
(vi) the payment of Transaction Costs; and
WHEREAS, Company has agreed to continue to secure its Obligations hereunder
and under the other Loan Documents and all of the Restricted Subsidiaries of
Company have agreed to continue to guarantee the Obligations of Company
hereunder and under the other Loan Documents and to continue to secure such
guarantees:
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, Company, Lenders and Administrative Agent agree
as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
---------------------
The following terms used in this Agreement shall have the following
meanings:
"Acknowledgement and Consent" means the Acknowledgement and Consent
Agreement delivered by Subsidiary Guarantors on the Effective Date,
substantially in the form of Exhibit XV annexed hereto, as such Acknowledgement
----------
and Consent may be amended, supplemented or otherwise modified from time to
time.
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination Date with
respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) obtained by dividing
--------
(x) the rate of interest equal to (a) the rate per annum determined on the basis
of the rate for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period and appearing on page 3750
of the Telerate screen at or about 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, or (b) if such a rate does
not appear on page 3750 of the Telerate screen, the average (rounded upwards, if
necessary, to the nearest 1/100 of 1%) of the rates per annum at which Dollar
deposits in immediately available funds are offered to CIBC in the interbank
Eurodollar market as at or about 11:00 A.M. (New York City time) two Business
Days prior to the beginning of such Interest Period for delivery on the first
day of such Interest Period, and in an amount approximately equal to the amount
of CIBC's Eurodollar Rate Loan and for a period approximately equal to such
Interest Period, by (y) a percentage equal to 100% minus the stated maximum rate
-- -----
(expressed as a percentage) of all reserve requirements (including any marginal,
emergency, supplemental, special or other reserves) applicable on such Interest
Rate Determination Date to any member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Administrative Agent" has the meaning assigned to that term in the introduction
to this Agreement and also means and includes any successor Administrative Agent
appointed pursuant to subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in subsection 2.6C.
"Affected Loans" has the meaning assigned to that term in subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Affiliated Fund" means, with respect to any Lender that is a fund that invests
(in whole or in part) in commercial loans, any other fund that invests (in whole
or in part) in commercial loans and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"Agreement" means this Amended and Restated Credit Agreement dated as of March
2, 2000, as it may be amended, supplemented or otherwise modified from time to
time.
"Airplane" means the King Air 200 airplane owned by Company on the Effective
Date.
"Applicable Base Rate Margin" means, as at any date of determination, with
respect to any Type of Loan that is a Base Rate Loan, a percentage per annum
equal to the Applicable Eurodollar Rate Margin for such Type of Loan less 1.00%.
----
"Applicable Eurodollar Rate Margin" means, as at any date of determination:
(x) with respect to Tranche A Term Loans and Revolving Loans that are
Eurodollar Rate Loans, a percentage per annum as set forth below opposite the
applicable Consolidated Total Leverage Ratio:
Consolidated Total Leverage Ratio Applicable Eurodollar Rate Margin
--------------------------------- ---------------------------------
greater than or equal to 5.00:1.00 3.25%
less than 5.00:1.00
but greater than or equal to 4.50:1.00 3.00%
less than 4.50:1.00
but greater than or equal to 4.00:1.00 2.75%
less than 4.00:1.00
but greater than or equal to 3.50:1.00 2.50%
less than 3.50:1.00
but greater than or equal to 3.00:1.00 2.25%
less than 3.00:1.00
but greater than or equal to 2.50:1.00 2.00%
less than 2.50:1.00 1.75%
(y) with respect to Tranche B Term Loans that are Eurodollar Rate
Loans, a percentage per annum as set forth below opposite the applicable
Consolidated Total Leverage Ratio:
Consolidated Total Leverage Ratio Applicable Eurodollar Rate Margin
--------------------------------- ---------------------------------
greater than or equal to 5.00:1.00 3.50%
less than 5.00:1.00 3.25%
(z) with respect to Tranche C Term Loans that are Eurodollar Rate
Loans, a percentage per annum as set forth below opposite the applicable
Consolidated Total Leverage Ratio:
Consolidated Total Leverage Ratio Applicable Eurodollar Rate Margin
--------------------------------- ---------------------------------
greater than or equal to 5.00:1.00 3.625%
less than 5.00:1.00 3.375%
provided that until the first Margin Reset Date, the Consolidated Total Leverage
- --------
Ratio shall be equal to 4.50:1.00 for purposes of calculating the Applicable
Eurodollar Rate Margin.
"Asset Sale" means the sale (in any single transaction or related series of
transactions) by Company or any of its Restricted Subsidiaries to any Person
other than Company or any of its Restricted Subsidiaries of (i) any of the stock
or other equity or ownership interests of any of Company's Subsidiaries, (ii)
substantially all of the assets of any division or line of business of Company
or any of its Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Company or any of its Subsidiaries (other than (a) gaming
equipment sold in the ordinary course of business to the extent the proceeds of
such sale are promptly reinvested in other gaming equipment, and (b) any such
other assets to the extent that the aggregate value of such assets sold in any
single transaction or related series of transactions is equal to $4,000,000 or
less).
"Assets Held for Sale or Development" means (i) the FFC Preferred Stock, (ii)
the Airplane, (iii) the Real Estate Options, (iv) the Cripple Creek Land, and
(v) the Discontinued Assets.
"Assignment Agreement" means an Assignment Agreement in substantially the form
of Exhibit X annexed hereto.
----------
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Reference Rate, or (y) the
rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined by reference
to the Base Rate as provided in subsection 2.2A.
"Bettendorf Acquisition" has the meaning assigned to that term in the Recitals
to this Agreement.
"Bettendorf Gaming Facilities" means the Gaming Facilities owned, leased,
operated or used by Company or its Restricted Subsidiaries in Bettendorf, Iowa.
"Bettendorf Loan Agreement" means the Construction Loan Agreement dated as of
June 23, 1997 by and between Lady Luck Bettendorf, L.C., as borrower, and The
Rock Island Bank, N.A., as lender, as such agreement may have been amended from
time to time.
"Bettendorf Merger Agreement" means the Agreement and Plan of Merger dated as of
December 19, 1999 among Company, BRDC and the shareholders of BRDC, as such
agreement may be amended from time to time to the extent permitted under
subsection 7.15A.
"Biloxi Gaming Facilities" means the Gaming Facilities owned, leased, operated
or used by Company or its Restricted Subsidiaries in Biloxi, Mississippi.
"Biloxi Leasehold Property" means the approximately 8 acres of Leasehold
Property leased from the City of Biloxi and the Biloxi Port Commission in
Harrison County, Mississippi, and used in connection with the Isle of Capri
Crowne Plaza Resort located at the Biloxi Gaming Facilities.
"Bossier City Gaming Facilities" means the Gaming Facilities owned, leased,
operated or used by Company or its Restricted Subsidiaries in Bossier City,
Louisiana.
"BRDC" means BRDC, Inc., an Iowa corporation that owns 100% of the equity
interests in Bettendorf Riverfront Development Company, L.C., an Iowa limited
liability company and owner of 50% of the equity interests in Lady Luck
Bettendorf, L.C., an Iowa limited liability company.
"Business Day" means (i) any day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or any Eurodollar Rate Loan, any day that (a) is a Business Day described
in clause (i) above, and (b) is a day for trading by and between banks in Dollar
deposits in the London Interbank Market.
"Capital Lease", as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit balance in a Deposit Account.
"Cash Equivalents" means, as at any date of determination, (i) marketable
Securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States Government or (b) issued by any agency of the
United States the obligations of which are backed by the full faith and credit
of the United States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund that (a)
has at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody's.
"Certificate re Non-Domestic Bank Status" means a certificate substantially in
the form of Exhibit XI annexed hereto delivered by a Lender to Administrative
----------
Agent pursuant to subsection 2.7B(iii).
"Change of Control" means
(i) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) is or
becomes the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5
promulgated pursuant to the Exchange Act), directly or indirectly, of equity
Securities representing the greater of (x) the percentage of the combined voting
power of the outstanding Voting Stock of Company held by Permitted Equity
Holders (including shares as to which Company or a Permitted Equity Holder holds
an effective proxy to vote) or (y) 35% or more of the combined voting power of
the outstanding Voting Stock of Company, but excluding in each case from the
percentage of voting power held by any "group" the voting power of shares owned
by the Permitted Equity Holders who are deemed to be members of the "group" so
long as such Permitted Equity Holders beneficially own a majority of the voting
power of the Voting Stock held by such "group, and at such time the Permitted
Equity Holders together shall fail to beneficially own, directly or indirectly,
equity Securities representing at least the same percentage of voting power of
such Voting Stock as the percentage "beneficially owned" by such "person" or
"group";
(ii) any sale, transfer or other conveyance, whether direct or indirect, of
a majority of the fair market value of the assets of Company, on a consolidated
basis, in one transaction or a series of related transactions, if, immediately
after giving effect to such transaction, any "person" or "group" (as such terms
are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether
or not applicable) (other than the Permitted Equity Holders (including any
Permitted Equity Holders who are part of a "group" where such Permitted Equity
Holders beneficially own a majority of the voting power of the Voting Stock held
by such "group")) is or becomes the "beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 promulgated pursuant to the Exchange Act), directly or
indirectly, of more than 35% of the equity Securities of the transferee;
(iii) during any period of 12 consecutive months after the date hereof,
individuals who at the beginning of any such 12-month period constituted the
Board of Directors of Company (together with any new directors whose election by
such Board or whose nomination for election by the shareholders of Company was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of Company then in office; or
(iv) the occurrence of a "Change of Control" under the Subordinated Note
Indenture.
"CIBC" has the meaning assigned to that term in the introduction to this
Agreement.
"CIBC Inc." has the meaning assigned to that term in the introduction to this
Agreement.
"Class" means, with respect to Lenders, the following four classes of Lenders:
(i) Lenders having Revolving Loan Exposure, (ii) Lenders having Tranche A Term
Loan Exposure, (iii) Lenders having Tranche B Term Loan Exposure and (iv)
Lenders having Tranche C Term Loan Exposure.
"Closing Date" means April 23, 1999.
"Coahoma Gaming Facilities" means the Gaming Facilities owned, leased,
operated or used by Company or its Restricted Subsidiaries in Coahoma County,
Mississippi.
"Collateral" means, collectively, all of the real, personal and mixed property
(including capital stock) in which Liens are purported to be granted pursuant to
the Collateral Documents as security for the Obligations; provided, however,
-------- -------
that "Collateral" shall not include Pompano Park or the Assets Held for Sale or
Development.
"Collateral Account" has the meaning assigned to that term in the
Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement
executed and delivered by Company and Administrative Agent on the Closing Date,
as such Collateral Account Agreement may be amended, supplemented or otherwise
modified from time to time.
"Collateral Documents" means the Collateral Account Agreement, the Company
Pledge Agreement, the Company Security Agreement, the Subsidiary Pledge
Agreements, the Subsidiary Security Agreements, the Mortgages, the Ship
Mortgages, the Acknowledgement and Consent and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Administrative Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.
"Commitment Fee Percentage" means, as at any date of determination, a percentage
per annum as set forth below opposite the applicable Consolidated Total Leverage
Ratio:
Consolidated Total Leverage Ratio Commitment Fee Percentage
--------------------------------- -------------------------
greater than or equal to 3.50:1.00 0.500%
less than 3.50:1.00 0.375%
; provided that until the first Margin Reset Date, the Commitment Fee Percentage
--------
shall be 0.500% per annum.
"Commitments" means the commitments of Lenders to make Loans as set forth
in subsection 2.1A.
"Company" has the meaning assigned such term in the introduction to this
Agreement.
"Company Pledge Agreement" means the Company Pledge Agreement executed and
delivered by Company on the Closing Date, as such Company Pledge Agreement may
be amended, supplemented or otherwise modified from time to time.
"Company Security Agreement" means the Company Security Agreement executed and
delivered by Company on the Closing Date, as such Company Security Agreement may
be amended, supplemented or otherwise modified from time to time.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit VII annexed hereto delivered to Administrative Agent and Lenders by
------
Company pursuant to subsection 6.1(iv).
"Confidential Information Memorandum" means that certain Confidential
Information Memorandum relating to Company dated February 2000.
"Conforming Leasehold Interest" means any Recorded Leasehold Interest as to
which the lessor has agreed in writing for the benefit of Administrative Agent
(which writing has been delivered to Administrative Agent), whether under the
terms of the applicable lease, under the terms of a Landlord Consent and
Estoppel, or otherwise, to the matters described in the definition of "Landlord
Consent and Estoppel," which interest, if a subleasehold or sub-subleasehold
interest, is not subject to any contrary restrictions contained in a superior
lease or sublease.
"Consolidated Capital Expenditures" means, for any period, the sum of (i) the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Restricted
Subsidiaries) by Company and its Restricted Subsidiaries during that period
that, in conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Restricted Subsidiaries plus (ii) to the extent not
----
covered by clause (i) of this definition, the aggregate of all expenditures by
Company and its Restricted Subsidiaries during that period to acquire (by
purchase or otherwise) the business, property or fixed assets of any Person, or
the stock or other evidence of beneficial ownership of any Person that, as a
result of such acquisition, becomes a Restricted Subsidiary of Company.
"Consolidated EBITDA" means, for any period, the sum of the amounts for such
period of (i) Consolidated Net Income, (ii) Consolidated Interest Expense, (iii)
provisions for taxes based on income, (iv) total depreciation expense, (v) total
amortization expense, (vi) pre-opening expense, (vii) cash dividends or other
distributions actually paid to Company by its Unrestricted Subsidiaries (but
excluding any distributions made for the purpose of paying any taxes arising
from any equity ownership interests in such Unrestricted Subsidiaries), (viii)
management fees actually paid to Company by its Unrestricted Subsidiaries, and
(ix) other non-recurring items reducing Consolidated Net Income but not
requiring the expenditure of cash (other than Transaction Costs related to the
Primary Acquisition) less the sum of (x) interest income, and (y) other
----
non-recurring items increasing Consolidated Net Income but not constituting the
receipt of cash, all of the foregoing as determined on a consolidated basis for
Company and its Restricted Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Interest Expense
plus capitalized interest less interest income, and (ii) all mandatory principal
- ---- ----
payments required to be made by Company or any of its Restricted Subsidiaries
(whether or not such payments are actually made), all of the foregoing as
determined on a consolidated basis for Company and its Restricted Subsidiaries
in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, total interest expense
(including that portion attributable to Capital Leases in accordance with GAAP)
of Company and its Restricted Subsidiaries on a consolidated basis with respect
to all outstanding Indebtedness of Company and its Restricted Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
under Interest Rate Agreements, but excluding, however, any amounts referred to
in subsection 2.3 payable to Administrative Agent and Lenders on or before the
Effective Date.
"Consolidated Net Income" means, for any period, the net income (or loss) of
Company and its Restricted Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP; provided
--------
that there shall be excluded (i) the income (or loss) of any Person accrued
prior to the date it becomes a Restricted Subsidiary of Company or is merged
into or consolidated with Company or any of its Restricted Subsidiaries or that
Person's assets are acquired by Company or any of its Restricted Subsidiaries,
and (ii) the income of any Restricted Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that income is not at the time permitted by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary.
"Consolidated Net Total Debt" means, as at any date of determination, an
aggregate amount equal to (a) the aggregate amount of all Indebtedness of
Company and its Restricted Subsidiaries plus (b) the Contingent Obligations of
----
Company and its Restricted Subsidiaries where the primary obligation of such
Contingent Obligation constitutes Indebtedness or a makewell, keepwell or other
similar agreement (but excluding Contingent Obligations under Hedge Agreements)
less (c) the aggregate amount of Cash and Cash Equivalents of Company and its
- ----
Restricted Subsidiaries in excess of $50,000,000, in each case determined on a
- --
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, as at any date of determination, the sum of the
capital stock and additional paid-in capital plus retained earnings (or minus
accumulated deficits) of Company and its Restricted Subsidiaries on a
consolidated basis determined in conformity with GAAP.
"Consolidated Rental Payments" means, for any period, the aggregate amount of
all rents paid or payable by Company and its Restricted Subsidiaries on a
consolidated basis during that period under all Operating Leases (other than
Excluded Leases) to which Company or any of its Restricted Subsidiaries is a
party as lessee.
"Consolidated Senior Debt" means, as at any date of determination, Consolidated
Net Total Debt less the aggregate amount of all unsecured Subordinated
----
Indebtedness of Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Senior Leverage Ratio" means, as at any date of determination, the
ratio of (a) Consolidated Senior Debt as of the last day of the Fiscal Quarter
for which such determination is being made, to (b) Consolidated EBITDA, after
giving effect on a pro forma basis to the Primary Acquisition, the Secondary
Acquisition and any other acquisitions of any assets or any Persons pursuant to
Expansion Capital Expenditures permitted under subsection 7.8(ii) and/or any
Asset Sales permitted under subsection 7.7(vi), for the consecutive four Fiscal
Quarters ending on the last day of the Fiscal Quarter for which such
determination is being made.
"Consolidated Total Leverage Ratio" means, as at any date of determination, the
ratio of (a) Consolidated Net Total Debt as of the last day of the Fiscal
Quarter for which such determination is being made, to (b) Consolidated EBITDA,
after giving effect on a pro forma basis to the Primary Acquisition, the
Secondary Acquisition and any other acquisitions of any assets or any Persons
pursuant to Expansion Capital Expenditures permitted under subsection 7.8(ii)
and/or any Asset Sales permitted under subsection 7.7(vi), for the consecutive
four Fiscal Quarters ending on the last day of the Fiscal Quarter for which such
determination is being made.
"Contingent Obligation", as applied to any Person, means any direct or indirect
liability, contingent or otherwise, of that Person (i) with respect to any
Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Hedge Agreements. Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, including, without
limitation, any credit support agreements, makewell agreements, keepwell
agreements and any other agreements evidencing similar obligations, (b) the
obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (X) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (Y) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (X) or (Y) of this
sentence, the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if less, the amount
to which such Contingent Obligation is specifically limited. The obligations so
guaranteed or otherwise supported (if other than Indebtedness), including,
without limitation, guarantees of minimum room rates or occupancy levels, shall
be in form and substance satisfactory to Administrative Agent.
"Contractual Obligation", as applied to any Person, means any provision of any
Security issued by that Person or of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or to which it or
any of its properties is subject.
"Cripple Creek Land" means the real estate owned or leased by Company in Cripple
Creek, Colorado, as of the Effective Date.
"Deposit Account" means a demand, time, savings, passbook or like account with a
bank, savings and loan association, credit union or like organization, other
than an account evidenced by a negotiable certificate of deposit.
"Discontinued Assets" means the following assets held for sale by Company or its
Subsidiaries as of the Effective Date: (i) the Biloxi Belle barge (Official No.
1023166) and the Diamond Lady riverboat (Official No. 972893); (ii) the Lucky
Seven barge (Official No. 175417), the barge with vessel number 511360, the
barge GT-114 (Official No. 294207), the barge GT-220 (Official No. 275343), and
the barge C-202 (Official No. 254357); (iii) certain gaming equipment valued at
less than $250,000; and (iv) the partially completed riverboat with Service
Marine Hull No. 172.
"Documentation Agent" has the meaning assigned to that term in the introduction
of this Agreement.
"Dollars" and the sign "$" mean the lawful money of the United States of
America.
"Effective Date" means the date on or before April 30, 2000 on which the
conditions precedent set forth in Section 4.1 hereof shall have been satisfied
or waived.
"Effective Date Financing Requirements" means the aggregate of all amounts
necessary (i) to refinance all of the outstanding term loans under the Existing
Credit Agreement, (ii) to finance the consummation of the Primary Acquisition,
(iii) to refinance all of the Refinanced Indebtedness, and (iv) to pay the
Transaction Costs.
"Effective Date Mortgaged Property" has the meaning assigned to that term in
subsection 4.1I(i).
"Effective Date Mortgages" has the meaning assigned to that term in subsection
4.1I(i).
"Eligible Assignee" means a Person that is (I) to the extent required under
applicable Gaming Laws, registered with, approved by, or not disapproved by
(whichever may be required under applicable Gaming Laws), all applicable Gaming
Authorities, and (II)(A) (i) a commercial bank, savings and loan association or
savings bank organized under the laws of the United States or any state thereof;
provided that such financial institution has a combined capital and surplus of
-------
at least $100,000,000; (ii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that (x) such bank is
--------
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; (iii) any other entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act) which extends credit or buys loans as one
of its businesses including insurance companies, mutual funds, lease financing
companies and investment funds and any Affiliated Funds; or (iv) any other
Person approved by Administrative Agent and Company; or (B) any Lender, any
Affiliate of any Lender, or any Affiliated Fund of any Lender; provided that no
--------
Affiliate of Company shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as defined in Section
3(3) of ERISA which is or was maintained or contributed to by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), by any governmental authority or any other
Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law, (ii) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity, or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"Environmental Laws" means any and all current or future statutes, ordinances,
orders, rules, regulations, guidance documents, judgments, Governmental
Authorizations, or any other requirements of governmental authorities relating
to (i) environmental matters, including those relating to any Hazardous
Materials Activity, (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any Facility, including the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. 9601 et seq.), the Hazardous Materials
-- ---
Transportation Act (49 U.S.C. 1801 et seq.), the Resource Conservation and
-- ---
Recovery Act (42 U.S.C. 6901 et seq.), the Federal Water Pollution Control Act
-- ---
(33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the
-- --- -- ---
Toxic Substances Control Act (15 U.S.C. 2601 et seq.), the Federal
-- ---
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.), the
-- ---
Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the Oil Pollution
-- ---
Act (33 U.S.C. 2701 et seq) and the Emergency Planning and Community
-------
Right-to-Know Act (42 U.S.C. 11001 et seq.), each as amended or supplemented,
-- ---
any analogous present or future state or local statutes or laws, and any
regulations promulgated pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation which is
a member of a controlled group of corporations within the meaning of Section
414(b) of the Internal Revenue Code of which that Person is a member; (ii) any
trade or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m) or
(o) of the Internal Revenue Code of which that Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above is a
member. Any former ERISA Affiliate of Company or any of its Subsidiaries shall
continue to be considered an ERISA Affiliate of Company or such Subsidiary
within the meaning of this definition with respect to the period such entity was
an ERISA Affiliate of Company or such Subsidiary and with respect to liabilities
arising after such period for which Company or such Subsidiary could be liable
under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section 4043
of ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Internal Revenue
Code) or the failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice
from any Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act
or omission which could give rise to the imposition on Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of fines, penalties,
taxes or related charges under Chapter 43 of the Internal Revenue Code or under
Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Excluded Guarantors" means Isle of Capri Casino Colorado, Inc., a Colorado
corporation, and PPI, Inc., a Florida corporation.
"Excluded Leases" means the leases set forth on Schedule 1.1(a) annexed hereto,
---------------
such leases to include (i) all leases existing as of the Effective Date under
which Company or any of its Restricted Subsidiaries is a lessee, and (ii) all
leases replacing any of the foregoing. In the case of (ii), such leases and the
rental payments in respect of such leases shall be reasonably satisfactory to
Administrative Agent.
"Existing Credit Agreement" means that certain Credit Agreement, dated as of
April 23, 1999, by and among Company, the lenders party thereto and
Administrative Agent, as such Credit Agreement may have been amended,
supplemented or otherwise modified from time to time.
"Existing Subsidiaries" means the Subsidiaries of Company that were Loan Parties
as of the Closing Date under the Existing Credit Agreement.
"Expansion Capital Expenditures" means any Consolidated Capital Expenditure by
Company or any of its Subsidiaries which are made with respect to any Related
Business that is, or after giving effect to such expenditures will be, (a) owned
by Company or any of its Subsidiaries, or (b) which further expands or enhances
any Gaming Facility owned, leased, operated or used by Company or any of its
Subsidiaries existing or under construction as of the Effective Date and which
is not properly characterized as a Maintenance Capital Expenditure.
"Facilities" means any and all real property (including all buildings, fixtures
or other improvements located thereon and all Gaming Facilities) now, hereafter
or heretofore owned, leased, operated or used by Company or any of its
Subsidiaries or any of their respective predecessors or Affiliates.
"Federal Funds Effective Rate" means, for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"FFC Preferred Stock" means all shares of preferred stock, $100 par value, of
Freedom Financial Corporation owned by Company.
"Financial Plan" has the meaning assigned to that term in subsection
6.1(xiii).
"First Priority" means, with respect to any Lien purported to be created in
any Collateral pursuant to any Collateral Document, that (i) such Lien has
priority over any other Lien on such Collateral (other than Permitted
Encumbrances which as a matter of statutory law have priority over any other
Lien irrespective of the prior perfection or filing of such other Lien and, with
respect to ships, barges and other vessels, Permitted Priority Maritime Liens)
and (ii) such Lien is the only Lien (other than Liens permitted pursuant to
subsection 7.2) to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries as
determined on the basis of a four consecutive Fiscal Quarter period where (x) in
the case of every Fiscal Year other than a Fiscal Year ending during a leap
year, each such Fiscal Quarter consists of two four-week monthly periods and one
five-week monthly period or thirteen total weeks for each such Fiscal Quarter
and such Fiscal Year shall consist of a total of fifty-two weeks, and (y) in the
case of a Fiscal Year ending during a leap year, each of the first three such
Fiscal Quarters shall be for a period of thirteen total weeks and the last such
Fiscal Quarter shall be for a period of fourteen total weeks consisting of one
four-week monthly period and two five-week monthly periods and such Fiscal Year
shall consist of a total of fifty-three weeks; provided that Fiscal Year 2000
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shall end on April 30, 2000.
"Flood Hazard Property" means a Mortgaged Property located in an area designated
by the Federal Emergency Management Agency as having special flood or mud slide
hazards.
"Funding and Payment Office" means (i) the office of Administrative Agent and
Swing Line Lender located at CIBC, 425 Lexington Avenue, New York, NY 10017, or
(ii) such other office of Administrative Agent and Swing Line Lender as may from
time to time hereafter be designated as such in a written notice delivered by
Administrative Agent and Swing Line Lender to Company and each Lender.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.
"Gaming Authority" means any governmental agency, authority, board, bureau,
commission, department, office or instrumentality that holds regulatory,
licensing or permit authority over gambling, gaming or Gaming Facility
activities conducted by Company or any of its Subsidiaries within its
jurisdiction.
"Gaming Authorizations" means any and all Governmental Authorizations (i)
necessary to enable Company or any of its Restricted Subsidiaries to engage in
the casino, gambling or gaming business or otherwise continue to conduct its
business as it is conducted on the Effective Date, or (ii) required by any
Gaming Authority or under any Gaming Law.
"Gaming Facility" means any gaming establishment and other property or assets
directly ancillary thereto or used in connection therewith, including, without
limitation, any casinos, hotels, resorts, race tracks, theaters, parking
facilities, recreational vehicle parks, timeshare operations, retail shops,
restaurants, other buildings, land, golf courses and other recreation and
entertainment facilities, marinas, vessels, barges, ships and related equipment.
"Gaming Laws" means all statutes, rules, regulations, ordinances, codes,
administrative or judicial orders or decrees or other laws pursuant to which any
Gaming Authority possesses regulatory, licensing or permit authority over
gambling, gaming or Gaming Facility activities conducted by Company or any of
its Subsidiaries within its jurisdiction.
"Gemini" means Gemini, Inc., a Nevada corporation.
"Governmental Authorization" means any permit, license, authorization, plan,
directive, consent order or consent decree of or from any federal, state or
local governmental authority, agency or court or any Gaming Authority.
"Hazardous Materials" means (i) any chemical, material or substance at any time
defined in any Environmental Law or as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", acutely hazardous waste", "radioactive waste", "biohazardous
waste", "pollutant", "toxic pollutant", "contaminant", "restricted hazardous
waste", "infectious waste", "toxic substances", or any other term or expression
intended to define, list or classify substances by reason of properties harmful
to health, safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority or which may or could pose a hazard to
the health and safety of the owners, occupants or any Persons in the vicinity of
any Facility or to the indoor or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed or threatened
activity, event or occurrence involving any Hazardous Materials, including the
use, manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Materials, and any corrective action or
response action with respect to any of the foregoing.
"Hedge Agreement" means (i) any Interest Rate Agreement designed to hedge
against fluctuations in interest rates, (ii) any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement to which Company or any of its
Subsidiaries is a party designed to hedge against fluctuations in currency
values, and (iii) any other agreement or arrangement to which Company or any of
its Subsidiaries is a party which hedges against or is based upon fluctuations
in the value of the equity Securities of any Person, or any equity forward
agreements or similar agreements or arrangements.
"ICBH" means Isle of Capri Black Hawk L.L.C., a Colorado limited liability
company.
"Increasing Lender" has the meaning assigned to that term in subsection
2.1A(vi).
"Indebtedness", as applied to any Person, means (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is
(a) due more than six months from the date of incurrence of the obligation in
respect thereof or (b) evidenced by a note or similar written instrument, and
(v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that Person.
Obligations under Interest Rate Agreements constitute (X) in the case of Hedge
Agreements, Contingent Obligations, and (Y) in all other cases, Investments, and
in neither case constitute Indebtedness.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Information Systems and Equipment" means all computer hardware, firmware and
software, as well as other information processing systems, or any equipment
containing embedded microchips, whether directly or indirectly owned, licensed,
leased, operated or otherwise controlled by Company or any of its Subsidiaries,
including through third-party service providers, and which, in whole or in part,
are used, operated, relied upon or integral to Company's or any of its
Subsidiaries' conduct of their businesses.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Company and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
"Interest Payment Date" means (i) with respect to any Base Rate Loan, the last
Business Day of each March, June, September and December of each year,
commencing on the first such date to occur after the Effective Date, and (ii)
with respect to any Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each Interest Period of
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six months "Interest Payment Date" shall also include the date that is three
months after the commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
"Interest Rate Determination Date" means, with respect to any Interest Period,
the second Business Day prior to the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended to
the date hereof and from time to time hereafter, and any successor statute.
"Investment" means (i) any direct or indirect purchase or other acquisition by
Company or any of its Restricted Subsidiaries of, or of a beneficial interest
in, any Securities of any other Person (including any Subsidiary of Company),
(ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Restricted Subsidiary of Company from any Person
other than Company or any of its Restricted Subsidiaries, of any equity
Securities of such Subsidiary, (iii) any direct or indirect loan, advance (other
than advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Restricted Subsidiaries to any
other Person (other than a wholly-owned domestic Restricted Subsidiary of
Company), including all Indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business, or (iv) Interest Rate Agreements not
constituting Hedge Agreements. The amount of any Investment shall be the excess
of (x) the original cost of such Investment plus (y) the cost of all additions
----
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, over (z)
the aggregate amount of all distributions of Cash or Cash Equivalents
constituting a return of capital on such Investment.
"IP Collateral" means, collectively, the Collateral consisting of Intellectual
Property under the Company Security Agreement and the Subsidiary Security
Agreements.
"Issuing Lender" has the meaning assigned to that term in the introduction to
this Agreement and also means any Lender which agrees or is otherwise obligated
to issue a Letter of Credit, determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided that in no event
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shall any corporate Subsidiary of any Person be considered to be a Joint Venture
to which such Person is a party.
"Kansas City Project" means the acquisition by Company or any of its Restricted
Subsidiaries of certain assets of the Flamingo Hilton Riverboat Casino in Kansas
City, Missouri (including the casino vessel, parking garage and all related
gaming equipment) and the re-theming of such gaming facilities by Company after
the acquisition.
"Lady Luck" means Lady Luck Gaming Corporation, a Delaware corporation.
"Lady Luck Acquisition" has the meaning assigned to that term in the Recitals to
this Agreement.
"Lady Luck Common Stock" has the meaning assigned to that term in the Recitals
to this Agreement.
"Lady Luck Mortgage Notes" means the 11-7/8% First Mortgage Notes due 2001.
"Lake Charles Gaming Facilities" means the Gaming Facilities owned, leased,
operated or used by Company or its Restricted Subsidiaries in Westlake (near
Lake Charles), Louisiana.
"Lake Charles Leasehold Property" means the approximately 16.25 acres of
Leasehold Property leased in Calcasieu Parish, Louisiana, and used in connection
with the Isle of Capri Casino and Hotel located at the Lake Charles Gaming
Facilities.
"Lake Charles Project" means the construction of an approximately 250-room
waterfront deluxe hotel with convention space and restaurants located at the
Lake Charles Gaming Facilities.
"Landlord Consent and Estoppel" means (x) with respect to any Leasehold Property
(other than the Biloxi Leasehold Property and the Lake Charles Leasehold
Property), a letter, certificate or other instrument in writing from the lessor
under the related lease, satisfactory in form and substance to Administrative
Agent, pursuant to which such lessor agrees, for the benefit of Administrative
Agent, (i) that without any further consent of such lessor or any further action
on the part of the Loan Party holding such Leasehold Property, such Leasehold
Property may be encumbered pursuant to a Mortgage and may be assigned to the
purchaser at a foreclosure sale or in a transfer in lieu of such a sale (and to
a subsequent third party assignee if Administrative Agent, any Lender, or an
Affiliate of either so acquires such Leasehold Property), (ii) that such lessor
shall not terminate such lease as a result of a default by such Loan Party
thereunder without first giving Administrative Agent notice of such default and
at least 60 days (or, if such default cannot reasonably be cured by
Administrative Agent within such period, such longer period as may reasonably be
required) to cure such default, and (iii) to such other matters relating to such
Leasehold Property as Administrative Agent may reasonably request, and (y) with
respect to the Biloxi Leasehold Property and the Lake Charles Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, in each case in form and substance reasonably
satisfactory to Administrative Agent.
"Las Vegas Acquisition" has the meaning assigned to that term in the Recitals to
this Agreement.
"Las Vegas Facility" has the meaning assigned to that term in the Recitals to
this Agreement.
"Las Vegas Purchase Agreement" means that certain Amended and Restated Purchase
Agreement dated as of August 31, 1999 by and among Lady Luck, Gemini, Marco Polo
and Andrew H. Tompkins, as amended by that certain first amendment dated as of
October 5, 1999, and as such purchase agreement may be further amended from time
to time to the extent permitted under subsection 7.15A.
"Lead Arranger" has the meaning assigned to that term in the introduction to
this Agreement.
"Leasehold Property" means any leasehold interest of any Loan Party as lessee
under any lease of real property.
"Lender" and "Lenders" means the Persons identified as "Lenders" and listed on
the signature pages of this Agreement, together with their successors and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; provided that
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the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.
"Letter of Credit" or "Letters of Credit" means Standby Letters of Credit issued
or to be issued by Issuing Lenders for the account of Company pursuant to
subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the sum of (i)
the maximum aggregate amount which may be drawn under all Letters of Credit then
outstanding plus (ii) the aggregate amount of all drawings under Letters of
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Credit honored by Issuing Lenders and not theretofore reimbursed by Company in
any manner, either directly or out of the proceeds of Revolving Loans pursuant
to subsection 3.3B.
"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 Authority covering
any Gaming Facility or other gaming facility owned, leased, operated or used by
Company or any of its Subsidiaries.
"Lien" means any lien, mortgage, ship mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Loan" or "Loans" means one or more of the Term Loans, Revolving Loans or Swing
Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of Credit (and any
applications for, or reimbursement agreements or other documents or certificates
executed by Company in favor of an Issuing Lender relating to, the Letters of
Credit), the Subsidiary Guaranty and the Collateral Documents.
"Loan Party" means each of Company and any of Company's Subsidiaries from time
to time executing a Loan Document, and "Loan Parties" means all such Persons,
collectively.
"Maintenance Capital Expenditures" means any Consolidated Capital Expenditures
by Company or any of its Subsidiaries which are made to maintain, restore or
refurbish the condition or usefulness of property of Company or any of its
Subsidiaries, or otherwise to support the continuation of such Person's
day-to-day operations as then conducted, but which are not properly chargeable
to repairs and maintenance in accordance with GAAP; provided, however, that such
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term shall not include any Consolidated Capital Expenditures to restore the
condition or usefulness of property to the extent funded from Net
Insurance/Condemnation Proceeds delivered to Company or any of its Subsidiaries
in accordance with the terms of the Loan Documents.
"Marco Polo" means International Marco Polo's Services, Inc., a Nevada
corporation.
"Margin Determination Certificate" means an Officer's Certificate of Company
delivered (a) with respect to each Fiscal Quarter (other than each fourth Fiscal
Quarter), with the financial statements required pursuant to subsection 6.1(ii),
and (b) with respect to each fourth Fiscal Quarter, within 50 days after the
last day of such fourth Fiscal Quarter, setting forth in reasonable detail the
Consolidated Total Leverage Ratio which is applicable as of the last day of the
fiscal period for which such financial statements and Officer's Certificate are
being delivered; provided that each Margin Determination Certificate to be
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delivered pursuant to subdivision (a) above shall be included as part of the
Compliance Certificate for each such Fiscal Quarter.
"Margin Reset Date" means (a) September 2, 2000, and (b) thereafter, each
January 1, April 1, July 1 and October 1 of each year commencing on January 1,
2001.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
"Marquette Gaming Facilities" means the Gaming Facilities owned, leased,
operated or used by Company or its Restricted Subsidiaries in Marquette, Iowa,
including the vessel Miss Marquette having Official No. 950558, built in 1989 at
Freeport, Florida.
"Material Adverse Effect" means (i) a material adverse effect upon the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company and its Subsidiaries taken as a whole or (ii) the impairment of the
ability of Company and its Subsidiaries taken as a whole to perform, or of
Administrative Agent or Lenders to enforce, the Obligations.
"Material Contract" means any contract or other arrangement to which Company or
any of its Subsidiaries is a party (other than the Loan Documents) for which
breach, nonperformance, cancellation or failure to renew could reasonably be
expected to have a Material Adverse Effect.
"Material Leasehold Property" means a Leasehold Property reasonably determined
by Administrative Agent to be of material value as Collateral or of material
importance to the operations of Company or any of its Subsidiaries.
"Material Subsidiary" means each Subsidiary of Company now existing or hereafter
acquired or formed by Company which, on a consolidated basis for such Subsidiary
and its Subsidiaries, (i) for the most recent Fiscal Year accounted for more
than 2.5% of the consolidated revenues of Company and its Subsidiaries or (ii)
as at the end of such Fiscal Year, was the owner of more than 2.5% of the
consolidated assets of Company and its Subsidiaries.
"Merger" means the merger of Merger Sub with and into Lady Luck with Lady Luck
as the surviving corporation.
"Merger Agreement" means that certain Agreement and Plan of Merger dated as of
October 5, 1999 among Company, Merger Sub and Lady Luck, as such agreement may
be amended from time to time to the extent permitted under subsection 7.15A.
"Merger Sub" means Isle Merger Corp., a Delaware corporation and wholly-owned
Subsidiary of Company.
"Miss Marquette Credit Agreement" means that certain $16,300,000 Credit
Agreement dated as of October 5, 1999 between Gamblers Supply Management
Company, a South Dakota corporation, as borrower, and Company, as lender, as
such agreement may have been amended from time to time.
"Miss Marquette Stock Purchase Agreement" means that certain Stock Purchase
Agreement dated as of July 30, 1999 by and among Lady Luck, Sodak Gaming, Inc.,
a South Dakota corporation, and Lady Luck Marquette, Inc., a Delaware
corporation (formerly Gamblers Supply Management Company, a South Dakota
corporation), as such agreement may be amended from time to time to the extent
permitted under subsection 7.15A.
"Mortgage" means (i) a security instrument (whether designated as a deed of
trust or a mortgage or by any similar title) executed and delivered by any Loan
Party, substantially in such form as may be approved by Administrative Agent in
its reasonable discretion, in each case with such changes thereto as may be
reasonably recommended by Administrative Agent's or Company's local counsel
based on local laws or customary local mortgage or deed of trust practices, or
(ii) at Administrative Agent's option, in the case of an Additional Mortgaged
Property (as defined in subsection 6.9), an amendment to an existing Mortgage,
in form reasonably satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage, in either case as such security instrument or amendment may be
amended, supplemented or otherwise modified from time to time. "Mortgages"
means all such instruments, including the Effective Date Mortgages (as defined
in subsection 4.1I(i)) and any Additional Mortgages (as defined in subsection
6.9B(i)), collectively.
"Mortgaged Property" means an Effective Date Mortgaged Property (as defined in
subsection 4.1I(i)) or an Additional Mortgaged Property (as defined in
subsection 6.9B).
"Multiemployer Plan" means any Employee Benefit Plan which is a "multiemployer
plan" as defined in Section 3(37) of ERISA.
"Natchez Gaming Facilities" means the Gaming Facilities owned, leased, operated
or used by Company or its Restricted Subsidiaries in the City of Natchez, Adams
County, Mississippi.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, Cash payments
(including any Cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset
Sale, (ii) payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness (other than the Loans) that is secured
by a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale, and (iii) any reasonable
brokerage fees, commissions and other similar expenses relating to such Asset
Sale.
"Net Insurance/Condemnation Proceeds" means any Cash payments or proceeds
received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Company or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Company or such Subsidiary in respect thereof.
"New Facilities" means all Facilities acquired by Company or any of its
Subsidiaries after the Closing Date.
"New Lender" has the meaning assigned to that term in subsection 2.1A(vi).
"New Loan Party" means each Subsidiary of Company identified as a "New Loan
Party" on Schedule 5.1 annexed hereto.
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"Non-Recourse Debt" means Indebtedness (i) as to which neither Company nor any
of its Restricted Subsidiaries (a) provides any guarantee or credit support of
any kind (including any undertaking, guarantee, indemnity, keepwell or makewell
agreement or instrument that would constitute Indebtedness) or (b) is directly
or indirectly liable (as a guarantor or otherwise), and (ii) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of Company
or any of its Restricted Subsidiaries to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Notes" means one or more of the Term Notes, Revolving Notes or Swing Line Note
or any combination thereof.
"Notice of Borrowing" means a notice substantially in the form of Exhibit I
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annexed hereto delivered by Company to Administrative Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in the form of
Exhibit II annexed hereto delivered by Company to Administrative Agent pursuant
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to subsection 2.2D with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
"Notice of Issuance of Letter of Credit" means a notice substantially in the
form of Exhibit III annexed hereto delivered by Company to Administrative Agent
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pursuant to subsection 3.1B(i) with respect to the proposed issuance of a Letter
of Credit.
"Obligations" means all obligations of every nature of each Loan Party from time
to time owed to Administrative Agent, Lenders or any of them under the Loan
Documents, whether for principal, interest, reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnification or otherwise.
"Officer's Certificate" means, as applied to any corporation, a certificate
executed on behalf of such corporation by its chairman of the board (if an
officer) or its president or one of its vice presidents or its chief financial
officer or its treasurer.
"Operating Lease" means, as applied to any Person, any lease (including leases
that may be terminated by the lessee at any time) of any property (whether real,
personal or mixed) that is not a Capital Lease other than any such lease under
which that Person is the lessor.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Section 412 of the Internal Revenue Code or Section
302 of ERISA.
"Permitted Encumbrances" means the following types of Liens (excluding any such
Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue
Code or by ERISA, any such Lien relating to or imposed in connection with any
Environmental Claim, and any such Lien expressly prohibited by any applicable
terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of banks and rights of
set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen,
workmen and materialmen, and other Liens imposed by law, in each case incurred
in the ordinary course of business (a) for amounts not yet overdue or (b) for
amounts that are overdue and that (in the case of any such amounts overdue for a
period in excess of 5 days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate provisions, if
any, as shall be required by GAAP shall have been made for any such contested
amounts, and (2) in the case of a Lien with respect to any portion of the
Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money), so long as no foreclosure,
sale or similar proceedings have been commenced with respect to any portion of
the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of Default
under subsection 8.8;
(v) leases or subleases granted to third parties in accordance with any
applicable terms of the Collateral Documents and not interfering in any material
respect with the ordinary conduct of the business of Company or any of its
Subsidiaries or resulting in a material diminution in the value of any
Collateral as security for the Obligations;
(vi) easements, rights-of-way, navigational servitudes, restrictions,
encroachments, and other minor defects or irregularities in title, in each case
which do not and will not interfere in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries or result in a
material diminution in the value of any Collateral as security for the
Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any lease
permitted by subsection 7.9, (b) restriction or encumbrance that the interest or
title of such lessor or sublessor may be subject to, or (c) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so long as the holder of
such restriction or encumbrance agrees to recognize the rights of such lessee or
sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating solely to
leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods;
(x) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries;
(xii) licenses of patents, trademarks and other intellectual property rights
granted by Company or any of its Subsidiaries in the ordinary course of business
and not interfering in any material respect with the ordinary conduct of the
business of Company or such Subsidiary; and
(xiii) Permitted Priority Maritime Liens.
"Permitted Equity Holders" means (a) Bernard Goldstein, his wife and his
three adult sons, and (b) Valley Corporation, an Iowa corporation, so long as it
remains an Affiliate of Bernard Goldstein, his wife and/or any of his three
adult sons.
"Permitted Priority Maritime Liens" means maritime Liens on ships, barges or
other vessels for wages of a stevedore, when employed directly by a Person
listed in 46 U.S.C. 31341, crew's wages, salvage and general average, whether
now existing or hereafter arising and other maritime Liens which arise by
operation of law during the normal operations of such ships, barges or other
vessels which (a) are paid in the ordinary course of business, and (b) have not
been recorded on the General Index or Abstract of Title (U.S.C.G. 1332) of such
ships, barges or other vessels or judicially asserted.
"Person" means and includes natural persons, corporations, limited partnerships,
general partnerships, limited liability companies, limited liability
partnerships, joint stock companies, Joint Ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Pledged Collateral" means, collectively, the "Pledged Collateral" as defined in
the Company Pledge Agreement and the Subsidiary Pledge Agreements.
"Pompano Park" means the Gaming Facilities owned, leased, operated or used by
Company and its Subsidiaries in Pompano Beach, Florida.
"Potential Event of Default" means a condition or event that, after notice or
lapse of time or both, would constitute an Event of Default.
"Primary Acquisition" has the meaning assigned to that term in the Recitals to
this Agreement.
"Pro Rata Share" means
(i) with respect to all payments, computations and other matters
relating to the Tranche A Term Loan Commitment or the Tranche A Term Loan of any
Lender, the percentage obtained by dividing (x) the Tranche A Term Loan Exposure
--------
of that Lender by (y) the aggregate Tranche A Term Loan Exposure of all Lenders;
--
(ii) with respect to all payments, computations and other matters relating
to the Tranche B Term Loan Commitment or the Tranche B Term Loan of any Lender,
the percentage obtained by dividing (x) the Tranche B Term Loan Exposure of that
--------
Lender by (y) the aggregate Tranche B Term Loan Exposure of all Lenders;
--
(iii) with respect to all payments, computations and other matters relating
to the Tranche C Term Loan Commitment or the Tranche C Term Loan of any Lender,
the percentage obtained by dividing (x) the Tranche C Term Loan Exposure of that
--------
Lender by (y) the aggregate Tranche C Term Loan Exposure of all Lenders;
--
(iv) with respect to all payments, computations and other matters relating
to the Revolving Loan Commitment or the Revolving Loans of any Lender or any
Letters of Credit issued or participations therein purchased by any Lender or
any participations in any Swing Line Loans purchased by any Lender, the
percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender
--------
by (y) the aggregate Revolving Loan Exposure of all Lenders; and
-
(v) for all other purposes with respect to each Lender, the percentage
obtained by dividing (x) the sum of the Tranche A Term Loan Exposure of that
--------
Lender plus the Tranche B Term Loan Exposure of that Lender plus the Tranche C
---- ----
Term Loan Exposure of that Lender plus the Revolving Loan Exposure of that
----
Lender by (y) the sum of the aggregate Tranche A Term Loan Exposure of all
--
Lenders plus the aggregate Tranche B Term Loan Exposure of all Lenders plus the
---- ----
aggregate Tranche C Term Loan Exposure of all Lenders plus the aggregate
----
Revolving Loan Exposure of all Lenders, in any such case as the applicable
percentage may be adjusted by assignments permitted pursuant to subsection 10.1.
The initial Pro Rata Share of each Lender for purposes of each of clauses
(i) through (v) above is set forth opposite the name of that Lender in Schedule
--------
2.1 annexed hereto.
- ---
"PTO" means the United States Patent and Trademark Office or any successor or
substitute office in which filings are necessary or, in the opinion of
Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"Real Estate Options" means (i) all options held by Company, directly or
indirectly, on the Effective Date, and (ii) all options acquired by Company,
directly or indirectly, after the Effective Date, in each case to purchase or
lease land with an aggregate cost to Company and its Restricted Subsidiaries not
to exceed $5,000,000.
"Real Property Asset" means, at any time of determination, any interest then
owned by any Loan Party in any real property.
"Recorded Leasehold Interest" means a Leasehold Property with respect to which a
Record Document (as hereinafter defined) has been recorded in all places
necessary or desirable, in Administrative Agent's reasonable judgment, to give
constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property. For purposes of this definition,
the term "Record Document" means, with respect to any Leasehold Property, (a)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (b)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Administrative Agent.
"Redemption" has the meaning assigned to that term in the Recitals to this
Agreement.
"Reference Rate" means the rate that CIBC announces from time to time as its
prime lending rate, as in effect from time to time.
"Refinanced Indebtedness" means the Indebtedness (including any accrued but
unpaid interest thereon and any premiums and penalties relating thereto)
identified as "Refinanced Indebtedness" on Schedule 4.1G annexed hereto,
--------------
including, without limitation, (i) the Lady Luck Mortgage Notes, which shall be
called and repaid pursuant to the terms of the Lady Luck Mortgage Notes; and
(ii) all outstanding Indebtedness under the Bettendorf Loan Agreement and the
Miss Marquette Credit Agreement.
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(v).
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in subsection
3.3B.
"Related Agreements" means, collectively, the Merger Agreement, the Las
Vegas Purchase Agreement, the Miss Marquette Stock Purchase Agreement, the
Bettendorf Merger Agreement, the Subordinated Notes and the Subordinated Note
Indenture.
"Related Businesses" means the gaming businesses (including pari-mutuel betting)
conducted by Company and its Subsidiaries as of the Effective Date and any and
all reasonably related businesses necessary for, in support or anticipation of
and ancillary to or in preparation for, the gaming businesses, including without
limitation, the development, expansion or operation of any Gaming Facility
(including any land-based, dockside, riverboat or other type of Gaming
Facility).
"Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials), including the movement
of any Hazardous Materials through the air, soil, surface water or groundwater.
"Renovation Budget" means $35,000,000 in Expansion Capital Expenditures
permitted under subsection 7.8(i)(f) to be used for the Renovation Project.
"Renovation Project" means the re-theming and renovation of the Gaming
Facilities acquired in the Primary Acquisition and the Secondary Acquisition.
"Requisite Class Lenders" means, at any time, (i) for the Class of Lenders
having Revolving Loan Exposure, Lenders having or holding more than 50% of the
aggregate Revolving Loan Exposure of all Lenders, (ii) for the Class of Lenders
having Tranche A Term Loan Exposure, Lenders having or holding more than 50% of
the sum of the aggregate Tranche A Term Loan Exposure of all Lenders, (iii) for
the Class of Lenders having Tranche B Term Loan Exposure, Lenders having or
holding more than 50% of the sum of the aggregate Tranche B Term Loan Exposure
of all Lenders, and (iv) for the Class of Lenders having Tranche C Term Loan
Exposure, Lenders having or holding more than 50% of the aggregate Tranche C
Term Loan Exposure of all Lenders.
"Requisite Lenders" means Lenders having or holding more than 50% of the sum of
the aggregate Tranche A Term Loan Exposure of all Lenders plus the aggregate
----
Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term
----
Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all
----
Lenders.
"Restricted Junior Payment" means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of Company now or
hereafter outstanding, except a dividend payable solely in shares of that class
of stock to the holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.
"Restricted Subsidiary" means any Subsidiary of Company other than an
Unrestricted Subsidiary.
"Revolving Lenders" means the Lenders that have Revolving Loan Commitments or a
Swing Line Loan Commitment or that have Revolving Loans or Swing Line Loans
outstanding, together with their successors and permitted assignees pursuant to
subsection 10.1.
"Revolving Loan Commitment" means the commitment of a Lender to make Revolving
Loans to Company pursuant to subsection 2.1A(iv), and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means March 2, 2005.
"Revolving Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of the Revolving Loan Commitments,
that Lender's Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender plus (b) in the event that Lender
----
is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any unreimbursed
drawings thereunder) plus (c) the aggregate amount of all participations
----
purchased by that Lender in any outstanding Letters of Credit or any
unreimbursed drawings under any Letters of Credit plus (d) in the case of Swing
----
Line Lender, the aggregate outstanding principal amount of all Swing Line Loans
(net of any participations therein purchased by other Lenders) plus (e) the
----
aggregate amount of all participations purchased by that Lender in any
outstanding Swing Line Loans.
"Revolving Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(iv).
"Revolving Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(d) on the Effective Date, (ii) any promissory notes of
Company issued pursuant to the last paragraph of subsection 2.1E relating to any
increase in Revolving Loan Commitments made pursuant to subsection 2.1A(vi), and
(iii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Lenders, in each case substantially in
the form of Exhibit V annexed hereto, as they may be amended, supplemented or
---------
otherwise modified from time to time.
"Secondary Acquisition" has the meaning assigned to that term in the Recitals to
this Agreement.
"Securities" means any stock, shares, partnership interests, membership
interests, voting trust certificates, certificates of interest or participation
in any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to time,
and any successor statute.
"Ship Mortgage" means a security instrument (whether designated as a first
preferred ship mortgage or by any similar title) executed and delivered by any
Loan Party, substantially in such form as may be approved by Administrative
Agent in its reasonable discretion, in each case with such changes thereto as
may be reasonably recommended by Administrative Agent's or Company's local
counsel based on local laws or customary local first preferred ship mortgage
practices, as such security instrument may be amended, supplemented or otherwise
modified from time to time. "Ship Mortgages" means all such instruments,
collectively.
"Solvent" means, with respect to any Person, that as of the date of
determination both (A) (i) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (B) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Standby Letter of Credit" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) Indebtedness of Company or
any of its Restricted Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Restricted Subsidiaries, (iii) the obligations of third
party insurers of Company or any of its Restricted Subsidiaries arising by
virtue of the laws of any jurisdiction requiring third party insurers, (iv)
obligations with respect to Capital Leases or Operating Leases of Company or any
of its Restricted Subsidiaries, and (v) performance, payment, deposit or surety
obligations of Company or any of its Restricted Subsidiaries, in any case if
required by law or governmental rule or regulation or in accordance with custom
and practice in the industry.
"Subordinated Indebtedness" means (i) the Indebtedness of Company evidenced by
the Subordinated Notes and (ii) any other Indebtedness of Company subordinated
in right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance reasonably
satisfactory to Administrative Agent.
"Subordinated Note Indenture" means the indenture pursuant to which the
Subordinated Notes are issued, as such indenture may be amended from time to
time to the extent permitted under subsection 7.15B.
"Subordinated Notes" means the $390,000,000 in aggregate principal amount of
8-3/4% Subordinated Notes due 2009 of Company issued pursuant to the
Subordinated Note Indenture.
"Subsidiary" means, with respect to any Person, any corporation, partnership,
limited liability company, association, joint venture or other business entity
of which more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Subsidiary Guarantor" means any domestic Restricted Subsidiary of Company that
executes and delivers a counterpart of the Subsidiary Guaranty on or after the
Closing Date or on the Effective Date or from time to time thereafter pursuant
to subsection 6.8.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and delivered by
existing domestic Restricted Subsidiaries of Company on the Closing Date or on
the Effective Date, or executed and delivered by additional domestic Restricted
Subsidiaries of Company from time to time thereafter in accordance with
subsection 6.8, substantially in the form of Exhibit XII annexed hereto, as such
-----------
Subsidiary Guaranty may hereafter be amended, supplemented or otherwise modified
from time to time.
"Subsidiary Pledge Agreement" means each Subsidiary Pledge Agreement executed
and delivered by an existing Subsidiary Guarantor (other than an Excluded
Guarantor) on the Closing Date or on the Effective Date, or executed and
delivered by any additional Subsidiary Guarantor from time to time thereafter in
accordance with subsection 6.8, in each case substantially in the form of
Exhibit XIII annexed hereto, as such Subsidiary Pledge Agreement may be amended,
------
supplemented or otherwise modified from time to time, and "Subsidiary Pledge
Agreements" means all such Subsidiary Pledge Agreements, collectively.
"Subsidiary Security Agreement" means each Subsidiary Security Agreement
executed and delivered by an existing Subsidiary Guarantor (other than an
Excluded Guarantor) on the Closing Date or on the Effective Date, or executed
and delivered by any additional Subsidiary Guarantor from time to time
thereafter in accordance with subsection 6.8, in each case substantially in the
form of Exhibit XIV annexed hereto, as such Subsidiary Security Agreement may be
-----------
amended, supplemented or otherwise modified from time to time, and "Subsidiary
Security Agreements" means all such Subsidiary Security Agreements,
collectively.
"Supplemental Collateral Agent" has the meaning assigned to that term in
subsection 9.1B.
"Swing Line Lender" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor Swing
Line Lender appointed pursuant to subsection 9.5B.
"Swing Line Loan Commitment" means the commitment of Swing Line Lender to make
Swing Line Loans to Company pursuant to subsection 2.1A(v).
"Swing Line Loans" means the Loans made by Swing Line Lender to Company pursuant
to subsection 2.1A(v).
"Swing Line Note" means (i) the promissory note of Company issued pursuant to
subsection 2.1E(ii) on the Effective Date and (ii) any promissory note issued by
Company to any successor Administrative Agent and Swing Line Lender pursuant to
the last sentence of subsection 9.5B, in each case substantially in the form of
Exhibit VI annexed hereto, as it may be amended, supplemented or otherwise
- -----------
modified from time to time.
- -----
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided that "Tax on the overall net income" of a Person shall be
--------
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in
the case of a Lender, its lending office).
"Term Loan Commitments" means the Tranche A Term Loan Commitments, the Tranche B
Term Loan Commitments, the Tranche C Term Loan Commitments or any combination
thereof.
"Term Loans" means the Tranche A Term Loans, the Tranche B Term Loans, the
Tranche C Term Loans or any combination thereof.
"Term Notes" means the Tranche A Term Notes, the Tranche B Term Notes, the
Tranche C Term Notes or any combination thereof.
"Title Company" means, collectively, one or more title insurance companies
reasonably satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans plus (ii) the aggregate principal amount of all outstanding
----
Swing Line Loans plus (iii) the Letter of Credit Usage.
----
"Tranche A Term Loan Commitment" means the commitment of a Lender to make a
Tranche A Term Loan to Company pursuant to subsection 2.1A(i), and "Tranche A
Term Loan Commitments" means such commitments of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of all of the Tranche A Term Loan
Commitments, the sum of (a) that Lender's Tranche A Term Loan Commitment plus
----
(b) the aggregate outstanding principal amount of the Tranche A Term Loan of
that Lender and (ii) after the termination of the Tranche A Term Loan
Commitments, the aggregate outstanding principal amount of the Tranche A Term
Loan of that Lender.
"Tranche A Term Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(i).
"Tranche A Term Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(a) on the Effective Date, (ii) any promissory notes of
Company issued pursuant to the last paragraph of subsection 2.1E relating to any
increase in the Tranche A Term Loans made pursuant to subsection 2.1A(vi), and
(iii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche A Term Loan
Commitments or Tranche A Term Loans of any Lenders, in each case substantially
in the form of Exhibit IV-A annexed hereto, as they may be amended, supplemented
------------
or otherwise modified from time to time.
"Tranche B Term Loan Commitment" means the commitment of a Lender to make a
Tranche B Term Loan to Company pursuant to subsection 2.1A(ii), and "Tranche B
Term Loan Commitments" means such commitments of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of all of the Tranche B Term Loan
Commitments, the sum of (a) that Lender's Tranche B Term Loan Commitment plus
----
(b) the aggregate outstanding principal amount of the Tranche B Term Loan of
that Lender and (ii) after the termination of the Tranche B Term Loan
Commitments, the aggregate outstanding principal amount of the Tranche B Term
Loan of that Lender.
"Tranche B Term Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(ii).
"Tranche B Term Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(b) on the Effective Date, (ii) any promissory notes of
Company issued pursuant to the last paragraph of subsection 2.1E relating to any
increase in the Tranche B Term Loans made pursuant to subsection 2.1A(vi), and
(iii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche B Term Loan
Commitments or Tranche B Term Loans of any Lenders, in each case substantially
in the form of Exhibit IV-B annexed hereto, as they may be amended, supplemented
------------
or otherwise modified from time to time.
"Tranche C Term Loan Commitment" means the commitment of a Lender to make a
Tranche C Term Loan to Company pursuant to subsection 2.1A(iii), and "Tranche B
Term Loan Commitments" means such commitments of all Lenders in the aggregate.
"Tranche C Term Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of all of the Tranche C Term Loan
Commitments, the sum of (a) that Lender's Tranche C Term Loan Commitment plus
----
(b) the aggregate outstanding principal amount of the Tranche C Term Loan of
that Lender and (ii) after the termination of the Tranche C Term Loan
Commitments, the aggregate outstanding principal amount of the Tranche C Term
Loan of that Lender.
"Tranche C Term Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(iii).
"Tranche C Term Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(c) on the Effective Date, (ii) any promissory notes of
Company issued pursuant to the last paragraph of subsection 2.1E relating to any
increase in the Tranche C Term Loans made pursuant to subsection 2.1A(vi), and
(iii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche C Term Loan
Commitments or Tranche C Term Loans of any Lenders, in each case substantially
in the form of Exhibit IV-C annexed hereto, as they may be amended, supplemented
------------
or otherwise modified from time to time.
"Transaction Costs" means the fees, costs and expenses payable by Company on or
before the Effective Date in connection with the Primary Acquisition and the
refinancing of all of the outstanding term loans under the Existing Credit
Agreement, such fees, costs and expenses in an aggregate amount not to exceed
$20,000,000.
"Tunica Gaming Facilities" means the Gaming Facilities owned, leased, operated
or used by Company or its Restricted Subsidiaries in Tunica County, Mississippi.
"Tunica Project" means the construction of two multi-purpose theaters with a
total of approximately 2,000 seats, and the construction of an approximately 200
to 250-room new hotel, in each case as part of the Tunica Gaming Facilities.
"Type" means (i) with respect to a Loan, a Tranche A Term Loan, a Tranche B Term
Loan, a Tranche C Term Loan, a Revolving Loan or a Swing Line Loan (each of
which is a "Type" of Loan), and (ii) with respect to a Term Loan, a Tranche A
Term Loan, a Tranche B Term Loan or a Tranche C Term Loan (each of which is a
"Type" of Term Loan).
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the Board
of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution;
provided that such Subsidiary: (i) has no Indebtedness other than Non-Recourse
---
Debt; (ii) is not party to any agreement, contract, arrangement or understanding
with Company or any Restricted Subsidiary of Company unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable to
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of Company; (iii) is a Person with
respect to which neither Company nor any of its Restricted Subsidiaries has any
direct or indirect obligation (1) to subscribe for additional equity Securities
or other equity or ownership interests, or (2) to maintain or preserve such
Person's financial condition or to cause such Person to achieve or maintain any
specified levels of profitability; (iv) has not guaranteed or otherwise directly
or indirectly provided credit support for any Indebtedness of Company or any of
its Restricted Subsidiaries; and (v) has no Subsidiaries other than Unrestricted
Subsidiaries; and provided further that, notwithstanding the foregoing, Company
-------- -------
may not designate as an Unrestricted Subsidiary (x) any then existing Subsidiary
that owns, leases, operates or uses any assets or function directly relating to
or necessary for the conduct of casino gaming at the Biloxi Gaming Facilities,
the Vicksburg Gaming Facilities, the Bossier City Gaming Facilities, the
Bettendorf Gaming Facilities, the Marquette Gaming Facilities, the Coahoma
Gaming Facilities, the Natchez Gaming Facilities, the Tunica Gaming Facilities
or the Lake Charles Gaming Facilities, or (y) PPI, Inc. Any such designation by
the Board of Directors shall be evidenced to Administrative Agent by filing with
Administrative Agent resolutions of the Board of Directors giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Agreement and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of Company as of such date.
The Board of Directors may at any time designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided that such designation shall be deemed to be
--------
an incurrence of Indebtedness by a Restricted Subsidiary of Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (i) such Indebtedness is permitted under subsection
7.1 and (ii) no Event of Default or Potential Event of Default would be in
existence following such designation.
"Vicksburg Gaming Facilities" means the Gaming Facilities owned, leased,
operated or used by Company or its Restricted Subsidiaries in Vicksburg,
Mississippi.
"Voting Stock" means, with respect to any Person, the capital stock (including
any and all shares, interests (including partnership, membership and other
equity interests), participations, rights in, or other equivalents (however
designated and whether voting or nonvoting) of, such capital stock, and any and
all rights, warrants or options exchangeable for or convertible into such
capital stock) of such Person which ordinarily has voting power for the election
of directors (or persons performing similar functions) of such Person, whether
at all times or only as long as no senior class of Securities has such voting
power by reason of any contingency.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
------------------------------------------------------------------------
Agreement.
- ---------
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii), (iii) and (xiii)
of subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (other than the absence of footnotes with respect to
the financial statements and other information delivered pursuant to clauses (i)
and (ii) of subsection 6.1) and delivered together with the reconciliation
statements provided for in subsection 6.1(v). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in subsection 5.3.
1.3 Other Definitional Provisions and Rules of Construction.
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A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes.
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A. Commitments. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Company herein set forth,
each Lender hereby severally agrees to make the Loans described in
subsections 2.1A(i), 2.1A(ii), 2.1A(iii) and 2.1A(iv) and Swing Line Lender
hereby agrees to make the Loans described in subsection 2.1A(v):
(i) Tranche A Term Loans. Each Lender having a Tranche A Term Loan
-----------------------
Commitment severally agrees to lend to Company on the Effective Date an amount
not exceeding its Pro Rata Share of the aggregate amount of the Tranche A Term
Loan Commitments to be used for the purposes identified in subsection 2.5A. The
amount of each Lender's Tranche A Term Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate original
-------------
amount of the Tranche A Term Loan Commitments is $100,000,000; provided that the
--------
Tranche A Term Loans of Lenders shall be adjusted to give effect to (1) any
increase in Tranche A Term Loans pursuant to subsection 2.1A(vi), and (2) any
assignments of the Tranche A Term Loans pursuant to subsection 10.1B. Each
Lender's Tranche A Term Loan Commitment shall expire immediately and without
further action on April 30, 2000 if the Tranche A Term Loans are not made on or
before that date. Subject to subsection 2.1A(vi), Company may make only one
borrowing under the Tranche A Term Loan Commitments. Amounts borrowed under
this subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) Tranche B Term Loans. Each Lender having a Tranche B Term Loan
--------------------
Commitment severally agrees to lend to Company on the Effective Date an amount
not exceeding its Pro Rata Share of the aggregate amount of the Tranche B Term
Loan Commitments to be used for the purposes identified in subsection 2.5A. The
amount of each Lender's Tranche B Term Loan Commitment is set forth opposite its
name on Schedule 2.1 annexed hereto and the aggregate original amount of the
------------
Tranche B Term Loan Commitments is $200,000,000; provided that the Tranche B
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Term Loans of Lenders shall be adjusted to give effect to (1) any increase in
Tranche B Term Loans pursuant to subsection 2.1A(vi), and (2) any assignments of
the Tranche B Term Loans pursuant to subsection 10.1B. Each Lender's Tranche B
Term Loan Commitment shall expire immediately and without further action on
April 30, 2000 if the Tranche B Term Loans are not made on or before that date.
Subject to subsection 2.1A(vi), Company may make only one borrowing under the
Tranche B Term Loan Commitments. Amounts borrowed under this subsection
2.1A(ii) and subsequently repaid or prepaid may not be reborrowed.
(iii) Tranche C Term Loans. Each Lender having a Tranche C Term Loan
--------------------
Commitment severally agrees to lend to Company on the Effective Date an amount
not exceeding its Pro Rata Share of the aggregate amount of the Tranche C Term
Loan Commitments to be used for the purposes identified in subsection 2.5A. The
amount of each Lender's Tranche C Term Loan Commitment is set forth opposite its
name on Schedule 2.1 annexed hereto and the aggregate original amount of the
------------
Tranche C Term Loan Commitments is $175,000,000; provided that the Tranche C
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Term Loans of Lenders shall be adjusted to give effect to (1) any increase in
Tranche C Term Loans pursuant to subsection 2.1A(vi), and (2) any assignments of
the Tranche C Term Loans pursuant to subsection 10.1B. Each Lender's Tranche C
Term Loan Commitment shall expire immediately and without further action on
April 30, 2000 if the Tranche C Term Loans are not made on or before that date.
Subject to subsection 2.1A(vi), Company may make only one borrowing under the
Tranche C Term Loan Commitments. Amounts borrowed under this subsection
2.1A(iii) and subsequently repaid or prepaid may not be reborrowed.
(iv) Revolving Loans. Each Revolving Lender severally agrees, subject to
---------------
the limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company from
time to time during the period from the Effective Date to but excluding the
Revolving Loan Commitment Termination Date an aggregate amount not exceeding its
Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be
used for the purposes identified in subsection 2.5B. The original amount of
each Revolving Lender's Revolving Loan Commitment is set forth opposite its name
on Schedule 2.1 annexed hereto and the aggregate original amount of the
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Revolving Loan Commitments is $125,000,000; provided that the Revolving Loan
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Commitments of Lenders shall be adjusted to give effect to (1) any increase in
Revolving Loan Commitments pursuant to subsection 2.1A(vi), and (2) any
assignments of the Revolving Loan Commitments pursuant to subsection 10.1B; and
provided further that the amount of the Revolving Loan Commitments shall be
- -------- -------
reduced from time to time by the amount of any reductions thereto made pursuant
- ----
to subsections 2.4B(ii) and 2.4B(iii). Each Revolving Lender's Revolving Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date and
all Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall be paid in full no
later than that date; provided that each Revolving Lender's Revolving Loan
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Commitment shall expire immediately and without further action on April 30, 2000
if the Term Loans are not made on or before that date. Amounts borrowed under
this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
(v) Swing Line Loans. Swing Line Lender hereby agrees, subject to the
------------------
limitations set forth below with respect to the maximum amount of Swing Line
Loans permitted to be outstanding from time to time, to make a portion of the
Revolving Loan Commitments available to Company from time to time during the
period from the Effective Date to but excluding the Revolving Loan Commitment
Termination Date by making Swing Line Loans to Company in an aggregate amount
not exceeding the amount of the Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5B, notwithstanding the fact that such Swing
Line Loans, when aggregated with Swing Line Lender's outstanding Revolving
Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then
in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The
original amount of the Swing Line Loan Commitment is $10,000,000; provided that
--------
any reduction of the Revolving Loan Commitments made pursuant to subsection
2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to
an amount less than the then current amount of the Swing Line Loan Commitment
shall result in an automatic corresponding reduction of the Swing Line Loan
Commitment to the amount of the Revolving Loan Commitments, as so reduced,
without any further action on the part of Company, Administrative Agent or Swing
Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Swing Line Loans and all other amounts owed
hereunder with respect to the Swing Line Loans shall be paid in full no later
than that date; provided that the Swing Line Loan Commitment shall expire
--------
immediately and without further action on April 30, 2000 if the Term Loans are
not made on or before that date. Amounts borrowed under this subsection 2.1A(v)
may be repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Swing Line Loans and the Swing Line Loan Commitment shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
With respect to any Swing Line Loans which have not been voluntarily prepaid by
Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in
its sole and absolute discretion, deliver to Administrative Agent (with a copy
to Company), no later than 11:00 A.M. (New York City time) on the first Business
Day in advance of the proposed Funding Date, a notice (which shall be deemed to
be a Notice of Borrowing given by Company) requesting Revolving Lenders to make
Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal
to the amount of such Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given which Swing Line Lender requests
Revolving Lenders to prepay. Anything contained in this Agreement to the
contrary notwithstanding, (i) the proceeds of such Revolving Loans made by
Revolving Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Company) and applied to
repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the
day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a
Revolving Loan made by Swing Line Lender, and such portion of the Swing Line
Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans
and shall no longer be due under the Swing Line Note of Swing Line Lender but
shall instead constitute part of Swing Line Lender's outstanding Revolving Loans
and shall be due under the Revolving Note of Swing Line Lender. Company hereby
authorizes Administrative Agent and Swing Line Lender to charge Company's
accounts with Administrative Agent and Swing Line Lender (up to the amount
available in each such account) in order to immediately pay Swing Line Lender
the amount of the Refunded Swing Line Loans to the extent the proceeds of such
Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed
to be made by Swing Line Lender, are not sufficient to repay in full the
Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to
be paid) to Swing Line Lender should be recovered by or on behalf of Company
from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors
or otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by subsection 10.5.
If for any reason (a) Revolving Loans are not made upon the request of Swing
Line Lender as provided in the immediately preceding paragraph in an amount
sufficient to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans or (b) the Revolving Loan Commitments are
terminated at a time when any Swing Line Loans are outstanding, each Revolving
Lender shall be deemed to, and hereby agrees to, have purchased a participation
in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(calculated, in the case of the foregoing clause (b), immediately prior to such
termination of the Revolving Loan Commitments) of the unpaid amount of such
Swing Line Loans together with accrued interest thereon. Upon one Business
Day's notice from Swing Line Lender, each Revolving Lender shall deliver to
Swing Line Lender an amount equal to its respective participation in same day
funds at the Funding and Payment Office. In order to further evidence such
participation (and without prejudice to the effectiveness of the participation
provisions set forth above), each Lender agrees to enter into a separate
participation agreement at the request of Swing Line Lender in form and
substance reasonably satisfactory to the parties thereto. In the event any
Revolving Lender fails to make available to Swing Line Lender the amount of such
Revolving Lender's participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from such Lender
together with interest thereon at the rate customarily used by Swing Line Lender
for the correction of errors among banks for three Business Days and thereafter
at the Base Rate. In the event Swing Line Lender receives a payment of any
amount in which other Revolving Lenders have purchased participations as
provided in this paragraph, Swing Line Lender shall promptly distribute to each
such other Revolving Lender its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each Revolving
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and each
Revolving Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including (a) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against Swing Line Lender, Company or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event of Default or
a Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any of its Subsidiaries; (d) any breach of this Agreement or any
other Loan Document by any party thereto; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing;
provided that such obligations of each Revolving Lender are subject to the
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condition that (X) Swing Line Lender believed in good faith that all conditions
----
under Section 4 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans, as the case may be, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (Y) the
satisfaction of any such condition not satisfied had been waived in accordance
with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or
other unpaid Swing Line Loans were made.
(vi) Increases of the Term Loans or Revolving Loan Commitments. At the
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mutual discretion of Company and Lead Arranger, Company may request in writing
at any time during the period from the Effective Date to and including the
second anniversary of the Effective Date that (x) the then effective aggregate
principal amount of any Type or Types of Term Loans be increased, and/or (y) the
then effective aggregate principal amount of Revolving Loan Commitments be
increased; provided that (1) the aggregate principal amount of the increases in
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Term Loans and/or Revolving Loan Commitments pursuant to this subsection
2.1A(vi) shall not exceed $50,000,000, (2) Company may not make more than two
requests for such increases in Term Loans and/or Revolving Loan Commitments, (3)
no Event of Default or Potential Event of Default shall have occurred and be
continuing or occurs as a result of such increases in Term Loans and/or
Revolving Loan Commitments, (4) such increases shall be subject to any prior
approvals or exemptions required under any applicable Gaming Laws, and (5)
Company shall, and shall cause its Restricted Subsidiaries to, execute and
deliver such documents and instruments and take such other actions (including,
without limitation, obtaining appropriate endorsements to title insurance
policies) as may be reasonably requested by Administrative Agent in connection
with such increases. Any request under this subsection 2.1A(vi) shall be
submitted by Company to Administrative Agent (which shall promptly forward
copies to Lenders), specify the proposed effective date and amount of such
increase and be accompanied by an Officer's Certificate stating that no Event of
Default or Potential Event of Default exists or will occur as a result of such
increase. Company may also specify any fees offered to those Lenders (the
"Increasing Lenders") which agree to increase the principal amount of their
applicable Term Loans or Revolving Loan Commitments, as the case may be, which
fees may be variable based upon the amount by which any such Lender is willing
to increase the principal amount of its applicable Term Loans or Revolving Loan
Commitment, as the case may be. No Lender shall have any obligation, express or
implied, to offer to increase the aggregate principal amount of its applicable
Term Loans or Revolving Loan Commitment, as the case may be. Only the consent
of each Increasing Lender shall be required for an increase in the aggregate
principal amount of the applicable Term Loans or Revolving Loan Commitments, as
the case may be, pursuant to this subsection 2.1A(vi). No Lender which elects
not to increase the principal amount of its Term Loan or Revolving Loan
Commitment, as the case may be, may be replaced in respect of its existing
applicable Term Loans or Revolving Loan Commitment, as the case may be, as a
result thereof without such Lender's consent.
Each Increasing Lender shall as soon as practicable specify the amount of
the proposed increase which it is willing to assume. Company may accept some or
all of the offered amounts or designate new lenders who qualify as Eligible
Assignees and which are reasonably acceptable to Administrative Agent as
additional Lenders hereunder in accordance with this subsection 2.1A(iv) (each
such new lender being a "New Lender"), which New Lender may assume all or a
portion of the increase in the aggregate principal amount of the applicable Term
Loans or Revolving Loan Commitments, as the case may be. Company and
Administrative Agent shall have discretion jointly to adjust the allocation of
the increased aggregate principal amount of the applicable Term Loans or
Revolving Loan Commitments, as the case may be, among Increasing Lenders and New
Lenders.
Each New Lender designated by Company and reasonably acceptable to
Administrative Agent shall become an additional party hereto as a New Lender
concurrently with the effectiveness of the proposed increase in the aggregate
principal amount of the applicable Term Loans or Revolving Loan Commitments, as
the case may be, upon its execution of an instrument of Joinder, in each case in
form and substance satisfactory to Administrative Agent.
Subject to the foregoing, any increase requested by Company shall be effective
as of the date proposed by Company and shall be in the principal amount equal to
(i) the principal amount which Increasing Lenders are willing to assume as
increases to the principal amount of their applicable Term Loans or Revolving
Loan Commitments, as the case may be, plus (ii) the principal amount offered by
----
New Lenders with respect to the applicable Term Loans or Revolving Loan
Commitments, as the case may be, in either case as adjusted by Company and
Administrative Agent pursuant to this subsection 2.1A(vi). All new Term Loans
to be made under this subsection 2.1A(vi) shall be made to Company on the same
day as such increase in the applicable Term Loans under this subsection 2.1A(vi)
becomes effective. Upon effectiveness of any such increase, the Pro Rata Share
of each Lender will be adjusted to give effect to the increase in the applicable
Term Loans or Revolving Loan Commitments, as the case may be, and Administrative
Agent shall distribute to Lenders a revised Schedule 2.1 reflecting the
-------------
applicable Term Loans, Revolving Loan Commitment and Pro Rata Share of each
Lender after giving effect to such increase. To the extent that the adjustment
of Pro Rata Shares results in losses or expenses to any Lender as a result of
the prepayment of any Eurodollar Rate Loan on a date other than the scheduled
last day of the applicable Interest Period, Company shall be responsible for
such losses or expenses pursuant to subsection 2.6D.
B. Borrowing Mechanics. Term Loans or Revolving Loans made on any Funding
Date (other than Revolving Loans made pursuant to a request by Swing Line Lender
pursuant to subsection 2.1A(v) for the purpose of repaying any Refunded
Swing Line Loans or Revolving Loans made pursuant to subsection 3.3B for the
purpose of reimbursing any Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it) shall be in an aggregate minimum amount of
$1,000,000 and multiples of $1,000,000 in excess of that amount; provided that
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Term Loans or Revolving Loans made on any Funding Date as Eurodollar Rate Loans
with a particular Interest Period shall be in an aggregate minimum amount of
$2,500,000 and integral multiples of $1,000,000 in excess of that amount. Swing
Line Loans made on any Funding Date shall be in an aggregate minimum amount of
$250,000 and integral multiples of $250,000 in excess of that amount. Whenever
Company desires that Lenders make Term Loans or Revolving Loans it shall deliver
to Administrative Agent a Notice of Borrowing no later than 11:00 A.M. (New York
City time) at least three Business Days in advance of the proposed Funding Date
(in the case of a Eurodollar Rate Loan) or at least one Business Day in advance
of the proposed Funding Date (in the case of a Base Rate Loan). Whenever
Company desires that Swing Line Lender make a Swing Line Loan, it shall deliver
to Administrative Agent a Notice of Borrowing no later than 11:00 A.M. (New York
City time) on the proposed Funding Date. The Notice of Borrowing shall specify
(i) the proposed Funding Date (which shall be a Business Day), (ii) the amount
and type of Loans requested, (iii) in the case of Swing Line Loans and any Loans
made on the Effective Date, that such Loans shall be Base Rate Loans, (iv) in
the case of Term Loans and Revolving Loans not made on the Effective Date,
whether such Loans shall be Base Rate Loans or Eurodollar Rate Loans, and (v) in
the case of any Loans requested to be made as Eurodollar Rate Loans, the initial
Interest Period requested therefor. Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.2D. In lieu of delivering the above-described
Notice of Borrowing, Company may give Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsection 2.1B; provided
--------
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other Person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any Loans in
the event that any of the matters to which Company is required to certify in the
applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice of
Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. Subject to subsection 2.1A(vi), all Term Loans
and Revolving Loans under this Agreement shall be made by Lenders having a
Commitment of that Type simultaneously and proportionately to their respective
Pro Rata Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in that other Lender's obligation to make a
Loan requested hereunder nor shall the Commitment of any Lender to make the
particular Type of Loan requested be increased or decreased as a result of a
default by any other Lender in that other Lender's obligation to make a Loan
requested hereunder. Promptly after receipt by Administrative Agent of a Notice
of Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Administrative Agent shall notify each Lender or Swing Line Lender, as the case
may be, of the proposed borrowing. Each Lender shall make the amount of its
Loan available to Administrative Agent not later than 1:00 P.M. (New York City
time) on the applicable Funding Date, and Swing Line Lender shall make the
amount of its Swing Line Loan available to Administrative Agent not later than
1:00 P.M. (New York City time) on the applicable Funding Date, in each case in
same day funds in Dollars, at the Funding and Payment Office. Except as
provided in subsection 2.1A(v) or subsection 3.3B with respect to Revolving
Loans used to repay Refunded Swing Line Loans or to reimburse any Issuing Lender
for the amount of a drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in subsections 4.1
(in the case of Loans made on the Effective Date) and 4.2 (in the case of all
Loans), Administrative Agent shall promptly upon receipt make the proceeds of
such Loans available to Company on the applicable Funding Date by causing an
amount of same day funds in Dollars equal to the proceeds of all such Loans
received by Administrative Agent from Lenders or Swing Line Lender, as the case
may be, to be credited to the account of Company at the Funding and Payment
Office.
Unless Administrative Agent shall have been notified by any Lender prior to
the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address referred to in
subsection 10.8, a register for the recordation of the names and addresses of
Lenders and the Commitments and Loans of each Lender from time to time (the
"Register"). The Register shall be available for inspection by Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(ii) Administrative Agent shall record in the Register the Tranche A Term
Loan Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan Commitment
and Revolving Loan Commitment and the Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans and Revolving Loans from time to time of each
Lender, the Swing Line Loan Commitment and the Swing Line Loans from time to
time of Swing Line Lender, and each repayment or prepayment in respect of the
principal amount of the Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans or Revolving Loans of each Lender or the Swing Line Loans of Swing
Line Lender. Any such recordation shall be conclusive and binding on Company
and each Lender, absent manifest error; provided that failure to make any such
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recordation, or any error in such recordation, shall not affect any Lender's
Commitments or Company's Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including the Notes
held by such Lender) the amount of any Tranche A Term Loan, Tranche B Term Loan,
Tranche C Term Loan and each Revolving Loan made by it and each payment in
respect thereof. Any such recordation shall be conclusive and binding on
Company, absent manifest error; provided that failure to make any such
--------
recordation, or any error in such recordation, shall not affect any Lender's
Commitments or Company's Obligations in respect of any applicable Loans; and
provided further that in the event of any inconsistency between the Register and
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any Lender's records, the recordations in the Register shall govern.
(iv) Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent and recorded
in the Register as provided in subsection 10.1B(ii). Prior to such recordation,
all amounts owed with respect to the applicable Commitment or Loan shall be owed
to the Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Company hereby designates CIBC to serve as Company's agent solely for
purposes of maintaining the Register as provided in this subsection 2.1D, and
Company hereby agrees that, to the extent CIBC serves in such capacity, CIBC and
its officers, directors, employees, agents and Affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. Notes. Company shall execute and deliver on the Effective Date (i) to
each Lender having a Commitment for that Type of Loan (or to Administrative
Agent for that Lender) (a) a Tranche A Term Note substantially in the form of
Exhibit IV-A annexed hereto to evidence that Lender's Tranche A Term Loan, in
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the principal amount of that Lender's Tranche A Term Loan and with other
appropriate insertions, (b) a Tranche B Term Note substantially in the form of
Exhibit IV-B annexed hereto to evidence that Lender's Tranche B Term Loan, in
------------
the principal amount of that Lender's Tranche B Term Loan and with other
-
appropriate insertions, (c) a Tranche C Term Note substantially in the form of
-
Exhibit IV-C annexed hereto to evidence that Lender's Tranche C Term Loan, in
------------
the principal amount of that Lender's Tranche C Term Loan and with other
-
appropriate insertions, and (d) a Revolving Note substantially in the form of
-
Exhibit V annexed hereto to evidence that Lender's Revolving Loans, in the
---------
principal amount of that Lender's Revolving Loan Commitment and with other
----
appropriate insertions, and (ii) to Swing Line Lender (or to Administrative
----
Agent for Swing Line Lender) a Swing Line Note substantially in the form of
---
Exhibit VI annexed hereto to evidence Swing Line Lender's Swing Line Loans, in
----------
the principal amount of the Swing Line Loan Commitment and with other
appropriate insertions.
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent as provided in subsection 10.1B(ii). Any request,
authorization or consent of any Person who, at the time of making such request
or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, assignee or transferee of that
Note or of any Note or Notes issued in exchange therefor.
In the event Company increases the aggregate principal amount of the Term Loans
or Revolving Loan Commitments, as the case may be, pursuant to subsection
2.1A(vi), Company shall issue replacement Term Notes or Revolving Notes, as the
case may be, to each Increasing Lender (or to Administrative Agent for such
Increasing Lender) and new Term Notes or Revolving Notes, as the case may be, to
each New Lender (or to Administrative Agent for such New Lender).
2.2 Interest on the Loans.
---------------------
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Adjusted Eurodollar Rate. Subject to the provisions of subsection 2.7,
each Swing Line Loan shall bear interest on the unpaid principal amount thereof
from the date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate. The applicable basis for
determining the rate of interest with respect to any Term Loan or any Revolving
Loan shall be selected by Company initially at the time a Notice of Borrowing is
given with respect to such Loan pursuant to subsection 2.1B, and the basis for
determining the interest rate with respect to any Term Loan or any Revolving
Loan may be changed from time to time pursuant to subsection 2.2D. If on any day
a Term Loan or Revolving Loan is outstanding with respect to which notice has
not been delivered to Administrative Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of interest,
then for that day that Loan shall bear interest determined by reference to the
Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Term Loans and
the Revolving Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus the
----
Applicable Base Rate Margin; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted Eurodollar
Rate plus the Applicable Eurodollar Rate Margin.
----
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line Loans
shall bear interest through maturity at the sum of the Base Rate plus the
----
Applicable Base Rate Margin.
Upon delivery of the Margin Determination Certificate by Company to
Administrative Agent pursuant to subsection 6.1(xix), the Applicable Base Rate
Margin and Applicable Eurodollar Rate Margin shall automatically be adjusted in
accordance with such Margin Determination Certificate, such adjustment to become
effective on the next succeeding Margin Reset Date; provided that (1) at any
--------
time a Margin Determination Certificate is not delivered at the time required
pursuant to subsection 6.1(xix), from the time such Margin Determination
Certificate was required to be delivered until delivery of such Margin
Determination Certificate, with respect to Tranche A Term Loans and Revolving
Loans, the Applicable Base Rate Margin shall be 2.00% and the Applicable
Eurodollar Rate Margin shall be 3.00%, with respect to Tranche B Term Loans, the
Applicable Base Rate Margin shall be 2.25% and the Applicable Eurodollar Rate
Margin shall be 3.25%, and with respect to Tranche C Term Loans, the Applicable
Base Rate Margin shall be 2.75% and the Applicable Eurodollar Rate Margin shall
be 3.375%, and (2) if a Margin Determination Certificate erroneously indicates
an applicable margin (x) more favorable to Company than should be afforded by
the actual calculation of the Consolidated Total Leverage Ratio, Company shall
promptly pay additional interest and letter of credit fees to correct for such
error, and (y) less favorable to Company than should be afforded by the actual
calculation of the Consolidated Total Leverage Ratio, Lenders shall promptly
reimburse Company an amount equal to such excess interest and letter of credit
fees to correct for such error.
B. Interest Periods. In connection with each Eurodollar Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period (or with
respect to clause (vi) below only, such shorter period acceptable to
Administrative Agent); provided that:
--------
(i) the initial Interest Period for any Eurodollar Rate Loan shall commence
on the Funding Date in respect of such Loan, in the case of a Loan initially
made as a Eurodollar Rate Loan, or on the date specified in the applicable
Notice of Conversion/Continuation, in the case of a Loan converted to a
Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of Conversion/
Continuation, each successive Interest Period shall commence on the day on which
the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day; provided that, if any Interest Period would otherwise expire on a day that
--------
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (v)
of this subsection 2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A Term
Loans shall extend beyond March 2, 2005, no Interest Period with respect to any
portion of the Tranche B Term Loans shall extend beyond March 2, 2006, no
Interest Period with respect to any portion of the Tranche C Term Loans shall
extend beyond March 2, 2007 and no Interest Period with respect to any portion
of the Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any portion of any Type of Term
Loans shall extend beyond a date on which Company is required to make a
scheduled payment of principal of such Type of Term Loans unless the sum of (a)
the aggregate principal amount of such Type of Term Loans that are Base Rate
Loans plus (b) the aggregate principal amount of such Type of Term Loans that
----
are Eurodollar Rate Loans with Interest Periods expiring on or before such date
equals or exceeds the principal amount required to be paid on such Type of Term
Loans on such date;
(vii) there shall be no more than fifteen (15) Interest Periods outstanding
at any time; and
(viii) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an Interest
Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans or any Revolving
--------
Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B(i),
interest accrued on such Swing Line Loans or Revolving Loans through the date of
such prepayment shall be payable on the next succeeding Interest Payment
Date applicable to Base Rate Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Term Loans or Revolving Loans equal to $1,000,000 and integral
multiples of $1,000,000 in excess of that amount from Loans bearing interest at
a rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any
portion of such Loan equal to $2,500,000 and integral multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
-------- -------
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to Administrative
Agent no later than 11:00 A.M. (New York City time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to a Base
Rate Loan) and at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation shall specify
(i) the proposed conversion/continuation date (which shall be a Business Day),
(ii) the amount and Type of the Loan to be converted/continued, (iii) the nature
of the proposed conversion/continuation, (iv) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
--------
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any liability to Company
in acting upon any telephonic notice referred to above that Administrative Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to act on behalf of Company or for otherwise acting in good
faith under this subsection 2.2D, and upon conversion or continuation of the
applicable basis for determining the interest rate with respect to any Loans in
accordance with this Agreement pursuant to any such telephonic notice Company
shall have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice of
Conversion/Continuation for conversion to, or continuation of, a Eurodollar Rate
Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after
the related Interest Rate Determination Date, and Company shall be bound to
effect a conversion or continuation in accordance therewith.
E. Post-Maturity Interest. Any principal payments on the Loans (whether
Base Rate Loans or Eurodollar Rate Loans) not paid when due and, to the extent
permitted by applicable law, any interest payments on the Loans or any fees or
other amounts owed hereunder not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate which is 2.00% per annum in excess of the highest interest rate
otherwise payable under this Agreement for Base Rate Loans; provided that, in
--------
the case of Eurodollar Rate Loans, upon the expiration of the Interest Period in
effect at the time any such increase in interest rate is effective such
Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall
thereafter bear interest payable upon demand at a rate which is 2.00% per annum
in excess of the highest interest rate otherwise payable under this Agreement
for Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed (i) in
the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as the
case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a
360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
--------
day on which it is made, one day's interest shall be paid on that Loan.
2.3 Fees.
----
A. Commitment Fees. Company agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Effective Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the Total
Utilization of Revolving Loan Commitments (but not any outstanding Swing Line
Loans) multiplied by the Commitment Fee Percentage, such commitment fees to be
---------- --
calculated on the basis of a 360-day year and the actual number of days elapsed
and to be payable quarterly in arrears on the last Business Day of each March,
June, September and December of each year commencing on the first such date to
occur after the Effective Date, and on the Revolving Loan Commitment Termination
Date.
Upon delivery of the Margin Determination Certificate by Company to
Administrative Agent pursuant to subsection 6.1(xix), the Commitment Fee
Percentage shall automatically be adjusted in accordance with such Margin
Determination Certificate, such adjustment to become effective on the next
succeeding Margin Reset Date; provided that (1) at any time a Margin
--------
Determination Certificate is not delivered at the time required pursuant to
subsection 6.1(xix), from the time such Margin Determination Certificate was
required to be delivered until delivery of such Margin Determination
Certificate, the Commitment Fee Percentage shall be 0.500%, and (2) if a Margin
Determination Certificate erroneously indicates an applicable margin (x) more
favorable to Company than should be afforded by the actual calculation of the
Consolidated Total Leverage Ratio, Company shall promptly pay additional
commitment fees to correct for such error, and (y) less favorable to Company
than should be afforded by the actual calculation of the Consolidated Total
Leverage Ratio, Lenders shall promptly reimburse Company an amount equal to such
excess commitment fees to correct for such error.
B. Upfront Fee. Company agrees to pay to Lead Arranger an upfront fee
on the Effective Date as more particularly set forth in that certain fee letter
dated as of October 4, 1999.
C. Annual Administrative Fee. Company agrees to pay to Administrative Agent
an annual administrative fee as more particularly set forth in that certain fee
letter dated as of October 4, 1999.
D. Other Fees. Company agrees to pay to Administrative Agent such other
fees in the amounts and at the times separately agreed upon between Company and
Administrative Agent.
2.4 Repayments, Prepayments and Reductions in Loans and Revolving Loan
------------------------------------------------------------------
Commitments; General Provisions Regarding Payments; Application of Proceeds of
-------------------------------------------------------------------------
Collateral and Payments Under Subsidiary Guaranty.
------------------------------------------------
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Tranche A Term Loans. Company shall make
------------------------------------------------
principal payments on the Tranche A Term Loans in installments on the dates and
in the amounts set forth below:
Scheduled Repayment
Scheduled Repayment Date of Tranche A Term Loans
------------------------ -----------------------
July 28, 2000 $2,500,000
October 27, 2000 $2,500,000
January 26, 2001 $2,500,000
April 27, 2001 $2,500,000
July 27, 2001 $3,750,000
October 26, 2001 $3,750,000
January 25, 2002 $3,750,000
April 26, 2002 $3,750,000
July 26, 2002 $5,000,000
October 25, 2002 $5,000,000
January 24, 2003 $5,000,000
April 25, 2003 $5,000,000
July 25, 2003 $6,250,000
October 24, 2003 $6,250,000
January 23, 2004 $6,250,000
April 23, 2004 $6,250,000
July 23, 2004 $7,500,000
October 22, 2004 $7,500,000
January 28, 2005 $7,500,000
March 2, 2005 $7,500,000
----------
Total $100,000,000
; provided that the scheduled installments of principal of the Tranche A Term
--------
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche A Term Loans in accordance with subsection
2.4B(iv); provided further that the Tranche A Term Loans and all other amounts
-------- -------
owed hereunder with respect to the Tranche A Term Loans shall be paid in full no
later than March 2, 2005, and the final installment payable by Company in
respect of the Tranche A Term Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient to repay all amounts
owing by Company under this Agreement with respect to the Tranche A Term Loans;
and provided further that in the event that the aggregate principal amount of
-------- -------
the Tranche A Term Loans is increased pursuant to subsection 2.1A(vi), then each
scheduled principal repayment to be made after such increase becomes effective
shall be increased by an amount equal to (a) the aggregate principal amount of
the increase in the Tranche A Term Loans pursuant to subsection 2.1A(vi)
multiplied by (b) an amount equal to (x) such scheduled repayment amount divided
--- -- -------
by (y) the aggregate principal amount of the Tranche A Term Loans to be repaid
- --
immediately prior to giving effect to the increase in the Tranche A Term Loans
made pursuant to subsection 2.1A(vi).
(ii) Scheduled Payments of Tranche B Term Loans. Company shall make
------------------------------------------------
principal payments on the Tranche B Term Loans in installments on the dates and
in the amounts set forth below:
Scheduled Repayment
of Tranche B
Scheduled Repayment Date Term Loans
------------------------ ----------
July 28, 2000 $ 500,000
October 27, 2000 $ 500,000
January 26, 2001 $ 500,000
April 27, 2001 $ 500,000
July 27, 2001 $ 500,000
October 26, 2001 $ 500,000
January 25, 2002 $ 500,000
April 26, 2002 $ 500,000
July 26, 2002 $ 500,000
October 25, 2002 $ 500,000
January 24, 2003 $ 500,000
April 25, 2003 $ 500,000
July 25, 2003 $ 500,000
October 24, 2003 $ 500,000
January 23, 2004 $ 500,000
April 23, 2004 $ 500,000
July 23, 2004 $ 500,000
October 22, 2004 $ 500,000
January 28, 2005 $ 500,000
April 22, 2005 $ 500,000
July 22, 2005 $ 47,500,000
October 28, 2005 $ 47,500,000
January 27, 2006 $ 47,500,000
March 2, 2006 $ 47,500,000
------------
Total $200,000,000
; provided that the scheduled installments of principal of the Tranche B Term
--------
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche B Term Loans in accordance with subsection
2.4B(iv); provided further that the Tranche B Term Loans and all other amounts
-------- -------
owed hereunder with respect to the Tranche B Term Loans shall be paid in full no
later than March 2, 2006, and the final installment payable by Company in
respect of the Tranche B Term Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient to repay all amounts
owing by Company under this Agreement with respect to the Tranche B Term Loans;
and provided further that in the event that the aggregate principal amount of
-------- -------
the Tranche B Term Loans is increased pursuant to subsection 2.1A(vi), then each
scheduled principal repayment to be made after such increase becomes effective
shall be increased by an amount equal to (a) the aggregate principal amount of
the increase in the Tranche B Term Loans pursuant to subsection 2.1A(vi)
multiplied by (b) an amount equal to (x) such scheduled repayment amount divided
--- -- -------
by (y) the aggregate principal amount of the Tranche B Term Loans to be repaid
- --
immediately prior to giving effect to the increase in the Tranche B Term Loans
made pursuant to subsection 2.1A(vi).
(iii) Scheduled Payments of Tranche C Term Loans. Company shall make
------------------------------------------------
principal payments on the Tranche C Term Loans in installments on the dates and
in the amounts set forth below:
Scheduled Repayment
Scheduled Repayment Date of Tranche C Term Loans
------------------------ -----------------------
July 28, 2000 $ 437,500
October 27, 2000 $ 437,500
January 26, 2001 $ 437,500
April 27, 2001 $ 437,500
July 27, 2001 $ 437,500
October 26, 2001 $ 437,500
January 25, 2002 $ 437,500
April 26, 2002 $ 437,500
July 26, 2002 $ 437,500
October 25, 2002 $ 437,500
January 24, 2003 $ 437,500
April 25, 2003 $ 437,500
July 25, 2003 $ 437,500
October 24, 2003 $ 437,500
January 23, 2004 $ 437,500
April 23, 2004 $ 437,500
July 23, 2004 $ 437,500
October 22, 2004 $ 437,500
January 28, 2005 $ 437,500
April 22, 2005 $ 437,500
July 22, 2005 $ 437,500
October 28, 2005 $ 437,500
January 27, 2006 $ 437,500
April 28, 2006 $ 437,500
July 28, 2006 $ 41,125,000
October 27, 2006 $ 41,125,000
January 26, 2007 $ 41,125,000
March 2, 2007 $ 41,125,000
------------
Total $175,000,000
; provided that the scheduled installments of principal of the Tranche C Term
--------
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche C Term Loans in accordance with subsection
2.4B(iv); provided further that the Tranche C Term Loans and all other amounts
-------- -------
owed hereunder with respect to the Tranche C Term Loans shall be paid in full no
later than March 2, 2007, and the final installment payable by Company in
respect of the Tranche C Term Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient to repay all amounts
owing by Company under this Agreement with respect to the Tranche C Term Loans;
and provided further that in the event that the aggregate principal amount of
-------- -------
the Tranche C Term Loans is increased pursuant to subsection 2.1A(vi), then each
scheduled principal repayment to be made after such increase becomes effective
shall be increased by an amount equal to (a) the aggregate principal amount of
the increase in the Tranche C Term Loans pursuant to subsection 2.1A(vi)
multiplied by (b) an amount equal to (x) such scheduled repayment amount divided
--- -- -------
by (y) the aggregate principal amount of the Tranche C Term Loans to be repaid
- --
immediately prior to giving effect to the increase in the Tranche C Term Loans
made pursuant to subsection 2.1A(vi).
B. Prepayments and Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic notice
----------------------
to Administrative Agent on or prior to 12:00 Noon (New York City time) on the
date of prepayment, which notice, if telephonic, shall be promptly confirmed in
writing, at any time and from time to time prepay any Swing Line Loan on any
Business Day in whole or in part in an aggregate minimum amount of $250,000 and
integral multiples of $250,000 in excess of that amount. Company may, upon not
less than one Business Day's prior written or telephonic notice, in the case of
Base Rate Loans, and three Business Days' prior written or telephonic notice, in
the case of Eurodollar Rate Loans, in each case given to Administrative
Agent by 12:00 Noon (New York City time) on the date required and, if given by
telephone, promptly confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to time
prepay any Term Loans or Revolving Loans on any Business Day in whole or in part
in an aggregate minimum amount of $1,000,000 and integral multiples of
$1,000,000 in excess of that amount; provided, however, that a Eurodollar Rate
-------- -------
Loan may only be prepaid on the expiration of the Interest Period applicable
thereto. Any voluntary prepayment of Tranche B Term Loans and/or Tranche C Term
Loans made pursuant to this subsection 2.4B(i) by Company (1) after the
Effective Date and on or prior to the first anniversary of the Effective Date
shall be subject to the payment of a premium of 1.00% of the principal amount of
Loans so prepaid, (2) after the first anniversary of the Effective Date and on
or prior to the second anniversary of the Effective Date shall be subject to the
payment of a premium of 0.50% of the principal amount of Loans so prepaid and
(3) after the second anniversary of the Effective Date shall not be subject to
any prepayment premium. Notice of prepayment having been given as aforesaid,
the principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein. Any such voluntary prepayment
shall be applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may, upon
--------------------------------------------------
not less than three Business Days' prior written or telephonic notice confirmed
in writing to Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone to
each Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving Loan
Commitments in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Revolving Loan Commitments at the
time of such proposed termination or reduction; provided that any such partial
--------
reduction of the Revolving Loan Commitments shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $1,000,000 in excess of that
amount. Company's notice to Administrative Agent shall designate the date
(which shall be a Business Day) of such termination or reduction and the amount
of any partial reduction, and such termination or reduction of the Revolving
Loan Commitments shall be effective on the date specified in Company's notice
and shall reduce the Revolving Loan Commitment of each Lender proportionately to
its Pro Rata Share.
(iii) Mandatory Prepayments and Mandatory Reductions of Revolving Loan
----------------------------------------------------------------
Commitments. The Loans shall be prepaid and/or the Revolving Loan Commitments
------
shall be permanently reduced in the amounts and under the circumstances set
forth below, all such prepayments and/or reductions to be applied as set forth
below or as more specifically provided in subsection 2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale Proceeds. No later than
--------------------------------------------------------
the first Business Day following the date of receipt by Company or any of its
Restricted Subsidiaries of any Net Asset Sale Proceeds in respect of any Asset
Sale (other than an Asset Sale of the Las Vegas Facility), Company shall prepay
the Loans and/or the Revolving Loan Commitments shall be permanently reduced in
an aggregate amount equal to 100% of the amount of such Net Asset Sale Proceeds;
provided, however, that such Net Asset Sale Proceeds received by Company or
-------- -------
any of its Restricted Subsidiaries from any Asset Sales permitted under
subsection 7.7(vi) shall be excluded from the requirements of this subsection
2.4B(iii)(a) to the extent such proceeds are reinvested or committed in writing
to be reinvested in a Related Business within 180 days after receipt of such
proceeds; provided further that, if any such Net Asset Sale Proceeds are not so
-------- -------
reinvested or committed in writing to be reinvested within such 180 day period,
then such proceeds shall be applied as required by this subsection 2.4B(iii)(a).
(b) Prepayments and Reductions from Net Insurance/Condemnation Proceeds. No
-------------------------------------------------------------------
later than the first Business Day following the date of receipt by
Administrative Agent or by Company or any of its Restricted Subsidiaries of any
Net Insurance/ Condemnation Proceeds, Company shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an aggregate amount
equal to 100% of the amount of such Net Insurance/Condemnation Proceeds;
provided, however, such Net Insurance/Condemnation Proceeds received by Company
- -------
or any of its Restricted Subsidiaries shall be excluded from the requirements of
this subsection 2.4B(iii)(b) to the extent that (i) under the terms of any lease
or other agreement existing on the Effective Date such Net
Insurance/Condemnation Proceeds are required to be used to replace, rebuild or
repair the asset so damaged, destroyed or taken, or (ii) Company or the
applicable Restricted Subsidiary determines to utilize such Net
Insurance/Condemnation Proceeds to replace, rebuild or repair the asset,
damaged, destroyed or taken, and in each case referred to in clauses (i) and
(ii) above, Company or such Restricted Subsidiary so utilizes or has committed
in writing to so utilize such Net Insurance/Condemnation Proceeds within 180
days after the receipt of such proceeds; provided further that, if any such Net
-------- -------
Insurance/Condemnation Proceeds are not so utilized or committed in writing to
be utilized within such 180 day period, then such proceeds shall be applied as
required by this subsection 2.4B(iii)(b).
(c) Prepayments and Reductions Due to Issuance of Debt Securities. On the
-------------------------------------------------------------
date of receipt by Company of the Cash proceeds (any such proceeds, net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses, being "Net
Debt Proceeds") from the issuance of any debt Securities (other than the
issuance of Indebtedness permitted under subsections 7.1(i)-(vi) and (ix), and
the issuance of Indebtedness permitted under subsection 7.1(viii) if such
Indebtedness is issued for the purpose of refinancing any of the then
outstanding Types of Term Loans) of Company after the Effective Date, Company
shall prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to 75% of such Net Debt
Proceeds.
(d) Prepayments and Reductions in Connection with the Secondary Acquisition.
-----------------------------------------------------------------------
In the event that the Secondary Acquisition does not close on or before June 30,
2001, then on such date Company shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount equal to
$14,500,000. If the Secondary Acquisition closes on or before June 30, 2001 and
Company or any of its Restricted Subsidiaries subsequently makes an Asset Sale
of the Las Vegas Facility, then, no later than the first Business Day following
the date of receipt by Company or such Restricted Subsidiary of the Net Asset
Sale Proceeds in respect of such Asset Sale, Company shall prepay the Loans
and/or the Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to the lesser of (x) $14,500,000, and (y) an amount equal
to the Net Asset Sale Proceeds for the Las Vegas Facility.
(e) Calculations of Net Proceeds Amounts; Additional Prepayments and
----------------------------------------------------------------
Reductions Based on Subsequent Calculations. Concurrently with any prepayment
------------------------------------
of the Loans and/or reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a)-(d), Company shall deliver to Administrative Agent an
Officer's Certificate demonstrating the calculation of the amount (the "Net
Proceeds Amount") of the applicable Net Asset Sale Proceeds, Net
Insurance/Condemnation Proceeds or the applicable Net Debt Proceeds (as such
term is defined in subsection 2.4B(iii)(c)), as the case may be, that gave rise
to such prepayment and/or reduction. In the event that Company shall
subsequently determine that the actual Net Proceeds Amount was greater than the
amount set forth in such Officer's Certificate, Company shall promptly make an
additional prepayment of the Loans (and/or, if applicable, the Revolving Loan
Commitments shall be permanently reduced) in an amount equal to the amount of
such excess, and Company shall concurrently therewith deliver to Administrative
Agent an Officer's Certificate demonstrating the derivation of the additional
Net Proceeds Amount resulting in such excess.
(f) Prepayments Due to Reductions or Restrictions of Revolving Loan
---------------------------------------------------------------
Commitments. Company shall from time to time prepay first the Swing Line Loans,
--- -----
and second the Revolving Loans to the extent necessary so that the Total
------
Utilization of Revolving Loan Commitments shall not at any time exceed the
---
Revolving Loan Commitments then in effect.
-
(iv) Application of Prepayments.
----------------------------
(a) Application of Voluntary Prepayments by Type of Loans and Order of
------------------------------------------------------------------------
Maturity. Any voluntary prepayments pursuant to subsection 2.4B(i) shall be
---
applied as specified by Company in the applicable notice of prepayment; provided
--------
that in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied first to repay
-----
outstanding Swing Line Loans to the full extent thereof, second to repay
------
outstanding Revolving Loans to the full extent thereof, and third to repay
-----
ratably the outstanding Tranche A Term Loans, Tranche B Term Loans and Tranche C
Term Loans to the full extent thereof. Any voluntary prepayments of Tranche A
Term Loans, Tranche B Term Loans and/or Tranche C Term Loans shall be applied
ratably to the Tranche A Term Loans, Tranche B Term Loans and Tranche C Term
Loans and shall be applied to the scheduled installments thereof set forth in
subsections 2.4A(i), 2.4A(ii) and 2.4A(iii), respectively, in inverse order of
maturity; provided, however, that Company, at its option, may apply such
-------- -------
voluntary prepayments first to reduce the immediately succeeding two scheduled
-----
installments of principal of Tranche A Term Loans, Tranche B Term Loans and
Tranche C Term Loans set forth in subsections 2.4A(i), 2.4A(ii) and 2.4A(iii),
respectively, and second, to the extent of any remaining portion of such
------
voluntary prepayments, to reduce the scheduled installments of principal of
Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans set forth in
subsections 2.4A(i), 2.4A(ii) and 2.4A(iii), respectively, in inverse order of
maturity.
(b) Application of Mandatory Prepayments by Type of Loans. Any amount (the
-----------------------------------------------------
"Applied Amount") required to be applied as a mandatory prepayment of the Loans
and/or a reduction of the Revolving Loan Commitments pursuant to subsections
2.4B(iii)(a)-(d) shall be applied first to the ratable prepayment of the Tranche
-----
A Term Loans, Tranche B Term Loans and Tranche C Term Loans to the full extent
thereof, second, to the extent of any remaining portion of the Applied Amount,
------
to the prepayment of the Swing Line Loans to the full extent thereof and to
permanently reduce the Revolving Loan Commitments by the amount of such
prepayment, third, to the extent of any remaining portion of the Applied Amount,
-----
to the prepayment of the Revolving Loans to the full extent thereof and to
further permanently reduce the Revolving Loan Commitments by the amount of such
prepayment, and fourth, to the extent of any remaining portion of the Applied
------
Amount, to further permanently reduce the Revolving Loan Commitments to the full
extent thereof; provided that Lenders with Tranche B Term Loans and/or Tranche C
--------
Term Loans outstanding may waive the right to receive up to 50% of the amount of
such mandatory prepayment, and if any such Lender so elects, the amount that
would otherwise have been applied as a mandatory prepayment of such Lender's
Tranche B Term Loan and/or Tranche C Term Loan shall be applied to the
prepayment of the Tranche A Term Loans until such Loans are paid in full and
then applied on a pro rata basis to reduce the scheduled installments of
principal of such Lender's Tranche B Term Loan and/or Tranche C Term Loan in
inverse order of maturity.
(c) Application of Mandatory Prepayments of Term Loans by Order of Maturity.
-----------------------------------------------------------------------
Any mandatory prepayments of any Type of Term Loans pursuant to subsection
2.4B(iii) shall be applied to reduce the scheduled installments of principal of
such Type of Term Loans set forth in subsection 2.4A in inverse order of
maturity.
(d) Application of Prepayments to Base Rate Loans and Eurodollar Rate Loans.
-----------------------------------------------------------------------
Subject to the immediately following sentence, considering each Type of Loan
being prepaid separately, any prepayment thereof shall be applied first to Base
Rate Loans to the full extent thereof before application to Eurodollar Rate
Loans, in each case in a manner which minimizes the amount of any payments
required to be made by Company pursuant to subsection 2.6D. If on any day on
which Loans would otherwise be required to be prepaid pursuant to subsection
2.4B(iii), but for the operation of this subsection 2.4B(iv)(d) (each a
"Prepayment Date"), the amount of such required prepayment exceeds the then
outstanding aggregate principal amount of the Loans which consist of Base Rate
Loans, and no Event of Default or Potential Event of Default has occurred and is
continuing or would occur as a result thereof, then on such Prepayment Date,
Company may, at its option, deposit Cash into an investment account with
Administrative Agent (the "Investment Account") in an amount equal to such
excess; provided that (x) Company shall grant to Administrative Agent, on behalf
--------
of Lenders, a perfected security interest in such Investment Account and shall
execute and deliver such agreements and instruments as Administrative Agent may
reasonably request in order to perfect such security interest, and (y)
Administrative Agent shall invest such Cash in Cash Equivalents only. If
Company makes such deposit (a) only the outstanding Base Rate Loans shall be
required to be prepaid on such Prepayment Date, and (b) on the last day of each
Interest Period in effect after such Prepayment Date, Administrative Agent is
irrevocably authorized and directed to apply funds held in the Investment
Account (and liquidate investments held in the Investment Account as necessary)
to prepay the Eurodollar Rate Loans for which the Interest Period is then ending
until the aggregate of such prepayments equals the prepayment which would have
been required on such Prepayment Date but for the operation of this subsection
2.4(iv)(d). So long as no Event of Default or Potential Event of Default has
occurred and is continuing or would occur as a result thereof, at such time as
the aggregate prepayments made pursuant to the immediately preceding sentence
equals the prepayment which would have been required on such Prepayment Date but
for the operation of this subsection 2.4B(iv)(d) (and excluding any amounts
which would otherwise have been required to be paid under subsection 2.6D), any
amounts remaining in the Investment Account after such prepayments, which
amounts are attributable to the deposit made on the applicable Prepayment Date
or to net income earned on such deposit, shall be remitted to an account
designated by Company.
(e) Prepayment Premiums. Any mandatory prepayment by Company of Tranche B
-------------------
Term Loans and/or Tranche C Term Loans made pursuant to subsection 2.4B(iii)
(other than any mandatory prepayments made pursuant to subsection 2.4B(iii)(d))
(1) after the Effective Date and on or prior to the first anniversary of the
Effective Date shall be subject to the payment of a premium of 1.00% of the
principal amount of Loans so prepaid, (2) after the first anniversary of the
Effective Date and on or prior to the second anniversary of the Effective Date
shall be subject to the payment of a premium of 0.50% of the principal amount of
Loans so prepaid, and (3) after the second anniversary of the Effective Date
shall not be subject to any prepayment premium.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of principal,
------------------------------
interest, fees and other Obligations hereunder and under the Notes shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free
of any restriction or condition, and delivered to Administrative Agent not later
than 1:00 P.M. (New York City time) on the date due at the Funding and Payment
Office for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Company on the
next succeeding Business Day. Company hereby authorizes Administrative Agent to
charge its accounts with Administrative Agent in order to cause timely payment
to be made to Administrative Agent of all principal, interest, fees and expenses
due hereunder (subject to sufficient funds being available in its accounts for
that purpose).
(ii) Application of Payments to Principal and Interest. Except as provided
-------------------------------------------------
in subsection 2.2C, all payments in respect of the principal amount of any Loan
shall include payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest payments
-------------------------
and any prepayment premiums in respect of each Type of Loan shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative Agent
shall promptly distribute to each Lender, at its primary address set forth below
its name on the appropriate signature page hereof or at such other address as
such Lender may request, its Pro Rata Share of all such payments received by
Administrative Agent and the commitment fees of such Lender when received by
Administrative Agent pursuant to subsection 2.3. Notwithstanding the foregoing
provisions of this subsection 2.4C(iii), if, pursuant to the provisions of
subsection 2.6C, any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made hereunder
-------------------------
shall be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest hereunder or of
the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of any
-------------------
Note held by it, or any part thereof (other than by granting participations
therein), that Lender will make a notation thereon of all Loans evidenced by
that Note and all principal payments previously made thereon and of the date to
which interest thereon has been paid; provided that the failure to make (or any
--------
error in the making of) a notation of any Loan made under such Note shall not
limit or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest on such
Note.
D. Application of Proceeds of Collateral and Payments Under Subsidiary
Guaranty.
(i) Application of Proceeds of Collateral. Except as provided in subsection
-------------------------------------
2.4B(iii)(a) with respect to prepayments from Net Asset Sale Proceeds and
in subsection 2.4B(iii)(b) with respect to prepayments from Net
Insurance/Condemnation Proceeds, all proceeds received by Administrative Agent
in respect of any sale of, collection from, or other realization upon all or any
part of the Collateral under any Collateral Document may, in the discretion of
Administrative Agent, be held by Administrative Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by Administrative
Agent against, the applicable Secured Obligations (as defined in such Collateral
Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale, collection or
other realization, including reasonable compensation to Administrative Agent and
its agents and counsel, and all other expenses, liabilities and advances
made or incurred by Administrative Agent in connection therewith, and all
amounts for which Administrative Agent is entitled to indemnification under such
Collateral Document and all advances made by Administrative Agent thereunder for
the account of the applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection with the
exercise of any right or remedy under such Collateral Document, all in
accordance with the terms of this Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to the payment of
all other such Secured Obligations for the ratable benefit of the holders
thereof; and
(c) thereafter, to the extent of any excess such proceeds, to the payment to
or upon the order of such Loan Party or to whosoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(ii) Application of Payments Under Subsidiary Guaranty. All payments
------------------------------------------------------
received by Administrative Agent under the Subsidiary Guaranty shall be applied
promptly from time to time by Administrative Agent in the following order of
priority:
(a) To the payment of the costs and expenses of any collection or other
realization under the Subsidiary Guaranty, including reasonable compensation to
Administrative Agent and its agents and counsel, and all expenses, liabilities
and advances made or incurred by Administrative Agent in connection therewith,
all in accordance with the terms of this Agreement and the Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such payments, to the payment of
all other Guarantied Obligations (as defined in the Subsidiary Guaranty) for the
ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such payments, to the payment to
the applicable Subsidiary Guarantor or to whosoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
2.5 Use of Proceeds.
---------------
A. Term Loans. The proceeds of the Term Loans shall be applied by Company
to fund the Effective Date Financing Requirements and for the purposes set forth
in clause (x) of subsection 2.5B.
B. Excess Term Loans, Revolving Loans; Swing Line Loans. (x) The proceeds
of the Term Loans not used by Company to fund the Effective Date Financing
Requirements, and (y) the proceeds of any Revolving Loans and any Swing Line
Loans shall be applied by Company for working capital and general corporate
purposes, which may include the consummation of the Secondary Acquisition and
the making of intercompany loans to any of Company's wholly-owned Restricted
Subsidiaries, in accordance with subsection 7.1(iii), for their own working
capital and general corporate purposes.
C. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable after
10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate
that shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Borrowing or Notice
of Conversion/Continuation given by Company with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by Company.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the interbank Eurodollar market or the position
of such Lender in that market, then, and in any such event, such Lender shall be
an "Affected Lender" and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to Company and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "Affected
Loans") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a Eurodollar Rate Loan then being requested by Company pursuant to a Notice
of Borrowing or a Notice of Conversion/Continuation, Company shall have the
option, subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Loans and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a borrowing
of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Notice of Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including any prepayment
pursuant to subsection 2.4B(i)) or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Company, (iv) as a consequence of any other default by
Company in the repayment of its Eurodollar Rate Loans when required by the terms
of this Agreement, or (v) as a consequence of becoming a Replaced Lender
pursuant to subsection 2.8B.
E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar Rate Loans
---- -------
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and during
the continuation of a Potential Event of Default or an Event of Default, (i)
Company may not elect to have a Loan be made or maintained as, or converted to,
a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
----------------------------------------
A. Compensation for Increased Costs and Taxes. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such Lender)
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
on an after-tax basis for any such increased cost or reduction in amounts
received or receivable hereunder. Such Lender shall deliver to Company (with a
copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7A, which statement shall be conclusive and binding upon
all parties hereto absent manifest error; provided, however, that Company shall
-------- -------
be liable for such additional amounts only if such Lender shall have delivered
such written statement to Company within 90 days after such Lender shall have
made such determination of any such increased costs; and provided further that
-------- -------
if such Lender delivers such written statement after such 90 day period, then
Company shall be liable only for such additional amounts arising after delivery
to Company of such written statement.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company under this
-------------------------------
Agreement and the other Loan Documents shall (except to the extent required by
law) be paid free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the overall net income of any Lender)
imposed, levied, collected, withheld or assessed by or within the United States
of America or any political subdivision in or of the United States of America or
any other jurisdiction from or to which a payment is made by or on behalf
of Company or by any federation or organization of which the United States of
America or any such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other Person is required by
-----------------------
law to make any deduction or withholding on account of any such Tax from any sum
paid or payable by Company to Administrative Agent or any Lender under any of
the Loan Documents:
(a) Company shall notify Administrative Agent of any such requirement or any
change in any such requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which penalties attach
thereto, such payment to be made (if the liability to pay is imposed on Company)
for its own account or (if that liability is imposed on Administrative Agent or
such Lender, as the case may be) on behalf of and in the name of Administrative
Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is required by law to
make any deduction or withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b) above to pay, Company
shall deliver to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and of the remittance
thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to any
- --------
Lender under clause (c) above except to the extent that any change after the
- ----
date hereof (in the case of each Lender listed on the signature pages hereof) or
- ---
after the date of the Assignment Agreement pursuant to which such Lender became
a Lender (in the case of each other Lender) in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect at the date of this Agreement or at the date of such Assignment
Agreement, as the case may be, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
-----------------------------------------------------
(a) Each Lender that is organized under the laws of any jurisdiction other
than the United States or any state or other political subdivision thereof (for
purposes of this subsection 2.7B(iii), a "Non-US Lender") shall deliver to
Administrative Agent for transmission to Company, on or prior to the Effective
Date (in the case of each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as may be
necessary in the determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original copies of Internal
Revenue Service Form 1001 or 4224 (or any successor forms), properly completed
and duly executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents or (2) if such Lender is not a "bank" or
other Person described in Section 881(c)(3) of the Internal Revenue Code and
cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Domestic Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any successor form),
properly completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Internal Revenue Code
or the regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any of the Loan
Documents.
(b) Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to subsection 2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or other evidence,
whenever a lapse in time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in any material respect,
that such Lender shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue Service Form
1001 or 4224, or a Certificate re Non-Domestic Bank Status and two original
copies of Internal Revenue Service Form W-8, as the case may be, properly
completed and duly executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or establish that such
Lender is not subject to deduction or withholding of United States federal
income tax with respect to payments to such Lender under the Loan Documents or
(2) notify Administrative Agent and Company of its inability to deliver any such
forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount to any Non-US
Lender under clause (c) of subsection 2.7B(ii) if such Lender shall have failed
to satisfy the requirements of clause (a) or (b)(1) of this subsection
2.7B(iii); provided that if such Lender shall have satisfied the requirements of
--------
subsection 2.7B(iii)(a) on the Effective Date (in the case of each Lender listed
on the signature pages hereof) or on the date of the Assignment Agreement
pursuant to which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7B(iii)(c) shall relieve Company of its obligation to pay
any additional amounts pursuant to clause (c) of subsection 2.7B(ii) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described in subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of, or with reference
to, such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in the next sentence, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
2.8 Obligation of Lenders and Issuing Lenders to Mitigate; Replacement of
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Lender.
----
A. Mitigation. Each Lender and Issuing Lender agrees that, as promptly
as practicable after the officer of such Lender or Issuing Lender responsible
for administering the Loans or Letters of Credit of such Lender or Issuing
Lender, as the case may be, becomes aware of the occurrence of an event or the
existence of a condition that would cause such Lender to become an Affected
Lender or that would entitle such Lender or Issuing Lender to receive payments
under subsection 2.7 or subsection 3.6, it will, to the extent not inconsistent
with the internal policies of such Lender or Issuing Lender and any applicable
legal or regulatory restrictions, use reasonable efforts (i) to make, issue,
fund or maintain the Commitments of such Lender or the affected Loans or Letters
of Credit of such Lender or Issuing Lender through another lending or letter of
credit office of such Lender or Issuing Lender, or (ii) take such other measures
as such Lender or Issuing Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6
would be materially reduced and if, as determined by such Lender or Issuing
Lender in its sole discretion, the making, issuing, funding or maintaining of
such Commitments or Loans or Letters of Credit through such other lending or
letter of credit office or in accordance with such other measures, as the case
may be, would not otherwise materially adversely affect such Commitments or
Loans or Letters of Credit or the interests of such Lender or Issuing Lender;
provided that such Lender or Issuing Lender will not be obligated to utilize
------
such other lending or letter of credit office pursuant to this subsection 2.8A
-
unless Company agrees to pay all incremental expenses incurred by such Lender or
Issuing Lender as a result of utilizing such other lending or letter of credit
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by Company pursuant to this subsection 2.8A (setting forth
in reasonable detail the basis for requesting such amount) submitted by such
Lender or Issuing Lender to Company (with a copy to Administrative Agent) shall
be conclusive absent manifest error.
B. Replacement of Lender. If Company receives a notice pursuant to
subsection 2.7A, 2.7C or 3.6 or a notice from any applicable Gaming Authority
that a Lender is no longer qualified to make Loans to Company under the
applicable Gaming Laws (and such Lender is notified by Company and
Administrative Agent in writing of such disqualification), Company shall have
the right, if no Potential Event of Default or Event of Default then exists, to
replace such Lender (a "Replaced Lender") with one or more Eligible Assignees
(collectively, the "Replacement Lender") acceptable to Administrative Agent;
provided that (i) at the time of any replacement pursuant to this subsection
-----
2.8B, the Replacement Lender shall enter into one or more Assignment Agreements
pursuant to subsection 10.1B (and with all fees payable pursuant to such
subsection 10.1B to be paid by the Replacement Lender) pursuant to which the
Replacement Lender shall acquire all of the outstanding Loans and Commitments
of, and in each case participations in Letters of Credit and Swing Line Loans
by, the Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of all outstanding Loans of the Replaced Lender and (B)
an amount equal to all unpaid drawings with respect to Letters of Credit that
have been funded by (and not reimbursed to) such Replaced Lender, (y) the
appropriate Issuing Lender an amount equal to such Replaced Lender's Pro Rata
Share of any unpaid drawings with respect to Letters of Credit (which at such
time remains an unpaid drawing) issued by it to the extent such amount was not
theretofore funded by such Replaced Lender, and (z) Swing Line Lender an amount
equal to such Replaced Lender's Pro Rata Share of any Refunded Swing Line Loans
to the extent such amount was not theretofore funded by such Replaced Lender,
and (ii) all obligations (including, without limitation, all such amounts, if
any, owing under subsection 2.6D) of Company owing to the Replaced Lender (other
than those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid), shall be
paid in full to such Replaced Lender concurrently with such replacement. All
accrued but unpaid interest, commitment fees and letter of credit fees and other
amounts payable to the Replaced Lender shall be paid in accordance with the
terms set forth in the respective Assignment Agreement. Upon the execution and
delivery of the respective Assignment Agreements, the payment of amounts
referred to in clauses (i) and (ii) above and delivery to the Replacement Lender
of the appropriate Note or Notes executed by Company, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder except with respect to indemnification and
confidentiality provisions under this Agreement which by the terms of this
Agreement survive the termination of this Agreement, which indemnification and
confidentiality provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, no Issuing Lender may
be replaced hereunder at any time while it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to such Issuing Lender (including the
furnishing of a Standby Letter of Credit in form and substance, and issued by an
issuer, satisfactory to such Issuing Lender or the furnishing of cash collateral
in amounts and pursuant to arrangements satisfactory to such Issuing Lender or
the cancellation and return of such outstanding Letter of Credit) have been made
with respect to such outstanding Letters of Credit.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
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Therein.
-----
A. Letters of Credit. In addition to Company requesting that Revolving
Lenders make Revolving Loans pursuant to subsection 2.1A(iv) and that Swing Line
Lender make Swing Line Loans pursuant to subsection 2.1A(v), Company may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Effective Date to but excluding the Revolving
Loan Commitment Termination Date, that one or more Revolving Lenders issue
Letters of Credit for the account of Company for the purposes specified in the
definition of Standby Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company herein set forth, any one or more Revolving Lenders may, but (except as
provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters
of Credit in accordance with the provisions of this subsection 3.1; provided
--------
that Company shall not request that any Revolving Lender issue (and no Revolving
Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total
Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $15,000,000;
(iii) any Letter of Credit having an expiration date later than the earlier
of (a) the Revolving Loan Commitment Termination Date and (b) the date which is
one year from the date of issuance of such Letter of Credit; provided that the
--------
immediately preceding clause (b) shall not prevent any Issuing Lender from
agreeing that a Letter of Credit will automatically be extended for one or more
successive periods not to exceed one year each unless such Issuing Lender elects
not to extend for any such additional period; and provided further that such
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Issuing Lender shall elect not to extend such Letter of Credit if it has
knowledge that an Event of Default or Potential Event of Default has occurred
and is continuing (and has not been waived in accordance with subsection 10.6)
at the time such Issuing Lender must elect whether or not to allow such
extension;
(iv) any Letter of Credit for the purpose of supporting (a) trade payables
or (b) any Indebtedness constituting "antecedent debt" (as that term is used in
Section 547 of the Bankruptcy Code); and
(v) any Letter of Credit denominated in a currency other than Dollars.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Company desires the issuance of a Letter
--------------------
of Credit, it shall deliver to Administrative Agent a Notice of Issuance of
Letter of Credit substantially in the form of Exhibit III annexed hereto no
-----------
later than 11:00 A.M. (New York City time) at least three Business Days, or such
shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of Issuance
of Letter of Credit shall specify (a) the proposed date of issuance (which shall
be a Business Day), (b) the face amount of the Letter of Credit, (c) the
expiration date of the Letter of Credit, (d) the name and address of the
beneficiary, and (e) either the verbatim text of the proposed Letter of Credit
or the proposed terms and conditions thereof, including a precise description of
any documents to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would require
the Issuing Lender to make payment under the Letter of Credit and in the event
CIBC is the Issuing Lender, such Notice of Issuance of Letter of Credit shall
attach a current application form from CIBC with respect to the issuance of such
Letter of Credit; provided that the Issuing Lender, in its reasonable
--------
discretion, may require changes in the text of the proposed Letter of Credit or
any such documents; and provided further that no Letter of Credit shall require
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payment against a conforming draft to be made thereunder on the same business
day (under the laws of the jurisdiction in which the office of the Issuing
Lender to which such draft is required to be presented is located) that such
draft is presented if such presentation is made after 10:00 A.M. (in the time
zone of such office of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and Administrative
Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance
of any Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Notice of Issuance of Letter of Credit is
no longer true and correct as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit Company shall be deemed to
have re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative Agent
---------------------------------
of a Notice of Issuance of Letter of Credit pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, in the event Administrative Agent
elects to issue such Letter of Credit, Administrative Agent shall promptly
so notify Company, and Administrative Agent shall be the Issuing Lender with
respect thereto. In the event that Administrative Agent, in its sole
discretion, elects not to issue such Letter of Credit, Administrative Agent
shall promptly so notify Company, whereupon Company may request any other
Revolving Lender to issue such Letter of Credit by delivering to such Revolving
Lender a copy of the applicable Notice of Issuance of Letter of Credit. Any
Revolving Lender so requested to issue such Letter of Credit shall promptly
notify Company and Administrative Agent whether or not, in its sole discretion,
it has elected to issue such Letter of Credit, and any such Lender which so
elects to issue such Letter of Credit shall be the Issuing Lender with respect
thereto. In the event that all other Revolving Lenders shall have declined to
issue such Letter of Credit, notwithstanding the prior election of
Administrative Agent not to issue such Letter of Credit, Administrative Agent
shall be obligated to issue such Letter of Credit and shall be the Issuing
Lender with respect thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with respect to all other
Letters of Credit issued by Administrative Agent, when aggregated with
Administrative Agent's outstanding Revolving Loans and Swing Line Loans, may
exceed Administrative Agent's Revolving Loan Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
----------------------------
accordance with subsection 10.6) of the conditions set forth in subsection 4.3,
the Issuing Lender shall issue the requested Letter of Credit in accordance with
the Issuing Lender's standard operating procedures.
C. Revolving Lenders' Purchase of Participations in Letters of Credit.
Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby agrees to, have irrevocably purchased from the
Issuing Lender a participation in such Letter of Credit and any drawings honored
thereunder in an amount equal to such Revolving Lender's Pro Rata Share of
the maximum amount which is or at any time may become available to be drawn
thereunder.
3.2 Letter of Credit Fees.
---------------------
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee, payable
directly to the applicable Issuing Lender for its own account, equal to 0.25%
per annum of the daily amount available to be drawn under such Letter of Credit,
and (b) a letter of credit fee, payable to Administrative Agent for the
account of Lenders, equal to the daily amount available to be drawn under such
Letter of Credit multiplied by the Applicable Eurodollar Margin, each such
--------------
fronting fee or letter of credit fee to be payable in arrears on and to (but
excluding) the last Business Day of each March, June, September and December of
each year commencing on the first such date to occur after the Effective Date,
and computed on the basis of a 360-day year for the actual number of days
elapsed; and
(ii) with respect to the issuance, amendment or transfer of each Letter of
Credit and each payment of a drawing made thereunder (without duplication of the
fees payable under clauses (i) and (ii) above), documentary and processing
charges payable directly to the applicable Issuing Lender for its own account in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or payment, as the case
may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, the daily amount available to be drawn under any Letter of Credit shall be
determined as of the close of business on any date of determination. Promptly
upon receipt by Administrative Agent of any amount described in clause (i)(b) of
this subsection 3.2, Administrative Agent shall distribute to each Revolving
Lender its Pro Rata Share of such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
------------------------------------------------------------------
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as
to ascertain whether they appear on their face to be in accordance with the
terms and conditions of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In the
event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "Reimbursement Date") in an amount in Dollars and in same day funds
equal to the amount of such honored drawing; provided that, anything contained
--------
in this Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New
York City time) on the date such drawing is honored that Company intends to
reimburse such Issuing Lender for the amount of such honored drawing with funds
other than the proceeds of Revolving Loans, Company shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Revolving
Lenders to make Revolving Loans that are Base Rate Loans on the Reimbursement
Date in an amount in Dollars equal to the amount of such honored drawing and
(ii) subject to satisfaction or waiver of the conditions specified in subsection
4.2B, Revolving Lenders shall, on the Reimbursement Date, make Revolving Loans
that are Base Rate Loans in the amount of such honored drawing, the proceeds of
which shall be applied directly by Administrative Agent to reimburse such
Issuing Lender for the amount of such honored drawing; and provided further that
-------- -------
if for any reason proceeds of Revolving Loans are not received by such Issuing
Lender on the Reimbursement Date in an amount equal to the amount of such
honored drawing, Company shall reimburse such Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Revolving Loans, if any, which are so
received. Nothing in this subsection 3.3B shall be deemed to relieve any
Revolving Lender from its obligation to make Revolving Loans on the terms and
conditions set forth in this Agreement, and Company shall retain any and all
rights it may have against any Revolving Lender resulting from the failure of
such Lender to make such Revolving Loans under this subsection 3.3B.
C. Payment by Revolving Lenders of Unreimbursed Amounts Paid Under Letters
of Credit.
(i) Payment by Revolving Lenders. In the event that Company shall fail for
-----------------------------
any reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any drawing honored by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall promptly notify
each other Revolving Lender of the unreimbursed amount of such honored drawing
and of such other Revolving Lender's respective participation therein based on
such Revolving Lender's Pro Rata Share. Each Revolving Lender shall make
available to such Issuing Lender an amount equal to its respective
participation, in Dollars and in same day funds, at the office of such Issuing
Lender specified in such notice, not later than 12:00 Noon (New York City time)
on the first business day (under the laws of the jurisdiction in which such
office of such Issuing Lender is located) after the date notified by such
Issuing Lender. In the event that any Revolving Lender fails to make available
to such Issuing Lender on such business day the amount of such Revolving
Lender's participation in such Letter of Credit as provided in this subsection
3.3C, such Issuing Lender shall be entitled to recover such amount on demand
from such Revolving Lender together with interest thereon at the rate
customarily used by such Issuing Lender for the correction of errors among banks
for three Business Days and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of any Revolving Lender
to recover from any Issuing Lender any amounts made available by such Revolving
Lender to such Issuing Lender pursuant to this subsection 3.3C in the event that
it is determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in respect
of which payment was made by such Revolving Lender constituted gross negligence
or willful misconduct on the part of such Issuing Lender.
(ii) Distribution to Revolving Lenders of Reimbursements Received From
-----------------------------------------------------------------
Company. In the event any Issuing Lender shall have been reimbursed by other
--
Revolving Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing honored by such Issuing Lender under a Letter of Credit issued by it,
such Issuing Lender shall distribute to each other Revolving Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Lender's Pro Rata Share of all payments subsequently
received by such Issuing Lender from Company in reimbursement of such honored
drawing when such payments are received. Any such distribution shall be made to
a Revolving Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender may
request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each Issuing
--------------------------------
Lender, with respect to drawings honored under any Letters of Credit issued by
it, interest on the amount paid by such Issuing Lender in respect of each such
honored drawing from the date such drawing is honored to but excluding the date
such amount is reimbursed by Company (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with respect to
Revolving Loans that are Base Rate Loans and (b) thereafter, a rate which
is 2.00% per annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Revolving Loans that are Base Rate Loans.
Interest payable pursuant to this subsection 3.3D(i) shall be computed on the
basis of a 365-day or 366-day year, as the case may be, for the actual number of
days elapsed in the period during which it accrues and shall be payable on
demand or, if no demand is made, on the date on which the related drawing under
a Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly upon
---------------------------------------------------
receipt by any Issuing Lender of any payment of interest pursuant to subsection
3.3D(i) with respect to a drawing honored under a Letter of Credit issued by it,
(a) such Issuing Lender shall distribute to each other Revolving Lender, out of
the interest received by such Issuing Lender in respect of the period from the
date such drawing is honored to but excluding the date on which such Issuing
Lender is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B), the amount that such other Revolving Lender would have been entitled to
receive in respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to subsection 3.2 if
no drawing had been honored under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Revolving Lenders
pursuant to subsection 3.3C(i) for all or any portion of such honored drawing,
such Issuing Lender shall distribute to each other Revolving Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Revolving Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such honored
drawing so reimbursed by other Revolving Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Revolving Lenders to but
excluding the date on which such portion of such honored drawing is reimbursed
by Company. Any such distribution shall be made to a Revolving Lender at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Revolving Lender may request.
3.4 Obligations Absolute.
--------------------
The obligation of Company to reimburse each Issuing Lender for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Revolving Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection with
this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one of its
Subsidiaries and the beneficiary for which any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of Credit
against presentation of a draft or other document which does not substantially
comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any party
thereto;
(vii) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of Default
shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
- --------
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 Indemnification; Nature of Issuing Lenders' Duties.
--------------------------------------------------
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of
competent jurisdiction or (b) subject to the following clause (ii), the wrongful
dishonor by such Issuing Lender of a proper demand for payment made under any
Letter of Credit issued by it or (ii) the failure of such Issuing Lender to
honor a drawing under any such Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions herein
called "Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability to the extent arising out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
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Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to the matters covered thereby), in the event that any Issuing
Lender or Revolving Lender shall determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by any
Issuing Lender or Revolving Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Revolving Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any Tax on
the overall net income of such Issuing Lender or Revolving Lender) with
respect to the issuing or maintaining of any Letters of Credit or the purchasing
or maintaining of any participations therein or any other obligations under this
Section 3, whether directly or by such being imposed on or suffered by any
particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement in respect of any Letters
of Credit issued by any Issuing Lender or participations therein purchased by
any Revolving Lender; or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Issuing Lender or Revolving Lender (or its applicable
lending or letter of credit office) regarding this Section 3 or any Letter of
Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Revolving Lender of agreeing to issue, issuing or maintaining any
Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Issuing Lender or Revolving Lender (or its applicable lending or letter of
credit office) with respect thereto; then, in any case, Company shall promptly
pay to such Issuing Lender or Revolving Lender, upon receipt of the statement
referred to in the next sentence, such additional amount or amounts as may be
necessary to compensate such Issuing Lender or Revolving Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such
Issuing Lender or Revolving Lender shall deliver to Company a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Issuing Lender or Revolving Lender under this subsection
3.6, which statement shall be conclusive and binding upon all parties hereto
absent manifest error; provided, however, that Company shall be liable for such
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additional amounts only if such Revolving Lender shall have delivered such
written statement to Company within 90 days after such Revolving Lender shall
have made such determination of any such increased costs; and provided further
-------- -------
that if such Revolving Lender delivers such written statement after such 90 day
period, then Company shall be liable only for such additional amounts arising
after delivery to Company of such written statement.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the prior or concurrent satisfaction of the
following conditions.
4.1 Conditions to Term Loans, Revolving Loans and Swing Line Loans.
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The obligations of Lenders to make the Loans to be made on the Effective
Date are, in addition to the conditions precedent specified in subsection 4.2,
subject to prior or concurrent satisfaction of the following conditions:
A. Corporate Documents. On or before the Effective Date, Company shall, and
shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following with respect
to Company or such Loan Party, as the case may be, each, unless otherwise noted,
dated the Effective Date:
(i) Certified copies of the Certificate or Articles of Incorporation or
other comparable formation documents, as the case may be, of Company and each
New Loan Party, together with a good standing certificate from the Secretary of
State of its respective jurisdiction of incorporation or formation and each
other state in which such Person is qualified as a foreign corporation or other
entity to do business and, to the extent generally available, a certificate or
other evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date prior to the Effective Date;
(ii) Copies of the Bylaws or other comparable charter documents, as the case
may be, of Company and each New Loan Party, certified as of the Effective Date
by such Person's corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors, General Partner or other
comparable governing body or entity, as the case may be, of Company and each New
Loan Party approving and authorizing the execution, delivery and performance of
the Loan Documents and Related Agreements to which such Person is a party,
certified as of the Effective Date by the corporate secretary or an assistant
secretary of such Person as being in full force and effect without modification
or amendment;
(iv) an Officer's Certificate of the Company, in form and substance
satisfactory to Administrative Agent, to the effect that none of the formation
documents, charter documents and resolutions delivered by the Existing
Subsidiaries on the Closing Date pursuant to subsection 4.1A(i)-(iii) of the
Existing Credit Agreement have been cancelled, replaced, amended, supplemented
or otherwise modified, except for the formation documents, charter documents and
------
resolutions attached as exhibits to the Officer's Certificate;
(v) Signature and incumbency certificates of the officers or entities, as
the case may be, of each Loan Party that has executed or executes any Loan
Documents on or before the Effective Date;
(vi) Executed originals of the Loan Documents to which such Person is a
party; and
(vii) Such other documents as Administrative Agent may reasonably request.
B. No Material Adverse Effect. Since April 25, 1999, no Material Adverse
Effect (in the sole opinion of Administrative Agent) shall have occurred.
C. Corporate and Capital Structure. The corporate organizational structure
and capital structure of Company and its Subsidiaries, both before and after
giving effect to the Primary Acquisition, shall be as set forth on Schedule 4.1C
-------------
annexed hereto.
D. Management, Etc. The management structure of Company and its
Subsidiaries after giving effect to the Primary Acquisition shall be as set
forth on Schedule 4.1C annexed hereto, and Administrative Agent shall have
-------------
received copies of, and shall be satisfied with the form and substance of, any
and all employment contracts with senior management of Company and its
Subsidiaries.
E. Primary Acquisition.
(i) With respect to the Lady Luck Acquisition:
(a) Consummation of Merger. Contemporaneously with the application of the
------------------------
proceeds of the initial Loans to be made on the Effective Date, the closing of
the Merger shall have been consummated in all respects in accordance with the
Merger Agreement and no term or condition of the Merger Agreement shall have
been amended, supplemented, waived or otherwise modified in any respect
determined by Administrative Agent to be material (including, without
limitation, any increase in the price to be paid for the Lady Luck Common Stock
to an amount in excess of $12.00 per share) without the consent of
Administrative Agent;
(b) Conditions to Merger. All conditions to the Merger set forth in the
--------------------
Merger Agreement shall have been satisfied or the fulfillment of any such
conditions shall have been waived with the consent of Administrative Agent;
(c) Effectiveness of Merger. The Merger shall have become effective in
-----------------------
accordance with the terms of the Merger Agreement and the Delaware General
Corporation Law; and
(d) Delaware Filings. Administrative Agent shall have received satisfactory
----------------
evidence of the filing of the documents with the Secretary of State of the State
of Delaware effecting the Merger on the Effective Date;
(ii) With respect to the Bettendorf Acquisition, all conditions to the
Bettendorf Acquisition set forth in the Bettendorf Merger Agreement shall have
been satisfied or the fulfillment of any such conditions shall have been waived
with the consent of Administrative Agent;
(iii) With respect to the Las Vegas Acquisition, all conditions to the First
Closing (as defined in the Las Vegas Purchase Agreement) of the Las Vegas
Acquisition set forth in the Las Vegas Purchase Agreement shall have been
satisfied or the fulfillment of any such conditions shall have been waived with
the consent of Administrative Agent;
(iv) The aggregate purchase price of the Primary Acquisition (including
Transaction Costs related thereto) shall not exceed $433,000,000, consisting of
Cash, the refinancing of Refinanced Indebtedness and the Redemption; and
(v) Administrative Agent shall have received an Officer's Certificate of
Company, dated the Effective Date, certifying that the conditions specified in
clauses (i), (ii), (iii) and (iv) above have been fulfilled, and certifying as
to the total number of shares of Lady Luck Common Stock outstanding on a fully
diluted basis as of the Effective Date.
F. Related Agreements.
(i) Form of Related Agreements. Each Related Agreement shall be in form and
--------------------------
substance satisfactory to Administrative Agent.
(ii) Related Agreements in Full Force and Effect. Administrative Agent
-------------------------------------------
shall have received a fully executed or conformed copy of each Related Agreement
and any documents executed in connection therewith, and each Related Agreement
shall be in full force and effect and no provision thereof shall have been
modified or waived in any respect determined by Administrative Agent to be
material, in each case without the consent of Administrative Agent.
G. Matters Relating to Existing Indebtedness of Company and its
Subsidiaries.
(i) Termination of Existing Indebtedness and Related Liens; Existing Letters
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of Credit. Each of the Refinanced Indebtedness of Company or any of its
----------
Subsidiaries is identified as "Refinanced Indebtedness" on Schedule 4.1G annexed
-------------
hereto. On the Effective Date, Company and its Subsidiaries shall have (a)
repaid in full or otherwise refinanced all of the Refinanced Indebtedness (the
aggregate principal amount of which Indebtedness shall not exceed $291,318,000),
(b) terminated any commitments to lend or make other extensions of credit
thereunder, (c) delivered to Administrative Agent all documents or instruments
necessary to release all Liens securing Indebtedness or other obligations of
Company and its Subsidiaries thereunder, and (d) made arrangements satisfactory
to Administrative Agent with respect to the cancellation or replacement of any
letters of credit outstanding thereunder or the issuance of Letters of Credit to
support the obligations of Company and its Subsidiaries with respect thereto.
(ii) Existing Indebtedness to Remain Outstanding. Administrative Agent
-------------------------------------------
shall have received an Officer's Certificate of Company stating that, after
giving effect to the transactions described in this subsection 4.1G, the
Indebtedness of Loan Parties (other than Indebtedness under the Loan Documents
and the Subordinated Notes) shall consist of approximately $23,031,000 in
aggregate principal amount of outstanding Indebtedness and Capital Leases
described in Schedule 7.1 annexed hereto. The terms and conditions of all such
------------
Indebtedness shall be in form and in substance satisfactory to Administrative
Agent and Requisite Lenders.
H. Necessary Governmental Authorizations and Consents; Expiration of Waiting
Periods, Etc. Company shall have obtained all Governmental Authorizations
and all consents of other Persons, in each case that are necessary or advisable
in connection with the Primary Acquisition, the other transactions contemplated
by the Loan Documents and the Related Agreements, and the continued operation of
the business conducted by Company and its Subsidiaries in substantially the same
manner as conducted prior to the consummation of the Primary Acquisition, and
each of the foregoing shall be in full force and effect, in each case other than
those the failure to obtain or maintain which, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
All applicable waiting periods shall have expired without any action being taken
or threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on the Primary Acquisition or the financing
thereof. No action, request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing shall be
pending, and the time for any applicable agency to take action to set aside its
consent on its own motion shall have expired.
I. Effective Date Mortgages; Effective Date Mortgage Policies; Etc.
Administrative Agent shall have received from Company and each applicable
Subsidiary Guarantor:
(i) Effective Date Mortgages. Fully executed and notarized Mortgages (each
-------------------------
an "Effective Date Mortgage" and, collectively, the "Effective Date Mortgages")
in proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering each Real Property Asset listed in Schedule 4.1I
-------------
annexed hereto (each an "Effective Date Mortgaged Property" and, collectively,
the "Effective Date Mortgaged Properties");
(ii) Opinions of Local Counsel. An opinion of counsel (which counsel shall
-------------------------
be reasonably satisfactory to Administrative Agent) in each state in which an
Effective Date Mortgaged Property is located with respect to the enforceability
of the form(s) of Effective Date Mortgages to be recorded in such state and such
other matters as Administrative Agent may reasonably request, in each case in
form and substance reasonably satisfactory to Administrative Agent;
(iii) Landlord Consents and Estoppels; Recorded Leasehold Interests. In the
-------------------------------------------------------------
case of each Effective Date Mortgaged Property consisting of a Material
Leasehold Property, (a) a Landlord Consent and Estoppel with respect thereto and
(b) evidence that such Material Leasehold Property is a Recorded Leasehold
Interest;
(iv) Title Insurance. (a) ALTA extended coverage title insurance policies
---------------
or unconditional commitments therefor (the "Effective Date Mortgage Policies")
issued by the Title Company with respect to the Effective Date Mortgaged
Properties listed in Part A of Schedule 4.1I annexed hereto, in amounts
-------------
satisfactory to Administrative Agent with respect to any particular Effective
Date Mortgaged Properties, insuring fee simple title to, or a valid leasehold
interest in, each such Effective Date Mortgaged Property vested in such Loan
Party and assuring Administrative Agent that the applicable Effective Date
Mortgages create valid and enforceable First Priority mortgage Liens on the
Effective Date Mortgaged Properties encumbered thereby, subject only to
Permitted Encumbrances, which Effective Date Mortgage Policies (1) shall include
an endorsement for mechanics' liens, for future advances under this Agreement
and for any other matters reasonably requested by Administrative Agent and (2)
shall provide for affirmative insurance and such reinsurance as Administrative
Agent may reasonably request, all of the foregoing in form and substance
reasonably satisfactory to Administrative Agent; and (b) evidence satisfactory
to Administrative Agent that such Loan Party has (i) delivered to the Title
Company all certificates and affidavits required by the Title Company in
connection with the issuance of the Effective Date Mortgage Policies and (ii)
paid to the Title Company or to the appropriate governmental authorities all
expenses and premiums of the Title Company in connection with the issuance of
the Effective Date Mortgage Policies and all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in connection with
recording the Effective Date Mortgages in the appropriate real estate records;
(v) Title Reports. With respect to each Effective Date Mortgaged Property
-------------
listed in Part B of Schedule 4.1I annexed hereto, a title report issued by the
-------------
Title Company with respect thereto, dated not more than 30 days prior to the
Effective Date and satisfactory in form and substance to Administrative Agent;
(vi) Copies of Documents Relating to Title Exceptions. Copies of all
------------------------------------------------
recorded documents listed as exceptions to title or otherwise referred to in the
Effective Date Mortgage Policies or in the title reports delivered pursuant to
subsection 4.1I(v);
(vii) Matters Relating to Flood Hazard Properties. (a) Evidence, which may
-------------------------------------------
be in the form of a letter from an insurance broker or a municipal engineer, as
to whether (1) any Effective Date Mortgaged Property is a Flood Hazard Property
and (2) the community in which any such Flood Hazard Property is located is
participating in the National Flood Insurance Program, (b) if there are any such
Flood Hazard Properties, such Loan Party's written acknowledgement of receipt of
written notification from Administrative Agent (1) as to the existence of each
such Flood Hazard Property and (2) as to whether the community in which each
such Flood Hazard Property is located is participating in the National Flood
Insurance Program, and (c) in the event any such Flood Hazard Property is
located in a community that participates in the National Flood Insurance
Program, evidence that Company has obtained flood insurance in respect of such
Flood Hazard Property to the extent required under the applicable regulations of
the Board of Governors of the Federal Reserve System; and
(viii) Environmental Indemnity. One or more environmental indemnity
-----------------------
agreements, satisfactory in form and substance to Administrative Agent and its
counsel, with respect to the indemnification of Administrative Agent and Lenders
for any liabilities that may be imposed on or incurred by any of them as a
result of any Hazardous Materials Activity.
J. Security Interests in Personal and Mixed Property. To the extent not
otherwise satisfied pursuant to subsection 4.1I, Administrative Agent shall have
received evidence satisfactory to it that Company and Subsidiary Guarantors
have taken or shall have taken or caused to be taken all such actions, executed
and delivered or caused to be executed and delivered all such agreements,
documents and instruments, and made or caused to be made all such filings and
recordings (other than the filing or recording of items described in clauses
(iii), (iv) and (v) below) that may be necessary or, in the opinion of
Administrative Agent, desirable in order to create and/or continue in favor of
Administrative Agent, for the benefit of Lenders, a valid and (upon such filing
and recording) perfected First Priority security interest in the entire personal
and mixed property Collateral. Such actions shall include the following:
(i) Schedules to Collateral Documents. Delivery to Administrative Agent of
----------------------------------
accurate and complete schedules to all of the applicable Collateral Documents;
(ii) Stock Certificates and Instruments. To the extent not previously
----------------------------------
delivered to Administrative Agent, delivery to Administrative Agent of (a)
certificates (which certificates shall be accompanied by irrevocable undated
stock powers, duly endorsed in blank and otherwise satisfactory in form and
substance to Administrative Agent) representing all certificated equity
interests pledged pursuant to the Company Pledge Agreement and the Subsidiary
Pledge Agreement (including Company's membership interests in ICBH), and (b) all
promissory notes or other instruments (duly endorsed, where appropriate, in a
manner satisfactory to Administrative Agent) evidencing any Collateral;
(iii) Lien Searches and UCC Termination Statements. Delivery to
--------------------------------------------
Administrative Agent of (a) the results of a recent search, by a Person
-
satisfactory to Administrative Agent, of all effective UCC financing statements
and fixture filings and all judgment and tax lien filings which may have been
made with respect to any personal or mixed property of any Loan Party, together
with copies of all such filings disclosed by such search, and (b) UCC
termination statements duly executed by all applicable Persons for filing in all
applicable jurisdictions, and/or pay-off letters, each in form and substance
satisfactory to Administrative Agent, in each case as may be necessary to
terminate any effective UCC financing statements or fixture filings disclosed in
such search (other than any such financing statements or fixture filings in
respect of Liens permitted to remain outstanding pursuant to the terms of this
Agreement);
(iv) UCC Financing Statements and Fixture Filings and Amendments Thereto.
-------------------------------------------------------------------
To the extent not previously delivered to Administrative Agent, delivery to
Administrative Agent of UCC financing statements and/or amendments thereto and,
where appropriate, fixture filings and/or amendments thereto, duly executed by
each applicable Loan Party with respect to all personal and mixed property
Collateral of such Loan Party, for filing in all jurisdictions as may be
necessary or, in the opinion of Administrative Agent, desirable to perfect or
continue the perfection of the security interests created in such Collateral
pursuant to the Collateral Documents;
(v) PTO Cover Sheets, Etc. To the extent not previously delivered to
---------------------
Administrative Agent, delivery to Administrative Agent of all cover sheets or
other documents or instruments required to be filed with the PTO in order to
create or continue, or perfect or continue to perfect, Liens in respect of any
IP Collateral; and
(vi) Opinions of Local Counsel. Delivery to Administrative Agent of an
-------------------------
opinion of counsel (which counsel shall be reasonably satisfactory to
Administrative Agent) under the laws of each jurisdiction in which any Loan
Party or any personal or mixed property Collateral is located with respect to
the creation and perfection or continuation of perfection of the security
interests in favor of Administrative Agent in such Collateral and such other
matters governed by the laws of such jurisdiction regarding such security
interests as Administrative Agent may reasonably request, in each case in form
and substance reasonably satisfactory to Administrative Agent.
K. Ship Mortgages. Administrative Agent shall have received from Company
and each applicable Subsidiary Guarantor fully executed and notarized Ship
Mortgages and/or amendments thereto in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each ship, barge
or other vessel listed in Schedule 4.1K annexed hereto, and such other
-------------
approvals, opinions or documents in connection with the foregoing as
Administrative Agent may reasonably request.
L. Real Estate and Other Appraisals. Administrative Agent shall have
received appraisals from one or more independent real estate and other
appraisers satisfactory to Administrative Agent, in form, scope and substance
satisfactory to Administrative Agent (including a determination that the
appraised value (on a going concern basis) of the Biloxi Gaming Facilities, the
Vicksburg Gaming Facilities, the Bossier City Gaming Facilities, the Bettendorf
Gaming Facilities, the Marquette Gaming Facilities, the Coahoma Gaming
Facilities, the Natchez Gaming Facilities and the Lake Charles Gaming
Facilities, collectively, is not less than $1,100,000,000) and satisfying the
requirements of any applicable laws and regulations, concerning any Effective
Date Mortgaged Properties (as defined in subsection 4.1I) and ships or barges
subject to Ship Mortgages, in each case to the extent required under such laws
and regulations as determined by Administrative Agent in its discretion.
M. Environmental Reports. Administrative Agent shall have received reports
and other information, in form, scope and substance satisfactory to
Administrative Agent, regarding environmental matters relating to Company and
its Subsidiaries and the New Facilities, which reports shall include a Phase I
environmental assessment for each of the New Facilities currently owned, leased,
operated or used by Company or any of its Subsidiaries (collectively, the "Phase
I Report") which (a) conforms to the current version of ASTM Standard Practice
for Environmental Site Assessments: Phase I Environmental Site Assessment
Process, E 1527, (b) was conducted no more than six months prior to the
Effective Date by one or more environmental consulting firms reasonably
satisfactory to Administrative Agent, (c) includes an assessment of
asbestos-containing materials at such New Facilities, and (d) includes an
estimate of the reasonable worst-case cost of investigating and remediating any
Hazardous Materials Activity identified in the Phase I Report as giving rise to
an actual or potential material violation of any Environmental Law or as
presenting a material risk of giving rise to a material Environmental Claim.
N. Financial Statements; Pro Forma Balance Sheet. On or before the
Effective Date, Administrative Agent shall have received from Company (i)
audited financial statements of Company and its Subsidiaries for Fiscal Years
1999, 1998 and 1997 and audited financial statements of Lady Luck and its
Subsidiaries for fiscal years 1998, 1997 and 1996, each consisting of balance
sheets and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such fiscal years, and (ii) unaudited
financial statements of Company and its Subsidiaries as at October 24, 1999 and
unaudited financial statements of Lady Luck and its Subsidiaries as at September
30, 1999, each consisting of a balance sheet and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows for the
nine-month period ending on such date, all in reasonable detail and, with
respect to the financial statements of Company and its Subsidiaries, certified
by the chief financial officer of Company that such statements fairly present
the financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments.
O. Evidence of Insurance. Administrative Agent shall have received a
certificate from Company's insurance broker or other evidence satisfactory to it
that all insurance required to be maintained pursuant to subsection 6.4 is in
full force and effect and that Administrative Agent on behalf of Lenders has
been named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4.
P. Opinions of Counsel to Loan Parties. Lenders and their respective
counsel shall have received (i) originally executed copies of one or more
favorable written opinions of Allan B. Solomon, general counsel to the Loan
Parties, Mayer, Brown & Platt, counsel to the Loan Parties, Phelps Dunbar
L.L.P., special admiralty, Louisiana and Mississippi counsel for Loan Parties,
and Lane & Waterman, Iowa counsel for Loan Parties, each in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the
Effective Date and setting forth substantially the matters in the opinions
designated in Exhibit VIII annexed hereto and as to such other matters as
------------
Administrative Agent acting on behalf of Lenders may reasonably request, and
(ii) evidence satisfactory to Administrative Agent that Loan Parties have
requested such counsel to deliver such opinions to Lenders.
Q. Opinions of Administrative Agent's Counsel. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Myers LLP, counsel to Administrative Agent, dated as of the
Effective Date, substantially in the form of Exhibit IX annexed hereto and as to
----------
such other matters as Administrative Agent acting on behalf of Lenders may
reasonably request.
R. Opinions of Counsel Delivered Under Related Agreements. To the extent
not previously delivered, Administrative Agent and its counsel shall have
received copies of each of the opinions of counsel delivered to the parties
under the Related Agreements, together with a letter from each such counsel (to
the extent not inconsistent with such counsel's established internal policies)
authorizing Lenders to rely upon such opinion to the same extent as though it
were addressed to Lenders.
S. Fees. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Administrative Agent and Lenders, the fees payable on the
Effective Date referred to in subsection 2.3.
T. Representations and Warranties; Performance of Agreements. Company shall
have delivered to Administrative Agent an Officer's Certificate, in form and
substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 hereof are true, correct and
complete in all material respects on and as of the Effective Date to the same
extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date) and that Company shall have performed
in all material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before the
Effective Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent and Requisite Lenders.
U. No Litigation. There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has not been disclosed by
Company in writing pursuant to subsection 5.6 or 6.1(x) prior to the execution
of this Agreement, and there shall have occurred no development not so disclosed
in any such action, suit, proceeding, governmental investigation or arbitration
so disclosed, that, in either event, in the opinion of Administrative Agent or
of Requisite Lenders, could reasonably be expected to have a Material Adverse
Effect; and no injunction or other restraining order shall have been issued and
no hearing to cause an injunction or other restraining order to be issued shall
be pending or noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any damages or
obtain relief as a result of, the transactions contemplated by this Agreement or
the making of Loans hereunder.
V. No Disruption of Financial and Capital Markets. There shall have been no
material adverse change after October 4, 1999 in the syndication markets for
credit facilities similar in nature to the credit facilities provided under this
Agreement and the other Loan Documents, and there shall not have occurred and be
continuing a material disruption of or material adverse change in the financial,
banking or capital markets that would have an adverse effect on such syndication
markets, in each case as determined by Administrative Agent in its sole
discretion.
W. Completion of Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.
4.2 Conditions to All Loans.
-----------------------
The obligations of Lenders to make Loans on each Funding Date are subject
to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding Date, in
accordance with the provisions of subsection 2.1B, an originally executed Notice
of Borrowing, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of Company or by any employee of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the other
Loan Documents shall be true, correct and complete in all material respects on
and as of that Funding Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material respects on and as of
such earlier date;
(ii) No event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated by such Notice of Borrowing and the
application of the proceeds thereof that would constitute an Event of Default or
a Potential Event of Default; and
(iii) No order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain any Lender from making the Loans
to be made by it on that Funding Date.
4.3 Conditions to Letters of Credit.
-------------------------------
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Issuance of Letter of
Credit, in each case signed by the chief executive officer, the chief financial
officer or the treasurer of Company or by any employee of Company designated by
any of the above-described officers on behalf of Company in a writing delivered
to Administrative Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as the applicable
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Company represents and warrants to
each Lender, on the date of this Agreement, on each Funding Date and on the date
of issuance of each Letter of Credit, that the following statements are true,
correct and complete:
5.1 Organization, Powers, Qualification, Good Standing, Business and
----------------------------------------------------------------
Subsidiaries.
-----
A. Organization and Powers. Each Loan Party is a corporation, partnership
or limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation as
specified in Schedule 5.1 annexed hereto. Each Loan Party has all requisite
-------------
corporate power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into
the Loan Documents and Related Agreements to which it is a party and to carry
out the transactions contemplated thereby.
B. Qualification and Good Standing. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing could not
reasonably be expected to have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only in the
businesses permitted to be engaged in pursuant to subsection 7.14.
D. Subsidiaries. All of the Subsidiaries of Company as of the Effective
Date are identified in Schedule 5.1 annexed hereto, as said Schedule 5.1 may be
------------ ------------
supplemented from time to time pursuant to the provisions of subsection
6.1(xvi). Schedule 5.1 identifies which Subsidiaries of Company are Restricted
------------
Subsidiaries and Unrestricted Subsidiaries. The capital stock of each of the
Subsidiaries of Company identified in Schedule 5.1 annexed hereto (as so
------------
supplemented) is duly authorized, validly issued, fully paid and nonassessable
and none of such capital stock constitutes Margin Stock. Each of the
Subsidiaries of Company identified in Schedule 5.1 annexed hereto (as so
------------
supplemented) is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or formation set forth therein, has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now conducted and as proposed to be conducted, and is
qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, in each case except where failure to be so qualified or in good
standing or a lack of such corporate power and authority could not reasonably be
expected to have a Material Adverse Effect. Schedule 5.1 annexed hereto (as so
------------
supplemented) correctly sets forth, as of the Effective Date, the ownership
interest of Company and each of its Subsidiaries in each of the Subsidiaries of
Company identified therein. As of the Effective Date, there exists no
Indebtedness nor Contingent Obligations of the Unrestricted Subsidiaries owed to
Company or any of its Restricted Subsidiaries (other than approximately
$3,300,000 of Indebtedness owing by ICBH to Company) or for which Company or any
of its Restricted Subsidiaries is or may become liable.
5.2 Authorization of Borrowing, etc.
--------------------------------
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents and the Related Agreements have been duly authorized by all
necessary corporate action on the part of each Loan Party that is a party
thereto.
B. No Conflict. The execution, delivery and performance by Loan Parties of
the Loan Documents and the Related Agreements to which they are parties and the
consummation of the transactions contemplated by the Loan Documents and such
Related Agreements do not and will not (i) violate any provision of any law or
any governmental rule or regulation or any Gaming Law applicable to Company or
any of its Subsidiaries, the Certificate or Articles of Incorporation or other
formation or charter document or Bylaws of Company or any of its Subsidiaries or
any order, judgment or decree of any court or other agency of government or
Gaming Authority binding on Company or any of its Subsidiaries (other than any
violation of any such law, governmental rule or regulation, or Gaming Law or any
such order, judgment or decree, in each case which could not reasonably be
expected to have a Material Adverse Effect or cause any liability to any
Lender), (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
Company or any of its Subsidiaries (other than any such conflict, breach or
default which could not reasonably be expected to have a Material Adverse
Effect), (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of Company or any of its Subsidiaries (other
than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Effective Date and disclosed in
writing to Lenders.
C. Governmental Consents; Gaming Authorizations.
(1) Except for such authorizations, approvals, consents or notices (a)
obtained or delivered as of the Effective Date, (b) subsequently required in
connection with the addition of any Subsidiary Guarantor pursuant to subsection
6.8, or (c) set forth on Schedule 5.2C annexed hereto, the execution, delivery
-------------
and performance by Loan Parties of the Loan Documents and the Related Agreements
to which they are parties and the consummation of the transactions contemplated
by the Loan Documents and such Related Agreements do not and will not result in
any License Revocation or require any registration with, consent or approval of,
or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body or any Gaming Authority. Other than
the filings or recordings contemplated by subsection 5.16A, all authorizations,
approvals, consents, notices, registrations or filings required to be obtained,
delivered, filed or made as of the Effective Date for the execution, delivery
and performance by Loan Parties of the Loan Documents and the Related Agreements
to which they are parties and the consummation of the transactions contemplated
by the Loan Documents and such Related Agreements have been obtained from or
registered or filed with the applicable federal, state or other governmental
authorities or regulatory bodies or Gaming Authorities.
(b) All Gaming Authorizations have been duly obtained and are in full force
and effect without any known conflict with the rights of others and free from
any unduly burdensome restrictions, except where any such failure to obtain such
Gaming Authorizations or any such conflict or restriction could not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse
Effect. None of Company or any of its Subsidiaries has received any written
notice or other written communications from any Gaming Authority regarding (i)
any revocation, withdrawal, suspension, termination or modification of, or the
imposition of any material conditions with respect to, any Gaming
Authorizations, or (ii) any other limitations on the conduct of business by
Company or any of its Subsidiaries, except where any such revocation,
withdrawal, suspension, termination, modification, imposition or limitation
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
D. Binding Obligation. Each of the Loan Documents and Related Agreements
has been duly executed and delivered by each Loan Party that is a party thereto
and is the legally valid and binding obligation of such Loan Party, enforceable
against such Loan Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. Valid Issuance of Subordinated Notes. Company has the corporate power
and authority to issue the Subordinated Notes. The Subordinated Notes are the
legally valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability. The subordination provisions of the Subordinated
Notes are enforceable against the holders thereof and the Loans and all other
monetary Obligations hereunder are and will be within the definition of "Senior
Indebtedness" included in such provisions. The Subordinated Notes either (a)
have been registered or qualified under applicable federal and state securities
laws or (b) are exempt therefrom.
F. Compliance with Laws. Company and its Subsidiaries are in compliance
with all presently existing applicable statutes, laws, regulations, rules,
ordinances and orders of any kind whatsoever (including, without limitation, any
zoning and building laws or ordinances, subdivision laws or ordinances, any
Environmental Laws or Gaming Laws, or any presently existing rules, regulations
or orders of any governmental entity, authority or agency or any Gaming
Authority), and with all present existing covenants and restrictions of record
relating to the use and occupancy of any of their respective properties, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
5.3 Financial Condition.
-------------------
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the audited consolidated and
consolidating balance sheets of Company and its Subsidiaries as at April 25,
1999 and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
Fiscal Year then ended, (ii) the audited consolidated and consolidating balance
sheets of Lady Luck and its Subsidiaries as at December 31, 1998 and the related
consolidated and consolidating statements of income, stockholders' equity and
cash flows of Lady Luck and its Subsidiaries for the fiscal year then ended,
(iii) the unaudited consolidated and consolidating balance sheets of Company and
its Subsidiaries as at October 24, 1999 and the related unaudited consolidated
and consolidating statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries for the nine months then ended, and (iv) the
unaudited consolidated and consolidating balance sheets of Lady Luck and its
Subsidiaries as at September 30, 1999 and the related unaudited consolidated and
consolidating statements of income, stockholders' equity and cash flows of Lady
Luck and its Subsidiaries for the nine months then ended. All such statements
were prepared in conformity with GAAP and fairly present, in all material
respects, the financial position (on a consolidated and, where applicable,
consolidating basis) of the entities described in such financial statements as
at the respective dates thereof and the results of operations and cash flows (on
a consolidated and, where applicable, consolidating basis) of the entities
described therein for each of the periods then ended, subject, in the case of
any such unaudited financial statements, to changes resulting from audit and
normal year-end adjustments. Company does not (and will not following the
funding of the initial Loans) have any Contingent Obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing financial statements
or the notes thereto and which in any such case is material in relation to the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries.
5.4 No Material Adverse Change; No Restricted Junior Payments.
---------------------------------------------------------
Since April 25, 1999, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
During the period from April 25, 1999 through and including the Effective Date,
neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted by subsection 7.5.
5.5 Title to Properties; Liens; Real Property.
-----------------------------------------
A. Title to Properties; Liens. Company and its Subsidiaries have (i) good,
sufficient and legal title to (in the case of fee interests in real property),
(ii) valid leasehold interests in (in the case of leasehold interests in real or
personal property), or (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
the financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in each case except
for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under subsection 7.7.
Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.
B. Real Property. As of the Effective Date, Schedule 5.5 annexed hereto
------------
contains a true, accurate and complete list of (i) all Real Property Assets
constituting fee properties and (ii) all leases, subleases or assignments of
leases (together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Property Asset of any Loan Party,
regardless of whether such Loan Party is the landlord or tenant (whether
directly or as an assignee or successor in interest) under such lease, sublease
or assignment. Except as specified in Schedule 5.5 annexed hereto, each
------------
agreement listed in clause (ii) of the immediately preceding sentence is in full
force and effect and there is no default by any Loan Party thereunder. Company
does not have knowledge of any default by any other party thereto that has
occurred and is continuing thereunder, and each such agreement constitutes the
legally valid and binding obligation of each applicable Loan Party, enforceable
against such Loan Party in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles.
5.6 Litigation; Adverse Facts.
-------------------------
A. Proceedings, Investigations and Violations. There are no actions, suits,
proceedings, arbitrations or governmental investigations (whether or not
purportedly on behalf of Company or any of its Subsidiaries) at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality or Gaming
Authority, domestic or foreign (including any Environmental Claims) that are
pending or, to the knowledge of Company, threatened against or affecting Company
or any of its Subsidiaries or any property of Company or any of its Subsidiaries
and that, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
B. Land Use Proceedings. As of the Effective Date, there are no pending
condemnation, zoning or other land use proceedings or special assessment
proceedings with respect to the Effective Date Mortgaged Properties or the use
thereof, and Seller has not received written notice from any Governmental
Authority threatening any such proceeding. After the Effective Date, there are
no material pending condemnation, zoning or other land use proceedings or
special assessment proceedings with respect to the Effective Date Mortgaged
Properties or the use thereof, and Seller has not received written notice from
any Governmental Authority threatening any such proceeding. Seller has not
entered into any agreements or commitments with Governmental Authorities that
will be binding on the Effective Date Mortgaged Properties after the Effective
Date and which would (i) materially affect the operations of or the entitlements
applicable to such properties, (ii) require the owner of any such property to
make improvements to such property or make dedications or off-site improvements
for the benefit of adjoining properties, or (iii) make additional expenditures
with respect to the operation of the Effective Date Mortgaged Properties.
5.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed, and all taxes shown on such tax returns to be due and payable
and all assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid when due and payable.
Company knows of no proposed tax assessment against Company or any of its
Subsidiaries which is not being actively contested by Company or such Subsidiary
in good faith and by appropriate proceedings; provided that such reserves or
--------
other appropriate provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements; Material
------------------------------------------------------------------
Contracts.
----
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have
a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is otherwise
subject to any agreements or instruments or any charter or other internal
restrictions which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
C. Schedule 5.8 contains a true, correct and complete list of all the
------------
Material Contracts in effect on the Effective Date. Except as described on
Schedule 5.8, all such Material Contracts are in full force and effect and no
--------
material defaults currently exist thereunder.
D. Neither Company nor any of its Subsidiaries has entered into any
currently effective contracts for the sale of the Effective Date Mortgaged
Properties, nor do there exist any currently effective rights of first refusal
or options to purchase such properties.
5.9 Governmental Regulation.
-----------------------
Except for the Gaming Laws described in Schedule 5.2C annexed hereto,
-------------
neither Company nor any of its Subsidiaries is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 Securities Activities.
---------------------
A. Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than 25% of
the value of the assets (either of Company only or of Company and its
Subsidiaries on a consolidated basis) subject to the provisions of subsection
7.2 or 7.7 or subject to any restriction contained in any agreement or
instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 Employee Benefit Plans.
----------------------
A. Company, each of its Subsidiaries and each of their respective ERISA
Affiliates are in compliance with all applicable provisions and requirements of
ERISA and the regulations and published interpretations thereunder with respect
to each Employee Benefit Plan, and have performed all their obligations under
each Employee Benefit Plan. Each Employee Benefit Plan which is intended to
qualify under Section 401(a) of the Internal Revenue Code is so qualified.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal Revenue
Code, or except as set forth in Schedule 5.11 annexed hereto, no Employee
-------------
Benefit Plan provides health or welfare benefits (through the purchase of
insurance or otherwise) for any retired or former employee of Company, any of
its Subsidiaries or any of their respective ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the amount of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), does not exceed $5,000,000.
E. As of the most recent valuation date for each Multiemployer Plan for
which the actuarial report is available, the potential liability of Company, its
Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, does not exceed $5,000,000.
5.12 Certain Fees.
------------
Except for fees disclosed to Administrative Agent prior to the Effective
Date, no broker's or finder's fee or commission will be payable with respect to
this Agreement or any of the transactions contemplated hereby, and Company
hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any non-disclosed broker's or
finder's fees alleged to have been incurred in connection herewith or therewith
and any expenses (including reasonable fees, expenses and disbursements of
counsel) arising in connection with any such claim, demand or liability.
5.13 Environmental Protection.
------------------------
(i) neither Company nor any of its Subsidiaries nor any of their respective
Facilities or operations are subject to any outstanding written order, consent
decree or settlement agreement with any Person relating to (a) any Environmental
Law, (b) any Environmental Claim, or (c) any Hazardous Materials Activity
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose any liability on the Lenders;
(ii) neither Company nor any of its Subsidiaries has received any letter or
request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9604) or any comparable
state law;
(iii) there are and, to Company's knowledge, have been no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim against Company or any of
its Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or impose any liability on the
Lenders;
(iv) neither Company nor any of its Subsidiaries nor, to Company's
knowledge, any predecessor of Company or any of its Subsidiaries has filed any
notice under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of Company's or any of its
Subsidiaries' operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270
or any state equivalent; and
(v) compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws will not, individually or
in the aggregate, have a reasonable possibility of giving rise to a Material
Adverse Effect or imposing any liability on the Lenders.
Notwithstanding anything in this subsection 5.13 to the contrary, no event
or condition has occurred or is occurring with respect to Company or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity which individually or in the
aggregate has had or could reasonably be expected to have a Material Adverse
Effect, or could reasonably be expected to impose any liability on the Lenders.
5.14 Employee Matters.
----------------
There is no strike or work stoppage in existence or threatened involving
Company or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
5.15 Solvency.
--------
Each Loan Party is and, upon the incurrence of any Obligations by such Loan
Party on any date on which this representation is made, will be, Solvent.
5.16 Matters Relating to Collateral.
------------------------------
A. Creation, Perfection and Priority of Liens. The execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the date hereof pursuant to subsections 4.1I, 4.1J, 6.8 and
6.9 and the filing of any UCC financing statements and/or amendments and PTO
filings and/or amendments delivered to Administrative Agent for filing (but not
yet filed) and the recording of any Effective Date Mortgages or Ship Mortgages
delivered to Administrative Agent for recording (but not yet recorded) or
amendments to the Mortgages and Ship Mortgages existing prior to the Effective
Date, and (ii) the delivery to Administrative Agent of any Pledged Collateral
not delivered to Administrative Agent at the time of execution and delivery of
the applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create or to continue in favor of Administrative
Agent for the benefit of Lenders, as security for the respective Secured
Obligations (as defined in the applicable Collateral Document in respect of any
Collateral), a valid and perfected First Priority Lien on all of the Collateral,
and all filings and other actions necessary or desirable to perfect and maintain
the perfection and First Priority status of such Liens have been duly made or
taken and remain in full force and effect, other than the filing or recording of
the Effective Date Mortgages and the Ship Mortgages, the filing of any UCC
financing statements and/or amendments and PTO filings and/or amendments
delivered to Administrative Agent for filing (but not yet filed), the recording
of any Effective Date Mortgages and Ship Mortgages delivered to Administrative
Agent for recording (but not yet recorded) and the periodic filing of UCC
continuation statements in respect of UCC financing statements filed by or on
behalf of Administrative Agent.
B. Governmental Authorizations. No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for either (i) the pledge or grant by any Loan Party of the
Liens purported to be created in favor of Administrative Agent pursuant to any
of the Collateral Documents or (ii) the exercise by Administrative Agent of any
rights or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for such authorizations, approvals or other actions
set forth on Schedule 5.2C annexed hereto and filings or recordings contemplated
-------------
by subsection 5.16A and except as may be required, in connection with the
disposition of any Pledged Collateral, by laws generally affecting the offering
and sale of securities.
C. Absence of Third-Party Filings. Except (x) such as may have been filed
in favor of Administrative Agent as contemplated by subsection 5.16A, (y) for
Permitted Encumbrances, and (z) for Liens which shall be terminated pursuant to
UCC termination statements delivered pursuant to subsection 4.1J to
Administrative Agent for filing (but not yet filed), such Liens to be terminated
upon the filing or recording of such UCC termination statements, (i) no
effective UCC financing statement, fixture filing or other instrument similar in
effect covering all or any part of the Collateral is on file in any filing or
recording office and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO.
D. Margin Regulations. The pledge of the Pledged Collateral pursuant to the
Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
E. Information Regarding Collateral. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
F. Conditions Affecting the Effective Date Mortgaged Properties. There are
no defects, facts or conditions affecting the Effective Date Mortgaged
Properties that would make them unsuitable for the current use of such
properties or of any abnormal hazards (including earth movement, slippage or
flood damage) affecting the Effective Date Mortgaged Properties, except for
defects, facts or conditions which could not reasonably be expected to have a
Material Adverse Effect.
G. Permits and Approvals for the Effective Date Mortgaged Properties.
Company has obtained, or caused its Subsidiaries to obtain, all permits,
authorizations, and approvals, including, without limitation, all sewer and
water permits, elevator permits, certificates of occupancy, subdivision
approvals, environmental approvals, zoning and land use entitlements which are
necessary for the current operation of the Effective Date Mortgaged Properties,
and there are no uncured violations thereof, except for permits, authorizations
and approvals where the failure to obtain, and violations thereof, could not
reasonably be expected to have a Material Adverse Effect.
5.17 Related Agreements.
------------------
Company has delivered to Lenders complete and correct copies of each
Related Agreement and of all exhibits and schedules thereto.
5.18 Disclosure.
----------
No representation or warranty of Company or any of its Subsidiaries
contained in the Confidential Information Memorandum or in any Loan Document or
Related Agreement or in any other document, certificate or written statement
(taken as a whole) furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any document not furnished by
it) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may
materially differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to Company
(other than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect and
that have not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
5.19 Year 2000 Compliance.
--------------------
All Information Systems and Equipment accurately process date data
(including without limitation calculating, comparing and sequencing) in all
material respects before, during and after the year 2000, as well as same and
multi-century dates, or between the years 1999 and 2000, taking into account all
leap years, including the fact that the year 2000 is a leap year, and further,
that when used in combination with, or interfacing with, other Information
Systems and Equipment, shall accurately accept, release and exchange date data,
and shall in all material respects continue to function in the same manner as it
performed prior to January 1, 2000 and shall not otherwise materially impair the
accuracy or functionality of Information Systems and Equipment.
Section 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 Financial Statements and Other Reports.
--------------------------------------
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Administrative Agent (with copies for each
Lender, which copies shall be promptly distributed to Lenders by Administrative
Agent):
(i) Monthly Financials: as soon as available and in any event within 35
-------------------
days after the end of each February, March, May, June, August, September,
November and December ending after the Effective Date, the consolidated
statements of income of Company and its Subsidiaries and separate statements of
income of each Gaming Facility of Company and its Subsidiaries, in each case for
such month and for the period from the beginning of the then current Fiscal
Year to the end of such month, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the previous Fiscal
Year and the corresponding figures from the Financial Plan for the current
Fiscal Year, to the extent prepared on a monthly basis, all in reasonable
detail, subject to changes resulting from audit and normal year-end adjustments;
(ii) Quarterly Financials: as soon as available and in any event within (x)
--------------------
50 days after the end of each Fiscal Quarter (other than each fourth Fiscal
Quarter), or (y) 95 days after the end of each fourth Fiscal Quarter, (a) the
consolidated and consolidating balance sheets of Company and its Subsidiaries as
at the end of such Fiscal Quarter and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year and the corresponding figures from the
Financial Plan for the current Fiscal Year, all in reasonable detail and
certified by the chief financial officer of Company that they fairly present, in
all material respects, the financial condition of Company and its Subsidiaries
as at the dates indicated and the results of their operations and their cash
flows for the periods indicated, subject to changes resulting from audit and
normal year-end adjustments, and (b) a narrative report describing the
operations of Company and its Subsidiaries in the form prepared for presentation
to senior management for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any event within 95
-------------------
days after the end of each Fiscal Year, (a) the consolidated and consolidating
balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year
and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements, all in
reasonable detail and certified by the chief financial officer of Company that
they fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a narrative
report describing the operations of Company and its Subsidiaries in the form
prepared for presentation to senior management for such Fiscal Year, and (c) in
the case of such consolidated financial statements, a report thereon of Ernst &
Young LLP or other independent certified public accountants of recognized
national standing selected by Company and satisfactory to Administrative Agent,
which report shall be unqualified, shall express no doubts about the ability of
Company and its Subsidiaries to continue as a going concern, and shall state
that such consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Company and its Subsidiaries as
at the dates indicated and the results of their operations and their cash flows
for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years (except as otherwise disclosed in such financial statements)
and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards;
(iv) Officer's and Compliance Certificates: together with each delivery of
-------------------------------------
financial statements of Company and its Subsidiaries pursuant to subdivisions
(ii) and (iii) above, (a) an Officer's Certificate of Company stating that the
signer has reviewed the terms of this Agreement and has made, or caused to be
made under the signer's supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the accounting
period covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting period, and that
the signer does not have knowledge of the existence as at the date of such
Officer's Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action Company has taken, is taking and proposes to take with respect
thereto; and (b) a Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods with the
restrictions contained in Section 7, in each case to the extent compliance with
such restrictions is required to be tested at the end of the applicable
accounting period, together with a description (including amounts) of all
Investments and Consolidated Capital Expenditures made during such period, and
with respect to each construction or expansion project of Company and its
Restricted Subsidiaries, a report setting forth the budgeted and/or projected
total cost of such project, the costs incurred to date for such project and the
expenditures made to date for such project;
(v) Reconciliation Statements: if, as a result of any change in accounting
-------------------------
principles and policies from those used in the preparation of the audited
financial statements referred to in subsection 5.3, the consolidated financial
statements of Company and its Subsidiaries delivered pursuant to subdivisions
(i), (ii), (iii) or (xiii) of this subsection 6.1 will differ in any material
respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then (a) together with the first delivery of
financial statements pursuant to subdivision (i), (ii), (iii) or (xiii) of this
subsection 6.1 following such change, consolidated financial statements of
Company and its Subsidiaries for (y) the current Fiscal Year to the effective
date of such change and (z) the two full Fiscal Years immediately preceding the
Fiscal Year in which such change is made, in each case prepared on a pro forma
basis as if such change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to subdivision (i), (ii),
(iii) or (xiii) of this subsection 6.1 following such change, a written
statement of the chief accounting officer or chief financial officer of Company
setting forth the differences (including any differences that would affect any
calculations relating to the financial covenants set forth in subsection 7.6)
which would have resulted if such financial statements had been prepared without
giving effect to such change;
(vi) Accountants' Certification: together with each delivery of
--------------------------
consolidated financial statements of Company and its Subsidiaries pursuant to
--
subdivision (iii) above, a written statement by the independent certified public
accountants giving the report thereon (a) stating that their audit examination
has included a review of the terms of this Agreement and the other Loan
Documents as they relate to accounting matters, (b) stating whether, in
connection with their audit examination, any condition or event that constitutes
an Event of Default or Potential Event of Default has come to their attention
and, if such a condition or event has come to their attention, specifying the
nature and period of existence thereof; provided that such accountants shall not
--------
be liable by reason of any failure to obtain knowledge of any such Event of
Default or Potential Event of Default that would not be disclosed in the course
of their audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them to believe
either or both that the information contained in the certificates delivered
therewith pursuant to subdivision (iv) above is not correct or that the matters
set forth in the Compliance Certificates delivered therewith pursuant to clause
(b) of subdivision (iv) above for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof (unless
--------------------
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in connection
with each annual, interim or special audit of the financial statements of
Company and its Subsidiaries made by such accountants, including any comment
letter submitted by such accountants to management in connection with their
annual audit;
(viii) SEC Filings and Press Releases: promptly upon their becoming
------------------------------
available, copies of (a) all financial statements, reports, notices and proxy
statements sent or made available generally by Company to its Security holders
or by any Subsidiary of Company to its Security holders other than Company or
another Subsidiary of Company, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (c) all press releases and
other statements made available generally by Company or any of its Subsidiaries
to the public concerning material developments in the business of Company or any
of its Subsidiaries;
(ix) Events of Default, etc.: promptly upon any officer of Company
-----------------------
obtaining knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any Lender has
given any notice to Company (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential Event of
Default, (b) that any Person has given any notice to Company or any of its
Subsidiaries or taken any other action with respect to a claimed default or
event or condition of the type referred to in subsection 8.2, (c) of any
condition or event that would be required to be disclosed in a current report
filed by Company with the Securities and Exchange Commission on Form 8-K (Items
1, 2, 4, 5 and 6 of such Form as in effect on the date hereof) if Company were
required to file such reports under the Exchange Act, or (d) of the occurrence
of any event or change that has caused or evidences, either in any case or in
the aggregate, a Material Adverse Effect, an Officer's Certificate specifying
the nature and period of existence of such condition, event or change, or
specifying the notice given or action taken by any such Person and the nature of
such claimed Event of Default, Potential Event of Default, default, event or
condition, and what action Company has taken, is taking and proposes to take
with respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
-------------------------------
Company obtaining knowledge of (X) the institution of, or non-frivolous threat
of, any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company or any of its
Subsidiaries (collectively, "Proceedings") not previously disclosed in writing
by Company to Lenders or (Y) any material development in any Proceeding that, in
any case:
(1) if adversely determined, could reasonably be expected to have a Material
Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters; and (b) within twenty days after the end of each Fiscal Quarter, a
schedule of all Proceedings not covered by insurance involving an alleged
liability of, or claims against or affecting, Company or any of its Subsidiaries
equal to or greater than $5,000,000, and promptly after request by
Administrative Agent such other information as may be reasonably requested by
Administrative Agent to enable Administrative Agent and its counsel to evaluate
any of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of or
-------------
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) each
-------------
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed
by Company, any of its Subsidiaries or any of their respective ERISA Affiliates
with the Internal Revenue Service with respect to each Pension Plan; (b) all
notices received by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event;
and (c) copies of such other documents or governmental reports or filings
relating to any Employee Benefit Plan as Administrative Agent shall reasonably
request;
(xiii) Financial Plans: as soon as practicable and in any event no later
---------------
than 30 days following the beginning of each Fiscal Year, a consolidated plan
and financial forecast for such Fiscal Year and the next succeeding Fiscal Year
(the "Financial Plan" for such Fiscal Years), including (a) forecasted
consolidated and consolidating balance sheets and forecasted consolidated and
consolidating statements of income and cash flows of Company and its
Subsidiaries for each such Fiscal Year, (b) forecasted consolidated and
consolidating statements of income and cash flows of Company and its
Subsidiaries for each month of each such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based, and (c) such
other information and projections as any Lender may reasonably request;
(xiv) Insurance: as soon as practicable and in any event by the last day of
---------
each Fiscal Year, a report in form and substance satisfactory to Administrative
Agent outlining all material insurance coverage maintained as of the date of
such report by Company and its Restricted Subsidiaries and all material
insurance coverage planned to be maintained by Company and its Restricted
Subsidiaries in the immediately succeeding Fiscal Year;
(xv) Board of Directors: with reasonable promptness, written notice of any
------------------
change in the Board of Directors of Company;
(xvi) New Subsidiaries: promptly upon any Person becoming a Subsidiary of
----------------
Company, a written notice setting forth with respect to such Person (a) the date
on which such Person became a Subsidiary of Company and (b) all of the data
required to be set forth in Schedule 5.1 annexed hereto with respect to all
------------
Subsidiaries of Company (it being understood that such written notice shall be
deemed to supplement Schedule 5.1 annexed hereto for all purposes of this
------------
Agreement);
(xvii) Material Contracts: promptly, and in any event within ten Business
------------------
Days after any Material Contract of Company or any of its Restricted
Subsidiaries is terminated or amended in a manner that is materially adverse to
Company or such Restricted Subsidiary, as the case may be, or any new Material
Contract is entered into, a written statement describing such event with copies
of such material amendments or new contracts, and an explanation of any actions
being taken with respect thereto;
(xviii) UCC Search Report: as promptly as practicable (depending on the
-----------------
jurisdiction) after the date of filing of any UCC financing statements executed
by any Loan Party pursuant to subsection 4.1J(iv) or 6.8A, copies of completed
UCC searches evidencing the proper filing, recording and indexing of all such
UCC financing statement and listing all other effective financing statements
that name such Loan Party as debtor, together with copies of all such other
financing statements not previously delivered to Administrative Agent by or on
behalf of Company or such Loan Party;
(xix) Margin Determination Certificate: (a) for the Fiscal Quarter ending
--------------------------------
on or about July 31, 2000, within 30 days after such Fiscal Quarter ends and in
any event no later than September 1, 2000, (b) for each Fiscal Quarter
thereafter (other than each fourth Fiscal Quarter), as part of the Compliance
Certificate delivered pursuant to subdivision (iv) for such Fiscal Quarter, and
(c) for each fourth Fiscal Quarter ending after the Effective Date, within 50
days after such fourth Fiscal Quarter ends, a Margin Determination Certificate
demonstrating in reasonable detail the calculation of the Consolidated Total
Leverage Ratio for the four consecutive Fiscal Quarters ending on the day of the
accounting period covered by such financial statements;
(xx) License Revocation: promptly upon any officer of Company obtaining
------------------
knowledge of a License Revocation, written notice thereof together with such
other information as may be reasonably available to Company to enable Lenders
and their counsel to evaluate such License Revocation, and such other
information as may be reasonably requested by Administrative Agent;
(xxi) Carryover Amount for Abandoned Projects: in the event Company elects
---------------------------------------
to propose an increase of the Maximum Expansion Capital Expenditures Amount
pursuant to subsection 7.8(ii)(b), Company shall promptly deliver to
Administrative Agent the Officer's Certificate described in subsection
7.8(ii)(b) which certificate shall state that Company and its Affiliates have
ceased to pursue the applicable projects, demonstrate the calculation of the
increase to the Maximum Expansion Capital Expenditures Amount for the next
succeeding Fiscal Year, such calculation to be reasonably satisfactory to
Administrative Agent, and, subject to the proviso contained in subsection
7.8(ii)(b), request such increase be added to the Maximum Expansion Capital
Expenditures Amount for the next succeeding Fiscal Year;
(xxii) Specified Projects Carryover Amount: in the event Company elects to
-----------------------------------
add any Specified Projects Carryover Amount (as defined in subsection
7.8(ii)(c)) to the Total Expansion CapEx Carryover Amount (as defined in
subsection 7.8(ii)(c)), promptly after full completion of any of the projects
described in subsection 7.8(i), the Officer's Certificate described in
subsection 7.8(ii)(c), which certificate shall state that the applicable
construction or expansion projects have been fully completed, demonstrate the
calculation of the Specified Projects Carryover Amount, such calculation to be
reasonably satisfactory to Administrative Agent, and, subject to the provisos
contained in subsection 7.8(ii)(c), request such Specified Projects Carryover
Amount be included in the Total Expansion CapEx Carryover Amount; and
(xxiii) Other Information: with reasonable promptness, such other
-----------------
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by any Lender.
6.2 Corporate Existence, etc.
-------------------------
Except as permitted under subsection 7.7, Company will, and will cause each
of its Restricted Subsidiaries to, at all times preserve and keep in full force
and effect its corporate existence and all rights and franchises material to its
business; provided, however, that neither Company nor any of its Restricted
-------- -------
Subsidiaries shall be required to preserve any such right or franchise if the
Board of Directors of Company or such Restricted Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of Company or such Restricted Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to Company, such
Restricted Subsidiary or Lenders.
6.3 Payment of Taxes and Claims; Tax Consolidation.
----------------------------------------------
A. Company will, and will cause each of its Restricted Subsidiaries to, pay
all taxes, assessments and other governmental charges imposed upon it or any of
its properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such charge or claim need be paid if it is
--------
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (1) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (2) in the case of a charge or claim which has or may become a
Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such charge
or claim.
B. Company will not, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income tax return with any Person
(other than Company or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance.
------------------------------------
A. Maintenance of Properties. Company will, and will cause each of its
Restricted Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties (including, without limitation, all Gaming Facilities) used or useful
in the business of Company and its Restricted Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof.
B. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Restricted Subsidiaries as
may customarily be carried or maintained under similar circumstances by
corporations of established reputation engaged in similar businesses, in each
case in such amounts (giving effect to self-insurance), with such deductibles,
covering such risks and otherwise on such terms and conditions as shall be
customary for corporations similarly situated in the industry. Without limiting
the generality of the foregoing, Company will maintain or cause to be maintained
(i) flood insurance with respect to each Flood Hazard Property that is located
in a community that participates in the National Flood Insurance Program, in
each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (ii) replacement value casualty
insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are at all times satisfactory to Administrative Agent in its
commercially reasonable judgment. Each such policy of insurance shall (a) name
Administrative Agent for the benefit of Lenders as an additional insured
thereunder as its interests may appear and (b) in the case of each business
interruption and casualty insurance policy, contain a loss payable clause or
endorsement, satisfactory in form and substance to Administrative Agent, that
names Administrative Agent for the benefit of Lenders as the loss payee
thereunder for any covered loss in excess of $10,000,000 and provides for at
least 30 days prior written notice to Administrative Agent of any modification
or cancellation of such policy.
6.5 Inspection Rights.
-----------------
Company shall, and shall cause each of its Restricted Subsidiaries to,
permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of Company or of any of its Restricted
Subsidiaries, to inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in
-
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested.
6.6 Compliance with Laws, etc.; Maintenance of Gaming and Liquor Licenses.
---------------------------------------------------------------------
A. Compliance with Laws. Company shall comply, and shall cause each of its
Subsidiaries to comply, with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority or Gaming Authority
(including all Environmental Laws and Gaming Laws), noncompliance with which
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
B. Maintenance of Licenses. Company shall, and shall cause each of its
Restricted Subsidiaries to, maintain (i) such valid Gaming Authorizations,
gaming licenses, registrations and findings of suitability in all jurisdictions
as may be necessary to operate each of its Gaming Facility businesses and (ii)
all liquor licenses and registrations as may be necessary to sell alcoholic
beverages from and in its Gaming Facilities.
6.7 Environmental Review and Investigation, Disclosure, Etc.; Company's
-------------------------------------------------------------------
Actions Regarding Hazardous Materials Activities, Environmental Claims and
----------------------------------------------------------------------
Violations of Environmental Laws.
----------------------------
A. Environmental Review and Investigation. Company agrees that
Administrative Agent may, from time to time and in its reasonable discretion,
(i) retain, at Company's expense, an independent professional consultant to
review any environmental audits, investigations, analyses and reports relating
to Hazardous Materials prepared by or for Company, and (ii) conduct its own
investigation of any Facility; provided that, in the case of any Facility no
--------
longer owned, leased, operated or used by Company or any of its Subsidiaries,
Company shall only be obligated to use all commercially reasonable efforts to
obtain permission for Administrative Agent's professional consultant to conduct
an investigation of such Facility. For purposes of conducting such a review
and/or investigation, Company hereby grants to Administrative Agent and its
agents, employees, consultants and contractors the right to enter into or onto
any Facilities currently owned, leased, operated or used by Company or any of
its Subsidiaries and to perform such tests on such property (including taking
samples of soil, groundwater and suspected asbestos-containing materials) as are
reasonably necessary in connection therewith. Any such review and/or
investigation of any Facility shall be conducted, unless otherwise agreed to by
Company and Administrative Agent, upon reasonable notice during normal business
hours and, to the extent reasonably practicable, shall be conducted so as not to
interfere with the ongoing operations at such Facility or to cause any damage or
loss to any property at such Facility. Company and Administrative Agent hereby
acknowledge and agree that any report of any investigation conducted at the
request of Administrative Agent pursuant to this subsection 6.7A will be
obtained and shall be used by Administrative Agent and Lenders for the purposes
of Lenders' internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests, if any, created by the Loan Documents.
Administrative Agent agrees to deliver a copy of any such report to Company with
the understanding that Company acknowledges and agrees that (x) it will
indemnify and hold harmless Administrative Agent and each Lender from any costs,
losses or liabilities relating to Company's use of or reliance on such report,
(y) neither Administrative Agent nor any Lender makes any representation or
warranty with respect to such report, and (z) by delivering such report to
Company, neither Administrative Agent nor any Lender is requiring or
recommending the implementation of any suggestions or recommendations contained
in such report.
B. Environmental Disclosure. Company will deliver to Administrative Agent
and Lenders:
(i) Environmental Audits and Reports. As soon as practicable following
-----------------------------------
receipt thereof, copies of all environmental audits, investigations, analyses
and reports of any kind or character, whether prepared by personnel of Company
or any of its Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to significant environmental
matters at any Facility which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or with respect to any
Environmental Claims which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon the
--------------------------------------------------
occurrence thereof, written notice describing in reasonable detail (a) any
Release required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, and (b) any remedial
action taken by Company or any other Person in response to (1) any Hazardous
Materials Activities the existence of which has a reasonable possibility of
resulting in one or more Environmental Claims having, individually or in the
aggregate, a Material Adverse Effect, or (2) any Environmental Claims that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(iii) Written Communications Regarding Environmental Claims, Releases, Etc.
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As soon as practicable following the sending or receipt thereof by Company or
any of its Subsidiaries, a copy of any and all written communications with
respect to (a) any Environmental Claims that, individually or in the aggregate,
have a reasonable possibility of giving rise to a Material Adverse Effect, (b)
any Release required to be reported to any federal, state or local governmental
or regulatory agency, and (c) any request for information from any governmental
agency that suggests such agency is investigating whether Company or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity.
(iv) Notice of Certain Proposed Actions Having Environmental Impact. Prompt
--------------------------------------------------------------
written notice describing in reasonable detail (a) any proposed acquisition of
stock, assets, or property by Company or any of its Subsidiaries that could
reasonably be expected to (1) expose Company or any of its Subsidiaries to, or
result in, Environmental Claims that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or (2) affect the
ability of Company or any of its Subsidiaries to maintain in full force and
effect all material Governmental Authorizations required under any Environmental
Laws for their respective operations and (b) any proposed action to be taken by
Company or any of its Subsidiaries to commence manufacturing or other industrial
operations or to modify current operations in a manner that could reasonably be
expected to subject Company or any of its Subsidiaries to any material
additional obligations or requirements under any Environmental Laws that could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(v) Other Information. With reasonable promptness, such other documents and
-----------------
information as from time to time may be reasonably requested by Administrative
Agent in relation to any matters disclosed pursuant to this subsection 6.7.
C. Company's Actions Regarding Hazardous Materials Activities, Environmental
Claims and Violations of Environmental Laws.
(i) Remedial Actions Relating to Hazardous Materials Activities. Company
--------------------------------------------------------------
shall promptly undertake, and shall cause each of its Subsidiaries promptly to
undertake, any and all investigations, studies, sampling, testing, abatement,
cleanup, removal, remediation or other response actions necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity on, under or about
any Facility that is in violation of any Environmental Laws or that
presents a material risk of giving rise to an Environmental Claim. In the event
Company or any of its Subsidiaries undertakes any such action with respect to
any Hazardous Materials, Company or such Subsidiary shall conduct and complete
such action in compliance with all applicable Environmental Laws and in
accordance with the policies, orders and directives of all federal, state and
local governmental authorities except when, and only to the extent that,
Company's or such Subsidiary's liability with respect to such Hazardous
Materials Activity is being contested in good faith by Company or such
Subsidiary.
(ii) Actions with Respect to Environmental Claims and Violations of
--------------------------------------------------------------
Environmental Laws. Company shall promptly take, and shall cause each of its
----------
Subsidiaries promptly to take, any and all actions necessary to (1) cure any
material violation of applicable Environmental Laws by Company or its
Subsidiaries that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and (2) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral
-----------------------------------------------------------------
Documents by Certain Subsidiaries and Future Subsidiaries.
---------------------------------------------------
A. Execution of Subsidiary Guaranty and Personal Property Collateral
Documents. In the event that any Subsidiary of Company existing on the Closing
Date that has not previously executed the Subsidiary Guaranty hereafter becomes
a domestic Restricted Subsidiary, or in the event that any Person becomes a
domestic Restricted Subsidiary after the date hereof, Company will (i) promptly
notify Administrative Agent of that fact, (ii) execute, or cause the appropriate
Restricted Subsidiary to execute, a Pledge Amendment (as defined in the
Company Pledge Amendment and Subsidiary Pledge Amendment), (iii) cause such
Restricted Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and a Subsidiary Pledge Agreement and a
Subsidiary Security Agreement and (iv) to take all such further actions and
execute all such further documents and instruments (including actions, documents
and instruments comparable to those described in subsection 4.1J) as may be
necessary or, in the opinion of Administrative Agent, desirable to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and perfected
First Priority Lien on all of the personal and mixed property assets of such
Restricted Subsidiary described in the applicable forms of Collateral Documents.
B. Subsidiary Charter Documents, Legal Opinions, Etc. Company shall deliver
to Administrative Agent, together with such Loan Documents, (i) certified copies
of such Restricted Subsidiary's Certificate or Articles of Incorporation or
equivalent charter or formation documents, together with a good standing
certificate from the Secretary of State of the jurisdiction of its incorporation
and each other state in which such Person is qualified as a foreign corporation
to do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such jurisdictions, each
to be dated a recent date prior to their delivery to Administrative Agent, (ii)
a copy of such Restricted Subsidiary's Bylaws, if any, certified by its
corporate secretary or an assistant secretary as of a recent date prior to their
delivery to Administrative Agent, (iii) a certificate executed by the secretary
or an assistant secretary of such Restricted Subsidiary as to (a) the fact that
the attached resolutions of the Board of Directors of such Restricted Subsidiary
approving and authorizing the execution, delivery and performance of such Loan
Documents are in full force and effect and have not been modified or amended and
(b) the incumbency and signatures of the officers of such Restricted Subsidiary
executing such Loan Documents, and (iv) a favorable opinion of counsel to such
Restricted Subsidiary, in form and substance satisfactory to Administrative
Agent and its counsel, as to (a) the due organization and good standing of such
Restricted Subsidiary, (b) the due authorization, execution and delivery by such
Restricted Subsidiary of such Loan Documents, (c) the enforceability of such
Loan Documents against such Restricted Subsidiary, (d) such other matters
(including matters relating to the creation and perfection of Liens in any
Collateral pursuant to such Loan Documents) as Administrative Agent may
reasonably request, all of the foregoing to be satisfactory in form and
substance to Administrative Agent and its counsel.
6.9 Conforming Leasehold Interests; Matters Relating to Additional Real
-------------------------------------------------------------------
Property Collateral; Additional Ship Mortgages.
------------------------------------------
A. Conforming Leasehold Interests. If Company or any of its Restricted
Subsidiaries acquires any Material Leasehold Property, Company shall, or shall
cause such Restricted Subsidiary to, use commercially reasonable good faith best
efforts (without requiring Company or such Restricted Subsidiary to
relinquish any material rights or incur any material obligations or to expend
more than a nominal amount of money over and above the reimbursement, if
required, of the landlord's out-of-pocket costs, including attorneys fees) to
cause such Material Leasehold Property to be a Conforming Leasehold Interest.
B. Additional Mortgages, Etc. From and after the Effective Date, in the
event that (i) Company or any Subsidiary Guarantor acquires any fee interest in
real property or any Material Leasehold Property, or (ii) at the time any Person
becomes a Subsidiary Guarantor, such Person owns or holds any fee interest in
real property or any Material Leasehold Property, in either case excluding any
such Real Property Asset the encumbrancing of which requires the consent of any
applicable lessor or (in the case of clause (ii) above) then-existing senior
lienholder, where Company and its Subsidiaries are unable to obtain such
lessor's or senior lienholder's consent (any such non-excluded Real Property
Asset described in the foregoing clause (i) or (ii) being an "Additional
Mortgaged Property"), Company or such Subsidiary Guarantor shall deliver to
Administrative Agent, as soon as practicable after such Person acquires such
Additional Mortgaged Property or becomes a Subsidiary Guarantor, as the case may
be, the following:
(i) Additional Mortgage. A fully executed and notarized Mortgage (an
--------------------
"Additional Mortgage"), in proper form for recording in all appropriate places
in all applicable jurisdictions, encumbering the interest of such Loan Party in
such Additional Mortgaged Property;
(ii) Opinions of Counsel. (a) A favorable opinion of counsel to such Loan
-------------------
Party, in form and substance satisfactory to Administrative Agent and its
counsel, as to the due authorization, execution and delivery by such Loan Party
of such Additional Mortgage and such other matters as Administrative Agent may
reasonably request, and (b) if required by Administrative Agent, an opinion of
counsel (which counsel shall be reasonably satisfactory to Administrative Agent)
in the state in which such Additional Mortgaged Property is located with respect
to the enforceability of the form of Additional Mortgage to be recorded in such
state and such other matters (including any matters governed by the laws of such
state regarding personal property security interests in respect of any
Collateral) as Administrative Agent may reasonably request, in each case in form
and substance reasonably satisfactory to Administrative Agent;
(iii) Landlord Consent and Estoppel; Recorded Leasehold Interest. In the
----------------------------------------------------------
case of an Additional Mortgaged Property consisting of a Material Leasehold
Property, (a) a Landlord Consent and Estoppel, unless otherwise waived by
Administrative Agent in its reasonable discretion, such waiver not to be
unreasonably withheld, and (b) evidence that such Material Leasehold Property is
a Recorded Leasehold Interest;
(iv) Title Insurance. (a) If required by Administrative Agent, an ALTA
---------------
mortgagee title insurance policy or an unconditional commitment therefor (an
"Additional Mortgage Policy") issued by the Title Company with respect to such
Additional Mortgaged Property, in an amount satisfactory to Administrative
Agent, insuring fee simple title to, or a valid leasehold interest in, such
Additional Mortgaged Property vested in such Loan Party and assuring
Administrative Agent that such Additional Mortgage creates a valid and
enforceable First Priority mortgage Lien on such Additional Mortgaged Property,
subject only to a standard survey exception, which Additional Mortgage Policy
(1) shall include an endorsement for mechanics' liens, for future advances under
this Agreement and for any other matters reasonably requested by Administrative
Agent and (2) shall provide for affirmative insurance and such reinsurance as
Administrative Agent may reasonably request, all of the foregoing in form and
substance reasonably satisfactory to Administrative Agent; and (b) evidence
satisfactory to Administrative Agent that such Loan Party has (i) delivered to
the Title Company all certificates and affidavits required by the Title Company
in connection with the issuance of the Additional Mortgage Policy and (ii) paid
to the Title Company or to the appropriate governmental authorities all expenses
and premiums of the Title Company in connection with the issuance of the
Additional Mortgage Policy and all recording and stamp taxes (including mortgage
recording and intangible taxes) payable in connection with recording the
Additional Mortgage in the appropriate real estate records;
(v) Title Report. If no Additional Mortgage Policy is required with respect
------------
to such Additional Mortgaged Property, a title report issued by the Title
Company with respect thereto, dated not more than 30 days prior to the date such
Additional Mortgage is to be recorded and satisfactory in form and substance to
Administrative Agent;
(vi) Copies of Documents Relating to Title Exceptions. Copies of all
------------------------------------------------
recorded documents listed as exceptions to title or otherwise referred to in the
Additional Mortgage Policy or title report delivered pursuant to clause (iv) or
(v) above;
(vii) Matters Relating to Flood Hazard Properties. (a) Evidence, which may
-------------------------------------------
be in the form of a letter from an insurance broker or a municipal engineer, as
to (1) whether such Additional Mortgaged Property is a Flood Hazard Property and
(2) if so, whether the community in which such Flood Hazard Property is located
is participating in the National Flood Insurance Program, (b) if such Additional
Mortgaged Property is a Flood Hazard Property, such Loan Party's written
acknowledgement of receipt of written notification from Administrative Agent (1)
that such Additional Mortgaged Property is a Flood Hazard Property and (2) as to
whether the community in which such Flood Hazard Property is located is
participating in the National Flood Insurance Program, and (c) in the event such
Additional Mortgaged Property is a Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, evidence
that Company has obtained flood insurance in respect of such Flood Hazard
Property to the extent required under the applicable regulations of the Board of
Governors of the Federal Reserve System; and
(viii) Environmental Audit. If required by Administrative Agent, reports
-------------------
and other information, in form, scope and substance reasonably satisfactory to
Administrative Agent and prepared by environmental consultants reasonably
satisfactory to Administrative Agent, concerning any environmental hazards or
liabilities to which Company or any of its Subsidiaries may be subject with
respect to such Additional Mortgaged Property.
C. Additional Ship Mortgages, Etc. From and after the Effective Date, in
the event that Company or any Subsidiary Guarantor acquires any ship, barge or
other vessel as part of a Gaming Facility, Company or such Subsidiary Guarantor
shall deliver to Administrative Agent, as soon as practicable after such Person
acquires such additional ship, barge or other vessel, either (x) a Ship Mortgage
with respect to such acquired ship, barge or other vessel or (y) an
assignment of an existing Ship Mortgage, in form and substance satisfactory to
Administrative Agent, and such other approvals, opinions or documents in
connection with the foregoing as Administrative Agent may reasonably request.
Section 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Restricted Subsidiaries to
perform, all covenants in this Section 7.
7.1 Indebtedness.
------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company may become and remain liable with respect to the Obligations;
(ii) Company and its Restricted Subsidiaries may become and remain liable
with respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Company may become and remain liable with respect to Indebtedness to
any of its wholly-owned domestic Restricted Subsidiaries, and any wholly-owned
domestic Restricted Subsidiary of Company may become and remain liable with
respect to Indebtedness to Company or any other wholly-owned domestic Restricted
Subsidiary of Company; provided that (a) all such intercompany Indebtedness
--------
shall be evidenced by promissory notes, (b) all such intercompany Indebtedness
owed by Company to any of its domestic Restricted Subsidiaries shall be
subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms of the applicable promissory notes or an intercompany
subordination agreement, and (c) any payment by any domestic Restricted
Subsidiary of Company under any guaranty of the Obligations shall result in a
pro tanto reduction of the amount of any intercompany Indebtedness owed by such
- -----
domestic Restricted Subsidiary to Company or to any of its domestic Restricted
Subsidiaries for whose benefit such payment is made;
(iv) Company and its Restricted Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in Schedule 7.1 annexed hereto;
------------
(v) Company and its Restricted Subsidiaries may become and remain liable
with respect to unsecured lines of credit with local financial institutions in
an aggregate principal amount not to exceed $15,000,000;
(vi) Company may remain liable with respect to Indebtedness evidenced by the
Subordinated Notes in an aggregate principal amount not to exceed $390,000,000;
(vii) Company may become and remain liable with respect to other unsecured
Subordinated Indebtedness in an aggregate principal amount not to exceed
$200,000,000; provided that after giving effect to the incurrence of such
--------
Subordinated Indebtedness and the application of the proceeds thereof, Company
is in pro forma compliance with subsection 7.6 and no Potential Event of Default
or Event of Default has occurred and is continuing or would arise as a result of
the incurrence of such Subordinated Indebtedness;
(viii) Company and its Restricted Subsidiaries may become and remain liable
with respect to Indebtedness incurred to refinance the then outstanding
aggregate principal amount of any Indebtedness permitted under this subsection
7.1; provided that such refinancing Indebtedness (a) shall be in an aggregate
--------
principal amount not to exceed the then outstanding aggregate principal amount
of such Indebtedness to be so refinanced plus the amount of accrued and unpaid
interest thereon (provided, however, that with respect to Indebtedness incurred
-------- -------
to refinance the then outstanding aggregate principal amount of Indebtedness
permitted under subsections 7.1(vi) or 7.1(vii), the aggregate principal amount
of such refinancing Indebtedness shall be in an amount equal to the then
outstanding aggregate principal amount of such Indebtedness to be so refinanced
plus the amount of accrued and unpaid interest thereon); (b) shall have a
maturity no earlier and an average life no shorter than the Indebtedness being
so refinanced; and (c) shall contain terms and conditions no less favorable to
Company and Lenders and such other terms and conditions as are satisfactory to
Administrative Agent; provided further that to the extent that any Indebtedness
-------- -------
permitted under subsection 7.1 is refinanced pursuant to this subsection
7.1(viii), then the maximum aggregate principal amount of such Indebtedness
permitted to be incurred pursuant to the applicable provision of subsection 7.1
shall be reduced by an amount equal to the aggregate principal amount of such
permitted refinancing and its Restricted Subsidiaries may become and remain
liable with respect to Indebtedness; and
(ix) Company and its Restricted Subsidiaries may become and remain liable
with respect to Capital Leases, other Indebtedness and other Contingent
Obligations permitted under subsection 7.4(x) in an aggregate principal amount
not to exceed $40,000,000 at any time outstanding; provided that the aggregate
--------
amount of all such Capital Leases, other Indebtedness and/or other Contingent
Obligations secured by Liens shall not exceed $30,000,000 at any time
outstanding.
7.2 Liens and Related Matters.
-------------------------
A. Prohibition on Liens. Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Restricted Subsidiaries, whether now owned
or hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any state or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens constituting a second Ship Mortgage granted in connection with
the financing of equipment or other appurtenances on the ship, barge or other
vessel so secured by such second Ship Mortgage; provided that prior to granting
--------
such second Ship Mortgage, the Person to which is granted such Lien shall have
entered into an intercreditor agreement with Administrative Agent and Lenders
and executed and delivered such other related agreements and instruments as
reasonably requested by Administrative Agent in connection with such
intercreditor agreement, in each case in form and substance satisfactory to
Administrative Agent;
(iv) Liens described in Schedule 7.2 annexed hereto; and
------------
(v) Liens securing Capital Leases, other Indebtedness and other Contingent
Obligations permitted under subsections 7.1(ix) and 7.4(x).
B. Equitable Lien in Favor of Lenders. If Company or any of its Restricted
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
--------
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. No Further Negative Pledges. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an Asset Sale, neither Company nor any
of its Restricted Subsidiaries shall enter into any agreement (other than the
Subordinated Note Indenture or any other agreement evidencing Subordinated
Indebtedness and containing similar terms to the Subordinated Note Indenture or
prohibiting only the creation of Liens securing such Subordinated Indebtedness)
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired.
D. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Except as provided herein or in the Subordinated Note Indenture
or in any other agreement evidencing Subordinated Indebtedness and containing
similar terms to the Subordinated Note Indenture, Company will not, and will not
permit any of its Restricted Subsidiaries to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Restricted Subsidiary to (i) pay dividends
or make any other distributions on any of such Restricted Subsidiary's capital
stock owned by Company or any other Restricted Subsidiary of Company, (ii) repay
or prepay any Indebtedness owed by such Restricted Subsidiary to Company or any
other Restricted Subsidiary of Company, (iii) make loans or advances to Company
or any other Restricted Subsidiary of Company, or (iv) otherwise transfer any of
its property or assets to Company or any other Restricted Subsidiary of Company.
7.3 Investments; Joint Ventures.
---------------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, except:
(i) Company and its Restricted Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Company and its Restricted Subsidiaries may continue to own the
Investments owned by them as of the Effective Date in any Subsidiaries of
Company;
(iii) Company and its Restricted Subsidiaries may make intercompany loans to
the extent permitted under subsection 7.1(iii);
(iv) Company and its Restricted Subsidiaries may make Consolidated Capital
Expenditures permitted by subsection 7.8;
(v) Company and its Restricted Subsidiaries may continue to own the
Investments owned by them and described in Schedule 7.3 annexed hereto;
------------
(vi) Company and its Restricted Subsidiaries may continue to own the
Investments owned by them as of the Closing Date in ICBH, and may make
additional Investments in ICBH of up to $17,000,000 in the aggregate; and
(vii) Company and its Restricted Subsidiaries may make and own other
Investments (including, without limitation, Investments in Unrestricted
Subsidiaries) in an aggregate amount outstanding not to exceed $25,000,000.
7.4 Contingent Obligations.
----------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Restricted Subsidiaries of Company may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit;
(iii) Company may become and remain liable with respect to Contingent
Obligations under Interest Rate Agreements constituting Hedge Agreements,
entered into with Lenders for bona fide hedging purposes and not for speculative
purposes with respect to Indebtedness in an aggregate notional principal amount
not to exceed at any time $300,000,000;
(iv) Company and its Restricted Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary indemnification
and purchase price adjustment obligations incurred in connection with Asset
Sales or other sales of assets;
(v) Company and its Restricted Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of any Indebtedness of Company
or any of its Restricted Subsidiaries permitted by subsection 7.1;
(vi) Company and its Restricted Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in Schedule 7.4 annexed
------------
hereto;
(vii) Company and its Restricted Subsidiaries may become and remain liable
with respect to guaranties of the Indebtedness in respect of the unsecured lines
of credit permitted under subsection 7.1(v);
(viii) Restricted Subsidiaries may become and remain liable with respect to
Contingent Obligations arising under their subordinated guaranties of the
Subordinated Notes as set forth in the Subordinated Note Indenture;
(ix) Restricted Subsidiaries may become and remain liable with respect to
Contingent Obligations arising under any subordinated guaranties in respect of
any other Subordinated Indebtedness permitted by subsections 7.1(vi) or (vii);
and
(x) Company and its Restricted Subsidiaries may become and remain liable
with respect to other Contingent Obligations, Capital Leases permitted under
subsection 7.1(ix), and other Indebtedness permitted under subsection 7.1(ix) in
an aggregate principal amount not to exceed $40,000,000 at any time outstanding;
provided that the aggregate amount of all such Capital Leases, other
- --------
Indebtedness and other Contingent Obligations secured by Liens shall not exceed
- --------
$30,000,000 at any time outstanding.
7.5 Restricted Junior Payments.
--------------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; provided that (i) Company may make regularly
--------
scheduled payments of interest in respect of the Subordinated Notes, in
accordance with the terms of and to the extent required by, and subject to the
subordination provisions contained in, the Subordinated Note Indenture; (ii)
Company may make regularly scheduled payments of interest in respect of any
other Subordinated Indebtedness in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained in,
the indenture or other agreement pursuant to which such Subordinated
Indebtedness was issued, as such indenture or other agreement may be amended
from time to time to the extent permitted under subsection 7.15B; and (iii)
Company may make a "Change of Control Offer" (as defined in the Subordinated
Note Indenture) with respect to the Subordinated Notes; provided, however, that
-------- -------
prior to making any such "Change of Control Offer", either (x) Company shall (1)
repay in full all Obligations (including, without limitation, any unpaid
principal, interest, fees, costs and expenses owed by Company under this
Agreement or any other Loan Document) and terminate all outstanding Commitments
under this Agreement or (2) offer to repay in full all Obligations (including,
without limitation, any unpaid principal, interest, fees, costs and expenses
owed by Company under this Agreement or any other Loan Document) and terminate
all outstanding Commitments under this Agreement and to repay such Obligations
owed to each Lender which has accepted such offer, or (y) Administrative Agent
and Requisite Lenders shall otherwise approve such "Change of Control Offer"
with respect to the Subordinated Notes.
7.6 Financial Covenants.
-------------------
A. Maximum Consolidated Total Leverage Ratio. Company shall not permit the
Consolidated Total Leverage Ratio as of the last day of any Fiscal Quarter
ending during any of the periods set forth below to exceed the correlative ratio
indicated:
Period Maximum Consolidated Total Leverage Ratio
4th Fiscal Quarter, Fiscal Year 2000 4.75:1.00
1st Fiscal Quarter, Fiscal Year 2001 5.00:1.00
2nd Fiscal Quarter, Fiscal Year 2001 5.20:1.00
3rd Fiscal Quarter, Fiscal Year 2001 5.20:1.00
4th Fiscal Quarter, Fiscal Year 2001 5.20:1.00
1st Fiscal Quarter, Fiscal Year 2002 5.20:1.00
2nd Fiscal Quarter, Fiscal Year 2002 5.00:1.00
3rd Fiscal Quarter, Fiscal Year 2002 4.75:1.00
4th Fiscal Quarter, Fiscal Year 2002 4.50:1.00
1st Fiscal Quarter, Fiscal Year 2003 4.50:1.00
2nd Fiscal Quarter, Fiscal Year 2003 4.25:1.00
3rd Fiscal Quarter, Fiscal Year 2003 4.25:1.00
4th Fiscal Quarter, Fiscal Year 2003 4.00:1.00
1st Fiscal Quarter, Fiscal Year 2004 4.00:1.00
2nd Fiscal Quarter, Fiscal Year 2004 4.00:1.00
3rd Fiscal Quarter, Fiscal Year 2004 4.00:1.00
4th Fiscal Quarter, Fiscal Year 2004
and each Fiscal Quarter thereafter 3.75:1.00
B. Maximum Consolidated Senior Leverage Ratio. Company shall not permit the
Consolidated Senior Leverage Ratio as of the last day of any Fiscal Quarter
ending during any of the periods set forth below to exceed the correlative ratio
indicated:
Period Maximum Consolidated Senior Leverage Ratio
4th Fiscal Quarter, Fiscal Year 2000 3.00:1.00
1st Fiscal Quarter, Fiscal Year 2001 3.00:1.00
2nd Fiscal Quarter, Fiscal Year 2001 3.10:1.00
3rd Fiscal Quarter, Fiscal Year 2001 3.10:1.00
4th Fiscal Quarter, Fiscal Year 2001 3.10:1.00
1st Fiscal Quarter, Fiscal Year 2002 3.00:1.00
2nd Fiscal Quarter, Fiscal Year 2002 3.00:1.00
3rd Fiscal Quarter, Fiscal Year 2002 2.75:1.00
4th Fiscal Quarter, Fiscal Year 2002 2.50:1.00
1st Fiscal Quarter, Fiscal Year 2003 2.50:1.00
2nd Fiscal Quarter, Fiscal Year 2003 2.50:1.00
3rd Fiscal Quarter, Fiscal Year 2003 2.50:1.00
4th Fiscal Quarter, Fiscal Year 2003
and each Fiscal Quarter thereafter 2.25:1.00
C. Minimum Fixed Charge Coverage Ratio. Company shall not permit the ratio
of (i) Consolidated EBITDA less Maintenance Capital Expenditures to (ii)
----
Consolidated Fixed Charges for any four consecutive Fiscal Quarter period ending
during any of the periods set forth below to be less than the correlative
ratio indicated:
Period Minimum Fixed Charge Coverage Ratio
4th Fiscal Quarter, Fiscal Year 2000 1.50:1.00
1st Fiscal Quarter, Fiscal Year 2001 1.50:1.00
2nd Fiscal Quarter, Fiscal Year 2001 1.50:1.00
3rd Fiscal Quarter, Fiscal Year 2001 1.50:1.00
4th Fiscal Quarter, Fiscal Year 2001 1.50:1.00
1st Fiscal Quarter, Fiscal Year 2002 1.50:1.00
2nd Fiscal Quarter, Fiscal Year 2002 1.50:1.00
3rd Fiscal Quarter, Fiscal Year 2002 1.50:1.00
4th Fiscal Quarter, Fiscal Year 2002 1.50:1.00
1st Fiscal Quarter, Fiscal Year 2003 1.50:1.00
2nd Fiscal Quarter, Fiscal Year 2003 1.60:1.00
3rd Fiscal Quarter, Fiscal Year 2003 1.60:1.00
4th Fiscal Quarter, Fiscal Year 2003 1.70:1.00
1st Fiscal Quarter, Fiscal Year 2004 1.70:1.00
2nd Fiscal Quarter, Fiscal Year 2004
and each Fiscal Quarter thereafter 1.80:1.00
D. Minimum Consolidated Net Worth. Company shall not permit Consolidated
Net Worth as of the last day of any given Fiscal Quarter in any given Fiscal
Year to be less than the sum of (i) 85% of Consolidated Net Worth as of the last
day of the first Fiscal Quarter ending after the Effective Date, plus (ii)
----
75% of Consolidated Net Income (but excluding net losses) for each Fiscal
Quarter following the first Fiscal Quarter ending after the Effective Date, plus
----
(iii) an amount equal to 50% of the net cash proceeds from any sales and
issuances of Company's equity Securities after the Effective Date.
7.7 Restriction on Fundamental Changes; Asset Sales and Primary
-----------------------------------------------------------
Acquisitions.
----
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, alter the corporate, capital or legal structure of Company or any of its
Restricted Subsidiaries, or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person, except:
(i) any Restricted Subsidiary of Company may be merged with or into Company
or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any wholly-owned Subsidiary
Guarantor; provided that, in the case of such a merger, Company or such
--------
wholly-owned Subsidiary Guarantor shall be the continuing or surviving
corporation;
(ii) Company and its Restricted Subsidiaries may make Consolidated Capital
Expenditures permitted under subsection 7.8;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business;
(iv) Company and its Restricted Subsidiaries may sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales; provided that the
--------
consideration received for such assets shall be in an amount at least equal to
the fair market value thereof;
(v) Company and its Restricted Subsidiaries may make Asset Sales of the
Assets Held for Sale or Development; provided that the consideration received
--------
for such assets shall be in an amount at least equal to the fair market value
thereof; and
(vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the
Las Vegas Facility, and (2) other assets having an aggregate fair market value
not in excess of $40,000,000; provided that (w) the consideration received for
--------
such assets shall be in an amount at least equal to the fair market value
thereof; (x) the consideration received for such assets shall be in the form of
Cash and/or promissory notes, which notes shall be pledged to Administrative
Agent pursuant to the applicable Collateral Documents; (y) with respect to an
Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such
Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with
respect to all other Asset Sales permitted under this subsection 7.7(vi), the
Net Asset Sale Proceeds of such Asset Sales shall be applied as required by
subsection 2.4B(iii)(a).
7.8 Consolidated Capital Expenditures.
---------------------------------
Company shall not, and shall not permit its Restricted Subsidiaries to,
make or incur Consolidated Capital Expenditures, except:
(i) Company and its Restricted Subsidiaries may make Expansion Capital
Expenditures in respect of:
(a) the Tunica Project in an aggregate amount not to exceed $47,000,000;
(b) the Lake Charles Project in an aggregate amount not to exceed
$37,000,000;
(c) the development and construction of a riverboat casino and amenities at
a site located in the central portion of Missouri, in an aggregate amount not to
exceed $77,000,000;
(d) the Kansas City Project in an aggregate amount not to exceed
$50,000,000;
(e) the Secondary Acquisition in an aggregate amount not to exceed
$14,500,000; and
(f) the Renovation Project in an aggregate amount not to exceed $35,000,000;
and
(ii) Company and its Restricted Subsidiaries may make other Expansion
Capital Expenditures, in any Fiscal Year indicated below, in an aggregate amount
not to exceed the corresponding amount (the "Maximum Expansion Capital
Expenditures Amount") set forth below opposite such Fiscal Year:
Maximum Expansion
Fiscal Year Capital Expenditures
--------------------- --------------------
Fiscal Year 2000 $10,000,000
Fiscal Year 2001 $10,000,000
Fiscal Year 2002 $10,000,000
Fiscal Year 2003 $25,000,000
Fiscal Year 2004 and each
Fiscal Year thereafter $50,000,000
; provided that:
--------
(a) no single Expansion Capital Expenditure permitted under this
subsection 7.8(ii) shall exceed $50,000,000;
(b) the Maximum Expansion Capital Expenditures Amount for any Fiscal Year
after Fiscal Year 2000 shall be increased by an amount equal to the excess, if
any, of the Maximum Expansion Capital Expenditures Amount for the previous
Fiscal Year (as adjusted in accordance with this proviso) over the actual amount
of Expansion Capital Expenditures for such previous Fiscal Year (the "Expansion
CapEx Carryover Amount"); provided, however, that the Expansion CapEx Carryover
-------- -------
Amount shall not exceed $10,000,000 in any given Fiscal Year; and
(c) for any Fiscal Year or Fiscal Years after Fiscal Year 2000, Company may
elect to increase the Maximum Expansion Capital Expenditures Amount for such
Fiscal Year or Fiscal Years by an amount (the "Specified Projects Carryover
Amount") equal to the sum of:
(1) up to $38,500,000 if Company and/or its Restricted Subsidiaries
elects not to begin development and construction of a riverboat casino and
amenities at a site in the central portion of Missouri plus
----
(2) up to $25,000,000 if Company and/or its Restricted Subsidiaries
elects not to consummate the acquisition of certain assets of the Flamingo
Hilton Riverboat Casino in Kansas City, Missouri plus
----
(3) the unused portion, if any, of (x) the $47,000,000 budgeted for the
Tunica Project, (y) the $37,000,000 budgeted for the Lake Charles Project,
and/or (z) the Renovation Budget upon the completion of the Tunica Project, the
Lake Charles Project and the Renovation Project, respectively, by Company;
provided, however, that
- -------- -------
(a) Company may allocate such Specified Projects Carryover Amount to
any one Fiscal Year or over several Fiscal Years; and
(b) with respect to any increase to the Maximum Expansion Capital
Expenditures Amount for any Fiscal Year or Fiscal Years pursuant to the addition
of the Specified Projects Carryover Amount, Company shall deliver to
Administrative Agent an Officer's Certificate stating that (i) in the case of
clauses (1) or (2) above, Company and/or its Restricted Subsidiaries have
elected not to pursue the applicable project or projects, and (ii) in the case
of clause (3) above, Company has used less than the budgeted amounts for the
Tunica Project and/or the Lake Charles Project and/or the Renovation Budget to
complete the Tunica Project, the Lake Charles Project and Renovation Project,
respectively, and demonstrating the calculation of the increase to the Maximum
Expansion Capital Expenditures Amount for such Fiscal Year or Fiscal Years, such
calculation to be reasonably satisfactory to Administrative Agent; provided
--------
further that after Company delivers such Officer's Certificate to Administrative
---
Agent and determines the aggregate increase to the Maximum Expansion Capital
Expenditures Amount for such Fiscal Year or Fiscal Years, Company may not
reallocate, reapply or otherwise use such carryover amount for any of the
Expansion Capital Expenditures described in subsection 7.8(i); and
(iii) Company and its Restricted Subsidiaries may make Maintenance
Capital Expenditures in an aggregate amount not to exceed $30,000,000 in any
Fiscal Year beginning in the Fiscal Year 2000 (the "Maximum Maintenance Capital
Expenditures Amount"); provided that the Maximum Maintenance Capital
--------
Expenditures Amount for any Fiscal Year after Fiscal Year 2000 shall be
increased by an amount equal to the lesser of (x) $10,000,000, and (y) the
excess, if any, of the Maximum Maintenance Capital Expenditures Amount for the
previous Fiscal Year (as adjusted in accordance with this proviso) over the
actual amount of Maintenance Capital Expenditures for such previous Fiscal Year.
7.9 Restriction on Leases.
---------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, become liable in any way, whether directly or by assignment or as a
guarantor or other surety, for the obligations of the lessee under any lease
(other than the Excluded Leases and intercompany leases between Company and its
wholly-owned Subsidiaries), unless, immediately after giving effect to the
incurrence of liability with respect to such lease, the Consolidated Rental
Payments at the time in effect during the then current Fiscal Year shall not
exceed $4,000,000.
7.10 Sales and Lease-Backs.
---------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, (i) which Company or any of its Restricted
Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than Company or any of its Restricted Subsidiaries) or (ii) which
Company or any of its Restricted Subsidiaries intends to use for substantially
the same purpose as any other property which has been or is to be sold or
transferred by Company or any of its Restricted Subsidiaries to any Person
(other than Company or any of its Restricted Subsidiaries) in connection with
such lease; provided that Company and its Restricted Subsidiaries may become and
--------
remain liable as lessee, guarantor or other surety with respect to any such
lease if and to the extent that Company or any of its Restricted Subsidiaries
would be permitted to enter into, and remain liable under, such lease under
subsection 7.1 (ix), 7.4(x) or 7.9.
7.11 Sale or Discount of Receivables.
-------------------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, sell with recourse, or discount (except discounts
with the primary obligor of any accounts receivable) or otherwise sell for less
than the face value thereof, any of its notes or accounts receivable.
7.12 Transactions with Shareholders and Affiliates.
---------------------------------------------
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of any class of equity
Securities of Company or with any Affiliate of Company or of any such holder, on
terms that are less favorable to Company or that Restricted Subsidiary, as the
case may be, than those that might be obtained at the time from Persons who are
not such a holder or Affiliate; provided that the foregoing restriction shall
--------
not apply to (i) any transaction between Company and any of its wholly-owned
Restricted Subsidiaries or between any of its wholly-owned Restricted
Subsidiaries otherwise permitted hereunder or (ii) reasonable and customary fees
paid to members of the Boards of Directors of Company and its Restricted
Subsidiaries.
7.13 Disposal of Subsidiary Stock.
----------------------------
Except for (x) any pledge or encumbrance of the capital stock or other
equity Securities of any of its Restricted Subsidiaries required under this
Agreement and the applicable Collateral Documents and (y) any sale of 100% of
the capital stock or other equity Securities of any of its Restricted
Subsidiaries in compliance with the provisions of subsection 7.7(i) or 7.7(vi),
Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber or
dispose of any shares of capital stock or other equity Securities of any of its
Restricted Subsidiaries, except to qualify directors if required by applicable
law; or
(ii) permit any of its Restricted Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of capital
stock or other equity Securities of any of its Restricted Subsidiaries
(including such Restricted Subsidiary), except to Company, another Restricted
Subsidiary of Company, or to qualify directors if required by applicable law.
7.14 Conduct of Business.
-------------------
From and after the Effective Date, Company shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than the Related
Businesses.
7.15 Amendments or Waivers of Certain Related Agreements; Amendments of
------------------------------------------------------------------
Documents Relating to Subordinated Indebtedness; Designation of "Designated
-----------------------------------------------------------------------
Senior Indebtedness".
----------------
A. Amendments or Waivers of Certain Related Agreements. Neither Company nor
any of its Restricted Subsidiaries will agree to any material amendment to,
or waive any of its material rights under, any Related Agreement (other than any
Related Agreement evidencing or governing any Subordinated Indebtedness) after
the Effective Date without in each case obtaining the prior written consent of
Requisite Lenders to such amendment or waiver.
B. Amendments of Documents Relating to Subordinated Indebtedness. Company
shall not, and shall not permit any of its Restricted Subsidiaries to, amend or
otherwise change the terms of any Subordinated Indebtedness, or make any payment
consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate on such Subordinated
Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such
event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions thereof (or of any guaranty thereof), or change any
collateral therefor (other than to release such collateral), or if the effect of
such amendment or change, together with all other amendments or changes made, is
to increase materially the obligations of the obligor thereunder or to confer
any additional rights on the holders of such Subordinated Indebtedness (or a
trustee or other representative on their behalf) which would be adverse to
Company or Lenders.
C. Designation of "Designated Senior Indebtedness". Company shall not
designate any Indebtedness as "Designated Senior Indebtedness" (as defined in
the Subordinated Note Indenture) for purposes of the Subordinated Note Indenture
without the prior written consent of Requisite Lenders.
7.16 Fiscal Year.
-----------
Company shall not change its Fiscal Year-end as determined as of the
Effective Date without the consent of Administrative Agent.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
8.1 Failure to Make Payments When Due.
---------------------------------
Failure by Company to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Company to pay when
due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or any other amount due under this Agreement within five days after
the date due; or
8.2 Default in Other Agreements.
---------------------------
(i) Failure of Company or any of its Restricted Subsidiaries to pay when
due any principal of or interest on or any other amount payable in respect of
one or more items of Indebtedness (other than Indebtedness referred to in
subsection 8.1) or Contingent Obligations in an individual principal amount of
$15,000,000 or more or with an aggregate principal amount of $15,000,000 or
more, in each case beyond the end of any grace period provided therefor; or (ii)
breach or default by Company or any of its Restricted Subsidiaries with respect
to any other material term of (a) one or more items of Indebtedness or
Contingent Obligations in the individual or aggregate principal amounts referred
to in clause (i) above or (b) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness or Contingent Obligation(s),
if the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf
of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may be
(upon the giving or receiving of notice, lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
---------------------------
Failure of Company to perform or comply with any term or condition
contained in subsections 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 Breach of Warranty.
------------------
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
-----------------------------------
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after receipt by
Company and such Loan Party of notice from Administrative Agent or any Lender of
such default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
-----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Material Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Material Subsidiaries under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Company or any of its
Material Subsidiaries, or over all or a substantial part of its property, shall
have been entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of Company or any of its
Material Subsidiaries for all or a substantial part of its property; or a
warrant of attachment, execution or similar process shall have been issued
against any substantial part of the property of Company or any of its Material
Subsidiaries, and any such event described in this clause (ii) shall continue
for 60 days unless dismissed, bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
---------------------------------------------------
(i) Company or any of its Material Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Company or any of its Material Subsidiaries
shall make any assignment for the benefit of creditors; or (ii) Company or any
of its Material Subsidiaries shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts become due; or
the Board of Directors of Company or any of its Material Subsidiaries (or any
committee thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to in clause (i) above or this clause
(ii); or
8.8 Judgments and Attachments.
-------------------------
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $10,000,000 or (ii)
in the aggregate at any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Restricted Subsidiaries or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for a period of
60 days (or in any event later than five days prior to the date of any proposed
sale thereunder); or
8.9 Dissolution.
-----------
Any order, judgment or decree shall be entered against Company or any of
its Material Subsidiaries decreeing the dissolution or split up of Company or
that Material Subsidiary and such order shall remain undischarged or unstayed
for a period in excess of 30 days; or
8.10 Employee Benefit Plans.
----------------------
There shall occur one or more ERISA Events which individually or in the
aggregate results in or might reasonably be expected to result in liability of
Company, any of its Restricted Subsidiaries or any of their respective ERISA
Affiliates in excess of $5,000,000 during the term of this Agreement; or there
shall exist an amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), which exceeds $5,000,000; or
8.11 Change of Control.
-----------------
There shall occur a Change of Control; or
8.12 Invalidity of Subsidiary Guaranty; Failure of Security; Repudiation of
----------------------------------------------------------------------
Obligations.
- -----------
At any time after the execution and delivery thereof, (i) the Subsidiary
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms or as otherwise permitted under this Agreement) or shall be declared to be
null and void, (ii) any Collateral Document shall cease to be in full force and
effect (other than by reason of a release of Collateral thereunder in accordance
with the terms hereof or thereof, the satisfaction in full of the Obligations or
any other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void, or Administrative Agent
shall not have or shall cease to have a valid and perfected First Priority Lien
in any material Collateral purported to be covered thereby, in each case for any
reason other than the failure of Administrative Agent or any Lender to take any
action within its control, or (iii) any Loan Party shall contest the validity or
enforceability of any Loan Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Loan Document to which it is a party; or
8.13 Loss of Gaming Licenses.
-----------------------
The occurrence of a License Revocation by any Gaming Authority in a
jurisdiction in which Company or any of its Subsidiaries owns or operates a
Gaming Facility (other than with respect to Pompano Park); provided that such
--------
License Revocation continues for at least fifteen (15) consecutive days; or
8.14 Failure to Consummate Primary Acquisition.
-----------------------------------------
The Primary Acquisition shall not be consummated in accordance with this
Agreement and the applicable Related Agreements concurrently with the making of
the initial Loans, or the Primary Acquisition shall be unwound, reversed or
otherwise rescinded in whole or in part for any reason:
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Company, declare all
or any portion of the amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
--------
foregoing shall not affect in any way the obligations of Revolving Lenders under
subsection 3.3C(i) or the obligations of Revolving Lenders to purchase
participations in any unpaid Swing Line Loans as provided in subsection 2.1A(v).
Any amounts described in clause (b) above, when received by Administrative
Agent, shall be held by Administrative Agent pursuant to the terms of the
Collateral Account Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph, if at any
time within 60 days after an acceleration of the Loans pursuant to clause (ii)
of such paragraph Company shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 10.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this
paragraph are intended merely to bind Lenders to a decision which may be made at
the election of Requisite Lenders and are not intended, directly or indirectly,
to benefit Company, and such provisions shall not at any time be construed so as
to grant Company the right to require Lenders to rescind or annul any
acceleration hereunder or to preclude Administrative Agent or Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met. Lenders
hereby acknowledge that any foreclosure under this Agreement or any other Loan
Document of any Gaming Facility, any Persons owning, leasing, operating or using
such Gaming Facility or any gaming equipment may be subject to any prior
approvals or exemptions required under any applicable Gaming Laws.
Section 9. ADMINISTRATIVE AGENT
9.1 Appointment.
-----------
A. Appointment of Administrative Agent. CIBC is hereby appointed
Administrative Agent hereunder and under the other Loan Documents and each
Lender hereby authorizes Administrative Agent to act as its agent in accordance
with the terms of this Agreement and the other Loan Documents. Administrative
Agent agrees to act upon the express conditions contained in this Agreement and
the other Loan Documents, as applicable. The provisions of this Section 9 are
solely for the benefit of Administrative Agent and Lenders and Company shall
have no rights as a third party beneficiary of any of the provisions thereof.
In performing its functions and duties under this Agreement, Administrative
Agent shall act solely as an agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Company or any of its Subsidiaries.
B. Appointment of Supplemental Collateral Agents. It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction.
It is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case Administrative Agent deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the rights,
powers or remedies granted herein or in any of the other Loan Documents or take
any other action which may be desirable or necessary in connection therewith, it
may be necessary that Administrative Agent appoint (with notice to Company) an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein individually as a "Supplemental Collateral
Agent" and collectively as "Supplemental Collateral Agents").
In the event that Administrative Agent appoints a Supplemental Collateral
Agent with respect to any Collateral, (i) each and every right, power, privilege
or duty expressed or intended by this Agreement or any of the other Loan
Documents to be exercised by or vested in or conveyed to Administrative Agent
with respect to such Collateral shall be exercisable by and vest in such
Supplemental Collateral Agent to the extent, and only to the extent, necessary
to enable such Supplemental Collateral Agent to exercise such rights, powers and
privileges with respect to such Collateral and to perform such duties with
respect to such Collateral, and every covenant and obligation contained in the
Loan Documents and necessary to the exercise or performance thereof by such
Supplemental Collateral Agent shall run to and be enforceable by either
Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by Administrative
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, Company shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by Administrative Agent. In case any Supplemental Collateral
Agent, or a successor thereto, shall die, become incapable of acting, resign or
be removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
9.2 Powers and Duties; General Immunity.
-----------------------------------
A. Powers; Duties Specified. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. Administrative Agent shall have only those
duties and responsibilities that are expressly specified in this Agreement and
the other Loan Documents. Administrative Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or employees.
Administrative Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Administrative Agent shall not be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Administrative Agent to Lenders or by
or on behalf of Company to Administrative Agent or any Lender in connection with
the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company or any other Person liable
for the payment of any Obligations, nor shall Administrative Agent be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default. Anything contained in this Agreement to
the contrary notwithstanding, Administrative Agent shall not have any liability
arising from confirmations of the amount of outstanding Loans or the Letter of
Credit Usage or the component amounts thereof unless any such liability results
from the gross negligence or willful misconduct of Administrative Agent.
C. Exculpatory Provisions. Neither Administrative Agent nor any of its
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by Administrative Agent under or in connection with any
of the Loan Documents except to the extent caused by Administrative Agent's
gross negligence or willful misconduct. Administrative Agent shall be entitled
to refrain from any act or the taking of any action (including the failure to
take an action) in connection with this Agreement or any of the other Loan
Documents or from the exercise of any power, discretion or authority vested in
it hereunder or thereunder unless and until Administrative Agent shall have
received instructions in respect thereof from Requisite Lenders (or such other
Lenders as may be required to give such instructions under subsection 10.6) and,
upon receipt of such instructions from Requisite Lenders (or such other Lenders,
as the case may be), Administrative Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who may be
attorneys for Company and its Subsidiaries), accountants, experts and other
professional advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against Administrative Agent as a result of Administrative
Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. Administrative Agent Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans
and the Letters of Credit, Administrative Agent shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not performing the duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include Administrative Agent in its individual capacity.
Administrative Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Company for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
9.3 Representations and Warranties; No Responsibility For Appraisal of
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Creditworthiness.
-----------
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries.
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and Administrative Agent
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.4 Right to Indemnity.
------------------
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Administrative Agent, to the extent that Administrative Agent shall
not have been reimbursed by Company, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
Administrative Agent in exercising its powers, rights and remedies or performing
its duties hereunder or under the other Loan Documents or otherwise in its
capacity as Administrative Agent in any way relating to or arising out of this
Agreement or the other Loan Documents; provided that no Lender shall be liable
--------
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
Administrative Agent's gross negligence or willful misconduct. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative Agent
may call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
9.5 Successor Administrative Agent and Swing Line Lender.
----------------------------------------------------
A. Successor Administrative Agent. Administrative Agent may resign at any
time by giving 30 days' prior written notice thereof to Lenders and Company, and
Administrative Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to Company and
Administrative Agent and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
five Business Days' notice to Company, to appoint a successor Administrative
Agent. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
B. Successor Swing Line Lender. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of CIBC or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender the Swing
Line Note held by it to Company for cancellation, and (iii) Company shall issue
a new Swing Line Note to the successor Administrative Agent and Swing Line
Lender substantially in the form of Exhibit VI annexed hereto, in the principal
----------
amount of the Swing Line Loan Commitment then in effect and with other
appropriate insertions.
9.6 Collateral Documents and Guaranties.
-----------------------------------
Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and the Subsidiary Guaranty; provided that Administrative
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Agent shall not (i) enter into or consent to any material amendment,
modification, termination or waiver of any provision contained in any Collateral
Document or the Subsidiary Guaranty or (ii) release any Collateral (except as
otherwise expressly permitted or required pursuant to the terms of this
Agreement or the applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all
Lenders); provided further, however, that, without further written consent or
-------- ------- -------
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented or (b) release
any Subsidiary Guarantor from the Subsidiary Guaranty if all of the capital
stock of such Subsidiary Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented. Anything
contained in any of the Loan Documents to the contrary notwithstanding, Company,
Administrative Agent and each Lender hereby agree that (X) no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce the Subsidiary Guaranty, it being understood
and agreed that all powers, rights and remedies under the Collateral Documents
and the Subsidiary Guaranty may be exercised solely by Administrative Agent for
the benefit of Lenders in accordance with the terms thereof, and (Y) in the
event of a foreclosure by Administrative Agent on any of the Collateral pursuant
to a public or private sale, Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Administrative
Agent, as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
Administrative Agent at such sale.
9.7 Syndication Agent and Documentation Agent.
-----------------------------------------
Neither Syndication Agent, Documentation Agent nor any co-agent shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, neither Syndication Agent, Documentation Agent nor any co-agent
shall have or be deemed to have any fiduciary relationship with any other
Lender. Each such Lender acknowledges that it has not relied, and will not
rely, on Syndication Agent, Documentation Agent nor any co-agent in deciding to
enter into this Agreement or in taking or not taking action hereunder.
Section 10. MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of Credit.
-------------------------------------------------------------
A. General. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or participations therein or
any other interest herein or in any other Obligations owed to it; provided that
--------
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer
or participation under the securities laws of any state; provided further that
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no such sale, assignment, transfer or participation of any Letter of Credit or
any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Lender effecting such sale,
assignment, transfer or participation; and provided further that, anything
-------- -------
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.5. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of
------------------------------------
Credit or participation therein, or other Obligation may (a) be assigned in any
amount to another Lender, or to an Affiliate or Affiliated Fund of the assigning
Lender or another Lender, with the giving of notice to Company and the
consent of Administrative Agent (which consent shall not be unreasonably
withheld), or (b) be assigned in an aggregate amount of not less than $2,500,000
(or such lesser amount as shall constitute the aggregate amount of the
Commitments, Loans, Letters of Credit and participations therein, and other
Obligations of the assigning Lender) to any other Eligible Assignee with the
prior written consent of Company (which consent shall only be required if no
Potential Event of Default or Event of Default has occurred and is continuing)
and Administrative Agent (which consent of Company and Administrative Agent
shall not be unreasonably withheld or delayed). To the extent of any such
assignment in accordance with either clause (a) or (b) above, the assigning
Lender shall be relieved of its obligations with respect to its Commitments,
Loans, Letters of Credit or participations therein, or other Obligations or the
portion thereof so assigned. The parties to each such assignment shall execute
and deliver to Administrative Agent, for its acceptance, an Assignment
Agreement, together with a processing fee of $3,500 and such forms, certificates
or other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent pursuant to subsection 2.7B(iii)(a).
Upon such execution, delivery and acceptance, from and after the effective date
specified in such Assignment Agreement, (y) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning Lender thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its rights (other than any
rights which survive the termination of this Agreement under subsection 10.9B)
and be released from its obligations under this Agreement (and, in the case of
an Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto; provided that, anything contained in any of the Loan
--------
Documents to the contrary notwithstanding, if such Lender is the Issuing Lender
with respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of Credit
and the reimbursement of any amounts drawn thereunder). The Commitments
hereunder shall be modified to reflect the Commitment of such assignee and any
remaining Commitment of such assigning Lender and, if any such assignment occurs
after the issuance of the Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Administrative Agent for cancellation, and
thereupon new Notes shall be issued to the assignee and to the assigning Lender,
substantially in the form of Exhibit IV-A, Exhibit IV-B, Exhibit IV-C or Exhibit
------------ ------------ ------------ -------
V annexed hereto, as the case may be, with appropriate insertions, to reflect
the new Commitments and/or outstanding Term Loans, as the case may be, of the
assignee and the assigning Lender.
(ii) Acceptance by Administrative Agent. Upon its receipt of an Assignment
----------------------------------
Agreement executed by an assigning Lender and an assignee representing that it
is an Eligible Assignee, together with the processing fee referred to in
subsection 10.1B(i) and any forms, certificates or other evidence with respect
to United States federal income tax withholding matters that such assignee may
be required to deliver to Administrative Agent pursuant to subsection
2.7B(iii)(a), Administrative Agent shall, if Administrative Agent and Company
have consented to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment Agreement by executing a counterpart thereof as provided therein
(which acceptance shall evidence any required consent of Administrative Agent to
such assignment) and (b) give prompt notice thereof to Company. Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an Affiliate
or Affiliated Fund of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) the extension of the scheduled final
maturity date of any Loan allocated to such participation or (ii) a reduction of
the principal amount of or the rate of interest payable on any Loan allocated to
such participation, and all amounts payable by Company hereunder (including
amounts payable to such Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall
be determined as if such Lender had not sold such participation; provided that
--------
Company shall continue to deal solely and directly with the Lender which sold
such participation in connection with such Lender's rights and obligations under
this Agreement and each of the other Loan Documents. Company and each Lender
hereby acknowledge and agree that, solely for purposes of subsections 10.4 and
10.5, (a) any participation will give rise to a direct obligation of Company to
the participant and (b) the participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; provided that (i) no Lender shall, as between Company and such Lender, be
--------
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder. Any Lender that is a fund that invests in bank loans
may, without the consent of Administrative Agent or Company, pledge all or any
portion of its Loans and Notes to any trustee for, or any other representative
of, holders of obligations owed, or securities issued, by such fund, as security
for such obligations or securities, provided that any foreclosure or similar
--------
action by such trustee or other representative shall be subject to the
provisions of subsection 10.1B concerning assignments (including, without
limitation, any required consents); provided further, that no Lender shall, as
-------- -------
between Company and such Lender, be relieved of any of its obligations hereunder
as a result of any such pledge.
E. Information. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject to subsection 10.19.
F. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making or purchasing of loans such as the Loans; and (iii)
that it will make or purchase its Loans for its own account in the ordinary
course of its business and without a view to distribution of such Loans within
the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of this
subsection 10.1, the disposition of such Loans or any interests therein shall at
all times remain within its exclusive control). Each Lender that becomes a
party hereto pursuant to an Assignment Agreement shall be deemed to agree that
the representations and warranties of such Lender contained in Section 2(c) of
such Assignment Agreement are incorporated herein by this reference.
10.2 Expenses.
--------
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and
expenses of Administrative Agent in connection with the preparation of the Loan
Documents and any consents, amendments, waivers or other modifications thereto;
(ii) all the costs of furnishing all opinions by counsel for Company (including
any opinions requested by Lenders as to any legal matters arising hereunder) and
of Company's performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including with respect to confirming compliance with
environmental, insurance and solvency requirements; (iii) the reasonable fees,
expenses and disbursements of counsel to Administrative Agent (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to Administrative Agent and of counsel providing any opinions that
Administrative Agent or Requisite Lenders may request in respect of the
Collateral Documents or the Liens created pursuant thereto; (v) all the actual
costs and reasonable expenses (including the reasonable fees, expenses and
disbursements of any auditors, accountants or appraisers and any environmental
or other consultants, advisors and agents employed or retained by Administrative
Agent or its counsel) of obtaining and reviewing any appraisals provided for
under subsection 4.1L and any environmental audits or reports provided for under
subsection 4.1M or 6.9B(viii); (vi) the custody or preservation of any of the
Collateral; (vii) all other actual and reasonable costs and expenses incurred by
Administrative Agent in connection with the syndication of the Commitments and
the negotiation, preparation and execution of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (viii) after the occurrence and during
the continuation of an Event of Default and an acceleration of the Obligations,
all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and costs of settlement, incurred by
Administrative Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Loan Party hereunder or under the other
Loan Documents by reason of such acceleration (including in connection with the
sale of, collection from, or other realization upon any of the Collateral or the
enforcement of the Subsidiary Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings;
provided that Company shall not be responsible for expenses relating to
- --------
assignments between Lenders made pursuant to subsection 10.1.
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10.3 Indemnity.
---------
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend (subject to Indemnitees' selection of counsel), indemnify, pay and
hold harmless Administrative Agent and Lenders, and the officers, directors,
employees, agents and affiliates of Administrative Agent and Lenders
(collectively called the "Indemnitees"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Company shall
--------
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise from
the gross negligence or willful misconduct of that Indemnitee as determined by a
final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or abate any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct or indirect and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations and Environmental
Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of (i) this Agreement or the other Loan Documents or
the Related Agreements or the transactions contemplated hereby or thereby
(including Lenders' agreement to make the Loans hereunder or the use or intended
use of the proceeds thereof or the issuance of Letters of Credit hereunder or
the use or intended use of any thereof, or any enforcement of any of the Loan
Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Subsidiary Guaranty), (ii) the
statements contained in the commitment letter delivered by any Lender to Company
with respect thereto, or (iii) any Environmental Claim or any Hazardous
Materials Activity relating to or arising from, directly or indirectly, any past
or present activity, operation, land ownership, or practice of Company or any of
its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold harmless
set forth in this subsection 10.3 may be unenforceable in whole or in part
because they are violative of any law or public policy, Company shall contribute
the maximum portion that it is permitted to pay and satisfy under applicable law
to the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
----------------------------------------------
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence and continuance
of any Event of Default each Lender is hereby authorized by Company at any time
or from time to time, without prior notice to Company or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
to apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by that Lender to or for the credit or the account of Company against and on
account of the obligations and liabilities of Company to that Lender under this
Agreement, the Letters of Credit and participations therein and the other Loan
Documents, including all claims of any nature or description arising out of or
connected with this Agreement, the Letters of Credit and participations therein
or any other Loan Document, irrespective of whether or not (i) that Lender shall
have made any demand hereunder or (ii) the principal of or the interest on the
Loans or any amounts in respect of the Letters of Credit or any other amounts
due hereunder shall have become due and payable pursuant to Section 8 and
although said obligations and liabilities, or any of them, may be contingent or
unmatured. Company hereby further grants to Administrative Agent and each
Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
10.5 Ratable Sharing.
---------------
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "Aggregate Amounts Due" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Administrative
Agent and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided that if all or part of such proportionately greater payment
--------
received by such purchasing Lender is thereafter recovered from such Lender upon
the bankruptcy or reorganization of Company or otherwise, those purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
10.6 Amendments and Waivers.
----------------------
No amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes, and no consent to any departure by Company therefrom,
shall in any event be effective without the written concurrence of Requisite
Lenders; provided that any such amendment, modification, termination, waiver or
--------
consent which:
(a) changes in any manner the definition of "Pro Rata Share" or the
definition of "Requisite Lenders";
(b) changes in any manner any provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of all Lenders;
(c) postpones the date or reduces the amount of any scheduled payment (but
not prepayment) of principal of any of the Loans (provided, however, that any
-------- -------
amendment, modification, termination, waiver or consent which postpones or
extends the Revolving Loan Commitment Termination Date shall be effective if
evidenced in a writing signed by or on behalf of all Revolving Lenders only);
(d) postpones the date on which any interest or any fees are payable;
decreases the interest rate borne by any of the Loans (other than any waiver of
any increase in the interest rate applicable to any of the Loans pursuant to
subsection 2.2E) or the amount of any fees payable hereunder;
(e) increases the maximum duration of Interest Periods permitted hereunder;
(f) reduces the amount or postpones the due date of any amount payable in
respect of, or extends the required expiration date of, any Letter of Credit;
(g) changes in any manner the obligations of Lenders relating to the
purchase of participations in Letters of Credit;
(h) releases any Lien granted in favor of Administrative Agent with respect
to all or substantially all of the Collateral;
(i) releases all or substantially all of the Subsidiary Guarantors from
their obligations under the Subsidiary Guaranty, in each case other than in
accordance with the terms of the Loan Documents; or
(j) changes in any manner the provisions contained in subsection 8.1 or this
subsection 10.6
shall be effective only if evidenced by a writing signed by or on behalf of all
Lenders.
In addition,
(i) any amendment, modification, termination or waiver of any of the
provisions contained in Section 4 shall be effective only if evidenced by a
writing signed by or on behalf of Administrative Agent and Requisite Lenders;
(ii) no amendment, modification, termination or waiver of any provision of
any Note shall be effective without the written concurrence of the Lender which
is the holder of that Note;
(iii) no amendment, modification, termination or waiver of any provision of
subsection 2.1A(i)-(iv) or of any other provision of this Agreement relating to
the Term Loan Commitments or the Revolving Loan Commitments shall increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that amendments, modifications or
waivers of conditions precedent, covenants or Events of Default or of a
mandatory reduction in the Commitments shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase in the Commitment of
such Lender);
(iv) no amendment, modification, termination or waiver of any provision of
subsection 2.1A(v) or of any other provision of this Agreement relating to the
Swing Line Loan Commitment or the Swing Line Loans shall be effective without
the written concurrence of Swing Line Lender;
(v) no amendment, modification, termination or waiver of any provision of
Section 9 or of any other provision of this Agreement which, by its terms,
expressly requires the approval or concurrence of Administrative Agent shall be
effective without the written concurrence of Administrative Agent;
(vi) subject to clause (vii) below, no amendment, modification, termination
or waiver of any provision of subsection 2.4 which has the effect of changing
any interim scheduled payments, voluntary and mandatory prepayments, or
Commitment reductions applicable to any Class in a manner that
disproportionately disadvantages such Class relative to the other Classes shall
be effective without the written concurrence of Requisite Class Lenders of such
Class (it being understood and agreed that, subject to clause (vii) below, any
amendment, modification, termination or waiver of voluntary or mandatory
prepayment, or Commitment reduction from those set forth in subsection 2.4 with
respect to one Class but not the other Classes shall be deemed to disadvantage
such Class for purposes of this clause (vi)); and
(vii) any amendment, modification, termination or waiver which has as one of
its purposes the refinancing of any of the then outstanding Types of Term Loans
by adding new tranches of Term Loans and/or increasing any then existing Types
of Term Loans and/or Commitments (subject to the preceeding clause (iii)) shall
be effective if evidenced by a writing signed by or on behalf of Requisite Class
Lenders of those Classes of Lenders not being so refinanced.
Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on Company in any case shall entitle Company to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Company, on Company.
10.7 Independence of Covenants.
-------------------------
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 Notices.
-------
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile, or three Business Days
after depositing it in the United States mail with postage prepaid and properly
addressed; provided that notices to Administrative Agent shall not be effective
--------
until received. For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages hereof or (i) as
to Company and Administrative Agent, such other address as shall be designated
by such Person in a written notice delivered to the other parties hereto and
(ii) as to each other party, such other address as shall be designated by such
party in a written notice delivered to Administrative Agent.
10.9 Survival of Representations, Warranties and Agreements.
------------------------------------------------------
A. All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of Administrative Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
-------------------------------
Neither Administrative Agent nor any Lender shall be under any obligation
to marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative Agent or Lenders enforce
any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 Severability.
------------
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.13 Obligations Several; Independent Nature of Lenders' Rights.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 Headings.
--------
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.15 Applicable Law.
--------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.16 Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither
Company's rights or obligations hereunder nor any interest therein may be
assigned or delegated by Company without the prior written consent of all
Lenders.
10.17 Consent to Jurisdiction and Service of Process.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE,
COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT,
COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION
AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF
ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.18 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business relationship, that each
has already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
10.19 Confidentiality.
---------------
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
commercial lending or banking practices, it being understood and agreed by
Company that in any event a Lender may make disclosures to Affiliates of such
Lender or disclosures reasonably required by any bona fide prospective assignee,
transferee or participant that agrees to be bound by this subsection 10.19 in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein or disclosures required or requested by any
governmental or regulatory agency or representative thereof or pursuant to court
order, subpoena or other legal process; provided that, unless specifically
--------
prohibited by applicable law, regulation or court order, each Lender shall
notify Company of any request by any governmental or regulatory agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental or
regulatory agency) for disclosure of any such non-public information prior to
disclosure of such information; and provided further that in no event shall any
-------- -------
Lender be obligated or required to return any materials furnished by or on
behalf of Company or any of its Subsidiaries.
10.20 Counterparts; Effectiveness.
---------------------------
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[Remainder of page intentionally left blank]
<PAGE>
LA1:871673.8 S-4
LA1:871673.8 S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
ISLE OF CAPRI CASINOS, INC.
By:
Allan B. Solomon
Executive Vice President
Notice Address:
1641 Popps Ferry Road
Suite B-1
Biloxi, Mississippi 39532
Facsimile: (228) 396-2634
Attention: Rexford A. Yeisley
<PAGE>
LENDERS:
CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent and Issuing
Lender
By:
Paul J. Chakmak
Managing Director
CIBC World Markets Corp., AS AGENT
Notice Address:
425 Lexington Avenue New York, NY 10017
Facsimile No.: (212) 856-3763 Attention: Agency Services Department
<PAGE>
CIBC INC., as Lender and Swing Line Lender
By:
Paul J. Chakmak
Managing Director
CIBC World Markets Corp., AS AGENT
Notice Address:
350 South Grand Avenue Suite 2600
Los Angeles, CA 90071
Facsimile No.: (213) 346-0157
Attention: Mr. Paul J. Chakmak
<PAGE>
BANKERS TRUST COMPANY, as Syndication Agent and Co-Arranger
By:
Notice Address:
Facsimile No.:
Attention:
<PAGE>
LA1:871673.8 ii
LA1:871673.8
$600,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF MARCH 2, 2000
AMONG
ISLE OF CAPRI CASINOS, INC.,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent and Issuing Lender,
BANKERS TRUST COMPANY,
as Syndication Agent and Co-Arranger,
and
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as Documentation Agent
ARRANGED BY:
CIBC WORLD MARKETS CORP.
<PAGE>
TABLE OF CONTENTS
(continued)
Page
LA1:871673.8 -v-
TABLE OF CONTENTS
Page
LA1:871673.8 -i-
Section 1. DEFINITIONS 2
1.1 Certain Defined Terms 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement 38
1.3 Other Definitional Provisions and Rules of Construction 38
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS 38
2.1 Commitments; Making of Loans; the Register; Notes 38
2.2 Interest on the Loans 48
2.3 Fees 51
2.4 Repayments, Prepayments and Reductions in Loans and Revolving Loan
Commitments; General Provisions Regarding Payments; Application of Proceeds of
Collateral and Payments Under Subsidiary Guaranty 52
2.5 Use of Proceeds 64
2.6 Special Provisions Governing Eurodollar Rate Loans 64
2.7 Increased Costs; Taxes; Capital Adequacy 67
2.8 Obligation of Lenders and Issuing Lenders to Mitigate; Replacement of
Lender 71
Section 3. LETTERS OF CREDIT 72
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein 72
3.2 Letter of Credit Fees 74
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit
75
3.4 Obligations Absolute 77
3.5 Indemnification; Nature of Issuing Lenders' Duties 78
3.6 Increased Costs and Taxes Relating to Letters of Credit 79
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT 80
4.1 Conditions to Term Loans, Revolving Loans and Swing Line Loans 81
4.2 Conditions to All Loans 89
4.3 Conditions to Letters of Credit 90
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES 90
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries 91
5.2 Authorization of Borrowing, etc. 91
5.3 Financial Condition 93
5.4 No Material Adverse Change; No Restricted Junior Payments 94
5.5 Title to Properties; Liens; Real Property 94
5.6 Litigation; Adverse Facts 95
5.7 Payment of Taxes 95
5.8 Performance of Agreements; Materially Adverse Agreements; Material
Contracts 96
5.9 Governmental Regulation 96
5.10 Securities Activities 96
5.11 Employee Benefit Plans 97
5.12 Certain Fees 97
5.13 Environmental Protection 97
5.14 Employee Matters 98
5.15 Solvency 98
5.16 Matters Relating to Collateral 98
5.17 Related Agreements 100
5.18 Disclosure 100
5.19 Year 2000 Compliance 100
Section 6. COMPANY'S AFFIRMATIVE COVENANTS 101
6.1 Financial Statements and Other Reports 101
6.2 Corporate Existence, etc. 107
6.3 Payment of Taxes and Claims; Tax Consolidation 107
6.4 Maintenance of Properties; Insurance 107
6.5 Inspection Rights 108
6.6 Compliance with Laws, etc.; Maintenance of Gaming and Liquor Licenses
108
6.7 Environmental Review and Investigation, Disclosure, Etc.; Company's
Actions Regarding Hazardous Materials Activities, Environmental Claims and
Violations of Environmental Laws 109
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral
Documents by Certain Subsidiaries and Future Subsidiaries 111
6.9 Conforming Leasehold Interests; Matters Relating to Additional Real
Property Collateral; Additional Ship Mortgages 112
Section 7. COMPANY'S NEGATIVE COVENANTS 114
7.1 Indebtedness 114
7.2 Liens and Related Matters 116
7.3 Investments; Joint Ventures 117
7.4 Contingent Obligations 118
7.5 Restricted Junior Payments 119
7.6 Financial Covenants 119
7.7 Restriction on Fundamental Changes; Asset Sales and Primary
Acquisitions 121
7.8 Consolidated Capital Expenditures 122
7.9 Restriction on Leases 125
7.10 Sales and Lease-Backs 125
7.11 Sale or Discount of Receivables 125
7.12 Transactions with Shareholders and Affiliates 125
7.13 Disposal of Subsidiary Stock 126
7.14 Conduct of Business 126
7.15 Amendments or Waivers of Certain Related Agreements; Amendments of
Documents Relating to Subordinated Indebtedness; Designation of "Designated
Senior Indebtedness" 126
7.16 Fiscal Year 127
Section 8. EVENTS OF DEFAULT 127
8.1 Failure to Make Payments When Due 127
8.2 Default in Other Agreements 127
8.3 Breach of Certain Covenants 127
8.4 Breach of Warranty 128
8.5 Other Defaults Under Loan Documents 128
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc. 128
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc. 128
8.8 Judgments and Attachments 129
8.9 Dissolution 129
8.10 Employee Benefit Plans 129
8.11 Change of Control 129
8.12 Invalidity of Subsidiary Guaranty; Failure of Security; Repudiation of
Obligations 129
8.13 Loss of Gaming Licenses 130
8.14 Failure to Consummate Primary Acquisition 130
Section 9. ADMINISTRATIVE AGENT 131
9.1 Appointment 131
9.2 Powers and Duties; General Immunity 132
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness 134
9.4 Right to Indemnity 134
9.5 Successor Administrative Agent and Swing Line Lender 134
9.6 Collateral Documents and Guaranties 135
9.7 Syndication Agent and Documentation Agent 136
Section 10. MISCELLANEOUS 136
10.1 Assignments and Participations in Loans and Letters of Credit 136
10.2 Expenses 139
10.3 Indemnity 140
10.4 Set-Off; Security Interest in Deposit Accounts 140
10.5 Ratable Sharing 141
10.6 Amendments and Waivers 142
10.7 Independence of Covenants 144
10.8 Notices 144
10.9 Survival of Representations, Warranties and Agreements 144
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative 144
10.11 Marshalling; Payments Set Aside 145
10.12 Severability 145
10.13 Obligations Several; Independent Nature of Lenders' Rights 145
10.14 Headings 145
10.15 Applicable Law 145
10.16 Successors and Assigns 146
10.17 Consent to Jurisdiction and Service of Process 146
10.18 Waiver of Jury Trial 147
10.19 Confidentiality 147
10.20 Counterparts; Effectiveness 148
<PAGE>
LA1:871673.8 -vii-
LA1:871673.8 -vi-
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV-A FORM OF TRANCHE A TERM NOTE
IV-B FORM OF TRANCHE B TERM NOTE
IV-C FORM OF TRANCHE C TERM NOTE
V FORM OF REVOLVING NOTE
VI FORM OF SWING LINE NOTE
VII FORM OF COMPLIANCE CERTIFICATE
VIII FORM OF OPINION OF COUNSEL TO LOAN PARTIES
IX FORM OF OPINION OF O'MELVENY & MYERS LLP
X FORM OF ASSIGNMENT AGREEMENT
XI FORM OF CERTIFICATE RE NON-DOMESTIC BANK STATUS
XII FORM OF SUBSIDIARY GUARANTY
XIII FORM OF SUBSIDIARY PLEDGE AGREEMENT
XIV FORM OF SUBSIDIARY SECURITY AGREEMENT
XV FORM OF ACKNOWLEDGEMENT AND CONSENT
<PAGE>
SCHEDULES
1.1(a) EXCLUDED LEASES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1C CORPORATE AND CAPITAL STRUCTURE; MANAGEMENT
4.1G REFINANCED INDEBTEDNESS
4.1I EFFECTIVE DATE MORTGAGED PROPERTIES
4.1K SHIP MORTGAGES
5.1 SUBSIDIARIES
5.2C GOVERNMENTAL CONSENTS
5.5 REAL PROPERTY
5.8 MATERIAL CONTRACTS
5.11 CERTAIN EMPLOYEE BENEFIT PLANS
7.1 CERTAIN EXISTING INDEBTEDNESS AND CAPITAL LEASES
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
<PAGE>
LA1:871673.8 ii
LA1:871673.8 i
An extra section break has been inserted above this paragraph. Do not
delete this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ISLE OF
CAPRI CASINOS, INC.'S CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS AND RELATED NOTES TO SAID
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> APR-30-2000
<PERIOD-START> APR-26-1999
<PERIOD-END> JAN-23-2000
<CASH> 82533
<SECURITIES> 0
<RECEIVABLES> 24846
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 118914
<PP&E> 447935
<DEPRECIATION> 132504
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0
0
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