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[LETTERHEAD]
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended SEPTEMBER 30, 1999
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 000-21640
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STATION CASINOS, INC.
---------------------
(Exact name of registrant as specified in its charter)
NEVADA 88-0136443
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
2411 WEST SAHARA AVENUE, LAS VEGAS, NEVADA
(Address of principal executive offices)
89102
(Zip Code)
(702) 367-2411
Registrant's telephone number, including area code
N/A
(Former name, former address and former
fiscal year, if changed since last report)
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
----- -----
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
CLASS OUTSTANDING AT OCTOBER 29, 1999
- ---------------------------- --------------------------------
Common stock, $.01 par value 42,123,087
<PAGE>
STATION CASINOS, INC.
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Financial Statements
Condensed Consolidated Balance Sheets (unaudited) -
September 30, 1999 and December 31, 1998 3
Condensed Consolidated Statements of Operations (unaudited) -
Three and Nine months ended September 30, 1999 and 1998 4
Condensed Consolidated Statements of Cash Flows (unaudited) -
Nine months ended September 30, 1999 and 1998 5
Notes to Condensed Consolidated Financial Statements (unaudited) 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 18
Item 2. Changes in Securities 21
Item 3. Defaults Upon Senior Securities 21
Item 4. Submission of Matters to a Vote of Security Holders 21
Item 5. Other Information 21
Item 6. Exhibits and Reports on Form 8-K 21
Signature 22
</TABLE>
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
STATION CASINOS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................................... $ 53,735 $ 59,040
Cash - restricted for payment of long-term debt - defeased
January 4, 1999........................................................... - 202,383
Accounts and notes receivable, net.......................................... 11,095 18,372
Inventories................................................................. 4,948 5,466
Prepaid gaming taxes........................................................ 10,943 8,908
Prepaid expenses and other.................................................. 19,812 11,767
------------- ------------
Total current assets.................................................... 100,533 305,936
Property and equipment, net..................................................... 1,131,364 1,147,890
Land held for development....................................................... 17,064 17,009
Other assets, net............................................................... 62,071 63,096
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Total assets............................................................ $ 1,311,032 $ 1,533,931
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt.......................................... $ 8,359 $ 13,323
Accounts payable............................................................ 10,093 18,636
Accrued payroll and related................................................. 29,420 25,081
Construction contracts payable............................................. 789 10,399
Accrued interest payable.................................................... 15,098 15,306
Accrued expenses and other current liabilities.............................. 61,787 42,110
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Total current liabilities............................................... 125,546 124,855
Long-term debt, less current portion............................................ 867,780 946,308
9 5/8% Senior subordinated notes - defeased January 4, 1999..................... - 187,635
Deferred income taxes, net...................................................... 17,522 5,372
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Total liabilities....................................................... 1,010,848 1,264,170
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Commitments and contingencies
Stockholders' equity:
Preferred stock, par value $.01; authorized 5,000,000 shares; 0 and
2,070,000 convertible preferred shares issued and outstanding............ - 103,500
Common stock, par value $.01; authorized 90,000,000 shares;
42,114,472 and 35,312,192 shares issued and outstanding.................. 421 353
Additional paid-in capital.................................................. 274,593 167,216
Retained earnings (accumulated deficit)..................................... 29,541 (1,149)
Other....................................................................... (4,371) (159)
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Total stockholders' equity.............................................. 300,184 269,761
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Total liabilities and stockholders' equity.............................. $ 1,311,032 $ 1,533,931
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The accompanying notes are an integral part of these condensed consolidated financial statements.
</TABLE>
3
<PAGE>
STATION CASINOS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Operating revenues:
Casino .................................................. $ 193,261 $ 167,198 $ 570,109 $ 496,540
Food and beverage ....................................... 35,213 34,094 106,639 101,813
Room .................................................... 10,374 9,612 31,517 28,945
Other ................................................... 15,884 18,726 45,971 43,522
--------- --------- --------- ---------
Gross revenues ..................................... 254,732 229,630 754,236 670,820
Promotional allowances .................................. (17,201) (16,182) (51,403) (46,321)
--------- --------- --------- ---------
Net revenues ....................................... 237,531 213,448 702,833 624,499
--------- --------- --------- ---------
Operating costs and expenses:
Casino .................................................. 90,356 83,130 267,159 242,931
Food and beverage ....................................... 22,175 21,784 67,249 65,186
Room .................................................... 3,943 3,773 11,810 10,940
Other ................................................... 7,713 6,583 22,519 17,933
Selling, general and administrative ..................... 48,044 45,193 144,983 135,437
Corporate expense ....................................... 5,598 3,686 16,067 11,384
Depreciation and amortization ........................... 17,467 17,677 53,483 52,203
--------- --------- --------- ---------
195,296 181,826 583,270 536,014
--------- --------- --------- ---------
Operating income............................................. 42,235 31,622 119,563 88,485
--------- --------- --------- ---------
Other income (expense):
Interest expense, net.................................... (20,642) (21,998) (63,027) (67,637)
Merger settlement, net of related legal costs ........... -- (2,943) 12,824 (2,943)
Write-off costs to elect REIT status .................... -- -- -- (2,914)
Other ................................................... (617) (1,591) (862) (4,601)
--------- --------- --------- ---------
(21,259) (26,532) (51,065) (78,095)
--------- --------- --------- ---------
Income before income taxes and extraordinary item ........... 20,976 5,090 68,498 10,390
Income tax provision ........................................ (7,530) (2,246) (25,344) (4,893)
--------- --------- --------- ---------
Income before extraordinary item ............................ 13,446 2,844 43,154 5,497
Extraordinary item - loss on early retirement of debt,
net of applicable income tax benefit..................... (303) -- (10,653) (2,042)
--------- --------- --------- ---------
Net income................................................... 13,143 2,844 32,501 3,455
Preferred stock dividends.................................... -- (1,811) (1,811) (5,433)
--------- --------- --------- ---------
Net income (loss) applicable to common stock ........... $ 13,143 $ 1,033 $ 30,690 $ (1,978)
========= ========= ========= =========
Basic and diluted earnings (loss) per common share:
Earnings (loss) applicable to common stock, before
extraordinary item:
Basic................................................. $ 0.32 $ 0.03 $ 1.08 $ 0.00
Diluted............................................... $ 0.31 $ 0.03 $ 1.00 $ 0.00
Earnings (loss) applicable to common stock:
Basic................................................. $ 0.31 $ 0.03 $ 0.80 $ (0.06)
Diluted............................................... $ 0.30 $ 0.03 $ 0.75 $ (0.06)
Weighted average common shares outstanding:
Basic................................................. 42,107 35,312 38,205 35,312
Diluted............................................... 43,703 35,312 43,136 35,312
</TABLE>
The accompanying notes are an integral part of these condensed
consolidated financial statements.
4
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STATION CASINOS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
1999 1998
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<S> <C> <C>
Cash flows from operating activities:
Net income ................................................................. $ 32,501 $ 3,455
--------- ---------
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization .......................................... 53,483 52,203
Amortization of debt discount and issuance costs ....................... 2,059 9,399
Merger and related legal costs ......................................... -- 2,943
Loss on early retirement of debt ....................................... 16,389 2,668
Write-off of expired land options ...................................... -- 5,011
Write-off of costs to elect REIT status ................................ -- 2,914
Increase in deferred income taxes ...................................... 6,161 4,239
Changes in assets and liabilities:
Decrease in accounts and notes receivable, net ....................... 7,277 4,395
Increase in inventories and prepaid expenses and other current assets. (3,579) (1,370)
Decrease in accounts payable ......................................... (8,543) (1,655)
Increase in accrued expenses and other current liabilities ........... 28,484 4,767
Other, net ............................................................. (1,851) (10,178)
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Total adjustments .................................. 99,880 75,336
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Net cash provided by operating activities .................... 132,381 78,791
--------- ---------
Cash flows from investing activities:
Capital expenditures ................................................... (38,767) (53,761)
Proceeds from sale of property and equipment ........................... 3,474 4,925
Decrease in construction contracts payable ............................. (9,610) (3,963)
Other, net ............................................................. (7,665) (3,514)
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Net cash used in investing activities ........................ (52,568) (56,313)
--------- ---------
Cash flows from financing activities:
(Payments) borrowings under bank facility, net ......................... (70,000) 26,000
Payments under Sunset loan agreement, net .............................. -- (110,000)
Principal payments on notes payable .................................... (13,909) (10,602)
Proceeds from the issuance of notes payable ............................ -- 80,000
Defeasance of 9 5/8% senior subordinated notes ......................... (201,670) --
Dividends paid ......................................................... (1,811) (5,433)
Other, net ............................................................. (111) (5,703)
--------- ---------
Net cash used in financing activities ........................ (287,501) (25,738)
--------- ---------
Cash and cash equivalents:
Decrease in cash and cash equivalents .................................. (207,688) (3,260)
Balance, beginning of period ........................................... 261,423 53,662
--------- ---------
Balance, end of period ................................................. $ 53,735 $ 50,402
========= =========
Supplemental cash flow disclosures:
Cash paid for interest, net of amounts capitalized ..................... $ 61,368 $ 62,589
Cash paid for income taxes ............................................. $ 13,202 $ 10
Property and equipment purchase financed by debt ....................... $ 35 $ 2,918
Preferred stock converted to common stock and additional
paid-in capital......................................................... $ 100,131 $ --
Market valuation adjustment for asset held for sale .................... $ 929 $ --
</TABLE>
The accompanying notes are an integral part of these condensed
consolidated financial statements.
5
<PAGE>
STATION CASINOS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
Station Casinos, Inc. (the "Company"), a Nevada Corporation, is an
established multi-jurisdictional gaming and entertainment enterprise that
currently owns and operates four major hotel/casino properties and two
smaller casino properties in Las Vegas, Nevada, and gaming and entertainment
complexes in St. Charles and Kansas City, Missouri. The Company also owns and
provides slot route management services in southern Nevada.
The accompanying condensed consolidated financial statements include
the accounts of the Company and its wholly-owned subsidiaries, Palace Station
Hotel & Casino, Inc. ("Palace Station"), Boulder Station, Inc. ("Boulder
Station"), Texas Station, Inc. ("Texas Station"), Sunset Station, Inc.
("Sunset Station"), St. Charles Riverfront Station, Inc. ("Station Casino St.
Charles"), Kansas City Station Corporation ("Station Casino Kansas City"),
Southwest Gaming Services, Inc. ("SGSI"), and Tropicana Station, Inc., the
operator of the Wild Wild West Gambling Hall ("Wild Wild West"), which opened
in July 1998. The Company also owns a 50% interest in Town Center Amusements,
Inc., d.b.a. Barley's Casino & Brewing Company ("Barley's"). All significant
intercompany accounts and transactions have been eliminated.
The accompanying condensed consolidated financial statements
included herein have been prepared by the Company, without audit, pursuant to
the rules and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations, although the Company believes that the disclosures are adequate
to make the information presented not misleading. In the opinion of
management, all adjustments (which include normal recurring adjustments)
necessary for a fair presentation of the results for the interim periods have
been made. The results for the three and nine months ended September 30, 1999
are not necessarily indicative of results to be expected for the full fiscal
year. These financial statements should be read in conjunction with the
consolidated financial statements and notes thereto included in the Company's
Transition Report on Form 10-K for the transition period from April 1, 1998
to December 31, 1998.
Certain amounts in the three and nine months ended September 30,
1998 consolidated financial statements have been reclassified to be
consistent with the current year presentation. These reclassifications had no
effect on net income.
6
<PAGE>
STATION CASINOS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
2. LONG-TERM DEBT
Long-term debt consists of the following (amounts in thousands):
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
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<S> <C> <C>
Amended and restated reducing revolving credit facility, $343.0 million limit at
September 30, 1999, due September 30, 2003, interest at a margin above the
bank's prime rate or the Eurodollar Rate (7.55% at
September 30, 1999) ........................................................ $ 109,000 $ 304,000
Secured term loan facility, $200.0 million limit at September 30, 1999,
due December 31, 2005, interest at 2.50% above the Eurodollar
Rate (7.87% at September 30, 1999) ......................................... 200,000 75,000
8 7/8% senior subordinated notes, interest payable semi-annually,
principal due December 1, 2008 ............................................. 199,900 199,900
9 3/4% senior subordinated notes, interest payable semi-annually,
principal due April 15, 2007, net of unamortized discount of $4.8
million at September 30, 1999 .............................................. 145,218 144,914
10 1/8% senior subordinated notes, interest payable semi-annually,
principal due March 15, 2006, net of unamortized discount of $0.9
million at September 30, 1999 .............................................. 197,059 196,981
Other long-term debt, collateralized by various assets, including slot
machines, furniture and equipment, and land, monthly installments
including interest ranging from 7.40% to 9.00% at September 30, 1999 ....... 24,962 38,836
----------- -----------
Total long-term debt ................................................ 876,139 959,631
Current portion of long-term debt .............................................. (8,359) (13,323)
----------- -----------
Total long-term debt, less current portion .......................... 867,780 946,308
9 5/8% senior subordinated notes, net of unamortized discount of $5.4
million at December 31, 1998, defeased January 4, 1999 ..................... -- 187,635
----------- -----------
Total ............................................................... $ 867,780 $ 1,133,943
=========== ===========
</TABLE>
In August 1999, the Company amended its existing bank credit
facility (the "Revolving Facility") and entered into a new $200.0 million
secured term loan facility (the "Term Loan") (collectively, "the Amended Bank
Facility"). The Amended Bank Facility is secured by substantially all of the
assets of Palace Station, Boulder Station, Texas Station, Sunset Station,
Station Casino St. Charles and Station Casino Kansas City (the "Borrowers").
The proceeds from the Term Loan were used to repay the Company's existing
$75.0 million secured term loan facility and to reduce outstanding borrowings
under the Company's Revolving Facility. The Company recorded an extraordinary
charge of $0.3 million (net of applicable tax benefit) to reflect the
write-off of the unamortized loan costs on the refinanced $75.0 million
secured term loan facility. The Term Loan matures on December 31, 2005 and
amortizes in installments of $0.5 million on each fiscal quarter end from
March 31, 2000 until and including December 31, 2004 and of $47.5 million on
each fiscal quarter end thereafter. The interest rate on the Term Loan is
2.50% above the Eurodollar Rate. The Term Loan contains financial covenants
substantially identical to the covenants in the indentures governing the
Company's senior subordinated notes.
The Revolving Facility provides for borrowings up to an aggregate
principal amount of $343.0 million at September 30, 1999. The Revolving
Facility matures on September 30, 2003. The availability under the Revolving
Facility will reduce by $12.25 million on each of December 31, 1999, March
31, 2000 and June 30, 2000; by $14.0 million on September 30, 2000, December
31, 2000, March 31, 2001 and June 30, 2001; and by $17.5 million on each
fiscal quarter end thereafter. Borrowings under the Revolving Facility bear
interest at a margin above the Alternate Base Rate or the Eurodollar Rate
(each, as defined
7
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STATION CASINOS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
in the Revolving Facility), as selected by the Company. The margin above such
rates, and the fee on the unfunded portions of the Revolving Facility, will
vary quarterly based on the Company's combined consolidated ratio of debt to
EBITDA (each, as defined in the Revolving Facility). As of September 30,
1999, the Borrowers' margin above the Eurodollar Rate on borrowings under the
Revolving Facility was 1.75% and will be reduced to 1.63% in November 1999.
The maximum margin for Eurodollar Rate borrowings is 2.75%. The maximum
margin for alternate base rate borrowings is 1.50%. As of September 30, 1999,
the maximum fee for the unfunded portion of the Revolving Facility was 0.44%
multiplied by the average of the unfunded portion of the Revolving Facility.
The Revolving Facility contains certain financial and other
covenants. These include a maximum funded debt to Adjusted EBITDA ratio for
the Borrowers combined of 2.50 to 1.00 for each fiscal quarter, a minimum
fixed charge coverage ratio for the preceding four quarters for the Borrowers
combined of 1.50 to 1.00 for each fiscal quarter, limitations on
indebtedness, limitations on asset dispositions, limitations on investments,
limitations on prepayments of indebtedness and rent and limitations on
capital expenditures. As of September 30, 1999, the Borrowers combined funded
debt to Adjusted EBITDA ratio was 1.43 to 1.00 and their combined fixed
charge coverage ratio for the preceding four quarters ended September 30,
1999 was 2.21 to 1.00. A tranche of the Revolving Facility contains a minimum
tangible net worth requirement for Palace Station and certain restrictions on
distributions of cash from Palace Station to the Company. As of September 30,
1999, Palace Station's tangible net worth exceeded the requirement by
approximately $9.1 million. These covenants limit Palace Station's ability to
make payments to the Company, a significant source of anticipated cash for
the Company.
In addition, the Revolving Facility has financial and other
covenants relating to the Company. These include a tangible net worth
covenant and a covenant limiting the consolidated funded debt to Adjusted
EBITDA ratio to no more than 5.15 to 1.00 on September 30, 1999 and reducing
quarterly to 4.00 to 1.00 on September 30, 2001. Other covenants limit
prepayments of indebtedness or rent (including, subordinated debt other than
refinancings meeting certain criteria), limitations on asset dispositions,
limitation on dividends, limitations on indebtedness, limitations on
investments and limitations on capital expenditures. The Revolving Facility
also prohibits the Company from holding excess cash and cash equivalents. As
of September 30, 1999, the Company's consolidated funded debt to Adjusted
EBITDA ratio was 3.94 to 1.00. The Company has pledged the stock of all of
its subsidiaries except Kansas City Station Corporation and St. Charles
Riverfront Station, Inc. and has agreed to pledge the stock of the latter two
subsidiaries upon regulatory approval (which is expected to be obtained).
In December 1998, the Company completed an offering of $199.9
million of senior subordinated notes due in December 2008, that have equal
priority with the Company's other senior subordinated notes. The $199.9
million senior subordinated notes bear interest payable semi-annually, at a
rate of 8 7/8% per year (the "8 7/8% Notes"). At December 31, 1998, the
Company had deposited the net proceeds from the sale of the 8 7/8% Notes and
a portion of the funds borrowed under the Amended Bank Facility in a separate
trust account with the trustee under the indenture relating to the 9 5/8%
senior subordinated notes (the "9 5/8% Notes") to redeem and to pay accrued
interest and redemption premiums related to the 9 5/8% Notes on the
redemption date. The redemption occurred on January 4, 1999. The Company
recorded an extraordinary charge of $10.4 million (net of applicable tax
benefit) to reflect the write-off of the unamortized debt discount,
unamortized loan costs and the premium to redeem the 9 5/8% Notes.
3. CONVERTIBLE PREFERRED STOCK
As of June 14, 1999, the Company redeemed all 2,070,000 shares of
its $3.50 Convertible Preferred Stock in exchange for 6,741,632 shares of the
Company's Common Stock.
8
<PAGE>
STATION CASINOS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
4. OTHER MATTERS
PALACE STATION FIRE AND FLOOD
On July 20, 1998, Palace Station suffered damage to its casino and
hotel tower as a result of a thunderstorm in the Las Vegas Valley. In
November 1998, repairs were completed to the casino and all of the rooms in
the 21-story hotel tower became fully functional. Losses associated with the
property damage and business interruption were covered under the Company's
insurance policies. During the quarter ended March 31, 1999, the Company
received its final payment from its insurance company on these claims.
5. COMMITMENTS AND CONTINGENCIES
ACQUISITION
On September 13, 1999, the Company announced it has entered into an
agreement to acquire certain assets of the Flamingo Hilton Riverboat Casino
in Kansas City, Missouri, from a subsidiary of Hilton Hotels Corporation for
$22.5 million. Completion of the transaction is contingent upon receipt of
certain regulatory approvals and is expected to close prior to December 31,
1999.
SETTLEMENT OF CRESCENT LITIGATION
On April 14, 1999, the Company announced that it had settled its
lawsuits with Crescent Real Estate Equities, Inc. ("Crescent") arising out of
the failed merger of the two companies. Under the terms of the settlement
agreement, Crescent has paid the Company $15 million, and the parties have
released each other from claims. The settlement payment was received on April
22, 1999.
CLASS ACTION/DERIVATIVE ACTION
A suit seeking status as a class action and a derivative action was
filed by plaintiff, Crandon Capital Partners, as class representative, on
August 7, 1998, in Clark County District Court, State of Nevada, naming the
Company and its Board of Directors as defendants. The lawsuit, which was
filed as a result of the failed merger between the Company and Crescent,
alleges, among other things, a breach of fiduciary duty owed to the
shareholders/class members. The lawsuit seeks damages allegedly suffered by
the shareholders/class members as a result of the transactions with Crescent,
as well as all costs and disbursements of the lawsuit. Although no assurance
can be provided with respect to any litigation, the Company and the Board of
Directors do not believe the suit has merit and intend to defend themselves
vigorously.
6. SUBSEQUENT EVENTS
On October 12, 1999, the Company announced that it has entered into
a Development Services Agreement and a Management Agreement with the United
Auburn Indian Community (the "UAIC"). Subject to the receipt of certain
governmental approvals, as well as voter approval of a proposed amendment to
the California constitution, the Company and the UAIC will develop a gaming
and entertainment facility on 49 acres, approximately seven miles north of
Interstate 80, in Placer County, California, near Sacramento. The scope and
the timing of this project has yet to be determined.
In October 1999, the Company exercised its option to purchase the
furniture, fixtures and equipment which had previously been subject to an
operating lease at Sunset Station. The $27.0 million purchase price was
funded with borrowings from the Company's Revolving Facility.
9
<PAGE>
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(UNAUDITED)
1. OVERVIEW
The following table highlights the results of operations for the Company and
its subsidiaries (dollars in thousands):
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
--------------------------- PERCENT -------------------------- PERCENT
1999 1998 CHANGE 1999 1998 CHANGE
----------- ----------- ---------- ----------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
NET REVENUES - TOTAL $237,531 $213,448 11.3% $702,833 $624,499 12.5%
Nevada Operations (a) 146,306 128,853 13.5% 434,773 389,436 11.6%
Missouri Operations (a) 80,514 75,675 6.4% 235,887 215,213 9.6%
Other (a) 10,711 8,920 20.1% 32,173 19,850 62.1%
OPERATING INCOME (LOSS) - TOTAL $42,235 $ 31,622 33.6% $119,563 $ 88,485 35.1%
Nevada Operations (a) 36,107 27,416 31.7% 105,747 84,338 25.4%
Missouri Operations (a) 11,589 7,836 47.9% 29,325 15,270 92.0%
Other (a) (5,461) (3,630) (50.4%) (15,509) (11,123) (39.4%)
OPERATING MARGIN - TOTAL 17.8% 14.8% 17.0% 14.2%
Nevada Operations (a) 24.7% 21.3% 24.3% 21.7%
Missouri Operations (a) 14.4% 10.4% 12.4% 7.1%
CASH FLOWS FROM:
Operating activities $ 36,381 $ 27,796 30.9% $132,381 $ 78,791 68.0%
EBITDA (b) - TOTAL $ 59,702 $ 49,299 21.1% $173,046 $140,688 23.0%
Nevada Operations (a) 45,769 36,694 24.7% 134,953 111,684 20.8%
Missouri Operations (a) 18,719 15,642 19.7% 51,591 38,529 33.9%
Other (a) (4,786) (3,037) (57.6%) (13,498) (9,525) (41.7%)
EBITDA, AS ADJUSTED FOR THE
SUNSET EQUIPMENT LEASE (c) - TOTAL $ 61,678 $ 51,503 19.8% $178,966 $147,133 21.6%
Nevada Operations (a) 47,745 38,898 22.7% 140,873 118,129 19.3%
</TABLE>
(a) The Nevada Operations include the accounts of: Palace Station, Boulder
Station, Texas Station and Sunset Station. The Missouri Operations include
the accounts of: Station Casino St. Charles and Station Casino Kansas City.
Other includes the operations of Wild Wild West, which opened in July 1998,
the Company's Investment in Barley's, SGSI and Corporate.
(b) EBITDA consists of operating income plus depreciation and amortization. The
Company believes that in addition to cash flows and net income, EBITDA is a
useful financial performance measurement for assessing the operating
performance of the Company. Together with net income and cash flows, EBITDA
provides investors with an additional basis to evaluate the ability of the
Company to incur and service debt and incur capital expenditures. To
evaluate EBITDA and the trends it depicts, the components should be
considered. The impact of interest, taxes, depreciation and amortization,
each of which can significantly affect the Company's results of operations
and liquidity and should be considered in evaluating the Company's
operating performance, cannot be determined from EBITDA. Further, EBITDA
does not represent net income or cash flows from operating, financing and
investing activities as defined by generally accepted accounting principles
("GAAP") and does not necessarily indicate cash flows will be sufficient to
fund cash needs. It should not be considered as an alternative to net
income, as an indicator of the Company's operating performance or to cash
flows as a measure of liquidity. In addition, it should be noted that not
all gaming companies that report EBITDA or adjustments to such measures may
calculate EBITDA, or such adjustments in the same manner as the Company,
and therefore, the Company's measure of EBITDA may not be comparable to
similarly titled measures used by other gaming companies.
(c) EBITDA, as adjusted for the Sunset equipment lease consists of EBITDA
(described above) plus the rent related to the Sunset Station equipment
lease.
10
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
2. RESULTS OF OPERATIONS
CONSOLIDATED NET REVENUES
The increase in consolidated net revenues for the three months ended
September 30, 1999 as compared to the three months ended September 30, 1998
is due to increasing revenues at all of the Company's properties. Increased
revenues at the Nevada Operations are partially a result of the completed
master-planned expansions at Texas Station and Sunset Station, which were
completed in February 1999 and November 1998, respectively. In addition,
revenues at the Nevada Operations increased due to the introduction of the
Boarding Pass player rewards program in April 1999 which makes it more
convenient for customers to take better advantage of the Station brand.
The increase in consolidated net revenues for the nine months ended
September 30, 1999 as compared to the nine months ended September 30, 1998 is
due to the factors noted above, with the exception of Station Casino St.
Charles, which remained relatively flat as a result of significant
competition in the St. Louis market.
OPERATING INCOME/OPERATING MARGIN
Consolidated operating income improved by $10.6 million in the three
months ended September 30, 1999 as compared to the three months ended
September 30, 1998 with operating income at all of the Company's properties
increasing. Consolidated operating margin improved in the three months ended
September 30, 1999 as compared to the three months ended September 30, 1998,
due to the operating margins at Texas Station and Sunset Station improving
over 5.0% due primarily to the completion of the master-planned expansions at
both properties and smaller increases at all of the other properties.
Consolidated operating income improved by $31.1 million in the nine
months ended September 30, 1999 as compared to the nine months ended
September 30, 1998. Consolidated operating margin improved in the nine months
ended September 30, 1999 as compared to the nine months ended September 30,
1998, due to the operating margin at Station Casino Kansas City improving
from 8.0% to 16.1% and smaller increases at all of the Nevada properties and
Station Casino St. Charles.
The following table highlights the various sources of revenues and
expenses for the Company as compared to prior periods (dollars in thousands,
unaudited):
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------ PERCENT ------------------------ PERCENT
1999 1998 CHANGE 1999 1998 CHANGE
----------- ----------- ---------- ----------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
Casino revenues $193,261 $167,198 15.6% $570,109 $496,540 14.8%
Casino expenses 90,356 83,130 8.7% 267,159 242,931 10.0%
MARGIN 53.2% 50.3% 53.1% 51.1%
Food and beverage revenues $ 35,213 $ 34,094 3.3% $106,639 $101,813 4.7%
Food and beverage expenses 22,175 21,784 1.8% 67,249 65,186 3.2%
MARGIN 37.0% 36.1% 36.9% 36.0%
Room revenues $ 10,374 $ 9,612 7.9% $ 31,517 $ 28,945 8.9%
Room expenses 3,943 3,773 4.5% 11,810 10,940 8.0%
MARGIN 62.0% 60.7% 62.5% 62.2%
Other revenues $ 15,884 $ 18,726 (15.2%) $ 45,971 $ 43,522 5.6%
Selling, general and administrative $ 48,044 $ 45,193 6.3% $144,983 $135,437 7.0%
PERCENT OF NET REVENUES 20.2% 21.2% 20.6% 21.7%
Corporate expense $ 5,598 $ 3,686 51.9% $ 16,067 $ 11,384 41.1%
PERCENT OF NET REVENUES 2.4% 1.7% 2.3% 1.8%
</TABLE>
11
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
CASINO. Casino revenues increased for the three and nine months
ended September 30, 1999 as compared to the three and nine months ended
September 30, 1998 as a result of the same factors affecting consolidated net
revenues discussed above. In addition, the increase in casino revenues at
Palace Station is also attributed to prior year's casino revenue being
affected by flood damage in July 1998 which resulted in the closure of part
of the casino (the proceeds from the business interruption insurance were
recorded in Other revenue as noted below). The casino profit margin for both
periods increased as compared to previous year with all properties improving
their margin with the exception of Boulder Station which decreased slightly
for both periods.
FOOD AND BEVERAGE. Food and beverage revenues for the three and nine
months ended September 30, 1999 increased 3.3% and 4.7%, respectively over
food and beverage revenues for the three and nine months ended September 30,
1998. This increase is primarily due to the completion of the expansion
projects at Sunset Station and Texas Station. Also, food and beverage
revenues increased at Palace Station due to prior year's revenue being
affected by the flood damage as noted above (the proceeds from the business
interruption insurance were recorded in Other revenue as noted below). These
increases in food and beverage revenues were offset by decreases at the
Missouri properties.
Food and beverage net profit margins increased to 37.0% for the
three months ended September 30, 1999, from 36.1% in the prior year. Food and
beverage net profit margins improved to 36.9% for the nine months ended
September 30, 1999, from 36.0% in the prior year. This increase in margin is
due to improvement at Station Casino Kansas City, primarily as a result of
continued focus on cost control, purchasing efficiencies, as well as selected
menu price increases.
ROOM. Room revenues for the three and nine months ended September
30, 1999 increased 7.9% and 8.9%, respectively over room revenues for the
three and nine months ended September 30, 1998. The increase in room revenues
for the three months ended September 30, 1999, is primarily a result of prior
year's room revenues at Palace Station being affected by flood damage to a
portion of the hotel tower in July 1998 (the proceeds from the business
interruption insurance were recorded in Other revenue as noted below). The
increase in room revenues for the nine months ended September 30, 1999, is
primarily due to the opening of the Wild Wild West in July 1998, which
contributed $1.6 million and $0.5 million, of room revenues in the nine
months ended September 30, 1999 and September 30, 1998, respectively. The
Company's room margin remained steady for both periods.
The Company-wide room occupancy increased to 91% from 88%, while the
average daily room rate increased to $50 from $48 during the three months
ended September 30, 1999. During the nine months ended September 30, 1999,
the Company-wide room occupancy decreased to 91% from 92%, while the average
daily room rate increased to $52 from $50.
OTHER REVENUE. Other revenue decreased 15.2% for the three months
ended September 30, 1999 as compared to the three months ended September 30,
1998. This decrease is due primarily to the proceeds from the business
interruption insurance related to the Palace Station fire and flood damage in
July 1998 which were included in the prior year results.
SELLING, GENERAL AND ADMINISTRATIVE ("SG&A"). As a percent of net
revenues, SG&A decreased to 20.2% and 20.6%, respectively in the three and
nine months ended September 30, 1999, as compared to 21.2% and 21.7% for the
three and nine months ended September 30, 1998. This decrease is due
primarily to fine tuning operations at Sunset Station and Station Casino
Kansas City. In the Company's experience, when a new property opens, SG&A as
a percent of net revenues is higher than normal, and reduces as the
property's operations mature.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization
decreased $0.2 million in the three months ended September 30, 1999 to $17.5
million as compared to $17.7 million in the three months ended September 30,
1998. This decrease is due to some of the original equipment at Boulder
Station and Station Casino St. Charles becoming fully depreciated during the
quarter, as both properties have been open for over five years. In addition,
Palace Station had a large purchase of slot machines in 1994 that became
fully depreciated during the quarter. This decrease was offset by increases
at Sunset Station and Texas Station due to the completion of the expansion
projects in November 1998 and February 1999, respectively. Depreciation and
amortization increased $1.3 million in the nine months ended September 30,
1999 to $53.5 million as compared to $52.2 million in the nine months ended
September 30, 1998.
12
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This increase is a result of the completion of expansion projects at Sunset
Station and Texas Station, which were completed in November 1998 and February
1999, respectively.
INTEREST EXPENSE. Interest costs incurred (expensed and capitalized)
decreased 7.8% to $20.7 million for the three months ended September 30,
1999, from $22.5 million in the prior year. Interest costs incurred decreased
6.8% to $63.7 million for the nine months ended September 30, 1999, from
$68.3 million in the prior year. This decrease is due to a decline of $32.7
million in total long-term debt from the prior year and to a reduction in
average interest rates on long-term debt to 9.0% from 9.6% in the prior year.
OTHER. During the three months ended September 30, 1999, the Company
recorded an extraordinary charge of $0.3 million (net of applicable tax
benefit) related to the write-off of unamortized loan costs on the Company' s
refinanced $75.0 million secured term loan facility.
During the three months ended March 31, 1999, the Company recorded
an extraordinary charge of $10.4 million (net of applicable tax benefit) to
reflect the write-off of the unamortized debt discount, unamortized loan
costs and the premium to redeem the 9 5/8% senior subordinated notes, which
were repaid on January 4, 1999.
During the three months ended June 30, 1999, the Company received a
$15.0 million settlement payment from Crescent Real Estate Equities, Inc.,
which is included in the "Merger settlement, net of related legal costs" line
on the accompanying condensed consolidated statements of operations. See
"Part II. Item 1. Legal Proceedings - Settlement of Crescent Litigation".
3. LIQUIDITY AND CAPITAL RESOURCES
During the nine months ended September 30, 1999, the Company's
sources of capital included cash flows from operating activities of $132.4
million. At September 30, 1999, the Company had total available borrowings of
$543.0 million under the Amended Bank Facility, of which $309.0 million were
directly outstanding and $4.8 million were reserved for the potential payment
of an outstanding letter of credit. Total available borrowings under the
Amended Bank Facility will reduce to $530.8 million on December 31, 1999. The
Company also had $53.7 million in cash and cash equivalents.
During the nine months ended September 30, 1999, total capital
expenditures were approximately $38.8 million, of which approximately (i)
$16.2 million was associated with the expansion project at Texas Station, and
(ii) $22.6 million was associated with maintenance capital expenditures and
various other projects.
The Company's primary capital requirements during the remainder of
fiscal year 1999 are expected to include (i) the purchase of Flamingo Hilton
Riverboat Casino in Kansas City, Missouri for approximately $22.5 million,
(ii) the purchase of various leased assets at Sunset Station for
approximately $27.0 million, (iii) maintenance capital expenditures, and (iv)
principal and interest payments on indebtedness. The Company previously
commenced construction of an expansion project at Station Casino St. Charles
(the "St. Charles Expansion Project"). As of December 31, 1997, construction
on the project and all related capitalized interest ceased. In the event the
Company determines that it will not complete the project it may be required
to recognize an impairment loss. As of September 30, 1999, approximately
$169.0 million had been incurred related to the St. Charles Expansion Project.
The Company believes that cash flows from operations, borrowings
under the Amended Bank Facility (see Note 2), vendor and lease financing of
equipment, and existing cash balances will be adequate to satisfy the
Company's anticipated uses of capital during the remainder of 1999. The
Company, however, continually is evaluating its financing needs. If more
attractive financing alternatives become available to the Company, the
Company may amend its financing plans assuming such financing would be
permitted under its existing debt agreements (See "Description of Certain
Indebtedness and Capital Stock") and other applicable agreements.
13
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
YEAR 2000 READINESS
APPROACH
The Company has established a task force to coordinate the Company's
response to the Year 2000. This task force, which reports to the Company's
Chief Financial Officer, is led by the Vice President of Information
Technology. The Company also engaged an outside consultant which assisted the
Company in establishing an approach to dealing with the Year 2000 issue, and
the Company is in the process of implementing a Year 2000 compliance program
at the Company's properties. The program consists of the following phases:
- Phase 1. Compilation of an inventory of information technology ("IT")
and non-IT systems that may be sensitive to the Year 2000 problem.
- Phase 2. Identification and prioritization of the critical systems from
the systems inventory compiled in Phase 1 and inquiries of third
parties with whom the Company does significant business (i.e. vendors
and suppliers) as to the state of their Year 2000 readiness.
- Phase 3. Analysis of critical systems to determine which systems are
not Year 2000 compliant and evaluation of the costs to repair or
replace those systems.
- Phase 4. Repair or replace noncompliant systems and testing of those
systems for which a representation as to Year 2000 compliance has not
been received or for which a representation was received but has not
been confirmed.
STATUS
Phases 1, 2 and 3 are completed. Phase 4 is ongoing and will
continue through the fourth quarter of the calendar 1999. It is the Company's
goal to have this project completed by November 1999. Based upon the analysis
conducted to date, the Company believes all of the major critical systems at
the Company's properties are currently compliant or will be compliant by
November 1999. The only significant aspect of the Company's Year 2000
compliance, which has been identified to date, is the need to replace older
computers and software packages whose systems are not Year 2000 compatible.
COSTS
The total cost to the Company of making the Company's systems Year
2000 compliant is currently estimated to be approximately $3 million. Of that
amount the Company has incurred approximately $2.5 million as of September
30, 1999. The majority of this cost relates to the acquisition of new
computer hardware to replace the systems noted above and the purchase of new
software to replace non-compliant software. These costs will be capitalized
and depreciated over their expected useful life. To the extent existing
hardware or software is replaced, the Company will recognize a loss currently
for the undepreciated balance. This loss is included in the above cost
estimate. Furthermore, all costs related to software modification, as well as
all costs associated with the Company's administration of the Company's Year
2000 project, are being expensed as incurred and are likewise included in the
cost estimated above.
In connection with the Company's acquisition of the Flamingo Hilton
Riverboat Casino in Kansas City, Missouri, the Company has analyzed the
critical systems and has determined no additional costs will be incurred to
make those systems Year 2000 compliant.
14
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DESCRIPTION OF CERTAIN INDEBTEDNESS AND CAPITAL STOCK
AMENDED BANK FACILITY
In August 1999, the Company amended its existing bank credit
facility (the "Revolving Facility") and entered into a new $200.0 million
secured term loan facility (the "Term Loan") (collectively, "The Amended Bank
Facility"). The Amended Bank Facility is secured by substantially all of the
assets of Palace Station, Boulder Station, Texas Station, Sunset Station,
Station Casino St. Charles and Station Casino Kansas City (the "Borrowers").
The proceeds from the Term Loan were used to repay the Company's existing
$75.0 million secured term loan facility and to reduce outstanding borrowings
under the Company's Revolving Facility. The Company recorded an extraordinary
charge of $0.3 million (net of applicable tax benefit) to reflect the
write-off of the unamortized loan costs on the refinanced $75.0 million
secured term loan facility. The Term Loan matures on December 31, 2005 and
amortizes in installments of $0.5 million on each fiscal quarter end from
March 31, 2000 until and including December 31, 2004 and of $47.5 million on
each fiscal quarter end thereafter. The interest rate on the Term Loan is
2.50% above the Eurodollar Rate. The Term Loan contains financial covenants
substantially identical to the covenants in the indentures governing the
Company's senior subordinated notes.
The Revolving Facility provides for borrowings up to an aggregate
principal amount of $343.0 million at September 30, 1999. The Revolving
Facility matures on September 30, 2003. The availability under the Revolving
Facility will reduce by $12.25 million on each of December 31, 1999, March
31, 2000 and June 30, 2000; by $14.0 million on September 30, 2000, December
31, 2000, March 31, 2001 and June 30, 2001; and by $17.5 million on each
fiscal quarter end thereafter. Borrowings under the Revolving Facility bear
interest at a margin above the Alternate Base Rate or the Eurodollar Rate
(each, as defined in the Revolving Facility), as selected by the Company. The
margin above such rates, and the fee on the unfunded portions of the
Revolving Facility, will vary quarterly based on the Company's combined
consolidated ratio of debt to EBITDA (each, as defined in the Revolving
Facility). As of September 30, 1999, the Borrowers' margin above the
Eurodollar Rate on borrowings under the Revolving Facility was 1.75% and will
be reduced to 1.63% in November 1999. The maximum margin for Eurodollar Rate
borrowings is 2.75%. The maximum margin for alternate base rate borrowings is
1.50%. As of September 30, 1999, the maximum fee for the unfunded portion of
the Revolving Facility was 0.44% multiplied by the average of the unfunded
portion of the Revolving Facility.
The Revolving Facility contains certain financial and other
covenants. These include a maximum funded debt to Adjusted EBITDA ratio for
the Borrowers combined of 2.50 to 1.00 for each fiscal quarter, a minimum
fixed charge coverage ratio for the preceding four quarters for the Borrowers
combined of 1.50 to 1.00 for each fiscal quarter, limitations on
indebtedness, limitations on asset dispositions, limitations on investments,
limitations on prepayments of indebtedness and rent and limitations on
capital expenditures. As of September 30, 1999, the Borrowers combined funded
debt to Adjusted EBITDA ratio was 1.43 to 1.00 and their combined fixed
charge coverage ratio for the preceding four quarters ended September 30,
1999 was 2.21 to 1.00. A tranche of the Revolving Facility contains a minimum
tangible net worth requirement for Palace Station and certain restrictions on
distributions of cash from Palace Station to the Company. As of September 30,
1999, Palace Station's tangible net worth exceeded the requirement by
approximately $9.1 million. These covenants limit Palace Station's ability to
make payments to the Company, a significant source of anticipated cash for
the Company.
In addition, the Revolving Facility has financial and other
covenants relating to the Company. These include a tangible net worth
covenant and a covenant limiting the consolidated funded debt to Adjusted
EBITDA ratio to no more than 5.15 to 1.00 on September 30, 1999 and reducing
quarterly to 4.00 to 1.00 on September 30, 2001. Other covenants limit
prepayments of indebtedness or rent (including, subordinated debt other than
refinancings meeting certain criteria), limitations on asset dispositions,
limitation on dividends, limitations on indebtedness, limitations on
investments and limitations on capital expenditures. The Revolving Facility
also prohibits the Company from holding excess cash and cash equivalents. As
of September 30, 1999, the Company's consolidated funded debt to Adjusted
EBITDA ratio was 3.94 to 1.00. The Company has pledged the stock of all of
its subsidiaries except
15
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Kansas City Station Corporation and St. Charles Riverfront Station, Inc. and
has agreed to pledge the stock of the latter two subsidiaries upon regulatory
approval (which is expected to be obtained).
SENIOR SUBORDINATED NOTES
The Company has $542.2 million, net of unamortized discount of $5.7
million, of senior subordinated notes outstanding as of September 30, 1999,
$197.1 million of these notes bear interest, payable semi-annually, at a rate
of 10 1/8% per year, $145.2 million of the notes bear interest, payable
semi-annually, at a rate of 9 3/4% per year and $199.9 million of the notes
bear interest, payable semi-annually, at a rate of 8 7/8% per year
(collectively the "Notes"). The indentures governing the Notes (the
"Indentures") contain certain customary financial and other covenants which
limit the Company and its subsidiaries' ability to incur additional debt and
to pay dividends. At September 30, 1999, the Company's Consolidated Coverage
Ratio was 2.70 to 1.00, compared to a requirement that it be at least 2.00 to
1.00 in order to issue additional debt. In addition, the covenants also limit
borrowings under the Bank Facility not to exceed the greater of $200 million
or 1.5 times Operating Cash Flow (as defined) for the four most recent
quarters. The limitation on the incurrence of additional indebtedness and
dividend restrictions in the Indentures may significantly affect the
Company's ability to pay dividends on its capital stock. The Indentures also
give the holders of the Notes the right to require the Company to purchase
the Notes at 101% of the principal amount of the Notes plus accrued interest
thereon upon a Change of Control and Rating Decline (each as defined in the
Indentures) of the Company.
SUNSET OPERATING LEASE
The Company has entered into an operating lease for furniture,
fixtures and equipment (the "Equipment") with a cost of $40 million, dated as
of September 25, 1996 (the "Sunset Operating Lease") between the Company and
First Security Trust Company of Nevada. The Sunset Operating Lease expires in
October 2000 and carries a lease rate of 225 basis points above the
Eurodollar Rate. A total of $35.7 million of this facility has been drawn and
no further draws pursuant to the lease will be made. The Company has entered
into a sublease with Sunset Station for the Equipment pursuant to an
operating lease with financial terms substantially similar to the Sunset
Operating Lease. The Company currently incurs approximately $2.0 million of
rent expense per quarter related to the Sunset Operating Lease. In October
1999, the Company exercised its option to purchase the equipment for
approximately $27.0 million. The purchase price was funded with borrowings
from the Company's Revolving Facility.
COMMON STOCK
The Company is authorized to issue up to 90,000,000 shares of its
common stock, $0.01 par value per share (the "Common Stock"), 42,114,472
shares of which were issued and outstanding as of September 30, 1999. Each
holder of the Common Stock is entitled to one vote for each share held of
record on each matter submitted to a vote of stockholders. Holders of the
Common Stock have no cumulative voting, conversion, redemption or preemptive
rights or other rights to subscribe for additional shares other than pursuant
to the Rights Plan described below. Subject to any preferences that may be
granted to the holders of the Company's preferred stock, each holder of
Common Stock is entitled to receive ratably such dividends as may be declared
by the Board of Directors out of funds legally available therefor as well as
any distributions to the stockholders and, in the event of liquidation,
dissolution or winding up of the Company, is entitled to share ratably in all
assets of the Company remaining after payment of liabilities.
RIGHTS PLAN
On October 6, 1997, the Company declared a dividend of one preferred
share purchase right (a "Right") for each outstanding share of Common Stock.
The dividend was paid on October 21, 1997. Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a share of Series A
Preferred Stock, par value $0.01 per share ("Preferred Shares") of the
Company at a price of $40.00 per one one-hundredth of a Preferred Share,
subject to adjustment. The Rights are not exercisable until the earlier of 10
days following a public announcement that a person or group of affiliated or
associated persons have acquired beneficial ownership of 15% or more of the
outstanding Common Stock
16
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
("Acquiring Person") or 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any
person or group of affiliated persons becomes an Acquiring Person) following
the commencement of, or announcement of an intention to make, a tender offer
or exchange offer, the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common
Stock. The Rights will expire on October 21, 2007. Acquiring Persons do not
have the same rights to receive Common Stock as other holders upon exercise
of the Rights. Because of the nature of the Preferred Shares' dividend,
liquidation and voting rights, the value of one one-hundredth interest in a
Preferred Share purchasable upon exercise of each Right should approximate
the value of one Common Share. In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person, the proper
provisions will be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter become
void), will thereafter have the right to receive upon exercise that number of
shares of Common Stock having a market value of two times the exercise price
of the Right. In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power are sold after a person or group has become an Acquiring
Person, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon exercise thereof, that number of
shares of Common Stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise price of the
Right. Because of the characteristics of the Rights in connection with a
person or group of affiliated or associated persons becoming an Acquiring
Person, the Rights may have the effect of making an acquisition of the
Company more difficult and may discourage such an acquisition.
PREFERRED STOCK
The Company is authorized to issue up to 5,000,000 shares of its
preferred stock, $0.01 par value per share (the "Preferred Stock"). As of
June 14, 1999, the Company redeemed all 2,070,000 shares of its $3.50
Convertible Preferred Stock in exchange for 6,741,632 shares of the Company's
Common Stock. The Board of Directors, without further action by the holders
of Common Stock, may issue shares of Preferred Stock in one or more series
and may fix or alter the rights, preferences, privileges and restrictions,
including the voting rights, redemption provisions (including sinking fund
provisions), dividend rights, dividend rates, liquidation rates, liquidation
preferences, conversion rights and the description and number of shares
constituting any wholly unissued series of Preferred Stock. Except as
described above, the Board of Directors, without further stockholder
approval, may issue shares of Preferred Stock with rights that could
adversely affect the rights of the holders of Common Stock. The issuance of
shares of Preferred Stock under certain circumstances could have the effect
of delaying or preventing a change of control of the Company or other
corporate action.
FORWARD-LOOKING STATEMENTS
When used in this report and elsewhere by management from time to
time, the words "believes", "anticipates", and "expects" and similar
expressions are intended to identify forward-looking statements with respect
to the financial condition, results of operations and the business of the
Company and its subsidiaries including the expansion, development and
acquisition projects, legal proceedings and employee matters of the Company
and its subsidiaries. Certain important factors, including but not limited
to, competition from other gaming operations, leverage, construction risks,
the inherent uncertainty and costs associated with litigation, and licensing
and other regulatory risks, could cause the Company's actual results to
differ materially from those expressed in the Company's forward-looking
statements. Further information on potential factors which could affect the
financial condition, results of operations and business of the Company and
its subsidiaries including, without limitation, the expansion, development
and acquisition projects, legal proceedings and employee matters of the
Company and its subsidiaries are included in the filings of the Company with
the Securities and Exchange Commission. Readers are cautioned not to place
undue reliance on any forward-looking statements, which speak only as of the
date thereof. The Company undertakes no obligation to publicly release any
revisions to such forward-looking statements to reflect events or
circumstances after the date hereof.
17
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company and its subsidiaries are defendants in various lawsuits
relating to routine matters incidental to their business. Management does not
believe that the outcome of such litigation, in the aggregate, will have a
material adverse effect on the Company.
POULOS/AHEARN CASE
On April 26, 1994, a suit seeking status as a class action lawsuit
was filed by plaintiff, William H. Poulos, et al., as class representative,
in the United States District Court, Middle District of Florida, naming 41
manufacturers, distributors and casino operators of video poker and
electronic slot machines, including the Company. On May 10, 1994, a lawsuit
alleging substantially identical claims was filed by another plaintiff,
William Ahearn, et al., as class representative, in the United States
District Court, Middle District of Florida, against 48 manufacturers,
distributors and casino operators of video poker and electronic slot
machines, including the Company and most of the other major hotel/casino
companies. The lawsuits allege that the defendants have engaged in a course
of fraudulent and misleading conduct intended to induce persons to play such
games based on a false belief concerning how the gaming machines operate, as
well as the extent to which there is an opportunity to win. The two lawsuits
have been consolidated into a single action, and have been transferred to the
United States District Court for the District of Nevada. On September 26,
1995, a lawsuit alleging substantially identical claims was filed by
plaintiff, Larry Schreier, et. al, as class representative, in the United
States District Court for the District of Nevada, naming 45 manufacturers,
distributors, and casino operators of video poker and electronic slot
machines, including the Company. Motions to dismiss the Poulos/Ahearn and
Schreier cases were filed by defendants. On April 17, 1996, the Poulos/Ahearn
lawsuits were dismissed, but plaintiffs were given leave to file Amended
Complaints on or before May 31, 1996. On May 31, 1996, an Amended Complaint
was filed, naming William H. Poulos, et. al, as plaintiff. Defendants filed a
motion to dismiss. On August 15, 1996, the Schreier lawsuit was dismissed
with leave to amend. On September 27, 1996, Schreier filed an Amended
Complaint. Defendants filed motions to dismiss the Amended Complaint. In
December 1996, the Court consolidated the Poulos/Ahearn, the Schreier, and a
third case not involving the Company and ordered all pending motions be
deemed withdrawn without prejudice, including Defendants' Motions to Dismiss
the Amended Complaints. The plaintiffs filed a Consolidated Amended Complaint
on February 13, 1997. On or about December 19, 1997, the Court issued formal
opinions granting in part and denying in part the defendants' motion to
dismiss. In so doing, the Court ordered plaintiffs to file an amended
complaint in accordance with the Court's orders in January of 1998.
Accordingly, plaintiffs amended their complaint and filed it with the United
States District Court for the District of Nevada in February 1998. The
Company and all other defendants continue to deny the allegations contained
in the amended complaint filed on behalf of plaintiffs. The plaintiffs are
seeking compensatory, special, consequential, incidental, and punitive
damages in unspecified amounts. The defendants have committed to vigorously
defend all claims and allegations contained in the consolidated action. The
parties have fully briefed the issues regarding class certification, which
are currently pending before the court. The discovery stay remains in effect
pending resolution of these issues. The Company does not expect that the
lawsuits will have a material adverse effect on the Company's financial
position or results of operations.
NICOLE ANDERSON CASE
A suit seeking status as a class action lawsuit was filed by
plaintiff Nicole Anderson, et. al., as class representative, on September 24,
1997, in the United States District Court for the Eastern District of
Missouri, Eastern Division. The lawsuit alleges certain racially based
discriminatory action at Station Casino St. Charles and seeks injunctive
relief and compensatory, special, consequential, incidental and punitive
damages in unspecified amounts. On or about October 24, 1997, plaintiff filed
her first amended complaint. On November 24, 1997, the Company filed its
answer to plaintiff's first amended complaint which denied the allegations
contained therein.
18
<PAGE>
ITEM 1. LEGAL PROCEEDINGS (CONTINUED)
On August 25, 1998, a hearing was held to determine whether this
lawsuit could be certified as a class action. The Court conditionally
certified a subclass of dealers in the table game department; the other
plaintiffs may proceed individually with their claims. The parties have
entered into a settlement agreement which has been submitted to the United
States District Court for the Eastern District of Missouri, Eastern Division,
to determine the fairness, reasonableness and adequacy of the terms of
settlement and whether an order and final judgment should be entered
approving the proposed settlement agreement. On October 18, 1999, the order
and final judgment was issued by the United States District Court for the
Eastern District of Missouri.
STEPHEN B. SMALL CASE
A class action lawsuit was filed by plaintiff Stephen B. Small, et
al., as class representative, on November 28, 1997, in the United States
District Court for the Western District of Missouri, naming four gaming
operators in Kansas City, Missouri, including Kansas City Station
Corporation. The lawsuit alleged that the defendants are conducting gaming
operations that are not located on the Missouri River in violation of certain
state and federal statutes. The plaintiff also sought compensatory, special,
consequential, and incidental damages in unspecified amounts. On September 1,
1998, the United States District Court granted Kansas City Station
Corporation's motion to dismiss the lawsuit. On February 16, 1999, the
plaintiff served the defendants with a notice of appeal of the federal court
dismissal. On October 30, 1998, the plaintiff filed a similar lawsuit in the
Circuit Court of Cole County, Missouri. The lawsuit alleged that the
operators were conducting illegal games of chance prior to December 3, 1998,
the effective date of a Constitutional amendment passed by Missouri voters on
November 3, 1998, legalizing gaming facilities within 1,000 feet of the main
channel of the Mississippi and Missouri Rivers. On February 9, 1999, the Cole
County Circuit Court granted Kansas City Station Corporation's motion to
dismiss the lawsuit. On February 19, 1999, the plaintiff served the
defendants with a notice of appeal of the state court dismissal. Management
believes that the plaintiff's claims are without merit and does not expect
that the lawsuit will have a material adverse effect on the Company's
financial position or results of operations.
LOW WATER LEVEL AT STATION CASINO ST. CHARLES; EPA INVESTIGATION
During December 1998 and January 1999, the water level of the
Missouri River was well below normal. In addition, over time silt and debris
flowing downstream have built up under the gaming barges and other ancillary
barges at Station Casino St. Charles. These circumstances have caused a
portion of these barges, at times, to touch the river bottom. Because these
barges have touched the river bottom, the American Bureau of Shipping
decertified the barges on January 8, 1999. As a result of the
decertification, the Missouri Gaming Commission expressed concern regarding
the effect of the low water level on the barges. However, based upon recent
improvement in the water level and the Company's agreement to work with
American Bureau of Shipping to re-certify all of the barges at a time when
the river levels permit, the Missouri Gaming Commission has allowed the
gaming facility to remain open. The Company continues to monitor the
situation very carefully and believes that the facility should remain in
operation. However, there can be no assurance that the Company's assessment
will not change or that the relevant authorities will continue to permit the
operation of the facility. A prolonged closure of the facility as a result of
the low water level would have a material adverse effect on the Company's
business, financial position and results of operations.
The Company has taken steps and intends to take further steps to
remedy the problems caused by the low water level. These further steps
include dredging material from under the barges. The Company does not expect
the cost of these remedial activities to be material, although there can be
no assurance that such costs will not exceed the Company's expectations.
Dredging and construction activities generally require permits from the
United States Army Corps of Engineers. The Company has received certain
permits to continue dredging activities. The Company is in the process of
applying for additional permits which will allow it to dredge more
efficiently than the current permit. There can be no assurance that the
United States Army Corps of Engineers will grant such permits or that they
will be
19
<PAGE>
ITEM 1. LEGAL PROCEEDINGS (CONTINUED)
granted on a timely basis. In the event that low water levels return, the
Company could be forced to close the facility. The Company's ability to
receive the required permits could be adversely affected by the investigation
described below.
On February 3, 1999, the Company received a subpoena issued by the
EPA requesting that documentation relating to the Company's dredging
activities at the facility be furnished to the Grand Jury in the United
States District Court for the Eastern District of Missouri. Several employees
and persons who contracted to work for the Company received similar
subpoenas. The Company believes that the EPA is investigating allegations
that the Company or the Company's contractors dredged and disposed of silt
and debris from the area of the facility either without proper permits or
without complying with such permits. The Company has completed the
investigation of the substance of the allegations and continues to cooperate
fully with the EPA. The investigation could lead to further proceedings
against the Company which could result in significant fines and other
penalties imposed on the Company. The Company has tentatively entered into a
"Consent Decree" on October 3, 1999. Pursuant to federal law, after the
lodging and before the entry of the Consent Decree, final approval by the
United States is subject to a public notice and comment period.
SETTLEMENT OF CRESCENT LITIGATION
On April 14, 1999, the Company announced that it had settled its
lawsuits with Crescent Real Estate Equities, Inc. ("Crescent") arising out of
the failed merger of the two companies. Under the terms of the settlement
agreement, Crescent has paid the Company $15 million, and the parties have
released each other from claims. The settlement payment was received on April
22, 1999.
CLASS ACTION/DERIVATIVE ACTION
A suit seeking status as a class action and a derivative action was
filed by plaintiff, Crandon Capital Partners, as class representative, on
August 7, 1998, in Clark County District Court, State of Nevada, naming the
Company and its Board of Directors as defendants. The lawsuit, which was
filed as a result of the failed merger between the Company and Crescent,
alleges, among other things, a breach of fiduciary duty owed to the
shareholders/class members. The lawsuit seeks damages allegedly suffered by
the shareholders/class members as a result of the transactions with Crescent,
as well as all costs and disbursements of the lawsuit. Although no assurance
can be provided with respect to any litigation, the Company and the Board of
Directors do not believe the suit has merit and intend to defend themselves
vigorously.
20
<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.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits -
Exhibit
Number
-----
4.1 Third Amended and Restated Reducing Revolving Loan Agreement
dated as of August 25, 1999.
4.2 Amendment No. 1 to Third Amended and Restated Reducing
Revolving Loan Agreement dated as of September 24, 1999.
4.3 Term Loan Agreement dated as of August 25, 1999.
4.4 Amendment No. 1 to Term Loan Agreement dated September 24,
1999.
10.1 First Amendment to Lease (With Option) dated as of April 1,
1999 between Palace Station Hotel & Casino, Inc. and Flamingo
Associates, Inc.
10.2 Second Amendment to Lease (With Option) dated as of April 1,
1999 between Palace Station Hotel & Casino, Inc. and Flamingo
Associates, Inc.
10.3 First Amendment to Lease (With Option) dated as of April 1,
1999 between Palace Station Hotel & Casino, Inc. and Richfield
Development Co.
10.4 Second Amendment to Lease (With Option) dated as of April 1,
1999 between Palace Station Hotel & Casino, Inc. and Richfield
Development Co.
10.5 First Amendment to Lease (With Option) dated as of April 1,
1999 between Palace Station Hotel & Casino, Inc. and Richard
Tam.
10.6 Second Amendment to Lease (With Option) dated as of April 1,
1999 between Palace Station Hotel & Casino, Inc. and Richard
Tam.
10.7 Master Certificate Purchase Agreement dated October 22, 1999
among Sunset Station Leasing Company, LLC as Purchaser, First
Security Trust Company of Nevada, as Trustee, each of the
parties to the Participation Agreement, as Sellers, Sunset
Station, Inc. as Sublessee and the Registrant as Lessee.
27 Financial Data Schedule
(b) Reports on Form 8-K - None.
21
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Station Casinos, Inc.,
Registrant
DATE: November 12, 1999 /s/ Glenn C. Christenson
--------------------------
Glenn C. Christenson,
Executive Vice President,
Chief Financial Officer, and
Chief Administrative Officer
(Principal Accounting Officer)
22
<PAGE>
THIRD AMENDED AND RESTATED REDUCING
REVOLVING LOAN AGREEMENT
Dated as of August 25, 1999
among
PALACE STATION HOTEL & CASINO, INC.
BOULDER STATION, INC.
TEXAS STATION, INC.
ST. CHARLES RIVERFRONT STATION, INC.
KANSAS CITY STATION CORPORATION
SUNSET STATION, INC.
THE LENDERS HEREIN NAMED
SOCIETE GENERALE,
as Documentation Agent
BANK OF SCOTLAND,
as Co-Agent
and
BANK OF AMERICA, N.A., as Administrative Agent
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Article 1
DEFINITIONS AND ACCOUNTING TERMS..............................................................................2
1.1 Defined Terms...............................................................................2
1.2 Use of Defined Terms.......................................................................39
1.3 Accounting Terms...........................................................................39
1.4 Rounding...................................................................................40
1.5 Exhibits and Schedules.....................................................................40
1.6 References to "Borrowers and their Subsidiaries"...........................................40
1.7 Miscellaneous Terms........................................................................40
Article 2
LOANS AND LETTERS OF CREDIT..................................................................................41
2.1 Loans-General..............................................................................41
2.2 Alternate Base Rate Loans..................................................................42
2.3 Eurodollar Rate Loans......................................................................43
2.4 Letters of Credit..........................................................................43
2.5 Voluntary Reduction of Commitments.........................................................47
2.6 Automatic Reduction of Commitments.........................................................48
2.7 Optional Termination of Commitments........................................................48
2.8 Administrative Agent's Right to Assume Funds Available for Advances........................48
2.9 Swing Line.................................................................................48
2.10 Refinancing................................................................................51
2.11 Collateral and Guaranty....................................................................51
2.12 Senior Indebtedness........................................................................51
2.13 Facility Increase..........................................................................51
Article 3
PAYMENTS AND FEES............................................................................................53
3.1 Principal and Interest.....................................................................53
3.2 Arrangement Fee............................................................................54
3.3 Commitment Fee.............................................................................54
3.4 Letter of Credit Fees......................................................................54
3.5 Agency Fee.................................................................................55
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<PAGE>
3.6 Increased Commitment Costs.................................................................55
3.7 Eurodollar Costs and Related Matters.......................................................56
3.8 Late Payments..............................................................................59
3.9 Computation of Interest and Fees...........................................................59
3.10 Non-Banking Days...........................................................................60
3.11 Manner and Treatment of Payments...........................................................60
3.12 Funding Sources............................................................................61
3.13 Failure to Charge Not Subsequent Waiver....................................................61
3.14 Administrative Agent's Right to Assume Payments Will be Made by Borrowers..................61
3.15 Fee Determination Detail...................................................................62
3.16 Survivability..............................................................................62
Article 4
REPRESENTATIONS AND WARRANTIES...............................................................................63
4.1 Existence and Qualification; Power; Compliance With Laws...................................63
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.....63
4.3 No Governmental Approvals Required.........................................................64
4.4 Subsidiaries...............................................................................64
4.5 Financial Statements.......................................................................64
4.6 No Other Liabilities; No Material Adverse Changes..........................................65
4.7 Title to Property..........................................................................65
4.8 Intangible Assets..........................................................................65
4.9 Public Utility Holding Company Act.........................................................65
4.10 Litigation.................................................................................65
4.11 Binding Obligations........................................................................66
4.12 No Default.................................................................................66
4.13 ERISA......................................................................................66
4.14 Regulation U; Investment Company Act.......................................................66
4.15 Disclosure.................................................................................67
4.16 Tax Liability..............................................................................67
4.17 Projections................................................................................67
4.18 Hazardous Materials........................................................................67
4.19 Developed Properties.......................................................................68
4.20 Gaming Laws................................................................................68
4.21 Security Interests.........................................................................68
Article 5
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<PAGE>
BORROWERS AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)..........................70
5.1 Payment of Taxes and Other Potential Liens.................................................70
5.2 Preservation of Existence..................................................................70
5.3 Maintenance of Properties..................................................................70
5.4 Maintenance of Insurance...................................................................70
5.5 Compliance With Laws.......................................................................70
5.6 Inspection Rights..........................................................................71
5.7 Keeping of Records and Books of Account....................................................71
5.8 Compliance With Agreements.................................................................71
5.9 Use of Proceeds............................................................................71
5.10 Hazardous Materials Laws...................................................................71
5.11 Additional Real Property...................................................................72
5.12 Additional Vessels.........................................................................72
5.13 Construction Monitoring....................................................................72
5.14 Year 2000 Compliance.......................................................................72
5.15 Delivery of Documentation..................................................................73
Article 6
BORROWERS NEGATIVE COVENANTS.................................................................................74
6.1 Disposition of Property....................................................................74
6.2 Mergers....................................................................................74
6.3 Hostile Acquisitions.......................................................................74
6.4 ERISA......................................................................................74
6.5 Change in Nature of Business...............................................................74
6.6 Liens and Negative Pledges.................................................................74
6.7 Indebtedness and Guaranty Obligations......................................................75
6.8 Transactions with Affiliates...............................................................76
6.9 Fixed Charge Coverage......................................................................76
6.10 Borrowers Funded Debt Ratio................................................................76
6.11 Maintenance Capital Expenditures...........................................................76
6.12 Expansion Capital Expenditures.............................................................77
6.13 Investments................................................................................78
6.14 Leases.....................................................................................78
6.15 New Capital Stock..........................................................................78
6.16 Prepayments................................................................................78
Article 7
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<PAGE>
PALACE NEGATIVE COVENANTS....................................................................................80
7.1 Limitation on Tax Payments.................................................................80
7.2 Management Fees............................................................................80
7.3 Other Payments to Parents..................................................................80
7.4 Minimum Tangible Net Worth.................................................................80
Article 8
PARENT AFFIRMATIVE COVENANTS.................................................................................81
8.1 Article 5 Covenants........................................................................81
8.2 Additional Borrowers.......................................................................81
8.3 Additional Real Property...................................................................81
8.4 Additional Vessels.........................................................................81
8.5 Additional Capital Stock...................................................................81
8.6 Designated Senior Indebtedness.............................................................82
8.7 Pledge Agreement (Missouri)................................................................82
Article 9
PARENT NEGATIVE COVENANTS....................................................................................83
9.1 Payment of Subordinated Obligations........................................................83
9.2 Disposition of Property....................................................................83
9.3 Mergers....................................................................................84
9.4 Hostile Acquisitions.......................................................................84
9.5 Distributions..............................................................................84
9.6 ERISA......................................................................................85
9.7 Change in Nature of Business...............................................................85
9.8 Liens and Negative Pledges.................................................................85
9.9 Indebtedness and Guaranty Obligations......................................................86
9.10 Transactions with Affiliates...............................................................87
9.11 Tangible Net Worth.........................................................................87
9.12 Parent Funded Debt Ratio...................................................................87
9.13 Maintenance Capital Expenditures...........................................................88
9.14 Expansion Capital Expenditures and New Venture Expenditures................................88
9.15 Investments................................................................................90
9.16 Amendments to Other Financial Instruments..................................................91
9.17 Cash Accumulation..........................................................................91
9.18 Prepayments................................................................................91
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<PAGE>
Article 10
INFORMATION AND REPORTING REQUIREMENTS.......................................................................92
10.1 Financial and Business Information.........................................................92
10.2 Compliance Certificates....................................................................95
Article 11
CONDITIONS...................................................................................................96
11.1 Initial Advances, Etc......................................................................96
11.2 Availability under Excess Facility.........................................................99
11.3 Any Advance................................................................................99
Article 12
EVENTS OF DEFAULT AND REMEDIES UPON EVENT
OF DEFAULT .................................................................................................100
12.1 Events of Default.........................................................................100
12.2 Remedies Upon Event of Default............................................................102
12.3 Palace Event of Default and Remedies......................................................104
Article 13
THE ADMINISTRATIVE AGENT....................................................................................105
13.1 Appointment and Authorization.............................................................105
13.2 Administrative Agent and Affiliates.......................................................105
13.3 Proportionate Interest in any Collateral..................................................105
13.4 Lenders' Credit Decisions.................................................................106
13.5 Action by Administrative Agent............................................................106
13.6 Liability of Administrative Agent.........................................................107
13.7 Indemnification...........................................................................108
13.8 Successor Administrative Agent............................................................109
13.9 Foreclosure on Collateral.................................................................109
13.10 No Obligations of Borrowers...............................................................109
13.11 Authority Regarding Certain Documents.....................................................110
Article 14
MISCELLANEOUS...............................................................................................111
14.1 Cumulative Remedies; No Waiver............................................................111
14.2 Amendments; Consents......................................................................111
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<PAGE>
14.3 Costs, Expenses and Taxes.................................................................112
14.4 Nature of Lenders' Obligations............................................................113
14.5 Survival of Representations and Warranties................................................113
14.6 Notices...................................................................................113
14.7 Execution of Loan Documents...............................................................114
14.8 Binding Effect; Assignment................................................................114
14.9 Right of Setoff...........................................................................117
14.10 Sharing of Setoffs........................................................................117
14.11 Indemnity by Borrowers....................................................................118
14.12 Nonliability of the Lenders...............................................................119
14.13 No Third Parties Benefited................................................................120
14.14 Confidentiality...........................................................................120
14.15 Further Assurances........................................................................121
14.16 Integration...............................................................................121
14.17 Governing Law.............................................................................121
14.18 Severability of Provisions................................................................121
14.19 Headings..................................................................................122
14.20 Time of the Essence.......................................................................122
14.21 Foreign Lenders and Participants..........................................................122
14.22 Hazardous Material Indemnity..............................................................123
14.23 Gaming Boards.............................................................................124
14.24 Joint and Several.........................................................................124
14.25 Waiver of Right to Trial by Jury..........................................................124
14.26 Purported Oral Amendments.................................................................124
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<PAGE>
EXHIBITS
A - Commitments Assignment and Acceptance
B - Compliance Certificate
C - Deed of Trust Amendment
D - Intercreditor Agreement
E - Line A Note
F - Line B Note
G - Omnibus Documents Amendment
H-1 - Opinion of Counsel
H-2 - Opinion of Counsel
H-3 - Opinion of Counsel
H-4 - Opinion of Counsel
I - Pledge Agreement (Missouri)
J - Pricing Certificate
K - Request for Letter of Credit
L - Request for Loan
M - Joint Borrower Provisions
SCHEDULES
1.1A Lender Commitments
1.1B Peripheral Assets
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.18 Hazardous Materials Matters
4.19 Developed Properties
6.7 Existing Borrowers Indebtedness
6.13 Existing Borrowers Investments
7 Palace Covenants
9.9 Existing Parent Indebtedness
9.15 Existing Parent Investments
</TABLE>
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<PAGE>
THIRD AMENDED AND RESTATED
REDUCING REVOLVING LOAN AGREEMENT
Dated as of August 25, 1999
This THIRD AMENDED AND RESTATED REDUCING REVOLVING LOAN AGREEMENT
is entered into by and among Palace Station Hotel & Casino, Inc., a Nevada
corporation ("Palace"), Boulder Station, Inc., a Nevada corporation ("Boulder"),
Texas Station, Inc., a Nevada corporation ("Texas"), St. Charles Riverfront
Station, Inc., a Missouri corporation ("St. Charles"), Kansas City Station
Corporation, a Missouri corporation ("Kansas City") and Sunset Station, Inc., a
Nevada Corporation ("Sunset" and, collectively with Palace, Boulder, Texas, St.
Charles and Kansas City, the "Borrowers"), Station Casinos, Inc. ("Parent") (but
only for the purpose of making the covenants set forth in ARTICLES 8 and 9
hereof), each lender whose name is set forth on the signature pages of this
Agreement and each lender which may hereafter become a party to this Agreement
pursuant to Section 14.8 (collectively, the "Lenders" and individually, a
"Lender"), Societe Generale, as Documentation Agent, Bank of Scotland, as
Co-Agent, and Bank of America, N.A. (formerly known as "Bank of America National
Trust and Savings Association"), as Administrative Agent.
This Agreement amends and restates in its entirety that certain
Second Amended and Restated Reducing Revolving and Term Loan Agreement dated as
of November 6, 1998 (the "Existing Loan Agreement") among Palace, Boulder,
Texas, St. Charles, Kansas City and Sunset, as the Borrowers, Parent (but only
for the limited purposes specified therein), the Lenders party thereto and the
Administrative Agent. On the Amendment Effective Date, the Loans outstanding
under the Existing Loan Agreement shall remain outstanding, but the Line A Loans
thereunder shall become evidenced by the Line A Notes hereunder and the Line B
Loans thereunder shall become evidenced by the Line B Notes hereunder.
Subsequent to the Amendment Effective Date, each Lender shall return its Line A
Note and Line B Note under the Existing Loan Agreement to the Administrative
Agent for cancellation and return to Borrowers.
On or about April 1, 1999, Palace entered certain amendments to
the leases underlying a portion of the Palace Station Hotel & Casino, which
leaseholds are Collateral under the Palace Deed of Trust, without first
obtaining the written approval of the Administrative Agent as required by the
Palace Deed of Trust. The Lenders hereby waive the Default arising from such
failure to obtain the approval of the
-1-
<PAGE>
Administrative Agent as so required.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ADJUSTED EBITDA" means, with respect to any Person and with
respect to any fiscal period, the SUM OF (a) Net Income of that Person
for that period, PLUS (b) any non-operating non-recurring loss reflected
in such Net Income, MINUS (c) any non-operating non-recurring gain
reflected in such Net Income, PLUS (d) Interest Expense of that Person
for that period, PLUS (e) the aggregate amount of federal and state taxes
on or measured by income of that Person for that period (whether or not
payable during that period), PLUS (f) depreciation, amortization and all
other non-cash expenses of that Person for that period, in each case as
determined in accordance with Generally Accepted Accounting Principles
and adjusted by ADDING thereto any Pre-Opening Expenses attributable to
each New Venture.
"ADJUSTED FUNDED DEBT" means, with respect to any Person and as of
any date of determination (without duplication), (a) the aggregate amount
of the principal of all Indebtedness of that Person for borrowed money
(INCLUDING debt securities issued and outstanding) on that date, PLUS (b)
the aggregate amount of the principal portion of all Capital Lease
Obligations of that Person on that date, PLUS (c) the aggregate amount
available for drawing under all outstanding letters of credit on that
date for which that Person is the account party, PLUS (d) the aggregate
amount of the portion of the principal amount of the Indebtedness of any
other Person on that date subject to a Guaranty Obligation of that Person
PLUS (e) the aggregate amount of all Guaranty Obligations of that Person
not with respect to any Indebtedness that has been (or in accordance with
Financial Accounting Standards Board Statement No. 5 should be)
quantified and reflected on the most recent balance sheet of that Person
on or prior to that date and remains in effect on that date; PROVIDED,
however, that Adjusted Funded Debt shall not include (i) in the case of
Borrowers, any Indebtedness owed to Parent or, in the case of Parent, any
Indebtedness owed to any of the Borrowers or to any Restricted
Subsidiary; (ii) the obligations of a Person under an operating lease (as
such term is defined in accordance with Generally Accepted Accounting
Principles) or (iii) the obligations of Parent under a Completion
Guaranty and Keep Well Agreement unless and until the amount thereof has
been (or in accordance with Financial Accounting Standards Board
Statement No. 5 should be) quantified and reflected in the consolidated
balance sheet of Parent.
-2-
<PAGE>
"ADMINISTRATIVE AGENT" means Bank of America, N.A., when acting in
its capacity as the Administrative Agent under any of the Loan Documents,
or any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrowers and the Lenders.
"ADVANCE" means any advance made or to be made by any Lender to
Borrowers as provided in ARTICLE 2, and INCLUDES each Alternate Base Rate
Advance and Eurodollar Rate Advance.
"AFFILIATE" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership
of securities or partnership or other ownership interests, by contract or
otherwise); PROVIDED that, in any event, any Person that owns, directly
or indirectly, 10% or more of the securities having ordinary voting power
for the election of directors or other governing body of a corporation
that has more than 100 record holders of such securities, or 10% or more
of the partnership or other ownership interests of any other Person that
has more than 100 record holders of such interests, will be deemed to be
an Affiliate of such corporation, partnership or other Person.
"AGGREGATE EFFECTIVE AMOUNT" means (a) as of any date of
determination and with respect to all Letters of Credit then outstanding,
the SUM of (i) the aggregate effective face amounts of all such Letters
of Credit not then paid by the Issuing Lender PLUS (ii) the aggregate
amounts paid by the Issuing Lender and neither repaid by Borrowers
pursuant to Section 2.4(d) nor the subject of Advances made pursuant to
Sections 2.4(e) and 2.4(f).
"AGREEMENT" means this Third Amended and Restated Reducing
Revolving Loan Agreement, either as originally executed or as it may from
time to time be supplemented, modified, amended, restated or extended.
"ALTERNATE BASE RATE" means, as of any date of determination, the
rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%)
equal to the HIGHER OF (a) the Reference Rate in effect on such date and
(b) the Federal Funds Rate in effect on such date plus 1/2 of 1% (50
basis points).
"ALTERNATE BASE RATE ADVANCE" means an Advance made under Section
2.1(a) or 2.1(b) and specified to be an Alternate Base Rate Advance in
accordance with ARTICLE 2.
-3-
<PAGE>
"ALTERNATE BASE RATE LOAN" means a Loan made hereunder and
specified to be an Alternate Base Rate Loan in accordance with ARTICLE 2.
"AMENDMENT EFFECTIVE DATE" means the time and Banking Day on which
the conditions set forth in Section 11.1 are satisfied or waived. The
Administrative Agent shall notify Borrowers and the Lenders of the date
that is the Amendment Effective Date.
"ANNUALIZED ADJUSTED EBITDA" means (a) with respect to Parent or
Borrowers and with respect to any fiscal period ending during the period
from the Amendment Effective Date through and including September 30,
1999, the SUM OF (i) the Adjusted EBITDA of Parent or Borrowers (as
applicable) for that fiscal period EXCLUDING Adjusted EBITDA of Texas and
Sunset for that fiscal period PLUS (ii) the Annualization Amount for that
fiscal period and (b) with respect to Parent or Borrowers and with
respect to any fiscal period ending after September 30, 1999, the
Adjusted EBITDA of Parent or Borrowers (as applicable) for that fiscal
period.
"ANNUALIZATION AMOUNT" means (a) for the fiscal period consisting
of the four (4) Fiscal Quarters ended June 30, 1999, the combined
Adjusted EBITDA of Texas and Sunset for the two (2) Fiscal Quarters then
ended MULTIPLIED BY two (2) and (b) for the fiscal period consisting of
the four (4) Fiscal Quarters ending September 30, 1999, the combined
Adjusted EBITDA of Texas and Sunset for the three (3) Fiscal Quarters
then ended MULTIPLIED BY four thirds (4/3).
"APPLICABLE ALTERNATE BASE RATE MARGIN" means, for each Pricing
Period, the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that Pricing
Period.
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
------------------- -----------------
<S> <C>
I 0
II 25.00
III 37.50
IV 50.00
V 75.00
VI 100.00
VII 125.00
VIII 150.00
</TABLE>
"APPLICABLE COMMITMENT FEE RATE" means, for each Pricing
Period, the rate set forth below (expressed in basis points per annum)
opposite the Applicable Pricing Level for that Pricing Period:
-4-
<PAGE>
<TABLE>
<CAPTION>
Applicable
Pricing Level Commitment Fee
------------------ -----------------------
<S> <C>
I 30.00
II 35.00
III 40.00
IV 43.75
V 43.75
VI 50.00
VII 50.00
VIII 50.00
</TABLE>
"APPLICABLE EURODOLLAR RATE MARGIN" means, for each Pricing
Period, the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that
Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
---------------------- -------------------------
<S> <C>
I 125.00
II 150.00
III 162.50
IV 175.00
V 200.00
VI 225.00
VII 250.00
VIII 275.00
</TABLE>
"APPLICABLE PRICING LEVEL" means, for each Pricing Period, the
pricing level set forth below opposite the Parent Leverage Ratio as of
the last day of the Fiscal Quarter most recently ended prior to the
commencement of that Pricing Period:
<TABLE>
<CAPTION>
Parent Leverage
Pricing Level Ratio
--------------------- -------------------------------
<S> <C>
I Less than 3.25 to 1.00
II Equal to or
greater than 3.25
to 1.00 but less
than 3.75 to 1.00
III Equal to or
greater than 3.75
to 1.00 but less
than 4.00 to 1.00
IV Equal to or
greater than 4.00
to 1.00 but less
than 4.25 to 1.00
V Equal to or
greater than 4.25
to
-5-
<PAGE>
1.00 but less than
4.75 to 1.00
VI Equal to or
greater than 4.75
to 1.00 but less
than 5.00 to 1.00
VII Equal to or
greater than 5.00
to 1.00 but less
than 5.25 to 1.00
VIII Equal to or
greater than 5.25
to 1.00;
</TABLE>
PROVIDED that (a) in the event that Borrowers do not deliver a Pricing
Certificate with respect to any Pricing Period prior to the commencement
of such Pricing Period, then until (but only until) such Pricing
Certificate is delivered the Applicable Pricing Level for that Pricing
Period shall be Pricing Level VIII, and (b) if any Pricing Certificate is
subsequently determined to be in error, then the resulting change in the
Applicable Pricing Level shall be made retroactively to the beginning of
the relevant Pricing Period.
"APPLICABLE STANDBY LETTER OF CREDIT FEE" means, for each Pricing
Period, the per annum rate set forth as the interest rate margin in the
definition of "Applicable Eurodollar Rate Margin" opposite the Applicable
Pricing Level for that Pricing Period.
"AUBURN INDIAN GAMING PROJECT" means a gaming facility to be
located in the Sacramento, California metropolitan area to be owned by
Native Americans and operated by an Affiliate of Parent.
"AVERAGE QUARTERLY ADJUSTED FUNDED DEBT" means, with respect to
any Person and as of the last day of each Fiscal Quarter, the average
principal amount of all Adjusted Funded Debt of that Person outstanding
on the last day of each of the three calendar months comprising such
Fiscal Quarter.
"BANKING DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday, OTHER THAN a day on which banks are authorized or required to be
closed in California, Nevada or New York.
"BASKET EXPENDITURES" means (a) Expansion Capital Expenditures
made by Borrowers subsequent to the Amendment Effective Date pursuant to
Section 6.12, (b) New Venture Expenditures made by Parent subsequent to
the Amendment Effective Date pursuant to Section 9.14 and (c) the
aggregate amount expended by Parent for repurchases or redemptions of
Common Stock or Permitted Preferred Stock subsequent to the Amendment
Effective Date pursuant to Section 9.5.
"BORROWERS" has the meaning set forth in the preamble of this
Agreement.
-6-
<PAGE>
"BORROWERS FUNDED DEBT RATIO" means the Funded Debt Ratio of
Borrowers; PROVIDED that (a) the components of such ratio shall be
calculated for Borrowers on a combined basis and (b) Adjusted EBITDA of
Borrowers shall be adjusted by SUBTRACTING therefrom the applicable
Management Fee Factor.
"BOULDER" has the meaning set forth in the preamble to this
Agreement.
"BOULDER DEED OF TRUST" means the Deed of Trust (Fee) and/or a
Deed of Trust (Leasehold) executed by Boulder covering the real property
comprising the Boulder Station Hotel & Casino in Las Vegas, Nevada.
"BOULDER EXPANSION PROJECT" means the expansion of hotel/casino/
amenities at the Boulder Station Hotel & Casino that will provide
customer products consistent with existing customer products at that
location in accordance with Parent's existing master plan for that
location.
"CAPITAL EXPENDITURE" means any expenditure that is treated as
a capital expenditure under Generally Accepted Accounting Principles,
INCLUDING any amount which is required to be treated as an asset
subject to a Capital Lease Obligation and INCLUDING interest required
by Generally Accepted Accounting Principles to be capitalized with
respect to such an expenditure. An Investment shall not be deemed a
Capital Expenditure. Subject to the last sentences of Section 6.16 and
Section 9.18, respectively, neither (a) the prepayment of any operating
lease permitted by Sections 6.16 or 9.18 nor (b) improvements or
repairs to, or replacement of, capital assets made with, or offset by,
insurance proceeds actually received by a Borrower or Parent, shall be
deemed a Capital Expenditure.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with Generally Accepted Accounting Principles, is classified as a
capital lease.
"CASH" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with Generally Accepted Accounting Principles,
consistently applied.
"CASH EQUIVALENTS" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year after the
date of the making of the Investment;
(b) readily marketable direct obligations of any State of
the United States of America or any political subdivision of any such
State or any public agency or instrumentality thereof given on
-7-
<PAGE>
the date of such Investment a credit rating of at least Aa by Moody's
Investors Service, Inc. or AA by Standard & Poor's Rating Group (a
division of McGraw-Hill, Inc.), in each case due within one year from
the making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
bank incorporated under the Laws of the United States of America, any
State thereof or the District of Columbia and having on the date of
such Investment combined capital, surplus and undivided profits of at
least $250,000,000, or total assets of at least $5,000,000,000, in each
case due within one year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United
States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due within one
year after the date of the making of the Investment;
(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of the
Investment capital of at least $50,000,000, due within 90 days after
the date of the making of the Investment; PROVIDED that the maker of
the Investment receives written confirmation of the transfer to it of
record ownership of the Government Securities on the books of a
"primary dealer" in such Government Securities or on the books of such
registered broker or dealer, as soon as practicable after the making of
the Investment;
(f) readily marketable commercial paper or other debt
securities issued by corporations doing business in and incorporated
under the Laws of the United States of America or any State thereof or
of any corporation that is the holding company for a bank described in
clause (C) or (D) above given on the date of such Investment a credit
rating of at least P-1 by Moody's Investors Service, Inc. or A-1 by
Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in
each case due within one year after the date of the making of the
Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any
State thereof (i) given on the date of such Investment a credit rating
of at least Aa by Moody's Investors Service, Inc. and AA by Standard &
Poor's Rating Group (a division of McGraw-Hill,
-8-
<PAGE>
Inc.), in each case having an investment period not exceeding 50 days
or (ii) to the extent that investors therein have the benefit of a
standby letter of credit issued by a Lender or a bank described in
clauses (C) or (D) above; PROVIDED that (y) the amount of all such
Investments issued by the same issuer does not exceed $5,000,000 and
(z) the aggregate amount of all such Investments does not exceed
$15,000,000;
(h) a readily redeemable "money market mutual fund"
sponsored by a bank described in clause (C) or (D) hereof, or a
registered broker or dealer described in clause (E) hereof, that has
and maintains an investment policy limiting its investments primarily
to instruments of the types described in clauses (a) through (G) hereof
and given on the date of such Investment a credit rating of at least Aa
by Moody's Investors Service, Inc. and AA by Standard & Poor's Rating
Group (a division of McGraw-Hill, Inc.); and
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation incorporated
under the Laws of the United States of America or any State thereof, or
a participation interest therein; PROVIDED that (i) commercial paper
issued by such corporation is given on the date of such Investment a
credit rating of at least Aa by Moody's Investors Service, Inc. and AA
by Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.),
(ii) the amount of all such Investments issued by the same issuer does
not exceed $5,000,000 and (iii) the aggregate amount of all such
Investments does not exceed $15,000,000.
"CASH INCOME TAXES" means, with respect to any fiscal period,
taxes on or measured by the income of Borrowers that are paid or
currently payable in Cash by Borrowers or Parent during that fiscal
period.
"CASH INTEREST EXPENSE" means Interest Expense that is paid
or currently payable in Cash.
"CERTIFICATE" means a certificate signed by a Senior Officer
or Responsible Official (as applicable) of the Person providing the
certificate.
"CHANGE IN CONTROL" means (a) any transaction or series of
related transactions in which any Unrelated Person or two or more
Unrelated Persons acting in concert acquire beneficial ownership
(within the meaning of Rule 13d-3(a)(1) under the Securities Exchange
Act of 1934, as amended), directly or indirectly, of 40% or more of the
outstanding Common Stock and at such time the Existing Equity Holders
together shall fail to beneficially own, directly or indirectly, at
least the same percentage of Common Stock as is beneficially owned by
such Unrelated Person, (b) Parent consolidates with or merges into
another Person or conveys, transfers or leases its properties and
assets substantially as an entirety to any Person
-9-
<PAGE>
or any person consolidates with or merges into Parent, in either event
pursuant to a transaction in which the outstanding Common Stock is
changed into or exchanged for cash, securities or other property, with
the effect that any Unrelated Person (OTHER THAN the Existing Equity
Holders) becomes the beneficial owner, directly or indirectly, of 40%
or more of Common Stock and at such time the Existing Equity Holders
together shall fail to beneficially own, directly or indirectly, at
least the same percentage of Common Stock as is beneficially owned by
such Unrelated Person or (c) during any period of 24 consecutive
months, individuals who at the beginning of such period constituted
the board of directors of Parent (together with any new or replacement
directors whose election by the board of directors, or whose
nomination for election, was approved by a vote of at least a majority
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
reelection was previously so approved) cease for any reason to
constitute a majority of the directors then in office. For purposes of
the foregoing, the term "UNRELATED PERSON" means any Person OTHER THAN
(i) a Subsidiary of Parent, (ii) an employee stock ownership plan or
other employee benefit plan covering the employees of Parent and its
Subsidiaries or (iii) any of the Existing Equity Holders, and the term
"EXISTING EQUITY HOLDERS" means Frank J. Fertitta III, Blake L.
Sartini, Delise F. Sartini, Lorenzo J. Fertitta, Glenn C. Christenson,
Joseph F. Canfora and Scott M. Nielson and their executors,
administrators or the legal representatives of their estates, their
heirs, distributees and beneficiaries, any trust as to which any of
the foregoing is a settlor or co-settlor and any corporation,
partnership or other entity which is an Affiliate of any of the
foregoing, and any lineal descendants of such Persons, but only to the
extent that the beneficial ownership of Common Stock held by such
lineal descendants was directly received (by gift, trust or sale) from
any such Person.
"CO-AGENT" means Bank of Scotland. The Co-Agent shall have no
rights, duties or responsibilities under the Loan Documents beyond
those of a Lender.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by the
Collateral Documents.
"COLLATERAL AGENT" means Bank of America, N.A., as Collateral
Agent pursuant to the Intercreditor Agreement for the Lenders and the
Term Lenders.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Trademark Collateral Assignment, the Deeds of Trust, the
Preferred Ship Mortgages, as amended in each case by the Omnibus
Documents Amendment or the Deed of Trust Amendment, the Pledge
Agreement (Nevada), the Pledge Agreement (Missouri) (if and when
-10-
<PAGE>
executed and delivered pursuant to SECTION 8.3) and any other security
agreement, pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and delivered by
Borrowers or any of the Guarantors to secure the Obligations.
"COMMERCIAL LETTER OF CREDIT" means each Letter of Credit
issued to support the purchase of goods by Borrowers which is
determined to be a commercial letter of credit by the Issuing Lender.
"COMMITMENTS" means the Line A Commitment and the Line B
Commitment.
"COMMITMENTS ASSIGNMENT AND ACCEPTANCE" means a commitment
assignment and acceptance substantially in the form of EXHIBIT A.
"COMMON STOCK" means the common stock of Parent or its
successor.
"COMPLETION GUARANTY AND KEEP-WELL AGREEMENT" means (a) the
guaranty by Parent, Borrowers or a Restricted Subsidiary of the
completion of the development, construction and opening of a new gaming
facility by an Affiliate of Parent, (b) the agreement by Parent,
Borrowers or a Restricted Subsidiary to advance funds, property or
services on behalf of an Affiliate of Parent in order to maintain the
financial condition of such Affiliate in connection with the
development, construction and operations of a new gaming facility by
such Affiliate and (c) performance bonds incurred in the ordinary
course of business; PROVIDED that, in the case of clauses (A) and (B)
above, such guaranty or agreement is entered into in connection with
obtaining financing for such gaming facility or is required by a Gaming
Board.
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B, properly completed and signed by a Senior Officer of
Borrowers.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any outstanding security issued by that Person or of any
material agreement, instrument or undertaking to which that Person is a
party or by which it or any of its Property is bound.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"DEED OF TRUST (FEE)" means a deed of trust in the form of
EXHIBIT C to the Predecessor Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
-11-
<PAGE>
"DEED OF TRUST (LEASEHOLD)" means a deed of trust in the form
of EXHIBIT D to the Predecessor Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"DEED OF TRUST AMENDMENT" means an amendment to each of the
Existing Deeds of Trust substantially in the form of EXHIBIT C.
"DEEDS OF TRUST" means the Existing Deeds of Trust, and any
other deed of trust required to be provided to the Administrative Agent
pursuant to Section 5.11.
"DEEMED INTERCOMPANY INDEBTEDNESS" means, as of any date of
determination, an amount equal to the SUM OF (a) the principal of all
outstanding Indebtedness of Parent (OTHER THAN (i) Indebtedness owed to
any of Borrowers or to a Restricted Subsidiary and (ii) Indebtedness
consisting of Guaranty Obligations with respect to Indebtedness of
Borrowers owed to Persons OTHER THAN Parent or a Restricted Subsidiary)
PLUS (b) the liquidation preference on all outstanding capital stock of
Parent that bears a dividend payable in Cash at a specified rate or per
share amount.
"DEFAULT" means any event that, with the giving of any
applicable notice or passage of time specified in Section 12.1, or
both, would be an Event of Default.
"DEFAULT RATE" means the interest rate prescribed in Section
3.9.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Borrowers with Bank of America, N.A. or one of its
Affiliates, as from time to time designated by Borrowers by written
notification to the Administrative Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any
Eurodollar Rate Loan, (a) the London Eurodollar Market, (b) if prime
banks in the London Eurodollar Market are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent determines
in good faith that the London Eurodollar Market does not represent at
the relevant time the effective pricing to the Lenders for deposits of
Dollars in the London Eurodollar Market, the Cayman Islands Eurodollar
Market or (c) if prime banks in both the London and Cayman Islands
Eurodollar Markets are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that
neither the London nor the Cayman Islands Eurodollar Market represents
at the relevant time the effective pricing to the Lenders for deposits
of Dollars in such Eurodollar Market, such other Eurodollar Market as
may from time to time be selected by the Administrative Agent with the
approval of Borrowers and the Requisite Lenders.
-12-
<PAGE>
"DEVELOPED PROPERTY" means, as of any date of determination, a
casino, hotel, casino/hotel, resort, casino/resort, riverboat casino,
dockside casino, excursion gambling boat, floating gaming facility,
golf course, entertainment center or similar facility owned by Parent
or any of its Subsidiaries (or owned by a Person in which Parent or any
of its Subsidiaries holds an Investment) and which is at such date
substantially complete and open for business.
"DISPOSITION" means the voluntary sale, transfer or other
disposition of any asset of Borrowers OTHER THAN (a) Cash, Cash
Equivalents, inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of Borrowers and (b)
equipment sold or otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been acquired, or
thereafter within 90 days is acquired, by Borrowers, or where Borrowers
determine in good faith that the failure to replace such equipment will
not be detrimental to the business of Borrowers.
"DISQUALIFIED STOCK" means any capital stock, warrants,
options or other rights to acquire capital stock (but excluding any
debt security which is convertible, or exchangeable, for capital
stock), which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the
Maturity Date; PROVIDED that the aforementioned interests shall not be
Disqualified Stock if they are redeemable prior to the Maturity Date
only if the board of directors of Parent determines in its judgment
that as a result of a holder or beneficial owner owning such interests
(i) Borrowers have lost or may lose any license or franchise from any
Gaming Board held by Borrowers or any Subsidiary of Borrowers necessary
to conduct any portion of the business of Borrowers or (ii) any Gaming
Board has taken or may take action to materially restrict or impair the
operations of Borrowers, which license, franchise or action is
conditioned upon some or all of the holders or beneficial owners of
such interests being licensed or found qualified or suitable to own
such interests.
"DISTRIBUTION" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity security or other
equity security issued by a Person, (i) the retirement, redemption,
purchase or other acquisition for Cash or for Property by such Person
of any such security, (ii) the declaration or (without duplication)
payment by such Person of any dividend in Cash or in Property on or
with respect to any such security, (iii) any Investment by such Person
in the holder of 5% or more of any such security if a purpose of such
Investment is to avoid characterization of the transaction as a
Distribution and (iv) any other payment in Cash or Property by such
Person constituting a distribution under applicable Laws with respect
to such security.
-13-
<PAGE>
"DOCUMENTATION AGENT" means Societe Generale. The
Documentation Agent shall have no rights, duties or responsibilities
under the Loan Documents beyond those of a Lender.
"DOLLARS" or "$" means United States dollars.
"DOMESTIC REFERENCE LENDER" means Bank of America, N.A.
"ELIGIBLE ASSIGNEE" means (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender, (c) any commercial bank
having a combined capital and surplus of $100,000,000 or more, (d) any
(i) savings bank, savings and loan association or similar financial
institution or (ii) insurance company engaged in the business of
writing insurance which, in either case (A) has a net worth of
$200,000,000 or more, (B) is engaged in the business of lending money
and extending credit under credit facilities substantially similar to
those extended under this Agreement and (C) is operationally and
procedurally able to meet the obligations of a Lender hereunder to the
same degree as a commercial bank and (e) any other financial
institution (INCLUDING a mutual fund or other fund) having total assets
of $250,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (d) above; PROVIDED that (I) each
Eligible Assignee must either (a) be organized under the Laws of the
United States of America, any State thereof or the District of Columbia
or (b) be organized under the Laws of the Cayman Islands or any country
which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of such a country, and (i) act
hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on
interest and deliver the documents related thereto pursuant to Section
11.21 and (II) to the extent required under applicable Gaming Laws,
each Eligible Assignee must be registered with, approved by, or not
disapproved by (whichever may be required under applicable Gaming
Laws), all applicable Gaming Boards.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"EURODOLLAR BANKING DAY" means any Banking Day on which
dealings in Dollar deposits are conducted by and among banks in the
Designated Eurodollar Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its
office or branch so designated by written notice to Borrowers and the
Administrative Agent as its Eurodollar Lending Office. If no Eurodollar
Lending Office is designated by a Lender, its Eurodollar Lending Office
shall be its office at its address for purposes of notices hereunder.
"EURODOLLAR MARKET" means a regular established market located
outside the United States of America by and among banks for the
-14-
<PAGE>
solicitation, offer and acceptance of Dollar deposits in such banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any
Governmental Agency having jurisdiction over any Lender.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan,
the period commencing on the date specified by Borrowers pursuant to
Section 2.1(c) and ending 1, 2, 3 or 6 months (or, with the written
consent of all of the Lenders, any other period) thereafter, as
specified by Borrowers in the applicable Request for Loan; PROVIDED
that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the next succeeding
Eurodollar Banking Day unless such Eurodollar Banking Day falls in another
calendar month, in which case such Eurodollar Period shall end on the next
preceding Eurodollar Banking Day;
(c) Borrowers may not specify a Eurodollar Period that
extends beyond the next Reduction Date unless the aggregate principal amount of
the Loans having a Eurodollar Period ending after such Reduction Date is less
than the Commitments (after giving effect to any reduction thereto scheduled to
be made on such Reduction Date pursuant to Section 2.6); and
(d) No Eurodollar Period shall extend beyond the Maturity
Date.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if necessary,
to the next 1/100 of 1%) at which deposits in Dollars are offered by the
Eurodollar Reference Lenders to prime banks in the Designated Eurodollar Market
at or about 11:00 a.m. local time in the Designated Eurodollar Market, two (2)
Eurodollar Banking Days before the first day of the applicable Eurodollar Period
in an aggregate amount approximately equal to the amount of the Advance made by
the Eurodollar Reference Lender with respect to such Eurodollar Rate Loan and
for a period of time comparable to the number of days in the applicable
Eurodollar Period.
"EURODOLLAR RATE ADVANCE" means an Advance made under Section
2.1(a) or 2.1(b) and specified to be a Eurodollar Rate Advance in accordance
with ARTICLE 2.
"EURODOLLAR RATE LOAN" means a Loan made hereunder and specified
to be a Eurodollar Rate Loan in accordance with ARTICLE 2.
"EURODOLLAR REFERENCE LENDERS" means (a) Bank of America, N.A.,
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(b) Bank of Scotland and (c) Societe Generale.
"EVENT OF DEFAULT" shall have the meaning provided in Section
12.1 and shall INCLUDE a Palace Event of Default.
"EXCESS FACILITY" means the credit facility extended to
Borrowers by the Lenders pursuant to the Line B Commitment.
"EXISTING DEEDS OF TRUST" means the Palace Deed of Trust, the
Boulder Deed of Trust, the Texas Deed of Trust, the St. Charles Deed of
Trust, the Kansas City Deeds of Trust and the Sunset Deed of Trust.
"EXISTING LOAN AGREEMENT" has the meaning set forth in the
preamble to this Agreement.
"EXISTING SUBORDINATED DEBT" means (a) Parent's 9-3/4% senior
subordinated notes due 2007, (b) Parent's 10-l/8% senior subordinated
notes due 2006 and (c) Parent's 8 7/8% senior subordinated notes due
2008.
"EXPANSION CAPITAL EXPENDITURE" means a Capital Expenditure
that is not a Maintenance Capital Expenditure.
"EXPANSION CAPITAL EXPENDITURE BASKET" means, as of any date
of determination, the SUM OF (a) $425,000,000 PLUS (b) any New Equity
Proceeds PLUS (c) the excess, if any, of (i) the net Cash proceeds
received by Parent from any issuance of Permitted Subordinated Debt
after the Amendment Effective Date and through such date over (ii)
$135,000,000.
"FACILITY INCREASE" means an increase in the Line B Commitment
pursuant to Section 2.13.
"FACILITY INCREASE AMOUNT" means the amount, not in excess of
$50,000,000, by which the Line B Commitment is increased pursuant to a
Facility Increase.
"FEDERAL FUNDS RATE" means, as of any date of determination,
the rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such
date will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. Government
Securities, or any successor publication, published by the Federal
Reserve Bank
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of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such date under the caption "Federal Funds Effective
Rate". If on any relevant date the appropriate rate for such date is
not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that date by each of three
leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent. For purposes of this Agreement,
any change in the Alternate Base Rate due to a change in the Federal
Funds Rate shall be effective as of the opening of business on the
effective date of such change.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as it may be amended from time to time.
"FISCAL QUARTER" means the fiscal quarter of Borrowers or
Parent, as applicable, ending on each March 31, June 30, September 30
and December 31.
"FISCAL YEAR" means the fiscal year of Borrowers or Parent, as
applicable, ending on each December 31.
"FIXED CHARGE COVERAGE" means, as of the last day of each
Fiscal Quarter, the RATIO of (a) Annualized Adjusted EBITDA of
Borrowers for the fiscal period consisting of that Fiscal Quarter and
the three immediately preceding Fiscal Quarters MINUS Cash Income Taxes
of Borrowers for such fiscal period TO (b) the SUM of (i) Interest
Charges of Borrowers for such fiscal period with respect to
Indebtedness OTHER THAN Indebtedness owed to Parent or a Restricted
Subsidiary PLUS (ii) Maintenance Capital Expenditures of Borrowers made
during such fiscal period PLUS (iii) the aggregate of (A) all principal
payments on the Notes made during such fiscal period required by
Section 3.1(d)(i), (B) all voluntary principal prepayments on the Notes
made during such fiscal period to the extent that such prepayment
reduced or eliminated the amount of a subsequent principal payment on
the Notes which would otherwise be required by Section 3.1(d)(i) and
(C) all scheduled principal payments on all Indebtedness of Borrowers
during such fiscal period and PLUS (iv) Interest Charges of Borrowers
for such fiscal period with respect to Deemed Intercompany Indebtedness
calculated at an interest rate that is not less than the Minimum
Intercompany Rate.
"FUNDED DEBT RATIO" means, with respect to any Person and as
of the last
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day of each Fiscal Quarter, the RATIO OF (a) Average Quarterly
Adjusted Funded Debt of that Person for that Fiscal Quarter to (b)
Annualized Adjusted EBITDA of that Person for the fiscal period
consisting of that Fiscal Quarter and the three immediately preceding
Fiscal Quarters.
"GAMING BOARD" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the Missouri
Gaming Commission and (d) any other Governmental Agency that holds
regulatory, licensing or permit authority over gambling, gaming or
casino activities conducted by Borrowers within its jurisdiction.
"GAMING LAWS" means all Laws pursuant to which any Gaming
Board possesses regulatory, licensing or permit authority over
gambling, gaming or casino activities conducted by Borrowers within its
jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any
date of determination, accounting principles (a) set forth as generally
accepted in then currently effective Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States
of America. The term "CONSISTENTLY APPLIED," as used in connection
therewith, means that the accounting principles applied are consistent
in all material respects with those applied at prior dates or for prior
periods.
"GOVERNMENT SECURITIES" means readily marketable (a) direct
full faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United
States of America and (b) obligations of an agency or instrumentality
of, or corporation owned, controlled or sponsored by, the United States
of America that are generally considered in the securities industry to
be implicit obligations of the United States of America.
"GOVERNMENTAL AGENCY" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality or
public body (INCLUDING any Gaming Board), or (c) any court or
administrative tribunal of competent jurisdiction.
"GREEN VALLEY PROJECT" means a casino/hotel to be constructed
near the
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corner of Lake Mead Boulevard and Green Valley Parkway in Henderson,
Nevada.
"GUARANTORS" means Parent and the Sibling Guarantors.
"GUARANTY OBLIGATION" means, as to any Person, any (a)
guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person
to an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person,
whether direct, indirect or contingent, INCLUDING any purchase or
repurchase agreement covering such obligation or any collateral
security therefor, any agreement to provide funds (by means of loans,
capital contributions or otherwise) to such other Person, any agreement
to support the solvency or level of any balance sheet item of such
other Person or any "keep-well" or other arrangement of whatever nature
given for the purpose of assuring or holding harmless such obligee
against loss with respect to any obligation of such other Person;
PROVIDED, HOWEVER, that the term Guaranty Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guaranty Obligation in respect of
Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related Indebtedness (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in which case to
the extent of such amount) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith. The amount of any other
Guaranty Obligation shall be deemed to be zero unless and until the
amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5 should be) quantified and reflected in
the consolidated balance sheet of Borrowers.
"HAZARDOUS MATERIALS" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as "hazardous", "toxic" or "pollutant" substances or as "solid
waste" pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., or as "friable asbestos" pursuant
to the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. or
any other applicable Hazardous Materials Law, in each case as such Laws
are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials applicable
to any of the Real
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Property.
"IMMATERIAL SUBSIDIARY" means, as of any date of
determination, (a) in the case of a Subsidiary of any of the Borrowers,
a Subsidiary that has on such date total assets with a book value or
fair market value (whichever is greater) less than $100,000 and (b) in
the case of a Subsidiary of Parent (OTHER THAN a Subsidiary of any of
the Borrowers), a Subsidiary that has on such date total assets with a
book value or fair market value (whichever is greater) less than
$3,500,000.
"INDEBTEDNESS" means, as to any Person (without duplication),
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (EXCLUDING trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms), INCLUDING any Guaranty Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (A)
that is non-recourse to the credit of such Person but is secured by
assets of such Person, to the extent of the fair market value of such
assets as determined in good faith by such Person, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising
under bankers' acceptance facilities or under facilities for the
discount of accounts receivable of such Person, (e) any direct or
contingent obligations of such Person under letters of credit issued
for the account of such Person and (f) any net obligations of such
Person under Swap Agreements; PROVIDED that in no event shall the
obligations of a Person under an operating lease (as such term is
defined under Generally Accepted Accounting Principles) be deemed
Indebtedness of that Person.
"INTANGIBLE ASSETS" means assets that are considered
intangible assets under Generally Accepted Accounting Principles,
INCLUDING customer lists, goodwill, copyrights, trade names, trademarks
and patents.
"INTERCREDITOR AGREEMENT" means the Intercreditor and
Collateral Agency Agreement among the Collateral Agent, the
Administrative Agent (on behalf of the Lenders) and the Term Loan Agent
(on behalf of the Term Lenders) in the form of EXHIBIT D, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"INTEREST CHARGES" means, with respect to any Person and as of
the last day of any fiscal period, the SUM OF (a) Cash Interest Expense
of that Person PLUS (b) all interest currently payable by that Person
in Cash incurred during that
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fiscal period which is capitalized under Generally Accepted Accounting
Principles.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment
of a Eurodollar Rate Loan on a day other than the last day of the
applicable Interest Period and with respect to any failure to borrow a
Eurodollar Rate Loan on the date or in the amount specified in any
Request for Loan, (a) the Eurodollar Rate payable (or, with respect to
a failure to borrow, the Eurodollar Rate which would have been payable)
with respect to the Eurodollar Rate Loan MINUS (b) the Eurodollar Rate
on, or as near as practicable to the date of the prepayment or failure
to borrow for a Eurodollar Rate Loan with an Interest Period commencing
on such date and ending on the last day of the Interest Period of the
Eurodollar Rate Loan so prepaid or which would have been borrowed on
such date.
"INTEREST EXPENSE" means, with respect to any Person and as of
the last day of any fiscal period, the SUM OF (a) all interest, fees,
charges and related expenses paid or payable (without duplication) for
that fiscal period by that Person to a lender in connection with
borrowed money (INCLUDING any obligations for fees, charges and related
expenses payable to the issuer of any letter of credit) or the deferred
purchase price of assets that are considered "interest expense" under
Generally Accepted Accounting Principles PLUS (b) the portion of rent
paid or payable (without duplication) for that fiscal period by that
Person under Capital Lease Obligations that should be treated as
interest in accordance with Financial Accounting Standards Board
Statement No. 13.
"INTEREST PERIOD" means, with respect to any Eurodollar Rate
Loan, the related Eurodollar Period.
"INVESTMENT" means, when used in connection with any Person,
any investment by or of that Person, whether by means of purchase or
other acquisition of stock or other securities of any other Person or
by means of a loan, advance creating a debt, capital contribution,
guaranty or other debt or equity participation or interest in any other
Person, INCLUDING any partnership and joint venture interests of such
Person. The amount of any Investment shall be the amount actually
invested (MINUS any return of capital with respect to such Investment
which has actually been received in Cash or Cash Equivalents or has
been converted into Cash or Cash Equivalents or has resulted in a
cancellation or forgiveness of Indebtedness payable in Cash or Cash
Equivalents), without adjustment for subsequent increases or decreases
in the
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value of such Investment. An Investment in a Person consisting of the
guaranty of an obligation of such Person shall not be deemed
outstanding following the termination or expiration of such guaranty.
Swap Agreements shall not be deemed Investments.
"ISSUING LENDER" means Bank of America, N.A.
"JOINDER AGREEMENT" means a joinder agreement to be executed
and delivered pursuant to SECTION 6.2 by Parent, or by an additional
Borrower pursuant to Section 8.2, substantially in the form of EXHIBIT
F to the Predecessor Loan Agreement, either as originally executed or
as it may from time to time be supplemented, modified, amended,
extended or supplanted.
"KANSAS CITY" has the meaning set forth in the preamble to
this Agreement.
"KANSAS CITY DEEDS OF TRUST" means (a) the Deed of Trust
executed by Kansas City covering (i) the leasehold estate in the real
property comprising the Kansas City Riverfront Station Casino dockside
facilities, (ii) the leasehold estate for pipeline purposes in the
adjacent river levee owned by the Birmingham Drainage District, (iii)
the fee simple estate in certain adjacent real property acquired from
Kansas City Power and Light Company and (iv) the leasehold estate in
certain adjacent real property commonly referred to as the "Western
Acreage" and (b) the Deed of Trust executed by Kansas City covering the
two adjacent parcels of wetlands mitigation property near "Jackass
Bend" in Jackson County, Missouri.
"KANSAS CITY LOCAL SHARES" means the shares of capital stock
of Kansas City that were or may be issued to certain Persons in
connection with development agreements entered between Kansas City and
Governmental Agencies located in Kansas City, Missouri.
"LANDLORD CONSENT" means a landlord consent certificate
executed by each of the lessors with respect to a leasehold estate
comprising Collateral, substantially in the form of EXHIBIT G to the
Predecessor Loan Agreement, either as originally executed or as the
same may from time to time be supplemented, modified, amended, renewed,
extended or supplanted.
"LAWS" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
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"LEAD ARRANGER" means Banc of America Securities LLC.
"LENDER" has the meaning set forth in the preamble to this
Agreement.
"LETTERS OF CREDIT" means any of the letters of credit issued
by the Issuing Lender as either a Commercial Letter of Credit or a
Standby Letter of Credit under the Commitments pursuant to Section 2.4
either as originally issued or as the same may be supplemented,
modified, amended, renewed, extended or supplanted. On the Amendment
Effective Date, the Mercantile Letter of Credit shall become a Letter
of Credit hereunder pursuant to Section 2.4(k).
"LICENSE REVOCATION" means the revocation, involuntary failure
to renew or suspension of, or the appointment of a receiver, supervisor
or similar official with respect to, any casino, gambling or gaming
license issued by any Gaming Board covering any casino or gaming
facility of Parent or any Subsidiary of Parent.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance,
lien or charge of any kind, whether voluntarily incurred or arising by
operation of Law or otherwise, affecting any Property, INCLUDING any
currently effective agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature of a security interest, and/or the filing of or currently
effective agreement to give any financing statement (OTHER THAN a
precautionary financing statement with respect to a lease that is not
in the nature of a security interest) under the Uniform Commercial Code
or comparable Law of any jurisdiction with respect to any Property.
"LINE A COMMITMENT" means, subject to Sections 2.5 and 2.6,
$72,000,000. The respective Pro Rata Shares of the Lenders with respect
to the Line A Commitment are set forth in SCHEDULE 1.1.
"LINE A NOTE" means any of the promissory notes made by
Borrowers to a Lender evidencing Advances under that Lender's Pro Rata
Share of the Line A Commitment, substantially in the form of EXHIBIT E,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"LINE A LOAN" means any Loan made under the Line A Commitment.
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"LINE B COMMITMENT" means, subject to Sections 2.5, 2.6 and
2.13, $278,000,000. The respective Pro Rata Shares of the Lenders with
respect to the Line B Commitment are set forth in SCHEDULE 1.1.
"LINE B LOAN" means a Loan made under the Line B Commitment.
"LINE B NOTE" means any of the promissory notes made by
Borrowers to a Lender evidencing Advances under that Lender's Pro Rata
Share of the Line B Commitment, substantially in the form of EXHIBIT F,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"LOAN" means the aggregate of the Advances made at any one
time by the Lenders pursuant to ARTICLE 2.
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Parent Guaranty, the Sibling Guaranty, the Letters of
Credit, the Collateral Documents, any Secured Swap Agreement, the Swing
Line Note and any other agreements of any type or nature hereafter
executed and delivered by Borrowers or the Guarantors to the
Administrative Agent, any Lender or the Swing Line Lender in any way
relating to or in furtherance of this Agreement, in each case either as
originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted
(INCLUDING pursuant to the Omnibus Documents Amendment).
"LOCALS SECURITIES ACQUISITION" means the acquisition by
Parent of (a) debt and/or equity securities of Persons that are
primarily engaged in the casino business in the greater Las Vegas,
Nevada metropolitan area oriented to the "locals" market or (b) the
lessor's position, or an interest in the lessor's position, under
operating leases extended to such Persons.
"MAINTENANCE CAPITAL EXPENDITURE" means a Capital Expenditure
for the maintenance, repair, restoration or refurbishment of any
Developed Property, EXCLUDING any Capital Expenditures which materially
adds to or further improves such Developed Property.
"MAJORITY LENDERS" means, when used in Section 6.12, Lenders
having in the aggregate more than 50% of the Commitments then in
effect.
"MANAGEMENT FEE FACTOR" means $12,000,000.
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"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has had or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability
of any Loan Document (OTHER THAN as a result of any action or inaction
of the Administrative Agent, any Lender or any Affiliate of any
Lender), (b) has been or could reasonably be expected to be material
and adverse to the business or condition (financial or otherwise) of
Borrowers or (c) has materially impaired or could reasonably be
expected to materially impair the ability of Borrowers to perform the
Obligations.
"MATURITY DATE" means September 30, 2003.
"MERCANTILE LETTER OF CREDIT" means standby letter of credit
No. 3017345 dated July 23, 1999 in the amount of $4,800,000 issued by
Bank of America, N.A. (then known as "Bank of America National Trust
and Savings Association") (in its individual capacity) at the request
of Kansas City in favor of Mercantile Bank, N.A. expiring August 25,
2001.
"MINIMUM INTERCOMPANY RATE" means, as of any date of
determination, the interest rate that is the weighted (by principal
amount outstanding or liquidation preference, as applicable) daily
average of (a) the effective after-tax interest rates payable as of
that date on all outstanding Indebtedness of Parent (OTHER THAN
Indebtedness owed to any of Borrowers or to a Restricted Subsidiary)
and (b) the effective after-tax rate (calculated by converting the per
share dividend amount with reference to the related per share
liquidation preference) at which dividends, if not paid in Cash, will
accrue and cumulate as of that date on all outstanding capital stock of
Parent (INCLUDING Permitted Preferred Stock).
"MODEL INDENTURE" means the Indenture dated as of April 3,
1997 between Parent and First Union National Bank covering Parent's
9-3/4% senior subordinated notes due 2007.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA to which Borrowers or any
of their ERISA Affiliates contribute or are obligated to contribute.
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"NEGATIVE PLEDGE" means a Contractual Obligation that contains
a covenant binding on Borrowers or any of the Guarantors that prohibits
Liens on any of its or their Property, OTHER THAN (a) any such covenant
contained in a Contractual Obligation granting a Lien permitted under
Sections 6.6 or 9.8 which affects only the Property that is the subject
of such permitted Lien and (b) any such covenant that does not apply to
Liens securing the Obligations.
"NET INCOME" means, with respect to any Person and with
respect to any fiscal period, the net income of that Person for that
period, determined in accordance with Generally Accepted Accounting
Principles, consistently applied; PROVIDED that (a) Net Income for
Borrowers shall be determined on a combined basis and (b) Net Income
for Parent shall be determined on a consolidated basis.
"NEW EQUITY PROCEEDS" means, as of any date of determination,
the aggregate net Cash proceeds received by Parent from any issuance
and sale of Common Stock and/or Permitted Preferred Stock of Parent
after the Amendment Effective Date and through such date.
"NEW VENTURE" means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, excursion gambling
boat, floating gaming facility, golf course, entertainment center or
similar facility (or any site or proposed site for any of the
foregoing) owned or to be owned by Parent or any of its Subsidiaries
(or owned or to be owned by a Person in which Parent or any of its
Subsidiaries or a New Venture Entity owned directly or indirectly by
Parent or any of its Subsidiaries holds an Investment) and which is not
at the Amendment Effective Date a Developed Property; PROVIDED that the
acquisition by St. Charles of any TIF Real Property shall be
considered, in conjunction with its acquisition of all other TIF Real
Property, to be a New Venture.
"NEW VENTURE ENTITY" means (a) the Person that directly owns a
New Venture, and (b) any holding company for such a Person whose sole
assets consist (directly or indirectly through another New Venture
Entity) of Investments in that Person.
"NEW VENTURE EXPENDITURE" means any expenditure by Parent or
any of its Subsidiaries for, or in connection with, a New Venture. The
amount of a New Venture Expenditure that is made in Property OTHER THAN
Cash shall be the fair market value of the Property at the time of that
New Venture Expenditure.
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"NOTES" means the Line A Notes and the Line B Notes.
"OBLIGATIONS" means all present and future obligations of
every kind or nature of Borrowers or the Guarantors at any time and
from time to time owed to the Administrative Agent or the Lenders or
any one or more of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, INCLUDING obligations of
performance as well as obligations of payment, and INCLUDING interest
that accrues after the commencement of any proceeding under any Debtor
Relief Law by or against Borrowers.
"OMNIBUS DOCUMENTS AMENDMENT" means the Third Omnibus
Documents Amendment and Collateral Assignment amending various Loan
Documents to be executed by Borrowers, the Administrative Agent and the
Collateral Agent, in the form of EXHIBIT G, as of the Amendment
Effective Date, together with all ancillary amendments to the Loan
Documents referred to therein.
"OPINIONS OF COUNSEL" means the favorable written legal
opinions of (a) Milbank, Tweed, Hadley & McCloy, special counsel to
Borrowers and the Guarantors and (b) Schreck Morris, special Nevada
counsel to Borrowers and the Guarantors, (c) King, Hershey, Coleman,
Koch & Stone, special Missouri counsel to Kansas City and (d) Thompson
& Coburn, special Missouri counsel to St. Charles, substantially in the
form of EXHIBITS H-1, H-2, H-3 and H-4, respectively.
"PALACE" has the meaning set forth in the preamble to this
Agreement.
"PALACE DEED OF TRUST" means the Deed of Trust (Fee) and/or
Deed of Trust (Leasehold) executed by Palace covering the real property
comprising the Palace Station Hotel & Casino in Las Vegas, Nevada.
"PALACE EVENT OF DEFAULT" shall have the meaning provided in
Section 12.3.
"PARENT" has the meaning set forth in the preamble to this
Agreement.
"PARENT FUNDED DEBT RATIO" means the Funded Debt Ratio of
Parent; PROVIDED that the components of such ratio shall be calculated
for Parent on a
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consolidated basis, EXCEPT that such calculations shall exclude any
amounts or items attributable to Unrestricted New Venture Entities.
"PARENT LEVERAGE RATIO" means, as of the last day of each
Fiscal Quarter, the RATIO OF (a) Average Quarterly Adjusted Funded Debt
of Parent for that Fiscal Quarter to (b) Adjusted EBITDA of Parent for
the fiscal period consisting of that Fiscal Quarter and the three
immediately preceding Fiscal Quarters; PROVIDED that the components of
such ratio shall be calculated for Parent on a consolidated basis,
EXCEPT that such calculations shall exclude any amounts or items
attributable to Unrestricted New Venture Entities.
"PARENT GUARANTY" means the continuing guaranty of the
Obligations executed and delivered by Parent, in the form of EXHIBIT I
to the Existing Loan Agreement.
"PARENT TANGIBLE NET WORTH" means, as of any date of
determination, the consolidated Stockholders' Equity of Parent and its
Subsidiaries on that date minus the aggregate Intangible Assets of
Parent and its Subsidiaries on that date.
"PARTY" means any Person other than the Administrative Agent,
the Lenders and any Affiliate of any Lender, which now or hereafter is
a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), OTHER THAN a
Multiemployer Plan, which is subject to Title IV of ERISA and is
maintained by Borrowers or to which Borrowers contributes or has an
obligation to contribute.
"PERIPHERAL ASSETS" means (a) the capital stock or assets of
Southwest Gaming Services, Inc., (b) the capital stock or assets of
Southwest Services, Inc., (c) the out-of-service riverboat commonly
known as "Casino St. Charles" and (d) each other asset listed on
SCHEDULE 1.1B.
"PERMITTED ENCUMBRANCES" means:
(a) Inchoate Liens incident to construction on or maintenance
of Property; or Liens incident to construction on or maintenance of
Property now or hereafter filed of record for which
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adequate reserves have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, PROVIDED
that, by reason of nonpayment of the obligations secured by such
Liens, no material Property is subject to a material impending risk of
loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not
yet past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
PROVIDED that, by reason of nonpayment of the obligations secured by
such Liens, no material Property is subject to a material impending
risk of loss or forfeiture;
(c) minor defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair market value
or use of the Property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire communication
lines, power lines and substations, streets, trails, walkways,
drainage, irrigation, water, and sewerage purposes, dikes, canals,
ditches, the removal of oil, gas, coal, or other minerals, and other
like purposes affecting Property which in the aggregate do not
materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be expected
to be held;
(e) easements, exceptions, reservations, or other agreements
for the purpose of facilitating the joint or common use of Property in
or adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or impair the fair
market value or use of such Property for the purposes for which it is
or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license, or
permit;
(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses
(A) or (B) above, arising in the ordinary course of business
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with respect to obligations which are not delinquent or are being
contested in good faith, PROVIDED that, if delinquent, adequate
reserves have been set aside with respect thereto and, by reason of
nonpayment, no material Property is subject to a material impending
risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use
of Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is or
may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of
the Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, PROVIDED the aggregate value of all such
pledges and deposits in connection with any such lease does not at any
time exceed 20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure bids
made with respect to, or performance of, contracts (OTHER THAN
contracts creating or evidencing an extension of credit to the
depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrowers;
(q) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or
legal proceeding in the ordinary course of business which is currently
being contested in good faith by appropriate proceedings, PROVIDED that
such Lien is junior to the Lien of the Collateral Documents, adequate
reserves have been set aside and no material Property is subject to a
material impending risk of loss or forfeiture; and
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(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be expected
to be held.
"PERMITTED PREFERRED STOCK" means preferred stock of Parent
that (a) is not subject to mandatory redemption or mandatory exchange
for any debt security of Parent, or any redemption or such exchange at
the election of any holder thereof, in each case prior to December 31,
2006, (b) if it bears a scheduled dividend rate in excess of 9.5%,
permits the payment of dividends in excess of 9.5% through at least
December 31, 2006 in the form of additional shares of such preferred
stock and (c) is issued pursuant to charter documents and/or a
governing agreement that contains representations, warranties,
covenants, change of control provisions, events of default and other
provisions determined by the Requisite Lenders (in the exercise of
their reasonable judgment from the perspective of a senior lender) to
be not more favorable to the holders of such preferred stock than those
applicable to Parent's previously outstanding $.01 par value
convertible preferred stock.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting
of (a) an interest (OTHER THAN a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a
ground lease), that does not materially impair the fair market value or
use of Property for the purposes for which it is or may reasonably be
expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Encumbrance, (c) the subordination of a lease or
sublease in favor of a financing entity and (d) a license, or similar
right, of or to Intangible Assets granted in the ordinary course of
business.
"PERMITTED SALE/LEASEBACK" means the sale to a Person not an
Affiliate of Parent, and subsequent leaseback, of any or all of the
currently incomplete vessels and related dockside facilities located at
St. Charles, Missouri.
"PERMITTED SUBORDINATED DEBT" means Indebtedness of Parent
that (a) does not have any principal or sinking fund payment due prior
to December 31, 2006, (b) is subordinated (INCLUDING interest blockage
and delayed acceleration provisions) to the Obligations to at least the
same degree as is set forth in the Model Indenture and (c) is issued
pursuant to a governing agreement that contains representations,
warranties, covenants, change of control provisions, events of default
and other provisions substantially identical to those in the Model
Indenture or determined by the Requisite Lenders (in the exercise of
their reasonable judgment from the perspective of a senior lender) to
be not more favorable to the holders of such Indebtedness than those
contained in the Model Indenture.
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"PERSON" means any individual or entity, INCLUDING a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture or Governmental
Agency.
"PLEDGE AGREEMENT (MISSOURI)" means a pledge agreement
substantially in the form of EXHIBIT I, either as originally executed
or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"PLEDGE AGREEMENT (NEVADA)" means the Pledge Agreement
executed and delivered by Parent in connection with the Predecessor
Loan Agreement covering the Pledged Collateral (Nevada).
"PLEDGE AGREEMENTS" means the Pledge Agreement (Nevada) and
the Pledge Agreement (Missouri) (OTHER THAN any Kansas City Local
Shares).
"PLEDGED COLLATERAL (MISSOURI)" means certificates evidencing
100% of the shares of St. Charles and Kansas City.
"PLEDGED COLLATERAL (NEVADA)" means certificates evidencing
100% of the shares of capital stock of (a) Palace, Boulder, Texas and
Sunset and (b) any additional Borrowers added pursuant to Section 8.2.
"PREDECESSOR LOAN AGREEMENT" means the Amended and Restated
Reducing Revolving Loan Agreement dated as of March 19, 1996, as
amended through November 5, 1998.
"PREFERRED SHIP MORTGAGE" means the preferred ship mortgage
executed and delivered by Kansas City in the form of EXHIBIT O to the
Predecessor Loan Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"PRE-OPENING EXPENSES" means, with respect to any fiscal
period, the amount of expenses (OTHER THAN Interest Expense) classified
as "pre-opening expenses" on the applicable financial statements of
Parent and its Subsidiaries for such period, prepared in accordance
with Generally Accepted Accounting Principles consistently applied.
"PRICING CERTIFICATE" means a certificate in the form of
EXHIBIT I, properly completed and signed by a Senior Officer of
Borrowers.
"PRICING PERIOD" means (a) the period commencing on each
February 16 and ending on the next following May 15, (b) the period
commencing on each May 16 and ending on the next following August 15,
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(c) the period commencing on each August 16 and ending on the next
following November 15 and (d) the period commencing on each November 16
and ending on the next following February 15.
"PRIOR PALACE CREDIT FACILITY" means that certain Reducing
Revolving Credit Agreement dated as of May 23, 1993 among Palace, Bank
of America NT & SA, as administrative agent, and the banks party
thereto, as heretofore amended.
"PROJECTIONS" means the financial projections contained in the
Confidential Information Memorandum dated July 1999 distributed by or
on behalf of Borrowers to the Lenders.
"PROPERTY" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Commitments set forth opposite the name of that
Lender on SCHEDULE 1.1A, as such percentage may be increased or
decreased pursuant to a Commitments Assignment and Acceptance executed
in accordance with Section 14.8.
"QUARTERLY PAYMENT DATE" means each June 30, September 30,
December 31 and March 31.
"REAL PROPERTY" means, as of any date of determination, all
real Property then or theretofore owned, leased or occupied by any of
Borrowers.
"REDUCTION AMOUNT" means, with respect to each Reduction Date,
the amount set forth below opposite that Reduction Date:
Reduction Date Amount
-------------- ------
September 30, 1999 $ 7,000,000
December 31, 1999
through June 30, 2000 12,250,000
September 30, 2000
through June 30, 2001 14,000,000
September 30, 2001
through September 30, 2003 17,500,000
"REDUCTION DATE" means September 30, 1999 and each Quarterly
Payment Date thereafter.
"REFERENCE RATE" means the rate of interest publicly announced
from time to time by the Domestic Reference Lender in Charlotte, North
Carolina (or other headquarters city of the Domestic Reference Lender),
as its "reference rate." It is a rate set by the Domestic
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Reference Lender based upon various factors including the Domestic
Reference Lender's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the Reference Rate announced by the
Domestic Reference Lender shall take effect at the opening of business
on the day specified in the public announcement of such change.
"REFINANCING FACILITY" means the credit facility extended to
Borrowers by the Lenders pursuant to the Line A Commitment.
"REGULATION D" means Regulation D, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"REGULATION U" means Regulation U, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulations in substance substituted therefor.
"REQUEST FOR LETTER OF CREDIT" means a written request for a
Letter of Credit substantially in the form of EXHIBIT J, signed by a
Responsible Official of any of Borrowers, and properly completed to
provide all information required to be included therein.
"REQUEST FOR LOAN" means a written request for a Loan
substantially in the form of EXHIBIT K, signed by a Responsible
Official of any of Borrowers, on behalf of Borrowers, and properly
completed to provide all information required to be included therein.
"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"REQUISITE LENDERS" means (a) as of any date of determination
if the Commitments are then in effect, Lenders having in the aggregate
66-2/3% or more of the Commitments then in effect and (b) as of any
date of determination if the Commitments have then been terminated and
there is then any Indebtedness evidenced by the Notes, Lenders holding
Notes evidencing in the aggregate 66-2/3% or more of the aggregate
Indebtedness then evidenced by the Notes.
"RESPONSIBLE OFFICIAL" means (a) when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner of such Person, corporate officer of a corporate
general partner of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on behalf
thereof, and (b) when used with reference to a Person who
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is an individual, such Person. The Lenders shall be entitled to
conclusively rely upon any document or certificate that is signed or
executed by a Responsible Official of Parent or any of its
Subsidiaries as having been authorized by all necessary corporate
partnership and/or other action on the part of Parent or such
Subsidiary; PROVIDED that such Responsible Official has been
designated as a Responsible Official for purposes of this Agreement in
a written notice signed by a Senior Officer and delivered to the
Administrative Agent, which notice has not been cancelled or
superseded.
"RESTRICTED SUBSIDIARY" means, as of any date of
determination, all Subsidiaries of Parent OTHER THAN (a) the Borrowers
and (b) Unrestricted New Venture Entities.
"RIGHT OF OTHERS" means, as to any Property in which a Person
has an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, INCLUDING any option or right
to acquire a Lien; PROVIDED, however, that (a) no covenant restricting
the use or disposition of Property of such Person contained in any
Contractual Obligation of such Person and (b) no provision contained in
a contract creating a right of payment or performance in favor of a
Person that conditions, limits, restricts, diminishes, transfers or
terminates such right shall be deemed to constitute a Right of Others.
"SECURED SWAP AGREEMENT" means a Swap Agreement between
Borrowers or Parent (or all or any of them) and a Lender (or an
Affiliate of a Lender) that is secured by a Lien on the Collateral that
complies with the applicable provisions of Section 13.3.
"SECURITY AGREEMENT" means the security agreement executed and
delivered by Borrowers, in the form of EXHIBIT R to the Predecessor
Loan Agreement, either as originally executed or as it may from time to
time be supplemented, modified, amended, extended or supplanted.
"SENIOR OFFICER" means (a) the chief executive officer, (b)
the president, (c) any executive vice president, (d) any senior vice
president, (e) the chief financial officer, (f) the treasurer or (g)
any assistant treasurer, in each case of any of the Borrowers or
Parent, as applicable.
"SIBLING GUARANTORS" means (a) Southwest Gaming Services,
Inc., (b) Southwest Services, Inc., (c) Green Valley Station, Inc., (d)
Tropicana Station, Inc., and (e) any other future Restricted Subsidiary
that (i) is a Wholly-Owned Subsidiary and (ii) is not an Immaterial
Subsidiary.
"SIBLING GUARANTY" means the continuing guaranty of the
Obligations executed and delivered by the Sibling Guarantors, in the
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form of EXHIBIT M to the Existing Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or
adoption after the Amendment Effective Date of any Law or
interpretation, or any change therein or thereof, or any change in the
interpretation or administration thereof by any Governmental Agency,
central bank or comparable authority charged with the interpretation or
administration thereof, or compliance by any Lender or its Eurodollar
Lending Office with any request or directive (whether or not having the
force of Law) of any such Governmental Agency, central bank or
comparable authority.
"ST. CHARLES" has the meaning set forth in the preamble to
this Agreement.
"ST. CHARLES DEED OF TRUST" means the Deed of Trust (Fee)
executed by St. Charles covering (a) the fee simple real property
comprising the St. Charles Riverfront Station in St. Charles, Missouri
and (b) the other fee simple real property owned by St. Charles located
in St. Charles, Missouri consisting of approximately 16 parcels
comprising approximately 294 acres in the aggregate.
"ST. CHARLES COMPLETION PROJECT" means the purchase or
construction of two (2) replacement casino barges, the construction of
a new man-made basin and the construction of a new entertainment center
(restaurants, lounges and other amenities).
"STANDBY LETTER OF CREDIT" means each Letter of Credit that is
not a Commercial Letter of Credit.
"STOCKHOLDERS' EQUITY" means, as of any date of determination
and with respect to any Person, the consolidated stockholders' equity
of the Person as of that date determined in accordance with Generally
Accepted Accounting Principles; PROVIDED that there shall be excluded
from Stockholders' Equity any amount attributable to Disqualified
Stock.
"SUBORDINATED OBLIGATIONS" means (a) the Existing Subordinated
Debt and (b) any Permitted Subordinated Debt.
"SUBSIDIARY" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in either case, characterized as such or
as a "joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability
company, of which a majority of the securities having ordinary voting
power for the election of directors or other governing body (other than
securities having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person and/or
one or more Subsidiaries of such Person, or (b) in the case of
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a partnership, of which a majority of the partnership or other
ownership interests are at the time beneficially owned by such Person
and/or one or more of its Subsidiaries.
"SUNSET" has the meaning set forth in the preamble to this
Agreement.
"SUNSET DEED OF TRUST" means the Deed of Trust dated as of
September 25, 1996, as amended, executed by Sunset creating a Lien on
the real Property comprising the Sunset Station Casino Hotel in
Henderson, Nevada.
"SUNSET EXPANSION PROJECT" means the expansion of
hotel/casino/amenities at the Sunset Station Casino Hotel that will
provide customer products consistent with existing customer products at
that location in accordance with Parent's existing master plan for that
location.
"SUNSET INTERCREDITOR AGREEMENT" means the Amended and
Restated Intercreditor Agreement, dated as of November 6, 1998 executed
by the Administrative Agent on behalf of the Lenders, and First
Security Trust Company of Nevada (the "Trustee"), on behalf of the
holders (the "Holders") party to that certain Participation Agreement
dated as of September 25, 1996, among the Trustee, Parent and the
Holders.
"SWAP AGREEMENT" means a written agreement between Borrowers
or Parent (or all or any of them) and one or more financial
institutions providing for "swap", "cap", "collar" or other interest
rate protection with respect to any Indebtedness.
"SWING LINE" means the revolving line of credit established by
the Swing Line Lender in favor of Borrowers pursuant to Section 2.9.
"SWING LINE LENDER" means Bank of America, N.A., acting
through its Las Vegas Commercial Banking Division.
"SWING LINE LOANS" means loans made by the Swing Line Lender
to Borrowers pursuant to SECTION 2.9.
"SWING LINE NOTE" means the promissory note executed by
Borrowers in favor of the Swing Line Lender in connection with the
Swing Line.
"SWING LINE OUTSTANDINGS" means, as of any date of
determination, the aggregate principal Indebtedness of Borrowers on all
Swing Line Loans then outstanding.
"TARGET LEVERAGE RATIO ELECTION" means a written notice, in
form acceptable to the Administrative Agent, delivered by Parent to the
Administrative Agent stating that Parent irrevocably elects to amend
Section 9.12 to provide that the maximum Parent Funded Debt Ratio
thereafter shall be 4.00 to 1.00, in which case such
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Section shall thereupon be deemed so amended without any further
action on the part of the Lenders, Borrowers or Administrative Agent;
PROVIDED that the Target Leverage Ratio Election shall automatically
be deemed made on September 30, 2001.
"TERM LOAN" means the $200,000,000 term loan made to Borrowers
by the Term Lenders pursuant to the Term Loan Agreement.
"TERM LOAN AGENT" means Bank of America, N.A., in its capacity
as administrative agent under the Term Loan Agreement.
"TERM LOAN AGREEMENT" means that certain Term Loan Agreement
dated as of August 25, 1999 among Borrowers, Parent (as a covenantor
but not a borrower), the Term Loan Agent and the Term Lenders.
"TERM LENDERS" means the lenders party to the Term Loan
Agreement.
"TEXAS" has the meaning set forth in the preamble to this
Agreement.
"TEXAS DEED OF TRUST" means the Deed of Trust (Leasehold)
executed by Texas covering the Texas Gambling Hall & Hotel, located in
Las Vegas, Nevada, as amended, supplemented or otherwise modified from
time to time.
"TEXAS EXPANSION PROJECT" means the expansion of
hotel/casino/amenities at the Texas Gambling Hall & Hotel that will
provide customer products consistent with existing customer products at
that location in accordance with Parent's existing master plan for that
location.
"TIF REAL PROPERTY" means any Real Property acquired by St.
Charles pursuant to the exercise of eminent domain by the City of St.
Charles.
"TITLE COMPANY" means Commonwealth Land Title Company, acting
through its representative, Nevada Title Insurance Company, or such
other title insurance company as is reasonably acceptable to the
Administrative Agent.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the
fact or situation described therein is known by the Person (or, in the
case of a Person other than a natural Person, known by a Responsible
Official of that Person) making the representation, warranty or other
statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known
by the Person (or, in the case of a Person other than a natural Person,
would have been known by a Responsible Official of that Person).
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"TRADEMARK COLLATERAL ASSIGNMENT" means the trademark
collateral assignment executed and delivered by Borrowers (and by
Parent as record owner of certain trademarks) in the form of EXHIBIT T
to the Existing Loan Agreement, either as originally executed or as it
may from time to time be supplemented, modified, amended, extended or
supplanted.
"TYPE", when used with respect to any Loan or Advance, means
the designation of whether such Loan or Advance is an Alternate Base
Rate Loan or Advance, or a Eurodollar Rate Loan or Advance.
"UNRESTRICTED NEW VENTURE ENTITY" means (a) any New Venture in
which any single Person OTHER THAN Parent and its Subsidiaries owns an
equity interest that is larger than the equity interest owned by Parent
and its Subsidiaries and (b) any other New Venture Entity (EXCEPT a
Restricted Subsidiary) designated by Parent to be an Unrestricted New
Venture Entity by a then effective written notice to the Administrative
Agent; PROVIDED that Parent may, by written notice to the
Administrative Agent, terminate any such designation if (i) the
aggregate Investments theretofore made by Parent in such New Venture
Entity does not exceed $10,000,000, (ii) such New Venture Entity is
either a Wholly-Owned Subsidiary or, if not, each other holder of an
equity interest in such New Venture Entity is reasonably acceptable to
the Requisite Lenders and (iii) no Default or Event of Default then
exists or would result therefrom, whereupon such New Venture Entity
shall become an additional borrower hereunder.
"UNRESTRICTED NEW VENTURE ENTITY BASKET" means $200,000,000.
"VESSEL LIENOR CONSENT" means a vessel lienor consent
certificate executed by each holder of a Lien on the riverboat vessels
owned by St. Charles that are part of the St. Charles Riverfront
Station, substantially in the form of EXHIBIT U to the Predecessor Loan
Agreement, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplemented.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of Parent, 100%
of the capital stock of which is owned, directly or indirectly, by
Parent, EXCEPT for director's qualifying shares required by applicable
Laws.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, Generally Accepted Accounting Principles applied on a
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consistent basis, EXCEPT as otherwise specifically prescribed herein. In the
event that Generally Accepted Accounting Principles change during the term of
this Agreement such that the covenants contained in Sections 6.9, 6.10, 7.4,
9.11 or 9.12 would then be calculated in a different manner or with different
components, (a) Parent, Borrowers and the Lenders agree to amend this Agreement
in such respects as are necessary to conform those covenants as criteria for
evaluating Parent's or Borrowers' financial condition to substantially the same
criteria as were effective prior to such change in Generally Accepted Accounting
Principles and (b) Parent and Borrowers shall be deemed to be in compliance with
the covenants contained in the aforesaid Sections if and to the extent that
Parent and Borrowers would have been in compliance therewith under Generally
Accepted Accounting Principles as in effect immediately prior to such change,
but shall have the obligation to deliver each of the materials described in
ARTICLE 10 to the Administrative Agent and the Lenders, on the dates therein
specified, with financial data presented in a manner which conforms with
Generally Accepted Accounting Principles as in effect immediately prior to such
change.
1.4 ROUNDING. Any financial ratios required to be maintained by
Borrowers or Parent pursuant to this Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 REFERENCES TO "BORROWERS AND THEIR SUBSIDIARIES". Any
reference herein to "Borrowers and their Subsidiaries" or the like shall refer
solely to Borrowers during such times, if any, as Borrowers shall have no
Subsidiaries.
1.7 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2
LOANS AND LETTERS OF CREDIT
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Amendment
Effective Date through the Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable Line A
Commitment, make Advances to Borrowers under the Line A Commitment in
such amounts as Borrowers may request that do not result in (a) the
aggregate principal amount outstanding under the Line A Notes to exceed
the Line A Commitment or (b) the SUM OF (i) the aggregate principal
amount outstanding under the Line A Notes and Line B Notes PLUS (ii)
the Swing Line Outstandings (after giving effect to any concurrent
payment thereof with the proceeds of such Advances) PLUS (iii) the
Aggregate Effective Amount under all outstanding Letters of Credit to
exceed the Commitments. Subject to the limitations set forth herein,
Borrowers may borrow, repay and reborrow under the Line A Commitment
without premium or penalty.
(b) Subject to the terms and conditions set forth in this
Agreement (INCLUDING those set forth in Section 11.2), at any time and
from time to time from the Amendment Effective Date through the
Maturity Date, each Lender shall, pro rata according to that Lender's
Pro Rata Share of the then applicable Line B Commitment, make Advances
to Borrowers under the Line B Commitment in such amounts as Borrowers
may request that do not result in (a) the aggregate principal amount
outstanding under the Line B Notes to exceed the Line B Commitment or
(b) the SUM OF (i) the aggregate principal amount outstanding under the
Line A Notes and Line B Notes PLUS (ii) the Swing Line Outstandings
(after giving effect to any concurrent payment thereof with the
proceeds of such Advances) PLUS (iii) the Aggregate Effective Amount
under all outstanding Letters of Credit to exceed the Commitments.
Subject to the limitations set forth herein, Borrowers may borrow,
repay and reborrow under the Line B Commitment without premium or
penalty.
(c) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i)
date of such Loan, (ii) type of Loan, (iii) amount of such Loan, and
(iv) in the case of a Eurodollar Rate Loan, the Interest Period for
such Loan. Unless the Administrative Agent has notified, in its sole
and absolute discretion, Borrowers to the contrary, a Loan may be
requested by telephone by a Responsible Official of Borrowers, in which
case Borrowers shall confirm such request by promptly delivering a
Request for Loan in person or by telecopier conforming to the preceding
sentence to the Administrative Agent. Administrative Agent shall incur
no liability whatsoever hereunder in acting upon any telephonic request
for Loan purportedly made by a Responsible Official of Borrowers, and
Borrowers hereby agree to
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indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the applicable Interest Period, and that
Lender's Pro Rata Share of the Loan. Not later than 10:00 a.m.,
California time, on the date specified for any Loan (which must be a
Banking Day), each Lender shall make its Pro Rata Share of the Loan in
immediately available funds available to the Administrative Agent at
the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in ARTICLE 11, all Advances shall be
credited on that date in immediately available funds to the Designated
Deposit Account.
(e) Unless the Requisite Lenders otherwise consent, each
Alternate Base Rate Loan shall be not less than $5,000,000 and each
Eurodollar Rate Loan shall be not less than $10,000,000 and in an
integral multiple of $1,000,000.
(f) The Advances made by each Lender under the Line A
Commitment shall be evidenced by that Lender's Line A Note. The
Advances made by each Lender under the Line B Commitment shall be
evidenced by that Lender's Line B Note.
(g) Subject to Sections 3.7(c) and (d), a Request for Loan
shall be irrevocable upon the Administrative Agent's first notification
thereof.
(h) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(C), if applicable)
has been made within the requisite notice periods set forth in Section
2.2 or 2.3 prior to the end of the Interest Period for any Eurodollar
Rate Loan, then on the last day of such Interest Period, such
Eurodollar Rate Loan shall be automatically converted into an Alternate
Base Rate Loan in the same amount.
(i) If a Loan is to be made on the same date that another Loan
is due and payable, Borrowers or the Lenders, as the case may be, shall
make available to the Administrative Agent the net amount of funds
giving effect to both such Loans and the effect for purposes of this
Agreement shall be the same as if separate transfers of funds had been
made with respect to each such Loan.
2.2 ALTERNATE BASE RATE LOANS. Each request by Borrowers for an
Alternate Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second sentence of
Section 2.1(C), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m. California time, on the
date (which must be a Banking Day) of the requested Alternate Base Rate Loan.
All Loans shall constitute Alternate Base Rate
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Loans unless properly designated as a Eurodollar Rate Loan pursuant to Section
2.3.
2.3 EURODOLLAR RATE LOANS.
(a) Each request by Borrowers for a Eurodollar Rate Loan shall
be made pursuant to a Request for Loan (or telephonic or other request
for Loan referred to in the second sentence of Section 2.1(c), if
applicable) received by the Administrative Agent, at the Administrative
Agent's Office, not later than 9:00 a.m., California time, at least
three (3) Eurodollar Banking Days before the first day of the
applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking Days
before the first day of the applicable Eurodollar Period, the
Administrative Agent shall confirm its determination of the applicable
Eurodollar Rate (which determination shall be conclusive in the absence
of manifest error) and promptly shall give notice of the same to
Borrowers and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than ten (10) Eurodollar Rate Loans (whether
under the Line A Commitment or Line B Commitment) shall be outstanding
at any one time.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund
any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the Maturity Date,
the Issuing Lender shall issue such Letters of Credit under the
Commitments as Borrowers may request by a Request for Letter of Credit;
PROVIDED that (i) giving effect to all such Letters of Credit, the SUM
of (A) the aggregate principal amount outstanding under the Line A
Notes and Line B Notes, PLUS (B) the Swing Line Outstandings PLUS (C)
the Aggregate Effective Amount of all outstanding Letters of Credit, do
not exceed the then applicable Commitments and (ii) the Aggregate
Effective Amount under all outstanding Letters of Credit shall not
exceed $5,500,000. Each Letter of Credit shall be in a form acceptable
to the Issuing Lender. Unless all the Lenders otherwise consent in a
writing delivered to the Administrative Agent, the term of any Letter
of Credit shall not exceed one (1) year (EXCEPT (aa) the Mercantile
Letter of Credit as set forth in Section 2.4(k) and (bb) Letters of
Credit with renewal or extension provisions, so long as such provisions
permit the
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Issuing Lender to decline to renew or extend such Letter of Credit in
its discretion on each anniversary of the issuance thereof, and are
otherwise on terms acceptable to the Administrative Agent) or extend
beyond the Maturity Date.
(b) Each Request for Letter of Credit shall be submitted to
the Issuing Lender, with a copy to the Administrative Agent, at least
five (5) Banking Days prior to the date upon which the related Letter
of Credit is proposed to be issued. The Administrative Agent shall
promptly notify the Issuing Lender whether such Request for Letter of
Credit, and the issuance of a Letter of Credit pursuant thereto,
conforms to the requirements of this Agreement. Upon issuance of a
Letter of Credit, the Issuing Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly
notify the Lenders, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender shall
be deemed to have purchased a pro rata participation in such Letter of
Credit from the Issuing Lender in an amount equal to that Lender's Pro
Rata Share. Without limiting the scope and nature of each Lender's
participation in any Letter of Credit, to the extent that the Issuing
Lender has not been reimbursed by Borrowers for any payment required to
be made by the Issuing Lender under any Letter of Credit, each Lender
shall, pro rata according to its Pro Rata Share, reimburse the Issuing
Lender through the Administrative Agent promptly upon demand for the
amount of such payment. The obligation of each Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of Borrowers to reimburse the Issuing
Lender for the amount of any payment made by the Issuing Lender under
any Letter of Credit together with interest as hereinafter provided.
(d) Borrowers agree to pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the Issuing
Lender with respect to each Letter of Credit within one (1) Banking Day
after demand made by the Issuing Lender therefor, together with
interest on such amount from the date of any payment made by the
Issuing Lender at the rate applicable to Alternate Base Rate Loans for
three Banking Days and thereafter at the Default Rate. The principal
amount of any such payment shall be used to reimburse the Issuing
Lender for the payment made by it under the Letter of Credit and, to
the extent that the Lenders have not reimbursed the Issuing Lender
pursuant to Section 2.4(c), the interest amount of any such payment
shall be for the account of the Issuing Lender. Each Lender that has
reimbursed the Issuing Lender pursuant to Section 2.4(c) for its Pro
Rata Share of any payment made by the Issuing Lender under a Letter of
Credit shall thereupon acquire a pro rata participation, to the extent
of such reimbursement, in the claim of the Issuing Lender against
Borrowers for reimbursement of
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principal and interest under this Section 2.4(d) and shall share, in
accordance with that pro rata participation, in any principal payment
made by Borrowers with respect to such claim and in any interest
payment made by Borrowers (but only with respect to periods subsequent
to the date such Lender reimbursed the Issuing Lender) with respect to
such claim.
(e) Borrowers may request that Advances be made pursuant to
Section 2.1(a) or Section 2.1(b) to provide funds for the payment
required by Section 2.4(d), the Administrative Agent shall cause such
Advances to be made by the Lenders and, for this purpose, the
conditions precedent set forth in ARTICLE 11 shall not apply. The
proceeds of such Advances shall be paid directly to the Issuing Lender
to reimburse it for the payment made by it under the Letter of Credit.
(f) If Borrowers fails to make the payment required by
Section 2.4(d) within the time period therein set forth, in lieu of the
reimbursement to the Issuing Lender under Section 2.4(c) the Issuing
Lender may (but is not required to), without notice to or the consent
of Borrower, instruct the Administrative Agent to cause Advances to be
made by the Lenders under the Commitments as Alternate Base Rate
Advances (under SECTION 2.1(b) and/or, to the extent necessary, under
SECTION 2.1(a)) in an aggregate amount equal to the amount paid by the
Issuing Lender with respect to that Letter of Credit and, for this
purpose, the conditions precedent set forth in ARTICLE 11 shall not
apply. The proceeds of such Advances shall be paid directly to the
Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in
all respects the same as the issuance of a new Letter of Credit.
(h) The obligation of Borrowers to pay to the Issuing Lender
the amount of any payment made by the Issuing Lender under any Letter
of Credit shall be absolute, unconditional, and irrevocable, subject
only to performance by the Issuing Lender of its obligations to
Borrowers under Uniform Commercial Code Section 5-108. Without limiting
the foregoing, Borrowers' obligations shall not be affected by any of
the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto, made with
the consent of Borrower;
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(iii) the existence of any claim, setoff, defense, or
other rights which Borrowers may have at any time against
the Issuing Lender, the Administrative Agent or any Lender,
any beneficiary of the Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or
any other Person, whether in connection with the Letter of
Credit, this Agreement, or any other agreement or
instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared
substantially to comply with the terms of the Letter of
Credit;
(v) payment by the Issuing Lender in good faith under
the Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with
the terms of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property
purported to be represented by documents presented in
connection with any Letter of Credit or any difference
between any such Property and the character, quality,
quantity, condition, or value of such Property as described
in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in
documents presented in connection with any Letter of Credit
or the existence, nature and extent of any insurance
relative thereto;
(viii) the solvency or financial responsibility of
any Person issuing any documents in connection with a
Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing
Lender, or any delay or interruption in any such message;
(xi) any error, neglect or default of any
correspondent of the Issuing Lender in connection with a
Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of
the Issuing Lender;
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(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears
substantially to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal effect of
any contract or document referred to in any document
submitted to the Issuing Lender in connection with a Letter
of Credit; and
(xiv) where the Issuing Lender has acted in good
faith and observed general banking usage, any other
circumstances whatsoever.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 13.6, MUTATIS
MUTANDIS.
(j) The Uniform Customs and Practice for Documentary Credits,
as published in its most current version by the International Chamber
of Commerce at the date of issuance of a Letter of Credit, shall apply
to that Letter of Credit (unless expressly otherwise provided in that
Letter of Credit).
(k) On the Amendment Effective Date, the Mercantile Letter of
Credit shall automatically become a Letter of Credit hereunder.
Concurrently therewith, Bank of America, N.A. (in its individual
capacity) shall pay to each Lender an amount equal to such Lender's Pro
Rata Share of the Commitments TIMES the unearned standby letter of
credit fees (excluding the issuance fee) received by Bank of America,
N.A. with respect to the Mercantile Letter of Credit. Pursuant to its
terms, the expiration date of the Mercantile Letter of Credit shall
automatically be extended for one (1) year from August 25, 2001 to
August 25, 2002 (and on a year-to-year basis thereafter) unless the
Issuing Lender gives notice of non-renewal at least sixty-five (65)
days prior to August 25, 2001 (or the then effective expiration date in
a subsequent year).
2.5 VOLUNTARY REDUCTION OF COMMITMENTS. Borrowers shall have
the right, at any time and from time to time, without penalty or charge, upon
at least three (3) Banking Days' prior written notice by a Responsible
Official of Borrowers to the Administrative Agent, voluntarily to reduce,
permanently and irrevocably, in aggregate principal amounts in an integral
multiple of $1,000,000 but not less than $5,000,000, or to terminate, all or
a portion of the then undisbursed portion of the Commitments, PROVIDED that
the Line A Commitment may not be reduced or terminated so long as any portion
of the Line B Commitment remains in effect. The Administrative Agent shall
promptly notify the Lenders of any reduction or termination of the
Commitments under this Section. Any voluntary reduction of the Commitments
under this Section shall be applied to reduce the Reduction Amount for the
next following Reduction Date (to the extent of such reduction) and
thereafter to subsequent Reduction Dates (to the extent not previously
applied) in the order of their occurrence.
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2.6 AUTOMATIC REDUCTION OF COMMITMENTS. Subject to the last
sentence of Section 2.5, on each Reduction Date, (a) the Line B Commitment
shall automatically be reduced by the applicable Reduction Amount until the
Line B Commitment is reduced to zero and (b) after the Line B Commitment is
reduced to zero, the Line A Commitment shall automatically be reduced by the
applicable Reduction Amount.
2.7 OPTIONAL TERMINATION OF COMMITMENTS. Following the
occurrence of a Change in Control, the Requisite Lenders may in their sole
and absolute discretion elect, during the thirty (30) day period immediately
subsequent to the LATER OF (a) such occurrence or (b) the EARLIER of (i)
receipt of Borrowers' written notice to the Administrative Agent of such
occurrence or (ii) if no such notice has been received by the Administrative
Agent, the date upon which the Administrative Agent has actual knowledge
thereof, to terminate the Commitments, in which case the Commitments shall be
terminated, and all Indebtedness then evidenced by the Notes shall become due
and payable, effective on the date which is thirty (30) days subsequent to
written notice from the Administrative Agent to Borrowers thereof.
2.8 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any
Lender no later than 11:00 a.m. on the Banking Day of the proposed funding by
the Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total
amount of such Loan, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of the
Loan and the Administrative Agent may, in reliance upon such assumption, make
available to Borrowers a corresponding amount. If the Administrative Agent
has made funds available to Borrowers based on such assumption and such
corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender. If such Lender does not
pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent promptly shall notify Borrowers and
Borrowers shall pay such corresponding amount to the Administrative Agent.
The Administrative Agent also shall be entitled to recover from such Lender
interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
Borrowers to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the daily Federal Funds
Rate. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its share of the Commitments or to prejudice any rights
which the Administrative Agent or Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
2.9 SWING LINE.
(a) Subject to the terms and conditions of this Agreement, the
Swing Line Lender shall from time to time from the Amendment Effective
Date through the day prior to the Maturity Date
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make Swing Line Loans to Borrowers in such amounts as Borrowers may
request, PROVIDED that (i) after giving effect to such Swing Line
Loan, the Swing Line Outstandings do not exceed $15,000,000 and the
aggregate of the Swing Line Outstandings, the Line A Loans, the Line B
Loans and the Aggregate Effective Amount of all outstanding Letters of
Credit do not exceed the Commitments, (ii) without the consent of all
of the Lenders, no Swing Line Loan may be made during the continuation
of an Event of Default and (iii) the Swing Line Lender has not given
at least twenty-four (24) hours prior notice to Borrowers that
availability under the Swing Line is suspended or terminated.
Borrowers may borrow, repay and reborrow under this Section without
premium or penalty. Unless notified to the contrary by the Swing Line
Lender, borrowings under the Swing Line may be made in amounts which
are integral multiples of $100,000 upon telephonic request by a
Responsible Official of Borrowers made to the Administrative Agent not
later than 1:00 p.m., California time, on the Banking Day of the
requested borrowing (which telephonic request shall be promptly
confirmed in writing by telecopier). Promptly after receipt of such a
request for borrowing, the Administrative Agent shall provide
telephonic verification to the Swing Line Lender that, after giving
effect to such request, availability for Loans will exist under
Section 2.1(a) or 2.1(b) (and such verification shall be promptly
confirmed in writing by telecopier). Unless notified to the contrary
by the Swing Line Lender, each repayment of a Swing Line Loan shall be
in an amount which is an integral multiple of $100,000. If Borrowers
instruct the Swing Line Lender to debit its demand deposit account at
the Swing Line Lender in the amount of any payment with respect to a
Swing Line Loan, or the Swing Line Lender otherwise receives
repayment, after 3:00 p.m., California time, on a Banking Day, such
payment shall be deemed received on the next Banking Day. The Swing
Line Lender shall promptly notify the Administrative Agent of the
Swing Loan Outstandings each time there is a change therein and
promptly notify the Administrative Agent and the Lenders if it
suspends or terminates availability under the Swing Line.
(b) Swing Line Loans shall bear interest at the rate set forth
in the Swing Line Note. Interest shall be payable on such dates, not
more frequent than monthly, as may be specified by the Swing Line
Lender and in any event on the Maturity Date. The Swing Line Lender
shall be responsible for invoicing Borrowers for such interest. The
interest payable on Swing Line Loans is solely for the account of the
Swing Line Lender (subject to clause (d) below).
(c) The Swing Line Loans shall be payable within five (5)
Banking Days after demand made by the Swing Line Lender and in any
event on the Maturity Date.
(d) Upon the making of a Swing Line Loan in accordance with
Section 2.9(a), each Lender shall be deemed to have purchased from the
Swing Line Lender a participation therein in an amount equal to that
Lender's Pro Rata Share of the Commitments TIMES the amount
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of the Swing Line Loan. Upon demand made by the Swing Line Lender,
each Lender shall, according to its Pro Rata Share of the Commitments,
promptly provide to the Swing Line Lender its purchase price therefor
in an amount equal to its participation therein. The obligation of
each Lender to so provide its purchase price to the Swing Line Lender
shall be absolute and unconditional (except only demand made by the
Swing Line Lender) and shall not be affected by the occurrence of a
Default or Event of Default; PROVIDED that no Lender shall be
obligated to purchase its Pro Rata Share of (i) Swing Line Loans to
the extent that Swing Line Outstandings are in excess of $15,000,000
or to the extent that the SUM of the Indebtedness evidenced by the
Line A Notes and the Line B Notes PLUS the Swing Line Outstandings
exceeds the Commitments or (ii) any Swing Line Loan made (absent the
consent of all of the Lenders) during the continuation of an Event of
Default. Each Lender that has provided to the Swing Line Lender the
purchase price due for its participation in Swing Line Loans shall
thereupon acquire a pro rata participation, to the extent of such
payment, in the claim of the Swing Line Lender against Borrowers for
principal and interest and shall share, in accordance with that pro
rata participation, in any principal payment made by Borrowers with
respect to such claim and in any interest payment made by Borrowers
(but only with respect to periods subsequent to the date such Lender
paid the Swing Line Lender its purchase price) with respect to such
claim.
(e) In the event that the Swing Line Outstandings are
outstanding ten (10) consecutive Banking Days, then on the next Banking
Day (unless Borrowers have made other arrangements acceptable to the
Swing Line Lender to pay the Swing Line Outstandings in full),
Borrowers shall request a Loan pursuant to Section 2.1(a) or 2.1(b)
sufficient to pay the Swing Line Outstandings in full. In addition,
upon any demand for payment of the Swing Line Outstandings by the Swing
Line Lender (unless Borrowers have made other arrangements acceptable
to the Swing Line Lender to reduce the Swing Line Outstandings to $0),
Borrowers shall request a Loan pursuant to Section 2.1(a) or 2.1(b)
sufficient to repay all Swing Line Outstandings (and, for this purpose,
Section 2.1(e) shall not apply). In each case, the Administrative Agent
shall automatically provide the responsive Advances made by each Lender
to the Swing Line Lender (which the Swing Line Lender shall then apply
to the Swing Line Outstandings). In the event that Borrowers so fail to
request such a Loan within the time specified by Section 2.2 on any
such date, the Administrative Agent may, but is not required to,
without notice to or the consent of Borrowers, cause Advances to be
made by the Lenders under the Line A Commitment or Line B Commitment
(as specified by the Administrative Agent) in amounts which are
sufficient to reduce the Swing Line Outstandings as required above. The
conditions precedent set forth in ARTICLE 11 shall not apply to
Advances to be made by the Lenders pursuant to the three preceding
sentences, but the Lenders shall not be obligated to make such Advances
to the extent that the conditions set forth in Section 2.9(a)(i), (ii)
and (iii) were not satisfied as to any Swing Line Loan which is part of
such Swing Line
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Outstandings. The proceeds of such Advances shall be paid directly to
the Swing Line Lender for application to the Swing Line Outstandings.
2.10 REFINANCING. Borrowers, the Administrative Agent and the
Lenders intend that the Refinancing Facility be deemed an amendment,
restatement and refinancing of the Prior Palace Credit Facility, to the
extent not expressly otherwise provided for in this Agreement.
2.11 COLLATERAL AND GUARANTY. The Obligations shall be secured
by the Collateral pursuant to the Collateral Documents and be guaranteed by
Parent pursuant to the Parent Guaranty and by the Sibling Guarantors pursuant
to the Sibling Guaranty.
2.12 SENIOR INDEBTEDNESS. The Obligations shall be "Senior
Indebtedness" with respect to all Subordinated Obligations.
2.13 FACILITY INCREASE. Borrowers may, at any time, request a
Facility Increase pursuant to this Section in a Facility Increase Amount not
in excess of $50,000,000. The procedure for a Facility Increase shall be as
follows:
(a) Borrowers shall notify the Administrative Agent in writing
of its request for a Facility Increase, which request shall (i) specify
the maximum amount of the Facility Increase requested and (ii) describe
the proposed uses of the proceeds of the Facility Increase Amount.
(b) The Administrative Agent shall promptly forward the
request for a Facility Increase and related materials to the Lenders
for their consideration. Each Lender may determine, in its sole and
absolute discretion, whether or not to participate in the Facility
Increase and, if it does elect to participate, the maximum level of its
participation; PROVIDED that the approval of the Lenders as a whole
shall not be required for a Facility Increase in accordance with this
Section.
(c) As soon as practicable, each Lender shall notify the
Administrative Agent in writing whether or not it wishes to participate
in the Facility Increase and, if so, the maximum level of such
participation. The Lenders shall use their best efforts to respond
promptly to such request, but shall not be required to respond to such
request sooner than 20 Banking Days after receipt of the request for
Facility Increase. The Administrative Agent shall promptly forward such
notifications to Borrower. Any Lender that has not so notified the
Administrative Agent within 20 Banking Days after receipt of the
request for Facility Increase shall be deemed to have declined to
participate in the Facility Increase.
(d) If the aggregate amount of the maximum levels of
participation in the Facility Increase set forth in the Lender
notifications is equal to or less than the maximum amount of the
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Facility Increase requested by Borrowers, then the Facility Increase
shall be implemented, with each Lender's participation in the Facility
Increase at the maximum level indicated in their respective
notifications. If the aggregate amount of the maximum levels of
participation set forth in the Lender notifications is greater than the
requested amount of the maximum Facility Increase, then the Facility
Increase shall be implemented by scaling back each Lender's level of
participation in the Facility Increase to a level that is mutually
acceptable to Borrowers and the Administrative Agent.
(e) If the aggregate amount of the maximum levels of
participation in the Facility Increase set forth in the Lender
notifications is less than the maximum amount of the Facility Increase
requested by Borrowers, Borrowers may, at their election, solicit
(through the Administrative Agent) any other institutional lender that
is an Eligible Assignee and reasonably acceptable to the Administrative
Agent to participate in the balance of the requested maximum Facility
Increase amount.
(f) After completion of the foregoing, the Administrative
Agent shall give written notification to the Lenders and any new
lenders of the Facility Increase Amount and the level of participation
of each Lender and such lender in the increased Line B Commitment, and
thereupon the Facility Increase shall become effective. Concurrently
therewith, any new lender shall execute and deliver a joinder to this
Agreement in form and substance satisfactory to the Administrative
Agent and Borrowers and shall become a Lender for all purposes
hereunder. The Lenders agree, to the extent necessary to maintain the
same Pro Rata Share of the Line A Commitment and Line B Commitment for
each Lender, to make such adjustments in the Pro Rata Shares of the
Line A Commitment, and to assign and purchase such portions of the
Indebtedness evidenced by the Line A Notes, as are required. Borrowers
shall execute and deliver such new Line A Notes and Line B Notes to the
Lenders as are necessary to reflect the foregoing. The Administrative
Agent shall also prepare and circulate a revised SCHEDULE 1.1 giving
effect to the Facility Increase.
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Article 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate Loan on each
Quarterly Payment Date shall be due and payable on that day. EXCEPT as
otherwise provided in Section 3.8, the unpaid principal amount of any
Alternate Base Rate Loan shall bear interest at a fluctuating rate per
annum equal to the Alternate Base Rate PLUS the Applicable Alternate
Base Rate Margin. Each change in the interest rate under this Section
3.1(b) due to a change in the Alternate Base Rate shall take effect
simultaneously with the corresponding change in the Alternate Base
Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is for
a term of three months or less shall be due and payable on the last day
of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is
three months after the date such Eurodollar Rate Loan was made (and, in
the event that all of the Lenders have approved a Eurodollar Period of
longer than six months, every three months thereafter through the last
day of the Eurodollar Period) and on the last day of the related
Eurodollar Period. EXCEPT as otherwise provided in Section 3.8, the
unpaid principal amount of any Eurodollar Loan shall bear interest at a
rate per annum equal to the Eurodollar Rate for that Eurodollar Loan
PLUS the Applicable Eurodollar Rate Margin.
(d) If not sooner paid, the principal Indebtedness evidenced
by the Notes shall be payable as follows:
(i) the amount, if any, by which (A) the principal
Indebtedness evidenced by the Line A Notes at any time exceeds
the then applicable Line A Commitment or (B) the principal
Indebtedness evidenced by the Line B Notes at any time exceeds
the then applicable Line B Commitment, or (C) the SUM OF (I)
the principal Indebtedness evidenced by the Line A Notes and
the Line B Notes PLUS (II) the Swing Line Outstandings PLUS
(III) the Aggregate Effective Amount of all outstanding
Letters of Credit at any time exceeds the then applicable
Commitments shall in each case be payable immediately; and
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(ii) the principal Indebtedness evidenced by the Line A
Notes and Line B Notes shall in any event be payable on the
Maturity Date.
(e) The Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without premium or
penalty, EXCEPT that with respect to any voluntary prepayment under
this Section (i) any partial prepayment shall be not less than
$5,000,000, (ii) the Administrative Agent shall have received written
notice of any prepayment by 9:00 a.m. California time on the date of
prepayment (which must be a Banking Day) in the case of an Alternate
Base Rate Loan, and, in the case of a Eurodollar Rate Loan, three (3)
Banking Days before the date of prepayment, which notice shall identify
the date and amount of the prepayment and the Loan(s) being prepaid,
(iii) each prepayment of principal on any Eurodollar Rate Loan shall be
accompanied by payment of interest accrued to the date of payment on
the amount of principal paid, (iv) any payment or prepayment of all or
any part of any Eurodollar Rate Loan on a day other than the last day
of the applicable Interest Period shall be subject to SECTION 3.7(e)
and (v) upon any partial prepayment of a Eurodollar Rate Loan that
reduces it below $10,000,000, the remaining portion thereof shall
automatically convert to an Alternate Base Rate Loan.
3.2 ARRANGEMENT FEE. On the Amendment Effective Date, Borrowers
shall pay to the Lead Arranger the balance of the arrangement fee as
heretofore agreed upon by letter agreement between Borrowers and the Lead
Arranger. Such arrangement fee is for the services of the Lead Arranger in
arranging the credit facilities under this Agreement and is fully earned when
paid. The arrangement fee paid to the Lead Arranger is solely for its own
account and is nonrefundable.
3.3 COMMITMENT FEE. From the Amendment Effective Date,
Borrowers shall pay to the Administrative Agent, for the ratable accounts of
the Lenders pro rata according to their Pro Rata Share of the Commitments, a
commitment fee equal to the daily Applicable Commitment Fee Rate per annum
TIMES the average daily amount by which the Commitments exceed the SUM of (a)
the aggregate daily principal Indebtedness evidenced by the Line A Notes and
Line B Notes (BUT NOT the Swing Line Outstandings) PLUS (b) the Aggregate
Effective Amount of all outstanding Letters of Credit. The commitment fee
shall be payable quarterly in arrears on each Quarterly Payment Date and on
the Maturity Date.
3.4 LETTER OF CREDIT FEES. With respect to each Letter of
Credit, Borrowers shall pay the following fees:
(a) concurrently with the issuance of each Standby Letter of
Credit, a letter of credit issuance fee to the Issuing Lender for the
sole account of the Issuing Lender, in an amount set forth in a letter
agreement between Borrower and the Issuing Lender;
(b) concurrently with the issuance of each Standby
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Letter of Credit, to the Administrative Agent for the ratable account
of the Lenders in accordance with their Pro Rata Share of the
Commitments, a standby letter of credit fee in an amount equal to the
Applicable Standby Letter of Credit Fee as of the date of such
issuance TIMES the face amount of such Standby Letter of Credit, which
the Administrative Agent shall promptly pay to the Lenders in
accordance with their respective Pro Rata Share of the Commitments;
and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Commercial Letter of Credit, to the Issuing Lender
for the sole account of the Issuing Lender, issuance, negotiation,
drawing and amendment fees in the amounts published from time to time
as the Issuing Lender's scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under
this Section is earned when due and is nonrefundable.
3.5 AGENCY FEE. Borrowers shall pay to the Administrative Agent
an agency fee in such amounts and at such times as heretofore agreed upon by
letter agreement between Borrowers and the Administrative Agent. The agency
fee is for the services to be performed by the Administrative Agent in acting
as Administrative Agent and is fully earned on the date paid. The agency fee
paid to the Administrative Agent is solely for its own account and is
nonrefundable.
3.6 INCREASED COMMITMENT COSTS. If any Lender shall determine
in good faith that the introduction after the Amendment Effective Date of any
applicable law, rule, regulation or guideline regarding capital adequacy, or
any change therein or any change in the interpretation or administration
thereof by any central bank or other Governmental Agency charged with the
interpretation or administration thereof, or compliance by such Lender (or
its Eurodollar Lending Office) or any corporation controlling the Lender,
with any request, guideline or directive regarding capital adequacy (whether
or not having the force of Law) of any such central bank or other authority
not imposed as a result of such Lender's or such corporation's failure to
comply with any other Laws, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten (10)
Banking Days after demand of such Lender, Borrowers shall pay to such Lender,
from time to time as specified in good faith by such Lender, additional
amounts sufficient to compensate such Lender in light of such circumstances,
to the extent reasonably allocable to such obligations under this Agreement,
PROVIDED that Borrowers shall not be obligated to pay any such amount which
arose prior to the date which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which is ninety (90)
days
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preceding the date of such demand. Each Lender's determination of such amounts
shall be conclusive in the absence of manifest error.
3.7 EURODOLLAR COSTS AND RELATED MATTERS.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (INCLUDING any emergency,
supplemental or other reserve) with respect to the Eurodollar
Obligations of that Lender, Borrowers shall pay that Lender within five
(5) Banking Days after demand all amounts necessary to compensate such
Lender (determined as though such Lender's Eurodollar Lending Office
had funded 100% of its Eurodollar Rate Advance in the Designated
Eurodollar Market) in respect of the imposition of such reserve
requirements (PROVIDED, that Borrowers shall not be obligated to pay
any such amount which arose prior to the date which is ninety (90) days
preceding the date of such demand or is attributable to periods prior
to the date which is ninety (90) days preceding the date of such
demand). The Lender's determination of such amount shall be conclusive
in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect
to any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Advances, or shall change the basis of taxation of
payments to any Lender attributable to the principal of or
interest on any Eurodollar Rate Advance or any other amounts
due under this Agreement in respect of any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or
its obligation to make Eurodollar Rate Advances (PROVIDED,
that Borrowers shall not be obligated to pay any such amount
which arose prior to the date which is ninety (90) days
preceding the date of such demand or is attributable to
periods prior to the date which is ninety (90) days preceding
the date of such demand), EXCLUDING (i) taxes imposed on or
measured in whole or in part by its overall net income by (A)
any jurisdiction (or political subdivision thereof) in which
it is organized or maintains its principal office or
Eurodollar Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business"
and (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period
with respect to which it has failed to provide Borrowers with
the appropriate form or forms required by Section 14.21, to
the extent such forms are then required by applicable Laws;
(2) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof
(INCLUDING any reserve imposed by the Board of Governors of
the
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Federal Reserve System, special deposit, capital or similar
requirements against assets of, deposits with or for the
account of, or credit extended by, any Lender or its
Eurodollar Lending Office); or
(3) shall impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar
Lending Office of making or maintaining any Eurodollar Rate Advance or
in respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances or reduces the amount of any sum received or receivable by
such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Loans or its obligation to make Eurodollar Rate Advances (assuming such
Lender's Eurodollar Lending Office had funded 100% of its Eurodollar
Rate Advance in the Designated Eurodollar Market), then, within five
(5) Banking Days after demand by such Bank (with a copy to the
Administrative Agent), Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market). A statement of any Lender
claiming compensation under this subsection shall be conclusive in the
absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates
based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar
Rate Advances shall be suspended for the duration of such illegality or
impossibility and the Administrative Agent forthwith shall give notice
thereof to the other Lenders and Borrowers. Upon receipt of such
notice, the outstanding principal amount of such Lender's Eurodollar
Rate Advances, together with accrued interest thereon, automatically
shall be converted to Alternate Base Rate Advances on either (1) the
last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Lender may lawfully continue to maintain and fund such
Eurodollar Rate Advances to such day(s) or (2) immediately if such
Lender may not lawfully continue to fund and maintain such Eurodollar
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Rate Advances to such day(s), PROVIDED that in such event the
conversion shall not be subject to payment of a prepayment fee under
Section 3.7(e). Each Lender agrees to endeavor promptly to notify
Borrowers of any event of which it has actual knowledge, occurring
after the Amendment Effective Date, which will cause that Lender to
notify the Administrative Agent under this Section, and agrees to
designate a different Eurodollar Lending Office if such designation
will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons
set forth above, to make, maintain or fund its portion of any
Eurodollar Rate Loan, such Lender shall fund such amount as an
Alternate Base Rate Advance for the same period of time, and such
amount shall be treated in all respects as an Alternate Base Rate
Advance. Any Lender whose obligation to make Eurodollar Rate Advances
has been suspended under this Section shall promptly notify the
Administrative Agent and Borrowers of the cessation of the Special
Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated
Eurodollar Market generally that are beyond the reasonable
control of the Lenders, deposits in Dollars (in the applicable
amounts) are not being offered to any Lender in the Designated
Eurodollar Market for the applicable Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the
Administrative Agent (i) does not represent the effective
pricing to such Lenders for deposits in Dollars in the
Designated Eurodollar Market in the relevant amount for the
applicable Eurodollar Period, or (ii) will not adequately and
fairly reflect the cost to such Lenders of making the
applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrowers and the Lenders, whereupon until the Administrative Agent
notifies Borrowers that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to make any
future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance
(OTHER THAN as the result of a conversion required under Section
3.7(c)), on a day other than the last day in the applicable Eurodollar
Period (whether voluntarily, involuntarily, by reason of acceleration,
or otherwise), or upon the failure of Borrowers (for a reason other
than the breach by a Lender of its obligation pursuant to Sections
2.1(a) or 2.1(b) to make an Advance or the suspension of
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any Lender's obligation to make or maintain Eurodollar Rate Loans
under Section 3.7) to borrow on the date or in the amount specified
for a Eurodollar Rate Loan in any Request for Loan, Borrowers shall
pay to the appropriate Lender within ten (10) Banking Days after
demand a prepayment fee or failure to borrow fee, as the case may be
(determined as though 100% of the Eurodollar Rate Advance had been
funded in the Designated Eurodollar Market) equal to the SUM of:
(1) the principal amount of the Eurodollar Rate
Advance prepaid or not borrowed, as the case may be, TIMES
[the number of days from and including the date of prepayment
or failure to borrow, as applicable, to but excluding the last
day in the applicable Eurodollar Period], DIVIDED by 360,
TIMES the applicable Interest Differential (PROVIDED that the
product of the foregoing formula must be a positive number);
PLUS
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure
to borrow.
Each Lender's determination of the amount of any prepayment fee payable
under this Section shall be conclusive in the absence of manifest
error.
(f) Each Lender agrees to endeavor promptly to notify
Borrowers of any event of which it has actual knowledge, occurring
after the Amendment Effective Date, which will entitle such Lender to
compensation pursuant to clause (a) or clause (b) of this Section 3.7,
and agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for or reduce the amount of such
compensation and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender. Any request for
compensation by a Lender under this Section 3.7 shall set forth the
basis upon which it has been determined that such an amount is due from
Borrowers, a calculation of the amount due, and a certification that
the corresponding costs have been incurred by the Lender.
3.8 LATE PAYMENTS. If any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the SUM OF the Alternate Base Rate plus the Applicable Alternate Base Rate
Margin PLUS 2%, to the fullest extent permitted by applicable Laws. Accrued
and unpaid interest on past due amounts (INCLUDING, without limitation,
interest on past due interest) shall be compounded monthly, on the last day
of each calendar month, to the fullest extent permitted by applicable Laws.
3.9 COMPUTATION OF INTEREST AND FEES. Computation of interest
and fees under this Agreement shall be calculated on the basis of a year of
360 days and the actual number of days elapsed. Interest shall accrue on each
Loan for the day on which the Loan is made; interest shall
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not accrue on a Loan, or any portion thereof, for the day on which the Loan or
such portion is paid. Any Loan that is repaid on the same day on which it is
made shall bear interest for one day. Notwithstanding anything in this Agreement
to the contrary, interest in excess of the maximum amount permitted by
applicable Laws shall not accrue or be payable hereunder or under the Notes, and
any amount paid as interest hereunder or under the Notes which would otherwise
be in excess of such maximum permitted amount shall instead be treated as a
payment of principal.
3.10 NON-BANKING DAYS. If any payment to be made by Borrowers
or any other Party under any Loan Document shall come due on a day other than
a Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing
interest and fees.
3.11 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments pursuant to
Sections 3.6, 3.7, 14.3, 14.11 and 14.22) or on the Notes or under any
other Loan Document shall be made to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders or the
Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. California time, on the day of payment
(which must be a Banking Day). All payments received after such time,
on any Banking Day, shall be deemed received on the next succeeding
Banking Day. The amount of all payments received by the Administrative
Agent for the account of each Lender shall be immediately paid by the
Administrative Agent to the applicable Lender in immediately available
funds and, if such payment was received by the Administrative Agent by
11:00 a.m., California time, on a Banking Day and not so made available
to the account of a Lender on that Banking Day, the Administrative
Agent shall reimburse that Lender for the cost to such Lender of
funding the amount of such payment at the Federal Funds Rate. All
payments shall be made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record
(in writing or by an electronic data entry system) of Advances made by
it and payments received by it with respect to each of its Notes and,
subject to Section 13.6(g), such record shall, as against Borrowers, be
presumptive evidence of the amounts owing. Notwithstanding the
foregoing sentence, the failure by any Lender to keep such a record
shall not affect Borrowers' obligation to pay the Obligations.
(d) Each payment of any amount payable by Borrowers or any
other Party under this Agreement or any other Loan Document shall be
made free and clear of, and without reduction by reason of, any
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taxes, assessments or other charges imposed by any Governmental
Agency, central bank or comparable authority, EXCLUDING (i) taxes
imposed on or measured in whole or in part by its overall net income
by (A) any jurisdiction (or political subdivision thereof) in which it
is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business" and (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide
Borrowers with the appropriate form or forms required by Section
14.21, to the extent such forms are then required by applicable Laws
(all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrowers are
obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this
Agreement, Borrowers shall (i) make such deduction or withholding and
pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Tax amount equal to the amount to which
that Lender would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results
in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrowers.
3.12 FUNDING SOURCES. Nothing in this Agreement shall be deemed
to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender
that it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.13 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by
the Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest arising under Section 3.8), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a
waiver of the Administrative Agent's or such Lender's right to require full
payment of any interest (INCLUDING interest arising under Section 3.8), fee,
cost or other amount payable under any Loan Document, or to calculate an
amount payable by another method that is not inconsistent with this
Agreement, on any other or subsequent occasion.
3.14 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE
MADE BY BORROWERS. Unless the Administrative Agent shall have been notified
by Borrowers prior to the date on which any payment to be made by Borrowers
hereunder is due that Borrowers do not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that Borrowers have
remitted such payment when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make available to each
Lender on such payment date an amount equal to such Lender's share of such
assumed payment. If Borrowers have not in fact remitted such payment to the
Administrative Agent, each Lender shall
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forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
3.15 FEE DETERMINATION DETAIL. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrowers regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under ARTICLE 3 has been determined, concurrently with demand for
such payment.
3.16 SURVIVABILITY. All of Borrowers' obligations under Sections
3.6 and 3.7 shall survive for the ninety (90) day period following the date on
which the Commitments are terminated and all Loans hereunder are fully paid, and
Borrowers shall remain obligated thereunder for all claims under such Sections
made by any Lender to Borrowers prior to the expiration of such period.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to the Lenders that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Each of Palace, Boulder, Texas, St. Charles, Kansas City and Sunset is a
corporation duly formed, validly existing and in good standing under the Laws
of Nevada (in the case of Palace, Boulder, Texas and Sunset) and Missouri (in
the case of St. Charles and Kansas City). Parent is a corporation duly
formed, validly existing and in good standing under the Laws of Nevada and
each of the Sibling Guarantors is a corporation duly formed, validly existing
and in good standing under the Laws of its state of incorporation. Each of
Borrowers and the Guarantors is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in which the
conduct of its business or the ownership or leasing of its Properties makes
such qualification or registration necessary, EXCEPT where the failure so to
qualify or register and to be in good standing would not constitute a
Material Adverse Effect. Each of Borrowers and the Guarantors has all
requisite corporate power and authority to conduct its business, to own and
lease its Properties and to execute and deliver each Loan Document to which
it is a Party and to perform its Obligations. The chief executive offices of
each of Borrowers is located in Nevada. All outstanding shares of capital
stock of Parent are duly authorized, validly issued, fully paid and
non-assessable, and no holder thereof has any enforceable right of rescission
under any applicable state or federal securities Laws. Each of Borrowers and
the Guarantors is in compliance with all Laws and other legal requirements
applicable to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from
any of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, EXCEPT where the failure so to comply, obtain
authorizations, etc., file, register, qualify or obtain exemptions does not
constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS
AND GOVERNMENT REGULATIONS. The execution, delivery and performance by each of
Borrowers and each of the Guarantors of the Loan Documents to which it is a
Party have been duly authorized by all necessary corporate action, and do not
and will not:
(a) Require any consent or approval not heretofore obtained of
any partner, director, stockholder, security holder or creditor of such
Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any
Lien or Right of Others upon or with respect to any Property now
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owned or leased or hereafter acquired by such Party (OTHER THAN Liens
and Rights of Others created by the Loan Documents);
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in SCHEDULE 4.3;
(e) Result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
Contractual Obligation (OTHER THAN the Loan Documents) to which such
Party is a party or by which such Party or any of its Property is bound
or affected;
and none of Borrowers or any of the Guarantors is in violation of, or default
under, any Requirement of Law or Contractual Obligation, INCLUDING any
Contractual Obligation described in Section 4.2(e), in any respect that
constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as set forth in
SCHEDULE 4.3 or previously obtained or made, no authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by each
of the Borrowers and the Guarantors of the Loan Documents to which it is a
Party.
4.4 SUBSIDIARIES. None of Borrowers has any Subsidiaries,
EXCEPT that Kansas City owns 100% of the outstanding capital stock of Station
Casino Kansas City Restaurants, Inc. SCHEDULE 4.4 hereto correctly sets forth
the names, form of legal entity, number of shares of capital stock issued and
outstanding, and the record owner thereof and jurisdictions of organization
of all Subsidiaries of Parent and specifies, as of the Amendment Effective
Date, which thereof are Restricted Subsidiaries and which thereof are
Immaterial Subsidiaries. Unless otherwise indicated in SCHEDULE 4.4, all of
the outstanding shares of capital stock, or all of the units of equity
interest, as the case may be, of each Restricted Subsidiary are owned of
record and beneficially by Parent, there are no outstanding options, warrants
or other rights to purchase capital stock of any such Subsidiary, and all
such shares or equity interests so owned are duly authorized, validly issued,
fully paid and non-assessable, and were issued in compliance with all
applicable state and federal securities and other Laws, and are free and
clear of all Liens and Rights of Others, EXCEPT for Permitted Encumbrances
and Permitted Rights of Others.
4.5 FINANCIAL STATEMENTS. Borrowers have furnished to the
Lenders (a) the audited consolidated financial statements of Parent and its
Subsidiaries for the Fiscal Year (consisting of three Fiscal Quarters) ended
December 31, 1998 and (b) the unaudited consolidated and consolidating
balance sheet and statement of operations of Parent and its Subsidiaries for
the Fiscal Quarter ended June 30, 1999. The financial statements described in
clause (a) fairly present in all material respects
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the financial condition, results of operations and changes in financial
position, and the balance sheet and statement of operations described in clause
(b) fairly present the financial condition and results of operations of Parent
and its Subsidiaries as of such dates and for such periods in conformity with
Generally Accepted Accounting Principles, consistently applied.
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE CHANGES. As of
the Amendment Effective Date, Borrowers do not have any material liability or
material contingent liability required under Generally Accepted Accounting
Principles to be reflected or disclosed and not reflected or disclosed in the
balance sheet described in Section 4.5(b), other than liabilities and
contingent liabilities arising in the ordinary course of business since the
date of such financial statements. As of the Amendment Effective Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since June 30, 1999. As of any date subsequent to the Amendment Effective
Date, no circumstance or event has occurred that constitutes a Material
Adverse Effect since the Amendment Effective Date.
4.7 TITLE TO PROPERTY. As of the Amendment Effective Date, each
Borrower has valid title to its respective Property (OTHER THAN assets which are
the subject of a Capital Lease Obligation) reflected in the balance sheet
described in Section 4.5(b), other than items of Property or exceptions to title
which are in each case immaterial to Borrowers and Property subsequently sold or
disposed of in the ordinary course of business, free and clear of all Liens and
Rights of Others, OTHER THAN Liens or Rights of Others described in SCHEDULE
4.7, Permitted Rights of Others or Liens permitted by Section 6.6.
4.8 INTANGIBLE ASSETS. Each Borrower owns, or possesses the
right to use to the extent necessary in its business, all material
trademarks, trade names, copyrights, patents, patent rights, computer
software, licenses and other Intangible Assets that are used in the conduct
of its businesses as now operated, and no such Intangible Asset, to the best
knowledge of Borrowers, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to
the extent that such conflict constitutes a Material Adverse Effect. SCHEDULE
4.8 sets forth all trademarks, trade names and trade styles used by Borrowers
at any time within the five (5) year period ending on the Amendment Effective
Date and sets forth the owner of record of each thereof.
4.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither any of
Borrowers nor any Guarantor is a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.10 LITIGATION. EXCEPT for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions)
by insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any
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matter, or series of related matters, involving a claim against Parent or any
of its Subsidiaries of less than $1,000,000, (c) matters of an administrative
nature not involving a claim or charge against Parent or any of its
Subsidiaries and (d) matters set forth in SCHEDULE 4.10, there are no
actions, suits, proceedings or investigations pending as to which Parent or
any of its Subsidiaries have been served or have received notice or, to the
best knowledge of Borrowers, threatened against or affecting Parent or any of
its Subsidiaries or any Property of any of them before any Governmental
Agency.
4.11 BINDING OBLIGATIONS. Each of the Loan Documents to which
any of Borrowers or the Guarantors is a Party will, when executed and
delivered by such Party, constitute the legal, valid and binding obligation
of such Party, enforceable against such Party in accordance with its terms,
EXCEPT as enforcement may be limited by Debtor Relief Laws, Gaming Laws or
equitable principles relating to the granting of specific performance and
other equitable remedies as a matter of judicial discretion.
4.12 NO DEFAULT. No event has occurred and is continuing that is a
Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that
could reasonably be expected to have a Material Adverse
Effect;
(iii) no "reportable event" (as defined in Section 4043
of ERISA) has occurred that could reasonably be expected to
have a Material Adverse Effect; and
(iv) none of Parent nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined
in Section 4975 of the Code) that could reasonably be expected
to have a Material Adverse Effect.
(b) None of Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
4.14 REGULATION U; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to
extend credit to others for the purpose of purchasing or carrying, any
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Margin Stock in violation of Regulation U. Neither Parent nor any of its
Subsidiaries is or is required to be registered as an "investment company" under
the Investment Company Act of 1940.
4.15 DISCLOSURE. No written statement made by a Senior Officer
of Parent to the Administrative Agent or any Lender in connection with this
Agreement, or in connection with any Loan, as of the date thereof contained
any untrue statement of a material fact or omitted a material fact necessary
to make the statement made not misleading in light of all the circumstances
existing at the date the statement was made.
4.16 TAX LIABILITY. Parent and its Subsidiaries have filed all
tax returns which are required to be filed, and have paid, or made provision
for the payment of, all taxes with respect to the periods, Property or
transactions covered by said returns, or pursuant to any assessment received
by Parent or any of its Subsidiaries, EXCEPT (a) such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained and (b) immaterial
taxes so long as no material Property of Parent or any of its Subsidiaries is
at impending risk of being seized, levied upon or forfeited.
4.17 PROJECTIONS. Borrowers have formulated the assumptions set
forth in the Projections based on their historical experience in the relevant
business or financial context, have adjusted such assumptions to take account
of what Borrowers believe to be current and projected business and financial
conditions and have performed what Borrowers believe is a reasonably thorough
due diligence process with respect to such assumptions. As of the Amendment
Effective Date, Borrowers believe that the assumptions set forth in the
Projections are reasonable and consistent with each other and with all facts
known to Borrowers, and that the Projections are reasonably based on such
assumptions. Nothing in this Section 4.17 shall be construed as a
representation or covenant that the Projections in fact will be achieved.
4.18 HAZARDOUS MATERIALS. Except as described in SCHEDULE 4.18,
as of the Amendment Effective Date (a) none of Borrowers at any time has
disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under the Real Property in violation of any Hazardous
Materials Law that would individually or in the aggregate constitute a
Material Adverse Effect, (b) to the best knowledge of Borrowers, no condition
exists that violates any Hazardous Material Law affecting any Real Property
except for such violations that would not individually or in the aggregate
constitute a Material Adverse Effect, (c) no Real Property or any portion
thereof is or has been utilized by Borrowers as a site for the manufacture of
any Hazardous Materials and (d) to the extent that any Hazardous Materials
are used, generated or stored by Borrowers on any Real Property, or
transported to or from such Real Property by Borrowers, such use, generation,
storage and transportation are in compliance with all Hazardous Materials
Laws except for such non-compliance that would not constitute a Material
Adverse Effect or be materially adverse to the interests of the Lenders.
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4.19 DEVELOPED PROPERTIES. As of the Amendment Effective Date,
the facilities described on SCHEDULE 4.19 comprise all of the Developed
Property owned by Parent and its Subsidiaries.
4.20 GAMING LAWS. Each Borrower is in compliance with all
applicable Gaming Laws except for such non-compliance that would not
constitute a Material Adverse Effect.
4.21 SECURITY INTERESTS. Upon the execution and delivery of the
Omnibus Documents Amendment, the Security Agreement will continue to create a
valid first priority security interest in the Collateral described therein
securing the Obligations (subject only to Permitted Encumbrances, Permitted
Rights of Others, Liens permitted under Section 6.6(e) and matters disclosed
in SCHEDULE 4.7 and to such qualifications and exceptions as are contained in
the Uniform Commercial Code with respect to the priority of security
interests perfected by means other than the filing of a financing statement
or with respect to the creation of security interests in Property to which
Division 9 of the Uniform Commercial Code does not apply) and all action
necessary to perfect the security interests so created, other than filing of
the UCC-1 financing statements delivered to the Administrative Agent pursuant
to Section 11.1 with the appropriate Governmental Agency have been taken and
completed. Upon the execution and delivery of the Omnibus Documents
Amendment, the Trademark Collateral Assignment will continue to create a
valid first priority collateral assignment of the Collateral described
therein securing the Obligations (subject to the matters disclosed in
SCHEDULE 4.7) and all action necessary to perfect the collateral assignment
so created, other than the filing thereof with the United States Patent and
Trademark Office, will have been taken and completed. Upon execution and
delivery of the Pledge Agreement (Missouri), the Pledge Agreement (Missouri)
will create a valid first priority security interest in the Pledged
Collateral (Missouri) and upon delivery of the Pledged Collateral (Missouri)
to the Administrative Agent (or its designee) in the State of Missouri, all
action necessary to perfect the security interest so created will have been
taken and completed. Upon the execution and delivery of the Omnibus Documents
Amendment, the Pledge Agreement (Nevada) will continue to create a valid
first priority security interest in the Pledged Collateral (Nevada) and upon
delivery of the Pledged Collateral (Nevada) to the Administrative Agent (or
its designee) in the State of Nevada, all action necessary to perfect the
security interest so created has been taken and completed. Upon the execution
and delivery of the Deed of Trust Amendment with respect to each of the Deeds
of Trust, such Deed of Trust will continue to create a valid Lien in the
Collateral described therein securing the Obligations, OTHER THAN those
arising under Sections 4.18, 5.10 and 14.22, (subject only to Permitted
Encumbrances, Permitted Rights of Others and matters described in SCHEDULE
4.7), and all action necessary to perfect the Lien so created, OTHER THAN
recordation or filing thereof with the appropriate Governmental Agencies,
will have been taken and completed. Upon the execution and delivery of the
Omnibus Documents Amendment, the Preferred Ship Mortgage will continue to
create a valid Lien in the Collateral described therein securing the
Obligations (subject only to Permitted Encumbrances and
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Permitted Rights of Others), and all action necessary to perfect the Lien so
created, OTHER THAN recordation or filing thereof with the appropriate
Governmental Agencies, will have been taken and completed.
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Article 5
BORROWERS AFFIRMATIVE COVENANTS
-------------------------------
(OTHER THAN INFORMATION AND
---------------------------
REPORTING REQUIREMENTS)
-----------------------
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitments remains in force, Borrowers
shall, unless the Administrative Agent (with the written approval of the
Requisite Lenders) otherwise consents:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof
and upon their respective income or profits or any part thereof, EXCEPT that
Borrowers shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or
(b) any immaterial tax so long as no material Property of Borrowers is at
material risk of impending seizure, levy or forfeiture.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the
ownership or leasing of their respective Properties EXCEPT where the failure
to so qualify or remain qualified would not constitute a Material Adverse
Effect.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect
all of their respective Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties, EXCEPT that the failure to maintain, preserve
and protect a particular item of Property that is not of significant value,
either intrinsically or to the operations of Borrowers and their
Subsidiaries, taken as a whole, shall not constitute a violation of this
covenant.
5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrowers operate and, in any
event, such insurance as may be required under the Deeds of Trust.
5.5 COMPLIANCE WITH LAWS. Comply, within the time period, if
any, given for such compliance by the relevant Governmental Agency or
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Agencies with enforcement authority, with all Requirements of Law noncompliance
with which constitutes a Material Adverse Effect, EXCEPT that Borrowers need not
comply with a Requirement of Law then being contested by any of them in good
faith by appropriate proceedings.
5.6 INSPECTION RIGHTS. Upon reasonable notice, at any time
during regular business hours and as often as reasonably requested (but not
so as to materially interfere with the business of Parent or any of its
Subsidiaries) permit the Administrative Agent or any Lender, or any
authorized employee, agent or representative thereof, to examine, audit and
make copies and abstracts from the records and books of account of, and to
visit and inspect the Properties of, Parent and its Subsidiaries and to
discuss the affairs, finances and accounts of Parent and its Subsidiaries
with any of their officers, key employees or accountants.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate
records and books of account reflecting all financial transactions in
conformity with Generally Accepted Accounting Principles, consistently
applied, and in material conformity with all applicable requirements of any
Governmental Agency having regulatory jurisdiction over Borrowers.
5.8 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with
all Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, whether such
material agreements, indentures, leases or instruments are with a Lender or
another Person, EXCEPT for any such Contractual Obligations (a) the
performance of which would cause a Default or (b) then being contested by any
of them in good faith by appropriate proceedings or if the failure to comply
with such agreements, indentures, leases or instruments does not constitute a
Material Adverse Effect.
5.9 USE OF PROCEEDS. Use the proceeds of Loans made on the
Amendment Effective Date to refinance the Indebtedness under the Existing
Loan Agreement and the proceeds of subsequent Loans for working capital and
general corporate purposes.
5.10 HAZARDOUS MATERIALS LAWS. Keep and maintain all Real
Property and each portion thereof in compliance with all applicable Hazardous
Materials Laws (except for such non-compliance that would not constitute a
Material Adverse Effect or be materially adverse to the interests of the
Lenders) and promptly notify the Administrative Agent in writing (attaching a
copy of any pertinent written material) of (a) any and all material
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against Borrowers relating
to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials and (c) discovery by any Senior
Officer of any of Borrowers of any material occurrence or condition on any
real Property adjoining or in the vicinity of such Real Property that could
reasonably be expected to cause such Real Property or any part thereof to be
subject to any restrictions on the
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ownership, occupancy, transferability or use of such Real Property under any
applicable Hazardous Materials Laws.
5.11 ADDITIONAL REAL PROPERTY. Upon the acquisition by any
Borrower after the Amendment Effective Date of any Real Property (OTHER THAN
TIF Real Property), promptly provide to the Administrative Agent such deeds
of trust in the form of the Deed of Trust (Fee) and/or Deed of Trust
(Leasehold), as applicable, covering such Real Property, together with such
appraisals, title insurance policies and environmental reports as the
Administrative Agent or Requisite Lenders may reasonably request. Upon the
acquisition after the Amendment Effective Date of any TIF Real Property, St.
Charles shall promptly (a) use its best efforts to obtain any necessary
approvals of the relevant Governmental Agency and (b) subject to such
approvals, provide to the Administrative Agent such deeds of trust in the
form of the Deed of Trust (Fee) covering such Real Property, together with
such appraisals, title insurance policies and environmental reports as the
Administrative Agent or the Requisite Lenders may reasonably request;
PROVIDED that (i) the Obligations secured by such a deed of trust on a
particular parcel of TIF Property shall not exceed the acquisition cost to
St. Charles for such parcel and (ii) St. Charles need not so provide such a
deed of trust with respect to any parcel of TIF Real Property if the
acquisition cost thereof to St. Charles, when aggregated with the acquisition
costs of all other parcels of TIF Real Property previously acquired by St.
Charles and not covered by a Deed of Trust theretofore provided to the
Administrative Agent, is less than $5,000,000.
5.12 ADDITIONAL VESSELS. Upon the acquisition by any Borrower
after the Amendment Effective Date of any vessel documented under the Laws of
the United States of America, promptly provide to the Administrative Agent a
duly executed preferred ship mortgage in the form of the Preferred Ship
Mortgage covering such vessel, and upon the acquisition after the Amendment
Effective Date of any vessel that is not so documented, promptly provide to
the Administrative Agent such other appropriate Collateral Documents with
respect thereto as the Administrative Agent may request, together in each
case with such related legal opinions, certificates and other documentation
as the Administrative Agent or Requisite Lenders may reasonably request.
5.13 CONSTRUCTION MONITORING. Engage an independent qualified
construction monitoring firm mutually acceptable to Borrowers and the
Administrative Agent at their expense to provide to Borrowers and the
Administrative Agent such construction progress reports as the Administrative
Agent may reasonably request with respect to any single expansion project
involving Expansion Capital Expenditures of $25,000,000 or more.
5.14 YEAR 2000 COMPLIANCE. (a) Take such steps as are
reasonably necessary to assure that, prior to November 1, 1999, Borrowers and
the Restricted Subsidiaries are Year 2000 Compliant and (b) with respect to
all vendors of Borrowers and the Restricted Subsidiaries that are material to
the business of Borrowers and whose ability to perform their business
obligations to Borrowers may be materially affected by their
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not being Year 2000 Compliant, take such steps as are reasonably necessary to
prevent a Material Adverse Effect resulting from such non-compliance of any such
vendor. The term "Year 2000 Compliant" means, for purposes of the foregoing,
that all hardware, software, firmware, equipment, goods, and systems used by or
on behalf of a Person to perform date-sensitive functions, will properly perform
such date-sensitive functions on and after January 1, 2000.
5.15 DELIVERY OF DOCUMENTATION. Not later than one hundred twenty
(120) days following the Amendment Effective Date, Borrowers shall cause to be
delivered to the Administrative Agent the Road Crossing License Consent and
Agreement, dated as of November 6, 1998, executed by the Missouri Department of
Natural Resources, as Licensor, and St. Charles Riverfront Station, Inc., as
Licensee, for the benefit of Bank of America, N.A., as Administrative Agent,
each duly executed by each party thereto other than the Administrative Agent.
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Article 6
BORROWERS NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitments remains in force, Borrowers
shall not, unless the Administrative Agent (with the written approval of the
Requisite Lenders or, if required by Section 14.2, of all of the Lenders)
otherwise consents:
6.1 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired EXCEPT: (a) a Disposition to
another Borrower, (b) Dispositions of any of the Peripheral Assets to a Person
that is not an Affiliate of Parent, (c) a Disposition of assets included in any
Permitted Sale/ Leaseback, (d) Disposition of Investments (OTHER THAN
Investments in a Subsidiary of any Borrower that is not an Immaterial
Subsidiary) and (e) Dispositions of Property with an aggregate book value or
fair market value (whichever is greater) in any Fiscal Year not exceeding
$6,000,000.
6.2 MERGERS. Merge or consolidate with or into any Person,
EXCEPT (a) a merger or consolidation with another Borrower or (b) a merger or
consolidation of a Restricted Subsidiary with and into a Borrower or (c) a
merger or consolidation with or into Parent; PROVIDED that Parent
concurrently executes a Joinder Agreement.
6.3 HOSTILE ACQUISITIONS. Directly or indirectly use the
proceeds of any Loan in connection with the acquisition of part or all of a
voting interest of five percent (5%) or more in any corporation or other
business entity if such acquisition is opposed by the board of directors or
management of such corporation or business entity.
6.4 ERISA. (a) At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975
of the Code), (ii) fail to comply with ERISA or any other applicable Laws,
(iii) incur any material "accumulated funding deficiency" (as defined in
Section 302 of ERISA), or (iv) terminate in any manner, which, with respect
to each event listed above, could reasonably be expected to result in a
Material Adverse Effect, or (b) withdraw, completely or partially, from any
Multiemployer Plan if to do so could reasonably be expected to result in a
Material Adverse Effect.
6.5 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Borrowers.
6.6 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
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(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Amendment
Effective Date and disclosed in SCHEDULE 4.7 and any
renewals/extensions or amendments thereof; PROVIDED that the
obligations secured or benefited thereby are not increased;
(d) Liens securing the Term Loan that are pari-passu with the
Liens under the Collateral Documents, subject to the Intercreditor
Agreement, and Negative Pledges under the Term Loan Agreement;
(e) Liens on Property acquired by Borrowers that were in
existence at the time of the acquisition of such Property and were not
created in contemplation of such acquisition and Negative Pledges
limited to such Property;
(f) Liens securing Indebtedness permitted by Section 6.7(e) on
and limited to the capital assets acquired, constructed or financed
with the proceeds of such Indebtedness or with the proceeds of any
Indebtedness directly or indirectly refinanced by such Indebtedness and
Negative Pledges limited to such capital assets;
(g) Liens consisting of, or on assets owned by other Persons
which are leased to any Borrower under, an operating lease excluded
from the definition of Indebtedness and Negative Pledges limited to
such assets;
(h) Liens consisting of Cash deposits to secure obligations of
any Borrower under an operating lease of one or more aircraft PROVIDED
that the aggregate amount of such deposits does not exceed $2,500,000;
and
(i) any Permitted Sale/Leaseback.
6.7 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur or
assume any Indebtedness or Guaranty Obligation EXCEPT:
(a) Indebtedness and Guaranty Obligations existing on the
Amendment Effective Date and disclosed in SCHEDULE 6.7, and
refinancings, renewals, extensions or amendments that do not increase
the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness under the Term Loan Agreement;
(d) Indebtedness owed to Parent;
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(e) Indebtedness consisting of (i) Capital Lease Obligations
(and Guaranty Obligations with respect to such Capital Lease
Obligations of another Borrower), (ii) Guaranty Obligations incurred,
or letters of credit issued, as credit enhancement for bonds issued by
210 Highway Transportation Development District, a Missouri municipal
transportation district, or (iii) Indebtedness otherwise incurred to
finance the purchase or construction of capital assets (which shall be
deemed to exist if the Indebtedness is incurred at or within 180 days
before or after the purchase or construction of the capital asset, or
to refinance any such Indebtedness (and such Guaranty Obligations);
PROVIDED that the aggregate principal amount of such Indebtedness
outstanding at any time, when added to the Indebtedness of Parent then
outstanding permitted by Section 9.9(f), does not exceed $25,000,000;
and PROVIDED FURTHER that upon the incurring of any such Indebtedness,
any Lien created by the Collateral Documents on such capital assets
shall be terminated and the Administrative Agent shall execute and
deliver such releases of such Lien on such capital assets as Borrowers
may request; AND PROVIDED FURTHER that Indebtedness incurred under this
Agreement shall not be deemed for purposes of this clause (e) to have
been incurred to finance the purchase or construction of capital assets
or to have refinanced any such Indebtedness; and
(f) Indebtedness consisting of one or more Swap Agreements or
Guaranty Obligations with respect to obligations of any of Borrowers or
of Parent under one or more Swap Agreements; PROVIDED, that the
aggregate notional amount of Indebtedness covered by all Secured Swap
Agreements does not exceed $200,000,000.
6.8 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrowers OTHER THAN (a) salary, bonus,
employee stock option and other compensation arrangements with directors or
officers in the ordinary course of business, (b) transactions that are fully
disclosed to the board of directors of Parent and expressly authorized by a
resolution of the board of directors of Parent which is approved by a
majority of the directors not having an interest in the transaction, (c)
transactions expressly permitted by this Agreement, (d) transactions between
Borrowers and any Guarantor and (e) transactions on overall terms at least as
favorable to Borrowers as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
6.9 FIXED CHARGE COVERAGE. Permit the Fixed Charge Coverage, as
of the last day of any Fiscal Quarter ending after the Amendment Effective
Date, to be less than 1.50 to 1.00.
6.10 BORROWERS FUNDED DEBT RATIO. Permit the Borrowers Funded
Debt Ratio, as of the last day of any Fiscal Quarter ending after the
Amendment Effective Date, to be greater than 2.50 to 1.00.
6.11 MAINTENANCE CAPITAL EXPENDITURES. Make, or become
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legally obligated to make, any Maintenance Capital Expenditure in any Fiscal
Year if, giving effect thereto, the aggregate of all Maintenance Capital
Expenditures made by Borrowers in that Fiscal Year PLUS all Maintenance Capital
Expenditures made by Parent in that Fiscal Year would exceed $25,000,000 for any
Fiscal Year; PROVIDED, that such amount shall be increased for the Fiscal Year
ending December 31, 2000 and each subsequent Fiscal Year by the amount (not
exceeding $3,000,000), if any, by which actual Maintenance Capital Expenditures
of Borrowers and Parent in the immediately preceding Fiscal Year were less than
$25,000,000.
6.12 EXPANSION CAPITAL EXPENDITURES.
(a) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure if, giving effect thereto, the
aggregate Basket Expenditures subsequent to the Amendment Effective
Date and prior to the Maturity Date would exceed the Expansion Capital
Expenditures Basket without the prior written consent of the Majority
Lenders;
(b) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure if the aggregate Expansion
Capital Expenditures reasonably anticipated with respect thereto will
exceed $25,000,000 without the prior written consent of the Majority
Lenders (and the Lenders agree to use their best efforts to respond to
any request by Borrowers to provide such consent within ten (10)
Banking Days after the date such request is made, but without any
implication that the failure of any Lender to respond within such
period shall be construed as consent) EXCEPT for the following
Expansion Capital Expenditures, which shall not require such consent:
(i) the St. Charles Completion Project, PROVIDED that
(A) no more than $5,000,000 is expended therefor prior to
January 1, 2001 and (B) the amount expended therefor does not
exceed $135,000,000;
(ii) the Texas Expansion Project, PROVIDED that the
amount expended therefor does not exceed $75,000,000;
(iii) the Sunset Expansion Project, PROVIDED that the
amount expended therefor does not exceed $75,000,000; and
(iv) the Boulder Expansion Project, PROVIDED that the
amount expended therefor does not exceed $75,000,000; and
(c) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure IF a Default or Event of
Default then exists or would result therefrom (EXCEPT an Expansion
Capital Expenditure made pursuant to a legally binding commitment
entered into prior thereto in compliance with the other provisions of
this Section 6.12).
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6.13 INVESTMENTS. Make or suffer to exist any Investment, OTHER
THAN:
(a) Investments in existence on the Amendment Effective Date
and disclosed on SCHEDULE 6.13;
(b) Investments consisting of Cash and Cash Equivalents;
(c) Investments consisting of advances to officers, directors
and employees of Borrowers for travel, entertainment, relocation and
analogous ordinary business purposes;
(d) Investments consisting of or evidencing the extension of
credit to customers or suppliers of Borrowers in the ordinary course of
business and any Investments received in satisfaction or partial
satisfaction thereof;
(e) Investments received in connection with the settlement of
a bona fide dispute with another Person;
(f) Investments representing all or a portion of the sales
price of Property sold or services provided to another Person;
(g) Investments required by any Gaming Board;
(h) Investments in Parent, another Borrower or a Restricted
Subsidiary; and
(i) Investments in Wholly-Owned Subsidiaries that are
Immaterial Subsidiaries that do not exceed in the aggregate $500,000
outstanding at any time.
6.14 LEASES. Enter into, as lessor, any lease of Real Property
covering premises of 25,000 square feet or more for a term of five years or
more for a purpose not directly related to the operation of the
casino/hotel/entertainment business without the prior written approval of the
Requisite Lenders (which will not be unreasonably withheld).
6.15 NEW CAPITAL STOCK. Issue any shares of capital stock to any
Person OTHER THAN Parent, EXCEPT for the Kansas City Local Shares.
6.16 PREPAYMENTS. Prepay any Indebtedness, or, subject to the
last sentence of this Section 6.16, prepay rent under any operating lease,
prior to the date when the same is due and payable, EXCEPT (a) Indebtedness
under this Agreement, (b) rent under that certain Ground Lease dated June 17,
1994 between Sunset (as assignee from Parent), as lessee, and Navillus
Investment Co. and certain other Persons, as lessor, (c) rent under that
certain Equipment Sublease dated as of September 25, 1996 between Sunset and
Parent, (d) Indebtedness under the Term Loan Agreement and (e) Indebtedness
not described above, which when added to Indebtedness of Parent theretofore
prepaid pursuant to Section 9.18(b),
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does not exceed $15,000,000. For purposes of this Section 6.16, the exercise by
a Borrower of a purchase option contained in an operating lease shall not
constitute a prepayment of rent; provided, however, that the exercise of any
such option shall be subject to the limitations on Capital Expenditures set
forth in this Agreement.
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Article 7
PALACE NEGATIVE COVENANTS
So long as any Advance under the Line A Commitment remains unpaid,
or any portion of the Line A Commitment remains in force, Palace shall not,
unless the Administrative Agent (with the written approval of the Requisite
Lenders) otherwise consents:
7.1 LIMITATION ON TAX PAYMENTS. Pay, or become liable to pay,
to any of its Affiliates any federal income taxes in excess of the amount
permitted by Section 5.23 of the Prior Palace Credit Agreement (as in effect
on July 5, 1995 immediately prior to termination thereof), a true and correct
copy of which (together with the related definitions) is attached hereto as
SCHEDULE 7 and incorporated herein by this reference.
7.2 MANAGEMENT FEES. Pay, or become liable to pay, to any of
its Affiliates any management fees or overhead allocations in excess of the
amount permitted by Section 5.24 of the Prior Palace Credit Agreement (as in
effect on July 5, 1995 immediately prior to termination thereof), a true and
correct copy of which (together with the related definitions) is attached
hereto as SCHEDULE 7 and incorporated herein by this reference.
7.3 OTHER PAYMENTS TO PARENTS. Pay, or become liable to pay, to
any of its Affiliates any other amount not described in Sections 7.1 or 7.2
in excess of the amount permitted by Section 6.01(A) of the Prior Palace
Credit Agreement (as in effect on July 5, 1995 immediately prior to
termination thereof), a true and correct copy of which (together with the
related definitions) is attached hereto as SCHEDULE 7 and incorporated herein
by this reference; PROVIDED that the term "Event of Default" as used in such
Section shall be deemed to be an Event of Default under this Agreement.
7.4 MINIMUM TANGIBLE NET WORTH. Permit its Tangible Net Worth (as
defined in the Prior Palace Credit Agreement) to be less than the minimum amount
required by Section 6.01(F) of the Prior Palace Credit Agreement (as in effect
on July 5, 1995 immediately prior to termination thereof), a true and correct
copy of which (together with the related definitions) is attached hereto as
SCHEDULE 7 and incorporated herein by this reference.
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Article 8
PARENT AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitments remains in force, Parent
shall, and shall cause each of the Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
8.1 ARTICLE 5 COVENANTS. Comply with the affirmative covenants
contained in Sections 5.1 through 5.8, 5.10, 5.13 and 5.14, MUTATIS MUTANDIS.
8.2 ADDITIONAL BORROWERS. Upon the formation or acquisition by
Parent of any New Venture Entity (OTHER THAN an Immaterial Subsidiary or an
Unrestricted New Venture Entity), cause such New Venture Entity to execute and
deliver the Joinder Agreement and such Collateral Documents, agreements,
financing statements and documents as the Administrative Agent or the Requisite
Lenders may reasonably request and deliver the capital stock of such New Venture
Entity to the Administrative Agent as additional Pledged Collateral (Nevada)
under the Pledge Agreement (Nevada), subject to any necessary Gaming Board
approval (which Parent agrees to use its best efforts to obtain).
8.3 ADDITIONAL REAL PROPERTY. Upon the acquisition by Parent or
any Restricted Subsidiary after the Amendment Effective Date of any Real
Property, promptly provide to the Administrative Agent such deeds of trust in
the form of the Deed of Trust (Fee) and/or Deed of Trust (Leasehold), as
applicable, covering such Real Property, together with such appraisals, title
insurance policies and environmental reports as the Administrative Agent or
Requisite Lenders may reasonably request.
8.4 ADDITIONAL VESSELS. Upon the acquisition by Parent or any
Restricted Subsidiary after the Amendment Effective Date of any vessel
documented under the Laws of the United States of America, promptly provide to
the Administrative Agent a duly executed preferred ship mortgage in the form of
the Preferred Ship Mortgage covering such vessel, and upon the acquisition after
the Amendment Effective Date of any vessel that is not so documented, promptly
provide to the Administrative Agent such other appropriate Collateral Documents
with respect thereto as the Administrative Agent may request, together in each
case with such related legal opinions, certificates and other documentation as
the Administrative Agent or Requisite Lenders may reasonably request.
8.5 ADDITIONAL CAPITAL STOCK. Upon the acquisition by Parent of
any capital stock (or other equity interest, in the case of Person that is not a
corporation) in any New Venture Entity, deliver the certificates evidencing such
capital stock (or other equity interest) to the Administrative Agent in pledge
pursuant to a pledge agreement substantially identical to the Pledge Agreements,
subject to any required approval of a Gaming Board (which Parent agrees to use
its best efforts to
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obtain).
8.6 DESIGNATED SENIOR INDEBTEDNESS. Upon the issuance of any
Subordinated Obligation, deliver to the trustee under the related indenture a
written statement (in a form reasonably acceptable to the Administrative Agent)
designating the Obligations as "Designated Senior Indebtedness" thereunder.
8.7 PLEDGE AGREEMENT (MISSOURI). Use its best efforts to obtain,
and diligently pursue such best efforts until released from this covenant by the
Requisite Lenders, the approval of the Missouri Gaming Commission to the
execution and delivery by Parent of the Pledge Agreement (Missouri) and the
delivery to the Administrative Agent of the Pledged Collateral (Missouri), and
promptly following the obtaining of such approval, execute and deliver the
Pledge Agreement (Missouri) and deliver the Pledged Collateral (Missouri) to the
Administrative Agent, together with such related legal opinions, certificates
and other documentation as the Administrative Agent and the Requisite Lenders
may reasonably request.
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Article 9
PARENT NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitments remains in force, Parent shall
not, and shall not permit any of the Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 14.2, of all of the Lenders) otherwise consents:
9.1 PAYMENT OF SUBORDINATED OBLIGATIONS. Pay any (a) principal
(INCLUDING sinking fund payments) or any other amount (OTHER THAN scheduled
interest payments) with respect to any Subordinated Obligation, or purchase or
redeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit
any monies, securities or other Property with any trustee or other Person to
provide assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation EXCEPT the redemption or prepayment of any of the
Existing Subordinated Debt (INCLUDING any redemption or prepayment premium)
pursuant to the issuance of Permitted Subordinated Debt or (b) scheduled
interest on any Subordinated Obligation UNLESS the payment thereof is then
permitted pursuant to the terms of the Indenture governing such Subordinated
Obligation;
PROVIDED, HOWEVER, that this Section shall not apply to prohibit any payment
consisting of the repurchase or redemption of Subordinated Obligations to the
extent necessary to prevent a License Revocation if (i) no Default or Event
of Default then exists which will not be cured by such payment, (ii) the
purchase or redemption price paid is not in excess of the par value thereof
and (iii) Parent has notified the Administrative Agent in writing of the
necessity to invoke this proviso at least ten (10) Banking Days (or such
shorter period as may be necessary in order to comply with a regulation or
order of the relevant Gaming Board) in advance.
9.2 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired, EXCEPT:
(a) a Disposition by a Restricted Subsidiary to Parent or to a
Borrower;
(b) a Disposition of any of the Peripheral Assets (and upon
any such Disposition, any Sibling Guarantor which is the subject of
such Disposition shall be released from the Sibling Guaranty);
(c) Dispositions of Property with an aggregate book value or
fair market value (whichever is greater) in any Fiscal Year not
exceeding $5,000,000; and
(d) Dispositions of Investments (OTHER THAN Investments in a
Subsidiary of Parent that is not an Immaterial Subsidiary);
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PROVIDED that the applicability of this Section to any gaming license issued by
the State of Nevada, or to any Person that holds such a gaming license, is
subject to the approval of the Nevada Gaming Commission (if required by
applicable Law) or, if not so required, to the receipt by Parent of written
confirmation by the Nevada Gaming Commission that it is not so required (and
Parent agrees to use its best efforts to promptly obtain such approval or
written confirmation).
9.3 MERGERS. Merge or consolidate with or into any Person, EXCEPT
(a) mergers or consolidations permitted by Section 6.2 and (b) mergers and
consolidations of a Restricted Subsidiary into another Restricted Subsidiary,
into a Borrower or into Parent.
9.4 HOSTILE ACQUISITIONS. Directly or indirectly use any moneys
received from any Borrower that represent the proceeds of any Loan in connection
with the acquisition of part or all of a voting interest of five percent (5%) or
more in any corporation or other business entity if such acquisition is opposed
by the board of directors or management of such corporation or business entity.
9.5 DISTRIBUTIONS. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, EXCEPT:
(a) dividends payable solely in Common Stock or rights to
purchase Common Stock;
(b) repurchases of Common Stock from employees of Parent
pursuant to customary employee stock repurchase agreements at a price
not in excess of fair market value and not in any event more than
$2,000,000 in the aggregate during the term of this Agreement;
(c) scheduled dividends on Permitted Preferred Stock; PROVIDED
that (i) the face amount of such Permitted Preferred Stock does not
exceed $125,000,000 and (ii) no Default or Event of Default then exists
or would result therefrom;
(d) dividends payable by a Restricted Subsidiary to Parent or
another Restricted Subsidiary; and
(e) repurchases or redemption of Common Stock and Permitted
Preferred Stock; PROVIDED that, if the Target Leverage Ratio Election
is not then in effect, the aggregate of the repurchase/redemption
prices paid does not exceed $50,000,000 and, if the Target Leverage
Ratio Election is then in effect, the aggregate of the
repurchase/redemption prices paid, when added to all other Basket
Expenditures theretofore made by Borrowers and Parent, does not exceed
the Expansion Capital Expenditures Basket; and PROVIDED FURTHER that no
Default or Event of Default then exists or would result therefrom;
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PROVIDED, HOWEVER, that this Section shall not apply to prohibit a Distribution
consisting of the repurchase or redemption of capital stock of Parent to the
extent necessary to prevent a License Revocation if (i) no Default or Event of
Default then exists which will not be cured by such Distribution, (ii) the
purchase or redemption price paid is not in excess of the amount specified in
article 5 of Parent's articles of incorporation and (iii) Borrowers have
notified the Administrative Agent in writing of the necessity to invoke this
proviso at least ten (10) Banking Days (or such shorter period as may be
necessary in order to comply with a regulation or order of the relevant Gaming
Board) in advance.
9.6 ERISA. (a) At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code), (ii) fail to comply with ERISA or any other applicable Laws, (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
9.7 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Parent and its Subsidiaries, taken as a whole.
9.8 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Amendment
Effective Date and disclosed in SCHEDULE 4.7 and any renewals or
extensions thereof; PROVIDED that the obligations secured or benefited
thereby are not increased;
(d) Liens securing the Term Loan that are pari-passu with the
Liens under the Collateral Documents, subject to the Intercreditor
Agreement, and Negative Pledges under the Term Loan Agreement;
(e) Liens on Property acquired by Parent or any of the
Restricted Subsidiaries that were in existence at the time of the
acquisition of such Property and were not created in contemplation of
such acquisition and Negative Pledges limited to such Property;
(f) Liens consisting of, or on assets owned by other
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Persons which are leased to Parent under, an operating lease excluded
from the definition of Indebtedness and Negative Pledges limited to
such assets; and
(g) Liens consisting of Cash deposits to secure obligations of
Parent or any Restricted Subsidiary under an operating lease of one or
more aircraft PROVIDED that the aggregate amount of such deposits does
not exceed $2,500,000;
PROVIDED that the applicability of this Section to any gaming license issued by
the State of Nevada, or to any Person that holds such a gaming license, is
subject to the approval of the Nevada Gaming Commission (if required by
applicable Law) or, if not so required, to the receipt by Parent of written
confirmation by the Nevada Gaming Commission that it is not so required (and
Parent agrees to use its best efforts to promptly obtain such approval or
written confirmation).
9.9 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur or
assume any Indebtedness or Guaranty Obligation EXCEPT:
(a) Indebtedness and Guaranty Obligations existing on the
Amendment Effective Date and disclosed in SCHEDULE 9.9;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Guaranty Obligations in respect of the Term Loan
Agreement;
(d) Permitted Subordinated Debt that refinances the Existing
Subordinated Debt in a principal amount not in excess of the principal
amount of such Existing Subordinated Debt (PLUS any redemption or
prepayment premium) then outstanding;
(e) Permitted Subordinated Debt in a principal amount not in
excess of $300,000,000;
(f) Completion Guaranties and Keep Well Agreements in respect
of construction projects undertaken by an Unrestricted New Venture
Entity, PROVIDED that (i) the aggregate exposure to Parent under all
such Completion Guaranties and Keep Well Agreements does not exceed
$25,000,000 and (ii) any amount actually paid by Parent in respect
thereof shall be an Investment in the New Venture Entity subject to
Section 9.14;
(g) Indebtedness consisting of (i) Capital Lease Obligations,
(ii) Guaranty Obligations incurred, or letters of credit issued, as
credit enhancement for bonds issued by 210 Highway Transportation
Development District, a Missouri municipal transportation district, or
(iii) Indebtedness otherwise incurred to finance the purchase or
construction of capital assets (which shall be deemed to exist if the
Indebtedness is incurred at or within 180
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days before or after the purchase or construction of the capital
asset, or to refinance any such Indebtedness), PROVIDED that the
aggregate principal amount of such Indebtedness outstanding at any
time, when added to the Indebtedness of Borrowers then outstanding
permitted by Section 6.7(e), does not exceed $25,000,000;
(h) Indebtedness consisting of one or more Swap Agreements;
(i) Indebtedness of a Restricted Subsidiary owed to Parent,
any Borrower or another Restricted Subsidiary;
(j) Guaranty Obligations in support of the obligations of any
Borrower or a Restricted Subsidiary; and
(k) Guaranty Obligations consisting of an Investment
permitted by Section 9.15.
9.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Parent OTHER THAN (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors of Parent and expressly authorized by a resolution of the
board of directors of Parent which is approved by a majority of the directors
not having an interest in the transaction, (c) transactions between or among any
of Parent, Borrowers and the Restricted Subsidiaries, and (d) transactions on
overall terms at least as favorable to Parent or the Restricted Subsidiaries as
would be the case in an arm's-length transaction between unrelated parties of
equal bargaining power.
9.11 TANGIBLE NET WORTH. Permit Parent Tangible Net Worth, as of
the last day of any Fiscal Quarter ending after the Amendment Effective Date, to
be less than the SUM of (a) $265,000,000, PLUS (b) an amount equal to 95% of Net
Income earned in each Fiscal Quarter ending after July 1, 1998 (with no
deduction for a net loss in any such Fiscal Quarter), PLUS (c) an amount equal
to 100% of the aggregate increases in Stockholders' Equity of Parent after
November 6, 1998 by reason of the issuance and sale of capital stock of Parent
(INCLUDING upon any conversion of debt securities of Parent into such capital
stock), MINUS (d) the aggregate amount expended after November 6, 1998 for
repurchases of Common Stock and Permitted Preferred Stock permitted by Sections
9.5(b) and 9.5(E), MINUS (e) preferred stock dividends paid in Cash or Property
(OTHER THAN capital stock of Parent) after November 6, 1998 permitted by Section
9.5(c) MINUS (f) losses incurred by reason of the Dispositions permitted by
Sections 6.1(b), 6.1(c) and 9.2(b), MINUS (g) any write-down of assets required
by Generally Accepted Accounting Principles and MINUS (h) any Pre-Opening
Expenses incurred after November 6, 1998 attributable to a New Venture.
9.12 PARENT FUNDED DEBT RATIO. Permit the Parent Funded Debt
Ratio, as of the last day of any Fiscal Quarter ending after the Amendment
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Effective Date, to be greater than the ratio set forth below opposite the date
upon which, or period during which, such Fiscal Quarter ends:
DATE OR PERIOD RATIO
September 30, 1999 5.15 to 1.00
December 31, 1999 5.00 to 1.00
March 31, 2000 4.85 to 1.00
June 30, 2000 4.75 to 1.00
September 30, 2000 4.60 to 1.00
December 31, 2000 4.50 to 1.00
March 31, 2001 4.25 to 1.00
June 30, 2001 4.15 to 1.00
September 30, 2001
and thereafter 4.00 to 1.00
9.13 MAINTENANCE CAPITAL EXPENDITURES. Make, or become legally
obligated to make, any Maintenance Capital Expenditure in any Fiscal Year if,
giving effect thereto, the aggregate of all Maintenance Capital Expenditures
made by Parent in that Fiscal Year PLUS all Maintenance Capital Expenditures
made by Borrower in that Fiscal Year would exceed$25,000,000 for any Fiscal
Year; PROVIDED that such amount shall be increased for the Fiscal Year ending
December 31, 2000 and each subsequent Fiscal Year by the amount (not exceeding
$3,000,000), if any, by which actual Maintenance Capital Expenditures in the
immediately preceding Fiscal Year were less than $25,000,000.
9.14 EXPANSION CAPITAL EXPENDITURES AND NEW VENTURE EXPENDITURES.
(a) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure or New Venture Expenditure if,
giving effect thereto, the aggregate Basket Expenditures subsequent to
the Amendment Effective Date and prior to the Maturity Date would
exceed the Expansion Capital Expenditures Basket without the prior
written consent of the Requisite Lenders;
(b) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure or New Venture Expenditure
through an Unrestricted New Venture Entity if, giving effect thereto,
the aggregate of all such Expansion Capital Expenditures and New
Venture Expenditures subsequent to the Amendment Effective Date and
prior to the Maturity Date would exceed the Unrestricted New Venture
Entity
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Basket without the prior written consent of the Requisite Lenders;
(c) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure or New Venture Expenditure
directly or through a Restricted Subsidiary if the aggregate Expansion
Capital Expenditures or New Venture Expenditure reasonably anticipated
with respect thereto will exceed $250,000,000 without the prior written
consent of the Requisite Lenders (and the Lenders agree to use their
best efforts to respond to any request by Parent to provide such
consent within ten (10) Banking Days after the date such request is
made, but without any implication that the failure of any Lender to
respond within such period shall be construed as consent);
(d) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure or New Venture Expenditure
through an Unrestricted New Venture Entity if the aggregate Expansion
Capital Expenditures and New Venture Expenditures reasonably
anticipated with respect thereto will exceed $50,000,000 without the
prior written consent of the Requisite Lenders (and the Lenders agree
to use their best efforts to respond to any request by Parent to
provide such consent within ten (10) Banking Days after the date such
request is made, but without any implication that the failure of any
Lender to respond within such period shall be construed as consent)
EXCEPT for the following New Venture Expenditures, which shall not
require such consent:
(i) the Green Valley Project, PROVIDED that the
amount expended therefor does not exceed $50,000,000;
(ii) the Auburn Indian Gaming Project, PROVIDED that
the amount expended therefor does not exceed $25,000,000;
(iii) the Locals Securities Acquisition, PROVIDED
that the amount expended therefor does not exceed $15,000,000;
(e) Make, or enter into any legally binding commitment to
make, any Expansion Capital Expenditure or New Venture Expenditure IF a
Default or Event of Default then exists or would result therefrom
(EXCEPT an Expansion Capital Expenditure or New Venture Expenditure
made pursuant to a legally binding commitment entered into prior
thereto in compliance with the other provisions of this Section 9.14);
and
(f) Make, or enter any legally binding commitment to make, any
New Venture Expenditure (whether directly or through a Restricted
Subsidiary or Unrestricted New Venture Entity) UNLESS (i) the New
Venture is located in the greater Las Vegas, Nevada, metropolitan area,
(ii) the New Venture is designed and operated to cater to the Las Vegas
"locals" gaming market, (iii) in the case of a New Venture Expenditure
made through a Restricted Subsidiary, Parent and its Restricted
Subsidiary own at least 80% of the New Venture, (iv) in the case of a
New Venture Expenditure made through an
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Unrestricted New Venture Entity, Parent and its Restricted
Subsidiaries own at least 50% of the New Venture and (v) the New
Venture will be managed and operated by Parent or a Restricted
Subsidiary that is a Wholly-Owned Subsidiary; PROVIDED that (a)
subclauses (iii), (iv) and (v) of this clause (f) shall not apply to
the Locals Securities Acquisition and (b) subclauses (I), (II), and
(IV) of this clause (f) shall not apply to the Auburn Indian Gaming
Project.
9.15 INVESTMENTS. Make or suffer to exist any Investment, OTHER
THAN:
(a) Investments in existence on the Amendment Effective Date
and disclosed on SCHEDULE 9.15;
(b) Investments consisting of Cash and Cash Equivalents;
(c) Investments consisting of advances to officers, directors
and employees of Parent and the Restricted Subsidiaries for travel,
entertainment, relocation and analogous ordinary business purposes;
(d) Investments of Parent in any of Borrowers or any
Wholly-Owned Subsidiary that is a Restricted Subsidiary and Investments
of any Restricted Subsidiary in another Wholly-Owned Subsidiary that is
a Restricted Subsidiary;
(e) Investments in Restricted Subsidiaries that are not
Wholly-Owned Subsidiaries; PROVIDED that the aggregate of all such
Investments (INCLUDING any described in SCHEDULE 9.15) does not exceed
$5,000,000;
(f) Investments consisting of or evidencing the extension of
credit to customers or suppliers of Parent or any Restricted Subsidiary
in the ordinary course of business and any Investments received in
satisfaction or partial satisfaction thereof;
(g) Investments received in connection with the settlement of
a bona fide dispute with another Person;
(h) Investments representing all or a portion of the sales
price of Property sold or services provided to another Person;
(i) Investments consisting of Guaranty Obligations permitted
by Section 9.9; and
(j) Investments required by any Gaming Board;
(k) Investments in vendors or prospective vendors to Parent
or any of its Subsidiaries; PROVIDED that (i) such Investments do not
constitute a controlling interest in such vendors, (ii) the
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amount of such Investments does not exceed in the aggregate $5,000,000
outstanding at any time and (iii) the amount of such Investments PLUS
the Investments permitted by clause (l) below does not exceed in the
aggregate $10,000,000 outstanding at any time;
(l) Investments in Wholly-Owned Subsidiaries that are
Immaterial Subsidiaries that do not exceed in the aggregate $10,000,000
outstanding at any time;
(m) Investments in or to finance the purchase by others of
Kansas City Local Shares not to exceed $4,000,000; and
(n) Investments in Unrestricted New Venture Entities
(INCLUDING any Locals Securities Acquisition) permitted by Section
9.14.
9.16 AMENDMENTS TO OTHER FINANCIAL INSTRUMENTS. Amend or modify
any term or provision of any indenture, agreement or instrument evidencing or
governing any Subordinated Obligation or Permitted Preferred Stock in any
respect that will or may adversely affect the interests of the Lenders.
9.17 CASH ACCUMULATION. Hold as assets of Parent or the
Restricted Subsidiaries (in the aggregate) Cash and Cash Equivalents in excess
of the SUM OF (a) the amount necessary to make the next scheduled interest or
dividend payment on the Existing Subordinated Debt, Permitted Subordinated Debt
and Permitted Preferred Stock PROVIDED that such payment date is not more than
five (5) Banking Days in the future, PLUS (b) the amount necessary to fund
casino bankroll in the ordinary course of business, PLUS (c) any amount required
to be held by Parent or such Restricted Subsidiary by any Gaming Board PLUS (d)
$2,000,000; PROVIDED that for purposes of this SECTION 9.17, the term "Cash"
shall not include funds on deposit in bank accounts of Parent or any Restricted
Subsidiary that are not 'collected balances'.
9.18 PREPAYMENTS. Prepay any Indebtedness, or, subject to the
last sentence of this Section 9.18, prepay rent under any operating lease, prior
to the date when the same is due and payable, EXCEPT (a) rent under that certain
Equipment Lease dated September 25, 1996 between Parent and First Security Trust
Company of Nevada, (b) the Existing Subordinated Debt to the extent permitted by
Section 9.1, (c) the Term Loan and (d) Indebtedness not described above which,
when added to Indebtedness of Borrowers theretofore prepaid pursuant to Section
6.16(d), does not exceed $15,000,000. For purposes of this Section 9.18, the
exercise by Parent of a purchase option contained in an operating lease shall
not constitute a prepayment of rent; PROVIDED, however, that the exercise of any
such purchase option shall be subject to the limitations on Capital Expenditures
set forth in this Agreement.
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Article 10
INFORMATION AND REPORTING REQUIREMENTS
10.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrowers shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrowers' sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 30 days
after the end of each calendar month, a consolidated and consolidating
(in accordance with past consolidating practices of Parent) summary
statement of operations of Parent and its Subsidiaries for such
calendar month, in a form reasonably acceptable to the Administrative
Agent, together with a written report as to current operating data and
a narrative statement discussing any significant trends reflected
therein;
(b) As soon as practicable, and in any event within 60 days
after the end of each Fiscal Quarter (OTHER THAN the fourth Fiscal
Quarter in any Fiscal Year), (i) the consolidated balance sheet of
Parent and its Subsidiaries as at the end of such Fiscal Quarter and
the consolidated statement of operations for such Fiscal Quarter, and
its statement of cash flows for the portion of the Fiscal Year ended
with such Fiscal Quarter and (ii) the consolidating (in accordance with
past consolidating practices of Parent) balance sheets and statements
of operations as at and for the portion of the Fiscal Year ended with
such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer of Parent as fairly
presenting the financial condition, results of operations and cash
flows of Parent and its Subsidiaries in accordance with Generally
Accepted Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject
only to normal year-end accruals and audit adjustments;
(c) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, a Pricing Certificate setting
forth a preliminary calculation of the Parent Leverage Ratio as of the
last day of such Fiscal Quarter, and providing reasonable detail as to
the calculation thereof, which calculations shall be based on the
preliminary unaudited financial statements of Parent and its
Subsidiaries for such Fiscal Quarter, and as soon as practicable
thereafter, in the event of any material variance in the actual
calculation of the Parent Leverage Ratio from such preliminary
calculation, a revised Pricing Certificate setting forth the actual
calculation thereof;
(d) As soon as practicable, and in any event within
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120 days after the end of each Fiscal Year, (i) the consolidated
balance sheet of Parent and its Subsidiaries as at the end of such
Fiscal Year and the consolidated statements of operations,
stockholders' equity and cash flows, in each case of Parent and its
Subsidiaries for such Fiscal Year and (ii) consolidating (in
accordance with past consolidating practices of Parent) balance sheets
and statements of operations, in each case as at the end of and for
the Fiscal Year, all in reasonable detail. Such financial statements
shall be prepared in accordance with Generally Accepted Accounting
Principles, consistently applied, and such consolidated balance sheet
and consolidated statements shall be accompanied by a report of
independent public accountants of recognized standing selected by
Parent and reasonably satisfactory to the Requisite Lenders, which
report shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders
in their good faith business judgment to be adverse to the interests
of the Lenders. Such accountants' report shall be accompanied by a
certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification
of such financial statements and such report, such accountants have
obtained no knowledge of any Default or, if, in the opinion of such
accountants, any such Default shall exist, stating the nature and
status of such Default, and stating that such accountants have
reviewed Parent's financial calculations as at the end of such Fiscal
Year (which shall accompany such certificate) under Sections 6.9,
6.10, 7.4, 9.11 and 9.12 , have read such Sections (including the
definitions of all defined terms used therein) and that nothing has
come to the attention of such accountants in the course of such
examination that would cause them to believe that the same were not
calculated by Parent in the manner prescribed by this Agreement;
(e) As soon as practicable, and in any event within 45 days
after the commencement of each Fiscal Year, a budget and projection by
Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next
four succeeding Fiscal Years, INCLUDING for the first such Fiscal Year,
projected consolidated and consolidating balance sheets, statements of
operations and statements of cash flow and, for the second and third
such Fiscal Years, projected consolidated and consolidating condensed
balance sheets and statements of operations and cash flows, of Parent
and its Subsidiaries, all in reasonable detail;
(f) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of Parent by independent
accountants in connection with the accounts or books of Parent or any
of its Subsidiaries, or any audit of any of them;
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(g) As soon as practicable, and in any event within 45 days
(or, in the case of the fourth Fiscal Quarter in each Fiscal Year, 90
days) after the end of each Fiscal Quarter, a written report, in form
and detail reasonably acceptable to the Administrative Agent, with
respect to the status of any Expansion Capital Expenditures and New
Venture Expenditures then underway;
(h) Promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of Parent, and copies of all
annual, regular, periodic and special reports and registration
statements which Parent may file or be required to file with the
Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and not otherwise required
to be delivered to the Lenders pursuant to other provisions of this
Section 10.1;
(i) Promptly after the same are available, copies of the
Nevada "Regulation 6.090 Report" and "6-A Report", and copies of any
written communication to Parent or Borrowers from any Gaming Board
advising it of a violation of or non-compliance with any Gaming Law by
Parent, any Borrower or any Sibling Guarantor;
(j) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrowers with any Governmental Agency;
(k) Promptly upon a Senior Officer of any Borrower becoming
aware, and in any event within ten (10) Banking Days after becoming
aware, of the occurrence of any (i) "reportable event" (as such term is
defined in Section 4043 of ERISA) or (ii) "prohibited transaction" (as
such term is defined in Section 406 of ERISA or Section 4975 of the
Code) in connection with any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature thereof, and, no
more than five (5) Banking Days after such telephonic notice, written
notice again specifying the nature thereof and specifying what action
Borrowers is taking or proposes to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect
thereto;
(l) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer of any Borrower becomes aware of
the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than two (2) Banking Days after such
telephonic notice, written notice again specifying the nature and
period of existence thereof and specifying what action Borrowers are
taking or propose to take with respect thereto;
(m) Promptly upon a Senior Officer of any Borrower becoming
aware that (i) any Person has commenced a legal proceeding with respect
to a claim against any Borrower that is $10,000,000 or
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more in excess of the amount thereof that is fully covered by
insurance, (ii) any creditor under a credit agreement involving
Indebtedness of $10,000,000 or more or any lessor under a lease
involving aggregate rent of $10,000,000 or more has asserted a default
thereunder on the part of any Borrower, (iii) any Person has commenced
a legal proceeding with respect to a claim against any Borrower under
a contract that is not a credit agreement or material lease in excess
of $10,000,000 or which otherwise may reasonably be expected to result
in a Material Adverse Effect, (iv) any labor union has notified any
Borrower of its intent to strike such Borrower on a date certain and
such strike would involve more than 100 employees of such Borrower or
(v) any Gaming Board has indicated its intent to consider or act upon
a License Revocation or a fine or penalty of $1,000,000 or more with
respect to any Borrower, a written notice describing the pertinent
facts relating thereto and what action such Borrower is taking or
proposes to take with respect thereto; and
(n) Such other data and information as from time to time may
be reasonably requested by the Administrative Agent, any Lender
(through the Administrative Agent) or the Requisite Lenders.
10.2 COMPLIANCE CERTIFICATES. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitments remains outstanding, Borrowers shall, at Borrowers' sole
expense, deliver to the Administrative Agent for distribution by it to the
Lenders concurrently with the financial statements required pursuant to Sections
10.1(b) and 10.1(d), Compliance Certificates signed by a Senior Officer of
Borrowers.
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Article 11
CONDITIONS
----------
11.1 INITIAL ADVANCES, ETC.. The obligation of each Lender to
make the initial Advance to be made by it is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each Party thereto,
each dated as of the Amendment Effective Date and each in form and
substance satisfactory to the Administrative Agent and its legal
counsel (unless otherwise specified or, in the case of the date of any
of the following, unless the Administrative Agent otherwise agrees or
directs):
(1) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and
Borrowers;
(2) a Line A Note executed by Borrowers in favor of
each Lender, in a principal amount equal to that Lender's Pro
Rata Share of the Line A Commitment;
(3) a Line B Note executed by Borrowers in favor of
each Lender, in a principal amount equal to that Lender's Pro
Rata Share of the Line B Commitment;
(4) the Omnibus Documents Amendment executed by
Borrowers, Parent and the Sibling Guarantors;
(5) such financing statements on Form UCC-1 executed
by Borrowers with respect to the Security Agreement as the
Administrative Agent may request;
(6) a written consent and acknowledgment executed by
Parent confirming the continued effectiveness of the Pledge
Agreement (Nevada) in form and substance acceptable to the
Administrative Agent;
(7) a Deed of Trust Amendment with respect to the
Palace Deed of Trust executed by Palace;
(8) a Deed of Trust Amendment with respect to the
Boulder Deed of Trust executed by Boulder;
(9) a Deed of Trust Amendment with respect to the
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Texas Deed of Trust executed by Texas;
(10) a Deed of Trust Amendment with respect to the
St. Charles Deed of Trust executed by St. Charles;
(11) a Deed of Trust Amendment with respect to each
of the Kansas City Deeds of Trust executed by Kansas City;
(12) a Deed of Trust Amendment with respect to the
Sunset Deed of Trust executed by Sunset;
(13) the Intercreditor Agreement executed by the
Collateral Agent and the Term Agent;
(14) a written acknowledgement from First Security
Trust Company of Nevada to the effect that the Sunset
Intercreditor Agreement remains effective and applicable;
(15) assurances from the Title Company that it is
prepared to issue such endorsements with respect to the title
insurance policies issued in connection with the Existing Loan
Agreement as the Administrative Agent may reasonably require,
and with such assurances as the Administrative Agent may
reasonably require from title re-insurers acceptable to the
Administrative Agent;
(16) with respect to each Borrower and each of the
Guarantors, such documentation as the Administrative Agent may
require to establish the due organization, valid existence and
good standing of such Borrower and each such Guarantor, its
qualification to engage in business in each material
jurisdiction in which it is engaged in business or required to
be so qualified, its authority to execute, deliver and perform
any Loan Documents to which it is a Party, the identity,
authority and capacity of each Responsible Official thereof
authorized to act on its behalf, INCLUDING certified
copies of articles of incorporation and amendments thereto,
bylaws and amendments thereto, certificates of good standing
and/or qualification to engage in business, tax clearance
certificates, certificates of corporate resolutions,
incumbency certificates, Certificates of Responsible
Officials, and the like;
(17) the Opinions of Counsel, together with copies of
all factual certificates and legal opinions delivered to such
counsel in connection with such opinion upon which such
counsel has relied;
(18) a certificate of insurance issued by Borrowers'
insurance carrier or agent with respect to the insurance
required to be maintained pursuant to the Deeds of Trust,
together with lenders' loss payable endorsements thereof on
Form 438BFU or other form acceptable to the Administrative
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Agent;
(19) written confirmations from the landlords of all
leaseholds covered by the Deeds of Trust confirming that the
respective Landlord Consent previously delivered in connection
with the Existing Loan Agreement remains effective;
(20) such assurances as the Administrative Agent
deems appropriate that the relevant Gaming Boards have
approved the transactions contemplated by the Loan Documents
to the extent that such approval is required by applicable
Gaming Laws;
(21) a Certificate of a Senior Officer of Parent
certifying that incurrence by Borrowers of the Obligations
will not violate the Indentures governing any Subordinated
Obligation;
(22) a Certificate of a Senior Officer of each of the
Borrowers certifying that the conditions specified in Sections
11.1(g) and 11.1(h) have been satisfied; and
(23) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the
Requisite Lenders reasonably may require.
(b) The arrangement fee payable pursuant to Section 3.2 shall
have been paid.
(c) Any agency fees payable on the Amendment Effective Date
pursuant to Section 3.5 shall have been paid.
(d) The Term Loan Agreement shall concurrently close.
(e) The reasonable costs and expenses of the Administrative
Agent in connection with the preparation of the Loan Documents payable
pursuant to Section 14.3, and invoiced to Borrowers prior to the
Amendment Effective Date, shall have been paid.
(f) Parent shall have delivered to the trustees under the
Indentures governing all Subordinated Obligations a written statement
designating the Obligations as "Designated Senior Indebtedness" under
such Indentures.
(g) The representations and warranties of Borrowers contained
in ARTICLE 4 shall be true and correct.
(h) Borrowers and any other Parties shall be in compliance
with all the terms and provisions of the Loan Documents, and giving
effect to the initial Advance no Default or Event of Default shall have
occurred and be continuing.
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(i) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special
counsel to the Administrative Agent.
(j) The Amendment Effective Date shall have occurred on or
before October 31, 1999.
11.2 AVAILABILITY UNDER EXCESS FACILITY. The obligation of each
Lender to make any Advance under the Line B Commitment is subject to the
condition precedent that such Advance is permitted to be incurred under Section
4.06 of the Indentures governing the Existing Subordinated Debt.
11.3 ANY ADVANCE. The obligation of each Lender to make any
Advance (and the obligation of the Issuing Lender to issue any Letter of Credit)
is subject to the following conditions precedent (unless the Requisite Lenders,
in their sole and absolute discretion, shall agree otherwise):
(a) EXCEPT (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and
correct as a result of a change which is permitted by this Agreement or
(ii) as disclosed by any Borrower and approved in writing by the
Requisite Lenders, the representations and warranties contained in
ARTICLE 4 (OTHER THAN Sections 4.4, 4.6 (first sentence), 4.10, 4.17
and 4.19) shall be true and correct on and as of the date of the
Advance as though made on that date;
(b) other than matters described in SCHEDULE 4.10 or not
required as of the Amendment Effective Date to be therein described, or
disclosed by any Borrower and approved in writing by the Requisite
Lenders, there shall not be any action, suit, proceeding or
investigation pending as to which Parent or any of its Subsidiaries has
been served or received notice of or, to the best knowledge of
Borrowers, threatened against or affecting Parent or any of its
Subsidiaries or any Property of any of them before any Governmental
Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely received a
Request for Loan in compliance with ARTICLE 2 (or telephonic or other
request for Loan referred to in the second sentence of Section 2.1(c),
if applicable), in compliance with ARTICLE 2 or (as applicable) the
Issuing Lender shall have timely received a Request for Letter of
Credit in compliance with ARTICLE 2; and
(d) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the
foregoing as the Administrative Agent or Requisite Lenders reasonably
may require.
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Article 12
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
12.1 EVENTS OF DEFAULT. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrowers fail to pay any principal on any of the Notes,
or any portion thereof, on the date when due; or
(b) Borrowers fail to pay any interest on any of the Notes, or
any fees under Sections 3.3, 3.4 or 3.5, or any portion thereof, within
two (2) Banking Days after the date when due; or fail to pay any other
fee or amount payable to the Lenders under any Loan Document, or any
portion thereof, within five (5) Banking Days after demand therefor; or
(c) Borrowers fail to comply with any of the covenants
contained in ARTICLE 6 or Parent fails to comply with any of the
covenants contained in ARTICLE 9; or
(d) Borrowers fail to comply with Section 10.1(l) in any
respect that is materially adverse to the interests of the Lenders; or
(e) Borrowers or any other Party fails to perform or observe
any other covenant or agreement (not specified in clause (a), (b), (c)
or (d) above) contained in any Loan Document on its part to be
performed or observed within twenty (20) Banking Days after the giving
of notice by the Administrative Agent on behalf of the Requisite
Lenders of such Default; or
(f) Any representation or warranty of Borrowers or any of the
Guarantors made in any Loan Document, or in any certificate or other
writing delivered by Borrowers or such Guarantor pursuant to any Loan
Document, proves to have been incorrect when made or reaffirmed in any
respect that is materially adverse to the interests of the Lenders; or
(g) Borrowers or any of the Guarantors (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $10,000,000 or more, or any guaranty of present or
future Indebtedness of $10,000,000 or more, on its part to be paid,
when due (or within any stated grace period), whether at the stated
maturity, upon acceleration, by reason of required prepayment or
otherwise or (ii) fails to perform or observe any other term, covenant
or agreement on its part to be performed or observed, or suffers any
event of default to occur, in connection with any present or future
Indebtedness of $10,000,000 or more, or of any guaranty of present or
future Indebtedness of $10,000,000 or more, if as a result of such
failure or sufferance any holder or holders thereof (or an
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agent or trustee on its or their behalf) has the right to declare such
Indebtedness due before the date on which it otherwise would become
due or the right to require Borrowers or any of the Guarantors to
redeem or purchase, or offer to redeem or purchase, all or any portion
of such Indebtedness (PROVIDED, that for the purpose of this clause
(g), the principal amount of Indebtedness consisting of a Swap
Agreement shall be the amount which is then payable by the
counterparty to close out the Swap Agreement); or
(h) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their behalf)
the right to declare such Subordinated Obligation due before the date
on which it otherwise would become due, or the right to require the
issuer thereof to redeem or purchase, or offer to redeem or purchase,
all or any portion of any Subordinated Obligation; or the trustee for,
or any holder of, a Subordinated Obligation breaches any subordination
provision applicable to such Subordinated Obligation; or
(i) Any Loan Document (OTHER THAN a Secured Swap Agreement),
at any time after its execution and delivery and for any reason, OTHER
THAN the agreement or action (or omission to act) of the Administrative
Agent or the Lenders or satisfaction in full of all the payment
Obligations, ceases to be in full force and effect or is declared by a
court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which is materially adverse to the
interests of the Lenders; or any Collateral Document ceases (OTHER THAN
by action or inaction of the Administrative Agent or any Lender) to
create a valid and effective Lien in any material Collateral covered
thereby; or any Party thereto denies in writing that it has any or
further liability or obligation under any (other than a Secured Swap
Agreement) Loan Document, or purports to revoke, terminate or rescind
same; or
(j) A final judgment against any of (i) Borrowers, (ii)
Parent or (iii) any Sibling Guarantor that then has total assets of
$10,000,000 or more is entered for the payment of money in excess of
$5,000,000 (not covered by insurance or for which an insurer has
reserved its rights) and, absent procurement of a stay of execution,
such judgment remains unsatisfied for thirty (30) calendar days after
the date of entry of judgment, or in any event later than five (5) days
prior to the date of any proposed sale thereunder; or any writ or
warrant of attachment or execution or similar process is issued or
levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty (30)
calendar days after its issue or levy; or
(k) Any of (i) Borrowers, (ii) Parent or (iii) any Sibling
Guarantor that then has total assets of $10,000,000 or more institutes
or consents to the institution of any proceeding under a Debtor Relief
Law relating to it or to all or any material part of its Property, or
is unable or admits in writing its inability to pay
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its debts as they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator
or similar officer for it or for all or any material part of its
Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for sixty (60)
calendar days; or
(l) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document)
applicable to any Borrower or other Party (EXCLUDING an Event of
Default applicable to a counterparty other than any Borrower under a
Secured Swap Agreement) under any other Loan Document; or
(m) A final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(n) Any Pension Plan maintained by Parent or any of its
Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess
of an amount equal to 5% of the consolidated total assets of Parent and
its Subsidiaries as of the most-recently ended Fiscal Quarter; or
(o) The occurrence of a License Revocation that continues for
three (3) consecutive calendar days; or
(p) The occurrence of an Event of Default (as such term is
defined in the Term Loan Agreement) under the Term Loan Agreement.
12.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default OTHER THAN an Event of Default described in Section
12.1(k) with respect to any Borrower:
(1) the Commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrowers and any other Parties under the Loan
Documents shall be suspended without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, EXCEPT
that all of the Lenders or the Requisite Lenders (as the case
may be, in accordance with Section 14.2) may waive an Event of
Default or, without waiving, determine, upon terms and
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conditions satisfactory to the Lenders or Requisite Lenders,
as the case may be, to reinstate the Commitments and such
other obligations and rights and make further Advances, which
waiver or determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders,
demand immediate payment by Borrowers of an amount equal to
the aggregate amount of all outstanding Letters of Credit to
be held by the Issuing Lender in an interest-bearing cash
collateral account as collateral under the Security Agreement;
and
(3) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitments and/or declare all
or any part of the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable,
without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived
by Borrowers.
(b) Upon the occurrence of any Event of Default described in
Section 12.1(k) with respect to any Borrower:
(1) the Commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrowers and any other Parties under the Loan
Documents shall terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, EXCEPT
that all of the Lenders may waive the Event of Default or,
without waiving, determine, upon terms and conditions
satisfactory to all the Lenders, to reinstate the Commitments
and such other obligations and rights and make further
Advances, which determination shall apply equally to, and
shall be binding upon, all the Lenders;
(2) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and
payable to the Issuing Lender without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, to be held
by the Issuing Lender in an interest-bearing cash collateral
account as collateral under the Security Agreement; and
(3) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents shall be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by
Borrowers.
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(c) Upon the occurrence of any Event of Default, the Lenders
and the Administrative Agent, or any of them, without notice to (EXCEPT
as expressly provided for in any Loan Document) or demand upon
Borrowers, which are expressly waived by Borrowers (EXCEPT as to
notices expressly provided for in any Loan Document), may proceed (but
only with the consent of the Requisite Lenders) to protect, exercise
and enforce their rights and remedies under the Loan Documents against
Borrowers and any other Party and such other rights and remedies as are
provided by Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied
first to the costs and expenses (including reasonable attorneys' fees
and disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate payment
Obligations owed to each Lender under the Loan Documents bear to the
aggregate payment Obligations owed under the Loan Documents to all the
Lenders, without priority or preference among the Lenders. Regardless
of how each Lender may treat payments for the purpose of its own
accounting, for the purpose of computing Borrowers' payment Obligations
hereunder and under the Notes, payments of the proceeds from the
exercise of the Lenders' rights and remedies shall be applied FIRST, to
the costs and expenses of the Administrative Agent and the Lenders, as
set forth above, SECOND, to the payment of accrued and unpaid interest
due under any Loan Documents to and including the date of such
application (ratably, and without duplication, according to the accrued
and unpaid interest due the Lenders under each of the Loan Documents),
and THIRD, to the payment of all other amounts (including principal and
fees) then owing to the Administrative Agent or the Lenders under the
Loan Documents. No application of payments of the proceeds from the
exercise of the Lenders' rights and remedies will cure any Event of
Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Lenders hereunder or thereunder
or at Law or in equity for the collection or recovery of all unpaid
payment Obligations.
12.3 PALACE EVENT OF DEFAULT AND REMEDIES. The failure of Palace,
whatever the reason therefor and under any circumstances whatever, to comply
with any of the covenants contained in ARTICLE 7 shall constitute a Palace Event
of Default. Upon the occurrence of a Palace Event of Default, the Administrative
Agent and the Lenders shall have all the rights and remedies described in
Section 12.2 but only with respect to the Line A Commitment, Line A Loans and
the Line A Notes.
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Article 13
THE ADMINISTRATIVE AGENT
13.1 APPOINTMENT AND AUTHORIZATION. Subject to Section 13.8, each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other purpose and, EXCEPT as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and ministerial capacity.
13.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America
National Trust and Savings Association (and each successor Administrative Agent)
has the same rights and powers under the Loan Documents as any other Lender and
may exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders" includes Bank of America, N.A. in its individual
capacity. Bank of America, N.A. (and each successor Administrative Agent) and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust or other business with Borrowers, any Subsidiary
thereof, or any Affiliate of Borrowers or any Subsidiary thereof, as if it were
not the Administrative Agent and without any duty to account therefor to the
Lenders. Bank of America, N.A. (and each successor Administrative Agent) need
not account to any other Lender for any monies received by it for reimbursement
of its costs and expenses as Administrative Agent hereunder, or for any monies
received by it in its capacity as a Lender hereunder. The Administrative Agent
shall not be deemed to hold a fiduciary relationship with any Lender and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent.
13.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held by
the Administrative Agent. Subject to the Administrative Agent's and the Lenders'
rights to reimbursement for their costs and expenses hereunder (INCLUDING
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or a Lender) and subject to the application of payments in accordance with
Section 12.2(d), each Lender shall have an interest in the Lenders' interest in
the Collateral or interests therein in the same proportions that the aggregate
Obligations owed such Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without priority
or preference among the Lenders, EXCEPT that Obligations owed to any Lender (or
Affiliate of a Lender) under a Secured Swap Agreement shall
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be secured on a PARI PASSU basis with all other Obligations up to an amount
equal to the Administrative Agent's then customary credit risk factor for Swap
Agreements times the notional amount of Indebtedness covered by such Secured
Swap Agreement and shall be secured on a subordinate basis as to amounts in
excess of such amount.
13.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrowers and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
13.5 ACTION BY ADMINISTRATIVE AGENT.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative Agent
(or the Lender that is then the Administrative Agent) has received
notice from Borrowers stating the nature of the Default or has received
notice from a Lender stating the nature of the Default and that such
Lender considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no
Event of Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act
or not act, EXCEPT that the Administrative Agent shall be required to
act or not act upon the instructions of the Requisite Lenders (or of
all the Lenders, to the extent required by Section 11.2) and those
instructions shall be binding upon the Administrative Agent and all the
Lenders, PROVIDED that the Administrative Agent shall not be required
to act or not act if to do so would be contrary to any Loan Document or
to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately
give notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite Lenders (or of all the Lenders, to the
extent required by Section 14.2), PROVIDED that the Administrative
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Agent shall not be required to act or not act if to do so would be
contrary to any Loan Document or to applicable Law or would result, in
the reasonable judgment of the Administrative Agent, in substantial
risk of liability to the Administrative Agent, and EXCEPT that if the
Requisite Lenders (or all the Lenders, if required under Section 14.2)
fail, for five (5) Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite
Lenders (or all the Lenders, if required under Section 14.2),
notwithstanding any other provision hereof.
13.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, EXCEPT for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by the payee, and may treat each Lender as the owner of that
Lender's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrowers and/or
their Subsidiaries or the Lenders, and shall not be liable for any
action taken or not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other professionals or
experts.
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or
oral) given or made in connection with any of the Loan Documents.
(d) EXCEPT to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance
or observance by Parent or its Subsidiaries of any of the terms,
conditions or covenants of any of the Loan Documents or to
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inspect any Collateral or the Property, books or records of Parent or
its Subsidiaries.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any Collateral.
(f) Will not incur any liability to any Lender by acting or
not acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing believed
in good faith by it to be genuine and signed or sent by the proper
party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrowers or any Subsidiary
or Affiliate thereof or paid or payable to or received or receivable
from any Lender under any Loan Document, INCLUDING, without limitation,
principal, interest, commitment fees, Advances and other amounts;
PROVIDED that, promptly upon discovery of such an error in computation,
the Administrative Agent, the Lenders and (to the extent applicable)
Borrowers and/or their Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
13.7 INDEMNIFICATION. Each Lender shall, ratably in accordance
with its Pro Rata Share of the Commitments (if the Commitments are then in
effect) or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes (if the Commitments have then been terminated), indemnify
and hold the Administrative Agent, the Co-Agents and their respective directors,
officers, agents, employees and attorneys harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (INCLUDING
reasonable attorneys' fees and disbursements and allocated costs of attorneys
employed by the Administrative Agent) that may be imposed on, incurred by or
asserted against it or them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the failure of Borrowers to
pay the Indebtedness represented by the Notes) or any action taken or not taken
by it as Administrative Agent thereunder, EXCEPT such as result from its own
gross negligence or willful misconduct. Without limitation on the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for that
Lender's Pro Rata Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization (INCLUDING a
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that Borrowers or any other Party is required by
Section 14.3 to pay that cost or expense but fails to do so upon demand. Nothing
in this Section 13.7 shall entitle the Administrative Agent or any indemnitee
referred to above
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to recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrowers or any of their Subsidiaries. To the
extent that the Administrative Agent or any indemnitee referred to above is
later reimbursed such amount by Borrowers or any of its Subsidiaries, it shall
return the amounts paid to it by the Lenders in respect of such amount.
13.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrowers effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrowers (and such approval shall not be unreasonably withheld
or delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrowers, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE 13, and Sections 14.3,
14.11 and 14.22, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid
its agency fees under Section 3.6 or has not been reimbursed for any expense
reimbursable to it under Section 14.3, in either case for a period of at least
one (1) year and (b) no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Administrative Agent as provided for above.
13.9 FORECLOSURE ON COLLATERAL. In the event of foreclosure or
enforcement of the Lien created by any of the Collateral Documents, title to the
Collateral covered thereby shall be taken and held by the Administrative Agent
(or an Affiliate or designee thereof) pro rata for the benefit of the Lenders in
accordance with the Obligations outstanding to each of them and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities.
13.10 NO OBLIGATIONS OF BORROWERS. Nothing contained in this
Article 13 shall be deemed to impose upon Borrowers any obligation in
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respect of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and Borrowers
shall have no liability to the Administrative Agent or any of the Lenders in
respect of any failure by the Administrative Agent or any Lender to perform any
of its obligations to the Administrative Agent or the Lenders under this
Agreement. Without limiting the generality of the foregoing, where any provision
of this Agreement relating to the payment of any amounts due and owing under the
Loan Documents provides that such payments shall be made by Borrowers to the
Administrative Agent for the account of the Lenders, Borrowers' obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
13.11 AUTHORITY REGARDING CERTAIN DOCUMENTS. The Lenders hereby
expressly authorize the Administrative Agent to execute, deliver and perform
under, on behalf of the Lenders, (a) the Intercreditor Agreement, (b) the
"Corporate Securities and Finance Compliance Affidavit" required by the Missouri
Gaming Commission and (c) any other affidavit, report, notice or other document
required by any Gaming Board.
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Article 14
MISCELLANEOUS
14.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers,
privileges and remedies of the Administrative Agent and the Lenders provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of ARTICLE 11 hereof are
inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent's or the
Lenders' rights to assert them in whole or in part in respect of any other Loan.
14.2 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by the Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
any of the Borrowers or any of the Guarantors is a Party, signed by each such
Party, and, in the case of any amendment, modification or supplement to ARTICLE
13, signed by the Administrative Agent), and then only in the specific instance
and for the specific purpose given; and, without the approval in writing of all
the Lenders, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on,
any Note, or the amount of the Commitments or the Pro Rata Share of any
Lender or the amount of any commitment fee payable to any Lender, or
any other fee or amount payable to any Lender under the Loan Documents
or to waive an Event of Default consisting of the failure of Borrowers
to pay when due principal, interest or any commitment fee;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on, any
Note or any installment of any commitment fee, or to extend the term of
the Commitments.
(c) To release the Parent Guaranty, the Sibling Guaranty, or
any material portion of the Collateral EXCEPT as expressly provided for
in any Loan Document (PROVIDED that the Administrative Agent is
authorized to release the Lien created by the Collateral Documents on
(i) assets secured by Indebtedness permitted
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by Section 6.7(e), (ii) assets which are the subject of a Disposition
permitted by Section 6.1, (iii) assets the sale, transfer or other
disposition of which is not a Disposition and (iv) assets that are
transferred to an Unrestricted New Venture Entity as a contribution to
its capital that comply with the limitations contained in Section
9.14, and shall do so upon request of Borrowers subject to such
reasonable and customary requirements as the Administrative Agent may
specify);
(d) To amend the provisions of the definition of "REDUCTION
AMOUNT," "REDUCTION DATE," "REQUISITE LENDERS," "MAJORITY LENDERS," or
"MATURITY DATE"; or
(e) To amend or waive ARTICLES 11 OR 12, this Section 14.2, or
Sections 6.3 or 9.4; or
(f) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 14.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
14.3 COSTS, EXPENSES AND TAXES. Borrowers shall pay within five
(5) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents and any amendment thereto or waiver thereof. Borrowers shall also pay
on demand, accompanied by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent and the Lenders in connection with the refinancing,
restructuring, reorganization (INCLUDING a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (INCLUDING reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrowers or any Subsidiary
thereof. Such costs and expenses shall also include, in the case of any
amendment or waiver of any Loan Document requested by Borrowers, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Borrowers shall pay any and all documentary and other taxes, EXCLUDING
(i) taxes imposed on or measured in whole or in part by its overall net income
imposed on it by (A) any jurisdiction (or political subdivision thereof) in
which it is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business" or (ii) any withholding taxes or other taxes based on gross
income imposed by the
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United States of America for any period with respect to which it has failed to
provide Borrowers with the appropriate form or forms required by Section 14.21,
to the extent such forms are then required by applicable Laws, and all costs,
expenses, fees and charges payable or determined to be payable in connection
with the filing or recording of this Agreement, any other Loan Document or any
other instrument or writing to be delivered hereunder or thereunder, or in
connection with any transaction pursuant hereto or thereto, and shall reimburse,
hold harmless and indemnify on the terms set forth in 14.11 the Administrative
Agent and the Lenders from and against any and all loss, liability or legal or
other expense with respect to or resulting from any delay in paying or failure
to pay any such tax, cost, expense, fee or charge or that any of them may suffer
or incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any Lender under
this Section 14.3 shall bear interest from the second Banking Day following the
date of demand for payment at the Default Rate.
14.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Borrowers or any Affiliate of any of Borrowers. Each Lender's obligation to
make any Advance pursuant hereto is several and not joint or joint and several,
and in the case of the initial Advance only is conditioned upon the performance
by all other Lenders of their obligations to make initial Advances. A default by
any Lender will not increase the Pro Rata Share of the Commitments attributable
to any other Lender. Any Lender not in default may, if it desires, assume in
such proportion as the nondefaulting Lenders agree the obligations of any Lender
in default, but is not obligated to do so. The Administrative Agent agrees that
it will use its best efforts either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another Lender, reasonably
satisfactory to Borrowers, to replace such a Lender in default.
14.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
14.6 NOTICES. EXCEPT as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as
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may be designated by it in a written notice sent to all other parties to such
Loan Document in accordance with this Section. EXCEPT as otherwise expressly
provided in any Loan Document, if any notice, request, demand, direction or
other communication required or permitted by any Loan Document is given by mail
it will be effective on the earlier of receipt or the fourth Banking Day after
deposit in the United States mail with first class or airmail postage prepaid;
if given by telegraph or cable, when delivered to the telegraph company with
charges prepaid; if given by telecopier, when sent; if dispatched by commercial
courier, on the scheduled delivery date; or if given by personal delivery, when
delivered.
14.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
14.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which
Borrowers are a Party will be binding upon and inure to the benefit of
Borrowers, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, EXCEPT that Borrowers may not assign
their rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders. Any attempted
assignment by any Borrower in contravention of this Section 14.8(a)
shall be null and void. Each Lender represents that it is not acquiring
its Note with a view to the distribution thereof within the meaning of
the Securities Act of 1933, as amended (subject to any requirement that
disposition of such Note must be within the control of such Lender).
Any Lender may at any time pledge its Note or any other instrument
evidencing its rights as a Lender under this Agreement to a Federal
Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights
of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Amendment Effective Date,
each Lender may assign to one or more Eligible Assignees all or any
portion of its Pro Rata Share of the Commitments; PROVIDED that (i)
such Eligible Assignee, if not then a Lender or an Affiliate of the
assigning Lender, shall be approved by each of the Administrative Agent
and (if no Event of Default then exists) Borrowers (neither of which
approvals shall be unreasonably withheld or delayed), (ii) such
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assignment shall be evidenced by a Commitments Assignment and
Acceptance, a copy of which shall be furnished to the Administrative
Agent as hereinbelow provided, (iii) EXCEPT in the case of an
assignment to an Affiliate of the assigning Lender, to another Lender
or of the entire remaining Commitments of the assigning Lender, the
assignment shall not assign a Pro Rata Share of the Commitments that is
equivalent to less than $3,000,000 (or $1,000,000 with respect to any
assignment occurring on the Amendment Effective Date) , (iv) the
assignment shall assign the same Pro Rata Share of the Line A
Commitment and the Line B Commitment and (v) the effective date of any
such assignment shall be as specified in the Commitments Assignment and
Acceptance, but not earlier than the date which is five (5) Banking
Days after the date the Administrative Agent has received the
Commitments Assignment and Acceptance. Upon the effective date of such
Commitments Assignment and Acceptance, the Eligible Assignee named
therein shall be a Lender for all purposes of this Agreement, with the
Pro Rata Share of the Commitments therein set forth and, to the extent
of such Pro Rata Share, the assigning Lender shall be released from its
further obligations under this Agreement. Borrowers agree that they
shall execute and deliver (against delivery by the assigning Lender to
Borrowers of its Note) to such assignee Lender, a Note evidencing that
assignee Lender's Pro Rata Share of the Commitments, and to the
assigning Lender, a Note evidencing the remaining balance Pro Rata
Share retained by the assigning Lender.
(c) By executing and delivering a Commitments Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Pro Rata Share of the Commitments
being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or
the performance by Borrowers of the Obligations; (iii) it has received
a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 10.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitments Assignment
and Acceptance; (iv) it will, independently and without reliance upon
the Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by this Agreement; and (vi)
it will perform in accordance with
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their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitments Assignment and
Acceptance delivered to it and a register (the "Register") of the names
and address of each of the Lenders and the Pro Rata Share of the
Commitments held by each Lender, giving effect to each Commitments
Assignment and Acceptance. The Register shall be available during
normal business hours for inspection by Borrowers or any Lender upon
reasonable prior notice to the Administrative Agent. After receipt of a
completed Commitments Assignment and Acceptance executed by any Lender
and an Eligible Assignee, and receipt of an assignment fee of $2,500
from such Lender or Eligible Assignee, the Administrative Agent shall,
promptly following the effective date thereof, provide to Borrowers and
the Lenders a revised SCHEDULE 1.1A giving effect thereto. Borrowers,
the Administrative Agent and the Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of
the Pro Rata Share of the Commitments listed therein for all purposes
hereof, and no assignment or transfer of any such Pro Rata Share of the
Commitments shall be effective, in each case unless and until a
Commitments Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent
and recorded in the Register as provided above. Prior to such
recordation, all amounts owed with respect to the applicable Pro Rata
Share of the Commitments shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee
of the corresponding Pro Rata Share of the Commitments.
(e) Each Lender may from time to time grant participations to
one or more Lenders or other financial institutions (INCLUDING another
Lender) in a portion of its Pro Rata Share of the Commitments;
PROVIDED, HOWEVER, that (i) such Lender notifies the Administrative
Agent and Borrowers in writing at least five (5) Banking Days in
advance of granting such a participation, which notice shall identify
the proposed participant, (ii) the proposed participant (if not then a
Lender or an Affiliate of the granting Lender) shall be approved by
each of the Administrative Agent and (if no Event of Default then
exists) Borrowers (neither of which approvals shall be unreasonably
withheld or delayed), (iii) such Lender's obligations under this
Agreement shall remain unchanged, (iv) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (v) the participating Lenders or other financial
institutions shall not be a Lender hereunder for any purpose EXCEPT, if
the participation agreement so provides, for the purposes of Sections
3.6, 3.7, 14.11 and 14.22 but only to the extent that the cost of such
benefits to Borrowers does not exceed the cost which Borrowers would
have incurred in respect of
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such Lender absent the participation, (vi) Borrowers, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (vii) the participation
interest shall be expressed as a percentage of the granting Lender's
Pro Rata Share of the Commitments as it then exists and shall not
restrict an increase in the Commitments, or in the granting Lender's
Pro Rata Share of the Commitments, so long as the amount of the
participation interest is not affected thereby and (viii) the consent
of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents OTHER THAN
those which (A) extend any Reduction Date, the Maturity Date or any
other date upon which any payment of money is due to the Lenders, (B)
reduce the rate of interest on the Notes, any fee or any other
monetary amount payable to the Lenders, (C) reduce the amount of any
installment of principal due under the Notes, or (D) release the
Parent Guaranty, the Sibling Guaranty or any material portion of the
Collateral (except as otherwise expressly provided for in any Loan
Document).
(f) Notwithstanding anything in this Section 14.8 to the
contrary, the rights of the Lenders to make assignments of, and grant
participations in, their Pro Rata Shares of the Commitments shall be
subject to the approval of any Gaming Board, to the extent required by
applicable Gaming Laws, and to compliance with applicable securities
laws.
14.9 RIGHT OF SETOFF. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may (a) exercise its rights under Article
9 of the Uniform Commercial Code and other applicable Laws and (b) to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrowers and/or any Property of Borrowers in its possession against
the Obligations.
14.10 SHARING OF SETOFFS. Each Lender severally agrees that if
it, through the exercise of any right of setoff, Lender's lien or
counterclaim against Borrowers, or otherwise, receives payment of the
Obligations held by it that is ratably more than any other Lender, through
any means, receives in payment of the Obligations held by that Lender, then,
subject to applicable Laws: (a) the Lender exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from each of
the other Lenders a participation in the Obligations held by the other
Lenders and shall pay to the other Lenders a purchase price in an amount so
that the share of the Obligations held by each Lender after the exercise of
the right of setoff, Banker's lien or counterclaim or receipt of payment
shall be in the same proportion that existed prior to the exercise of the
right of setoff, banker's lien or counterclaim or receipt of payment; and (b)
such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Lenders share
any payment obtained in respect of the Obligations
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ratably in accordance with each Lender's share of the Obligations immediately
prior to, and without taking into account, the payment; PROVIDED that, if all or
any portion of a disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by Borrowers or any Person claiming through
or succeeding to the rights of Borrowers, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Lender that purchases a participation
in the Obligations pursuant to this Section 14.10 shall from and after the
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Borrowers expressly consent to
the foregoing arrangements and agree that any Lender holding a participation in
an Obligation so purchased may exercise any and all rights of setoff, banker's
lien or counterclaim with respect to the participation as fully as if the Lender
were the original owner of the Obligation purchased.
14.11 INDEMNITY BY BORROWERS. Borrowers agree to indemnify, save
and hold harmless the Administrative Agent, the Co-Agents and each Lender and
their respective directors, officers, agents, attorneys and employees
(collectively the "INDEMNITEES") from and against: (a) any and all claims,
demands, actions or causes of action (EXCEPT a claim, demand, action, or cause
of action for any amount excluded from the definition of "Taxes" in Section
3.12(d)) if the claim, demand, action or cause of action arises out of or
relates to any act or omission (or alleged act or omission) of Borrowers, their
Affiliates or any of their officers, directors or stockholders relating to the
Commitments, the use or contemplated use of proceeds of any Loan, or the
relationship of Borrowers and the Lenders under this Agreement; (b) any
administrative or investigative proceeding by any Governmental Agency arising
out of or related to a claim, demand, action or cause of action described in
clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(INCLUDING reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or cause of action;
PROVIDED that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Borrowers, but the failure to so promptly notify Borrowers shall not
affect Borrowers' obligations under this Section unless such failure materially
prejudices Borrowers' right to participate in the contest of such claim, demand,
action or cause of action, as hereinafter provided. Such Indemnitee may (and
shall, if requested by Borrowers in writing) contest the validity, applicability
and amount of such claim, demand, action or cause of action and shall permit
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Borrowers may be
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liable for payment of indemnity hereunder shall give Borrowers written notice of
the terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding and shall obtain Borrowers'
prior consent (which shall not be unreasonably withheld or delayed). In
connection with any claim, demand, action or cause of action covered by this
Section 14.11 against more than one Indemnitee, all such Indemnitees shall be
represented by the same legal counsel (which may be a law firm engaged by the
Indemnitees or attorneys employed by an Indemnitee or a combination of the
foregoing) selected by the Indemnitees and reasonably acceptable to Borrowers;
PROVIDED, that if such legal counsel determines in good faith that representing
all such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense or counterclaim,
each affected Indemnitee shall be entitled to separate representation by legal
counsel selected by that Indemnitee and reasonably acceptable to Borrowers, with
all such legal counsel using reasonable efforts to avoid unnecessary duplication
of effort by counsel for all Indemnitees; and FURTHER PROVIDED that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrowers to any Indemnitee under this Section 14.11
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Obligations owed to
the Lenders.
14.12 NONLIABILITY OF THE LENDERS. Borrowers acknowledge and
agree that:
(a) Any inspections of any Property of Borrowers made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrowers are not entitled to rely
upon the same (whether or not such inspections are at the expense of
Borrowers);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative Agent or
the Lenders pursuant to the Loan Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the Lenders;
(c) The relationship between Borrowers and the Administrative
Agent and the Lenders is, and shall at all times remain, solely that of
borrowers and lenders; neither the Administrative Agent nor the Lenders
shall under any circumstance be
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construed to be partners or joint venturers of Borrowers or their
Affiliates; neither the Administrative Agent nor the Lenders shall
under any circumstance be deemed to be in a relationship of confidence
or trust or a fiduciary relationship with Borrowers or their
Affiliates, or to owe any fiduciary duty to Borrowers or their
Affiliates; neither the Administrative Agent nor the Lenders undertake
or assume any responsibility or duty to Borrowers or their Affiliates
to select, review, inspect, supervise, pass judgment upon or inform
Borrowers or their Affiliates of any matter in connection with their
Property or the operations of Borrowers or their Affiliates; Borrowers
and their Affiliates shall rely entirely upon their own judgment with
respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
the Administrative Agent or the Lenders in connection with such
matters is solely for the protection of the Administrative Agent and
the Lenders and neither Borrowers nor any other Person is entitled to
rely thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrowers
and/or its Affiliates and Borrowers hereby indemnify and hold the
Administrative Agent and the Lenders harmless on the terms set forth in
Section 14.11 from any such loss, damage, liability or claim.
14.13 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrowers, the Administrative Agent and the Lenders in connection with the
Loans, and is made for the sole benefit of Borrowers, the Administrative Agent
and the Lenders, and the Administrative Agent's and the Lenders' successors and
assigns. EXCEPT as provided in Sections 14.8 and 14.11, no other Person shall
have any rights of any nature hereunder or by reason hereof.
14.14 CONFIDENTIALITY. Each Lender agrees to hold any
confidential information that it may receive from Borrowers pursuant to this
Agreement in confidence, EXCEPT for disclosure: (a) to other Lenders; (b) to
legal counsel and accountants for Borrowers or any Lender; (c) to other
professional advisors to Borrowers or any Lender, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section 14.14; (d) to regulatory officials
having jurisdiction over that Lender; (e) to any Gaming Board having
regulatory jurisdiction over Parent or its Subsidiaries, provided that each
Lender agrees to notify Borrowers of any such disclosure unless prohibited by
applicable Laws; (f) as required by Law or legal process, provided that each
Lender agrees to notify Borrowers of any such disclosures unless prohibited
by applicable Laws, or in connection with any legal proceeding to which that
Lender and any of Borrowers are adverse parties; (g) to another financial
institution in connection with a disposition or proposed disposition to that
financial institution of all or part of that
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Lender's interests hereunder or a participation interest in its Note, provided
that the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 14.14; (h) to the National
Association of Insurance Commissioners; and (i) to a nationally-recognized
credit rating agency provided that each Lender agrees to notify Borrowers of any
such disclosures. For purposes of the foregoing, "confidential information"
shall mean any information respecting Parent or its Subsidiaries reasonably
considered by Borrowers to be confidential, OTHER THAN (i) information
previously filed with any Governmental Agency and available to the public, (ii)
information previously published in any public medium from a source other than,
directly or indirectly, that Lender, and (iii) information previously disclosed
by Borrowers to any Person not associated with Borrowers without a
confidentiality agreement or obligation substantially similar to this Section
14.14. Nothing in this Section shall be construed to create or give rise to any
fiduciary duty on the part of the Administrative Agent or the Lenders to
Borrowers.
14.15 FURTHER ASSURANCES. Borrowers and the Guarantors shall, at
their expense and without expense to the Lenders or the Administrative Agent,
do, execute and deliver such further acts and documents as the Requisite Lenders
or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Collateral
Document.
14.16 INTEGRATION. This Agreement, together with the other Loan
Documents and the letter agreements referred to in Sections 3.2, 3.4 and 3.5,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; PROVIDED that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
14.17 GOVERNING LAW. EXCEPT to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the Laws of California applicable to contracts made and
performed in California.
14.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the
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provisions of all Loan Documents are declared to be severable.
14.19 HEADINGS. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only
and are not part of this Agreement or the other Loan Documents for any other
purpose.
14.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
14.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrowers (with a copy to the Administrative Agent), on or
before the Amendment Effective Date (or on or before accepting an assignment or
receiving a participation interest herein pursuant to Section 14.8, if
applicable) two duly completed copies, signed by a Responsible Official, of
either Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all payments to be made to such Lender by
Borrowers pursuant to this Agreement) or Form 4224 (relating to all payments to
be made to such Lender by the Borrowers pursuant to this Agreement) of the
United States Internal Revenue Service or such other evidence (INCLUDING, if
reasonably necessary, Form W-9) satisfactory to Borrowers and the Administrative
Agent that no withholding under the federal income tax laws is required with
respect to such Lender. Thereafter and from time to time, each such Lender shall
(a) promptly submit to Borrowers (with a copy to the Administrative Agent), such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrowers and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Lender by
Borrowers pursuant to this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Eurodollar
Lending Office, if any) to avoid any requirement of applicable Laws that
Borrowers make any deduction or withholding for taxes from amounts payable to
such Lender. In the event that Borrowers or the Administrative Agent become
aware that a participation has been granted pursuant to Section 14.8(e) to a
financial institution that is incorporated or otherwise organized under the Laws
of a jurisdiction other than the United States of America, any State thereof or
the District of Columbia, then, upon request made by Borrowers or the
Administrative Agent to the Lender which granted such participation, such Lender
shall cause such participant financial institution to deliver the same documents
and information to Borrowers and the Administrative Agent as would be required
under this Section if such financial institution were a Lender. The foregoing
three sentences of this Section 14.21 apply to any Lender that is a "bank"
within the meaning of Section 88(c)(3)(A) of the Code. With respect to any
Lender that is not a "bank" within the meaning of Section 88(c)(3)(A) of the
Code that intends to claim exemption from
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U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payment of "portfolio interest," such a Lender shall deliver to
Borrowers (with a copy to the Administrative Agent) a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is not
a "bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of
Borrowers and is not a controlled foreign corporation related to Borrowers
(within the meaning of Section 864(d)(4) of the Code), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from U.S.
Federal withholding tax on payments of interest by Borrowers under this
Agreement and the other Loan Documents.
14.22 HAZARDOUS MATERIAL INDEMNITY. Each of Borrowers hereby
agrees to indemnify, hold harmless and defend (by counsel reasonably
satisfactory to the Administrative Agent) the Administrative Agent and each of
the Lenders and their respective directors, officers, employees, agents,
successors and assigns from and against any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial proceedings
and orders, judgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including but
not limited to reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by the Administrative Agent or any Lender, and expenses to
the extent that the defense of any such action has not been assumed by
Borrowers), arising directly or indirectly out of (i) the presence on, in, under
or about any Real Property of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from any Real Property and
(ii) any activity carried on or undertaken on or off any Real Property by
Borrowers or any of its predecessors in title, whether prior to or during the
term of this Agreement, and whether by Borrowers or any predecessor in title or
any employees, agents, contractors or subcontractors of Borrowers or any
predecessor in title, or any third persons at any time occupying or present on
any Real Property, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials at
any time located or present on, in, under or about any Real Property. The
foregoing indemnity shall further apply to any residual contamination on, in,
under or about any Real Property, or affecting any natural resources, and to any
contamination of any Property or natural resources arising in connection with
the generation, use, handling, storage, transport or disposal of any such
Hazardous Materials, and irrespective of whether any of such activities were or
will be undertaken in accordance with applicable Laws, but the foregoing
indemnity shall not apply to Hazardous Materials on any Real Property, the
presence of which is caused by the Administrative Agent or the Lenders.
Borrowers hereby acknowledge and agree that, notwithstanding any other provision
of this Agreement or any of the other Loan Documents to the contrary, the
obligations of Borrowers under this Section (and under Sections 4.18 and 5.10)
shall be unlimited corporate obligations of Borrowers and shall NOT be secured
by any Lien on any Real Property. Any obligation or liability of Borrowers to
any Indemnitee under this Section 14.22 shall survive the expiration or
termination of this Agreement and the repayment of all Loans
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and the payment and performance of all other Obligations owed to the Lenders.
14.23 GAMING BOARDS. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrowers and its
Subsidiaries, INCLUDING the provision of such documents or other information as
may be requested by any such Gaming Board relating to Parent or any of its
Subsidiaries or to the Loan Documents.
14.24 JOINT AND SEVERAL. Each of Borrowers shall be obligated
for all of the Obligations on a joint and several basis, notwithstanding
which of Borrowers may have directly received the proceeds of any particular
Loan or the benefit from the issuance of any Letter of Credit. Each of
Borrowers acknowledges and agrees that, for purposes of the Loan Documents,
Borrowers constitute a single integrated financial enterprise and that each
receives a benefit from the availability of credit under this Agreement to
all of Borrowers. Each of Borrowers waive all defenses arising under the Laws
of suretyship, to the extent such Laws are applicable, in connection with its
joint and several obligations under this Agreement. Without limiting the
foregoing, each of Borrowers agrees to the Joint Borrower Provisions set
forth in EXHIBIT M, incorporated by this reference.
14.25 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW.
14.26 PURPORTED ORAL AMENDMENTS. BORROWERS EXPRESSLY
ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY
ARE A PARTY MAY ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR
THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES
WITH SECTION 14.2. BORROWERS AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF
DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY LENDER THAT DOES NOT COMPLY
WITH SECTION 14.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT
TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
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[THIS SPACE INTENTIONALLY LEFT BLANK - SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
PALACE STATION HOTEL & CASINO, INC.,
as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
BOULDER STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
TEXAS STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
ST. CHARLES RIVERFRONT STATION, INC., as a
Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
KANSAS CITY STATION CORPORATION, as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
-S-1-
<PAGE>
SUNSET STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
STATION CASINOS, INC., solely for purposes of
Articles 8 and 9
By: s/ Glenn C. Christenson
Glenn C. Christenson
Executive Vice President
Address for all the foregoing:
c/o Station Casinos, Inc.
2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attn: Glenn C. Christenson
Executive Vice President
Telecopier: (702) 367-2424
Telephone: (702) 367-2484
-S-2-
<PAGE>
BANK OF AMERICA, N.A., as Administrative Agent
By: s/ Janice Hammond
Janice Hammond
Vice President
Address:
Bank of America, N.A.
Agency Management #12048
CA9-706-11-03
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Janice Hammond
Vice President
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
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<PAGE>
BANK OF AMERICA, N.A., as a Lender
By s/ Scott L. Faber
Scott L. Faber
Principal
Address:
Bank of America, N.A.
CA9-706-11-01
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Scott L. Faber
Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America, N.A.
CA9-706-11-01
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
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<PAGE>
SOCIETE GENERALE, as Documentation Agent and
a Lender
By: s/ Alex Y. Kim
Alex Y. Kim
Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
Managing Director
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
-S-5-
<PAGE>
BANK OF SCOTLAND, as Co-Agent and a Lender
By: s/ Annie Glynn
Annie Glynn
Senior Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Glynn
Senior Vice President
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
-S-6-
<PAGE>
ABN AMRO BANK, N.V., as a Lead Arranger and a
Lender
By: s/ Jeff A. French
Jeff A. French, SVP
By: s/ Corrina Fong
Corrina Fong, Credit
Officer
Address:
ABN AMRO Bank, N.V.
208 South LaSalle Street, Suite 1500
Chicago, Illinois 60604-1003
Attn: Derk Burrus, Credit Administration
Telecopier: (312) 992-5111
Telephone: (312) 992-5122
Copies to:
ABN AMRO Bank, N.V.
208 South LaSalle Street, Suite 1500
Chicago, Illinois 60604-1003
Attn: Suzanne Smith, Loan Administration
Telecopier: (312) 992-5158
Telephone: (312) 992-5095
ABN AMRO Bank N.V.,
101 California Street, Suite 4550
San Francisco, California 94111
Attention: Jeffrey French
Telecopier: (415) 362-3524
Telephone: (415) 984-3703
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<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO, as a Lead
Arranger and a Lender
By: s/ Mark A. Isley
Mark, A. Isley, First Vice President
Address:
The First National Bank of Chicago
777 South Figueroa Street, 4th Floor
Los Angeles, California 90017
Attn: Jim Junker
Telecopier: (213) 683-4999
Telephone: (213) 683-4948
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<PAGE>
WELLS FARGO BANK, N.A., as a Lead Arranger and a
Lender
By: s/ Rick Bokum
Rick Bokum
Assistant Vice President
Address:
Wells Fargo Bank, N.A.
3800 Howard Hughes Parkway, 4th Floor
Las Vegas, Nevada 89109
Attn: Rick Bokum
Assistant Vice President
Telecopier: (702) 791-6365
Telephone: (702) 791-6185
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<PAGE>
CIBC INC., as a Lender
By: s/ Dean Decker
Dean Decker
Executive Director
CIBC World Markets Corp., AS AGENT
Address:
CIBC Inc.
Suite 2600
350 South Grand Avenue
Los Angeles, California 90071
Attn: Dean Decker
Executive Director
Telecopier: (213) 346-0157
Telephone: (213) 617-6245
-S-10-
<PAGE>
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE,
INC., as a Lender
By: s/ James F. McCann
James F. McCann, Vice President
By: /s/ Greg Roux
Greg Roux, Vice President
Address:
Bank Austria Creditanstalt Corporate Finance,
Inc.
4 Embarcadero Center, Suite 630
San Francisco, California 94111
Attn: James F. McCann
Telecopier: (415) 781-0622
Telephone: (415) 788-1371
-S-11-
<PAGE>
BANK OF HAWAII, as a Lender
By: s/ Robert M. Wheeler
Robert M. Wheeler
Vice President
Address:
Bank of Hawaii
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Attn: Robert M. Wheeler
Vice President
Telecopier: (808) 537-8301
Telephone: (808) 537-8237
-S-12-
<PAGE>
BANKBOSTON, NATIONAL ASSOCIATION, as a Lender
By: s/ Patrick Bonebrake
Patrick Bonebrake, Vice President
Address:
BankBoston, National Association
100 Federal Street
Boston, Massachusetts 02110
Attn: Patrick Bonebrake
Telecopier: (617) 434-3401
Telephone: (617) 434-1156
-S-13-
<PAGE>
FIRST SECURITY BANK, N.A., as a Lender
By: s/ David P. Williams
David P. Williams
Vice President
Address:
First Security Bank, N.A.
Corporate Banking
15 East 100 South, 2nd Floor
Salt Lake City, Utah 84111
Attn: David P. Williams
Telecopier: (801) 246-5532
Telephone: (801) 246-5540
-S-14-
<PAGE>
HIBERNIA NATIONAL BANK, as a Lender
By: s/ Chris Haskew
Chris Haskew
Vice President
Address:
Hibernia National Bank
333 Travis Street
Shreveport, Louisiana 71101
Attn: Chris K. Haskew
Telecopier: (318) 674-3758
Telephone: (318) 674-3796
-S-15-
<PAGE>
SUMMIT BANK, as a Lender
By: s/ Carter Evans
Carter Evans
Vice President
Address:
Summit Bank
750 Walnut Avenue, 1st Floor
Cranford, New Jersey 07016
Attn: Carter Evans
Vice President
Telecopier: (908) 709-6433
Telephone: (908) 709-6421
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<PAGE>
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender
By: s/ J. E. Palmer
Assistant Vice President
Address:
The CIT Group/Equipment Financing, Inc.
900 Ashwood Parkway, 6th Floor
Atlanta, Georgia 30338
Attn: John Palmer
Telecopier: (770) 206-9295
Telephone: (770) 551-7827
-S-17-
<PAGE>
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED
REDUCING REVOLVING LOAN AGREEMENT
This Amendment No. 1 to Third Amended and Restated Reducing
Revolving Loan Agreement (this "Amendment") dated as of September 24, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront Station, Inc., Kansas City Station Corporation and Sunset
Station, Inc. (collectively, the "Borrowers"), Station Casinos, Inc. ("Parent")
(but only for the purpose of making the covenants set forth in Articles 8 and 9
of the Loan Agreement (as defined below)), and Bank of America, N.A., as
Administrative Agent (the "Administrative Agent"), is entered into with
reference to the Third Amended and Restated Reducing Revolving Loan Agreement
dated as of August 25, 1999 among Borrowers, Parent, the Lenders party thereto,
Societe Generale, as Documentation Agent, Bank of Scotland, as Co-Agent, and the
Administrative Agent (the "Loan Agreement"). Capitalized terms used but not
defined herein are used with the meanings set forth for those terms in the Loan
Agreement.
RECITALS
A. Parent has entered into an agreement (the "KC Acquisition Agreement"
which, together with the other terms defined in this Recital A, is more
specifically defined below) to purchase substantially all of the operating
assets of the Flamingo Hilton Riverboat Casino in Kansas City, Missouri (the
"Flamingo Casino") for approximately $22,500,000 in cash plus the assumption of
certain liabilities (the "KC Acquisition"). Parent intends to assign its rights
under the KC Acquisition Agreement to Front Street Station, LLC ("Kansas
City-Front Street"), a Missouri limited liability company whose sole member is
St. Charles. The physical facilities of Flamingo Casino consist principally of
leasehold interests (the "Leaseholds") in a casino/entertainment vessel and a
parking garage and related structures, all of which are owned by the Port
Authority of Kansas City, Missouri and leased to Flamingo Casino. Parent has
requested that various provisions of the Loan Agreement be waived and amended in
order to (a) permit the KC Acquisition, (b) allow for possible Intangible Assets
resulting from the KC Acquisition, (c) permit specified Expansion Capital
Expenditures by Kansas City-Front Street subsequent to the KC Acquisition, (d)
permit additional Maintenance Capital Expenditures by Borrowers to allow for the
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<PAGE>
new facility, (e) waive the requirement that the Lenders be granted a security
interest in the Leaseholds and (f) add Kansas City-Front Street as an additional
Borrower.
B. The Lenders are willing to waive and amend the necessary provisions of
the Loan Agreement as requested by Parent PROVIDED that (a) Kansas City-Front
Street grants a Lien in favor of the Lenders securing the Obligations on all of
its assets OTHER THAN the Leaseholds and (b) St. Charles confirms its obligation
to pledge its equity interests in Kansas City-Front Street to the Lenders to
secure the Obligations, subject to necessary Gaming Board approval.
AGREEMENT
Borrowers, Parent and the Administrative Agent, acting with the
consent of the Requisite Lenders pursuant to Section 14.2 of the Loan Agreement,
agree as follows:
1. APPROVAL OF KC ACQUISITION. The Lenders hereby approve the
KC Acquisition (defined below); PROVIDED that concurrently therewith (a) the
Administrative Agent has approved the substance of the KC Acquisition
Agreement (defined below), (b) Kansas City-Front Street (defined below)
executes and delivers to the Administrative Agent the Joinder Agreement
making it an additional Borrower, (c) Borrowers deliver to the Administrative
Agent such amended Schedules to the Loan Agreement as are necessary to
reflect the addition of Kansas City - Front Street as an additional Borrower,
which amended Schedules shall be acceptable to the Administrative Agent, (d)
Kansas City-Front Street executes and delivers to the Administrative Agent
such Collateral Documents and related UCC-1 financing statements as may be
required to result in a First Priority Lien (defined below) on all of the
assets (OTHER THAN the Leaseholds, which term is defined below) of Kansas
City-Front Street in favor of the Administrative Agent to secure the
Obligations, (e) St. Charles executes and delivers to the Administrative
Agent written confirmation of its obligation to pledge its equity interest in
Kansas City-Front Street to the Lenders pursuant to Section 8.2, subject to
any necessary Gaming Board approval and (f) Parent, Kansas City-Front Street
and the other Borrowers deliver, or cause to be delivered, such authorizing
resolutions, legal opinions and other closing documents as may be reasonably
requested by the Administrative Agent. The foregoing approval of the KC
Acquisition shall constitute a waiver of all provisions of the Loan Agreement
(INCLUDING Sections 9.14(f) and 9.15) that may prohibit or
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<PAGE>
restrict the KC Acquisition, to the extent necessary to permit the KC
Acquisition. It is expressly acknowledged that the purchase price payable
with respect to the KC Acquisition, and any subsequent Expansion Capital
Expenditures made by Kansas City-Front Street pursuant to Paragraph 3 below,
will count as Expansion Capital Expenditures for purposes of Sections 6.12(a)
and 9.14(a).
2. WAIVER OF SECTIONS 5.11, 5.12, 8.3 AND 8.4. The
requirements set forth in Sections 5.11, 5.12, 8.3 and 8.4 that Parent and
Borrowers grant a Lien to the Lenders in any Real Property or vessels
acquired subsequent to the Amendment Effective Date are hereby waived as to
the Leaseholds acquired in the KC Acquisition. Nothing herein shall waive the
obligation of Kansas City-Front Street to perform its obligations under such
Sections with respect to any Real Property or vessel (including a leasehold
interest therein) acquired by it subsequent to the KC Acquisition.
3. APPROVAL OF EXPANSION CAPITAL EXPENDITURES. The Lenders
hereby approve, pursuant to Section 6.12(b), Expansion Capital Expenditures
by Kansas City-Front Street (in addition to the purchase price payable by it
pursuant to the KC Acquisition Agreement) not to exceed $15,000,000 for the
purpose of changing signage at the new facility, acquiring additional gaming
equipment, conversion of data processing systems and general rejuvenation.
4. SECTION 1.1. Section 1.1 of the Loan Agreement is amended
to add the following definitions:
"FIRST PRIORITY LIEN" means a Lien that is of the first
priority, EXCEPT for Liens and Negative Pledges permitted by Section
6.6 of the Loan Agreement.
"FLAMINGO CASINO" means the Flamingo Hilton Riverboat Casino in
Kansas City, Missouri.
"KANSAS CITY-FRONT STREET" means Front Street Station LLC, a
Missouri limited liability company.
"KC ACQUISITION" means the purchase by Kansas City-Front Street
of substantially all of the operating assets of the Flamingo Casino
pursuant to the KC Acquisition Agreement.
"KC ACQUISITION AGREEMENT" means that certain Asset
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<PAGE>
Purchase Agreement dated September __, 1999 among Hilton Hotel
Corporation, Flamingo Hilton Riverboat Casino, L.P., Parent and, by
assignment, Kansas City-Front Street.
"KC ACQUISITION DATE" means the date upon which the KC
Acquisition occurs.
"LEASEHOLDS" means the leasehold estates in Real Property and
vessels owned by the Port Authority of Kansas City, Missouri
acquired by Kansas City-Front Street pursuant to the KC Acquisition
Agreement.
5. SECTION 1.1. Section 1.1 of the Loan Agreement is hereby
further amended to revise the following definitions to read as follows:
"BORROWERS" means, collectively (a) Palace, Boulder, Texas, St.
Charles, Kansas City and Sunset and (b) upon its execution and
delivery of the Joinder Agreement, Kansas City-Front Street.
"PARENT TANGIBLE NET WORTH" means, as of any date of
determination, the consolidated Stockholders' Equity of Parent and
its Subsidiaries on that date minus the SUM OF (a) the aggregate
Intangible Assets of Parent and its Subsidiaries on that date OTHER
THAN any Intangible Assets resulting from the KC Acquisition PLUS
(b) the amount, if any, by which Intangible Assets resulting from
the KC Acquisition exceeds $15,000,000.
6. SECTION 6.11. Section 6.11 of the Loan Agreement is amended
to read as follows:
6.11 MAINTENANCE CAPITAL EXPENDITURES. Make, or become legally
obligated to make, any Maintenance Capital Expenditure in any Fiscal
Year if, giving effect thereto, the aggregate of all Maintenance
Capital Expenditures made by Borrowers in that Fiscal Year PLUS all
Maintenance Capital Expenditures made by Parent in that Fiscal Year
would exceed $27,000,000 for any Fiscal Year; PROVIDED, that such
amount shall be increased for the Fiscal Year ending December 31,
2000 and each subsequent Fiscal Year by the amount (not exceeding
$3,000,000), if any, by which actual Maintenance Capital
Expenditures of Borrowers and Parent in the immediately preceding
Fiscal Year were less than $27,000,000.
7. SECTION 9.13. Section 9.13 of the Loan
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<PAGE>
Agreement is amended to read as follows:
9.13 MAINTENANCE CAPITAL EXPENDITURES. Make, or become legally
obligated to make, any Maintenance Capital Expenditure in any Fiscal
Year if, giving effect thereto, the aggregate of all Maintenance
Capital Expenditures made by Parent in that Fiscal Year PLUS all
Maintenance Capital Expenditures made by Borrowers (in that Fiscal
Year would exceed $27,000,000 for any Fiscal Year; PROVIDED, that such
amount shall be increased for the Fiscal Year ending December 31, 2000
and each subsequent Fiscal Year by the amount (not exceeding
$3,000,000), if any, by which actual Maintenance Capital Expenditures
of Borrowers and Parent in the immediately preceding Fiscal Year were
less than $27,000,000.
8. AMENDMENT OF CERTAIN EXHIBITS. Exhibits A, B and J are hereby
amended, as of the KC Acquisition Date, to add a reference to Kansas City-Front
Street as a Borrower in the introductory paragraphs thereof. Exhibits E and F
are hereby amended, as of the KC Acquisition Date, to add Kansas City-Front
Street as a maker of the Line A Note and Line B Note.
9. RESCISSION OF APPROVAL AND AMENDMENTS. In the event that the
KC Acquisition Date has not occurred by December 31, 1999, the approvals set
forth in Paragraphs 1 and 3, the waiver set forth in Paragraph 2 and the
amendments set forth in Paragraphs 4, 5, 6, 7 and 8 shall be automatically
rescinded.
10. CONDITIONS PRECEDENT. The effectiveness of this Amendment
shall be conditioned upon receipt by the Administrative Agent of all of the
following:
(a) Counterparts of this Amendment executed by all parties
hereto;
(b) Written consents of each of the Sibling Guarantors to
the execution, delivery and performance hereof in the
form of EXHIBIT A to this Amendment;
(c) Written consent of the Requisite Lenders as required
under Section 14.2 of the Loan Agreement in the form of
EXHIBIT B to this Amendment;
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<PAGE>
(d) A certified copy of the KC Acquisition Agreement, which
shall be acceptable in substance to the Administrative
Agent; and
(e) Such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Lenders
reasonably may require.
11. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent
and warrant that no Default or Event of Default has occurred and remains
continuing.
12. CONSENT OF PARENT. The execution of this Amendment by Parent
shall constitute its consent, in its capacity as guarantor under the Parent
Guaranty, to this Amendment.
13. CONFIRMATION. In all other respects, the terms of the Loan
Agreement and the other Loan Documents are hereby confirmed.
IN WITNESS WHEREOF, Borrowers and the Administrative Agent have
executed this Amendment as of the date first above written by their duly
authorized representatives.
PALACE STATION HOTEL & CASINOS, INC.
BOULDER STATION, INC.
TEXAS STATION, INC.
ST. CHARLES RIVERFRONT STATION, INC.
KANSAS CITY STATION CORPORATION
SUNSET STATION, INC.
By: s/ Glenn C. Christenson
Glenn C. Christenson
Vice President and
Chief Financial Officer
STATION CASINOS, INC.
By: s/ Glenn C. Christenson
Glenn C. Christenson
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<PAGE>
Executive Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A., as
Administrative Agent
By: s/ Janice Hammond
Janice Hammond
Vice President
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<PAGE>
Exhibit A to Amendment
CONSENT OF SIBLING GUARANTORS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
Each of the undersigned hereby consents to the execution,
delivery and performance by Borrowers of Amendment No. 1 to the Loan Agreement.
Each of the undersigned represents and warrants to the
Administrative Agent and the Lenders that the Subsidiary Guaranty remains in
full force and effect in accordance with its terms.
Dated: September 24, 1999
GREEN VALLEY STATION, INC. SOUTHWEST GAMING SERVICES, INC.
By: /s/ Glenn C. Christenson By: /s/ Blake L. Sartini
Glenn C. Christenson Blake L. Sartini
Vice President and Secretary
Chief Financial Officer
SOUTHWEST SERVICES, INC.
By: /s/ Blake L. Sartini
Blake L. Sartini
Secretary
-8-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 24, 1999
BANK OF AMERICA, N.A.
By: s/ Scott Faber
Scott Faber
Principal
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 22, 1999
ABN AMRO BANK, N.V.
By: s/ Jeffrey A. French
Jeffrey A. French
Senior Vice President
By: s/ Corrina Fong
Credit Officer
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 23, 1999
BANK OF HAWAII
By: s/ Robert M. Wheeler III
Robert M. Wheeler III
Vice President
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 21, 1999
BANK OF SCOTLAND
By: s/ Annie Glynn
Annie Glynn
Senior Vice President
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 24, 1999
BANKBOSTON
By: s/ Patrick Bonebrake
Patrick Bonebrake
Vice President
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 23, 1999
BANK ONE, N.A.
By: s/ Mark A. Isley
Mark A. Isley
First Vice President
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Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 23, 1999
CIBC, Inc.
By: s/ Dean J. Decker
Dean J. Decker
Executive Director
CIBC World Markets Corp., AS
AGENT
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 20, 1999
FIRST SECURITY BANK, N.A.
By: s/ David P. Williams
David P. Williams
Vice President
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Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 24, 1999
HIBERNIA NATIONAL BANK
By: s/ Chris Haskew
Chris Haskew
Vice President
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 24, 1999
SOCIETE GENERALE
By: s/ Alex Kim
Alex Kim
Vice President
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Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 27, 1999
SUMMIT BANK
By: s/ Carter Evans
Carter Evans
Vice President
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Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Third Amended and
Restated Reducing Revolving Loan Agreement dated as of August 25, 1999 among
Palace Station Hotel & Casino, Inc., Boulder Station, Inc., Texas Station, Inc.,
St. Charles Riverfront, Inc., Kansas City Station Corporation and Sunset Station
(collectively, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for
the purpose of making the covenants set forth in Articles 8 and 9 of the Loan
Agreement (as defined below)), the Lenders party thereto, Societe Generale, as
Documentation Agent, Bank of Scotland, as Co-Agent, and Bank of America, N.A.,
as Administrative Agent, (as amended, the "Loan Agreement"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Third Amended and Restated Reducing Revolving
Loan Agreement, by the Administrative Agent on its behalf, substantially in the
form of the most recent draft presented to the undersigned Lender.
Dated: September 22, 1999
WELLS FARGO BANK
By: s/ Virginia S. Christenson
Virginia S. Christenson
Relationship Manager
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TERM LOAN AGREEMENT
Dated as of August 25, 1999
among
PALACE STATION HOTEL & CASINO, INC.
BOULDER STATION, INC.
TEXAS STATION, INC.
ST. CHARLES RIVERFRONT STATION, INC.
KANSAS CITY STATION CORPORATION
SUNSET STATION, INC.
THE LENDERS HEREIN NAMED
and
BANK OF AMERICA, N.A.
as Administrative Agent
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
Article 1
DEFINITIONS AND ACCOUNTING TERMS..............................................................................1
1.1 Defined Terms...............................................................................1
1.2 Use of Defined Terms.......................................................................31
1.3 Accounting Terms...........................................................................31
1.4 Rounding...................................................................................31
1.5 Exhibits and Schedules.....................................................................31
1.6 References to "Borrowers and their Subsidiaries"...........................................32
1.7 Miscellaneous Terms........................................................................32
Article 2
LOANS........................................................................................................33
2.1 Loans-General..............................................................................33
2.2 Designation of Interest Periods............................................................34
2.3 [Intentionally Omitted]....................................................................35
2.4 [Intentionally Omitted]....................................................................35
2.5 [Intentionally Omitted]....................................................................35
2.6 [Intentionally Omitted]....................................................................35
2.7 Optional Termination of Commitment.........................................................35
2.8 Administrative Agent's Right to Assume Funds Available for
Advances...................................................................................35
2.9 [Intentionally Omitted]....................................................................36
2.10 [Intentionally Omitted]....................................................................36
2.11 Collateral and Guaranty....................................................................36
2.12 Senior Indebtedness........................................................................36
Article 3
PAYMENTS AND FEES............................................................................................37
3.1 Principal and Interest.....................................................................37
3.2 Arrangement Fee............................................................................38
3.3 [Intentionally Omitted]....................................................................38
3.4 [Intentionally Omitted]....................................................................38
3.5 Agency Fee.................................................................................38
3.6 Increased Commitment Costs.................................................................38
</TABLE>
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<TABLE>
<S> <C>
3.7 Eurodollar Costs and Related Matters.......................................................39
3.8 Late Payments..............................................................................44
3.9 Computation of Interest and Fees...........................................................44
3.10 Non-Banking Days...........................................................................44
3.11 Manner and Treatment of Payments...........................................................44
3.12 Funding Sources............................................................................46
3.13 Failure to Charge Not Subsequent Waiver....................................................46
3.14 Administrative Agent's Right to Assume Payments Will be Made by Borrowers..................46
3.15 Fee Determination Detail...................................................................46
3.16 Survivability..............................................................................46
Article 4
REPRESENTATIONS AND WARRANTIES...............................................................................48
4.1 Existence and Qualification; Power; Compliance With Laws...................................48
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.....48
4.3 No Governmental Approvals Required.........................................................49
4.4 Subsidiaries...............................................................................49
4.5 Financial Statements.......................................................................50
4.6 No Other Liabilities; No Material Adverse Changes..........................................50
4.7 Title to Property..........................................................................50
4.8 Intangible Assets..........................................................................50
4.9 Public Utility Holding Company Act.........................................................51
4.10 Litigation.................................................................................51
4.11 Binding Obligations........................................................................51
4.12 No Default.................................................................................51
4.13 ERISA......................................................................................51
4.14 Regulation U; Investment Company Act.......................................................52
4.15 Disclosure.................................................................................52
4.16 Tax Liability..............................................................................52
4.17 Projections................................................................................52
4.18 Hazardous Materials........................................................................53
4.19 [Intentionally Deleted]....................................................................53
4.20 Gaming Laws................................................................................53
4.21 Security Interests.........................................................................53
</TABLE>
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<TABLE>
<S> <C>
Article 5
BORROWERS AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)......................................................................................55
5.1 Payment of Taxes and Other Potential Liens.................................................55
5.2 Preservation of Existence..................................................................55
5.3 Maintenance of Properties..................................................................55
5.4 Maintenance of Insurance...................................................................55
5.5 Compliance With Laws.......................................................................56
5.6 Inspection Rights..........................................................................56
5.7 Keeping of Records and Books of Account....................................................56
5.8 Compliance With Agreements.................................................................56
5.9 Use of Proceeds............................................................................56
5.10 Hazardous Materials Laws...................................................................57
5.11 Additional Real Property...................................................................57
5.12 Additional Vessels.........................................................................57
5.13 [Intentionally Omitted]....................................................................58
5.14 Year 2000 Compliance.......................................................................58
5.15 Delivery of Documentation..................................................................58
Article 6
BORROWERS NEGATIVE COVENANTS.................................................................................59
6.1 Disposition of Property....................................................................59
6.2 Mergers....................................................................................59
6.3 Hostile Acquisitions.......................................................................59
6.4 ERISA......................................................................................59
6.5 Change in Nature of Business...............................................................59
6.6 Liens and Negative Pledges.................................................................60
6.7 Indebtedness and Guaranty Obligations......................................................60
6.8 Transactions with Affiliates...............................................................61
6.9 [Intentionally Omitted]....................................................................61
6.10 [Intentionally Omitted]....................................................................61
6.11 [Intentionally Omitted]....................................................................61
6.12 [Intentionally Omitted]....................................................................61
6.13 [Intentionally Omitted]....................................................................61
6.14 [Intentionally Omitted]....................................................................61
6.15 New Capital Stock..........................................................................61
6.16 Amendments and Refinancings of Revolver....................................................61
Article 7
[Intentionally Omitted]......................................................................................62
</TABLE>
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<TABLE>
<S> <C>
Article 8
PARENT AFFIRMATIVE COVENANTS.................................................................................63
8.1 Article 5 Covenants........................................................................63
8.2 Additional Borrowers.......................................................................63
8.3 Additional Real Property...................................................................63
8.4 Additional Vessels.........................................................................63
8.5 Additional Capital Stock...................................................................63
8.6 Designated Senior Indebtedness.............................................................64
8.7 Pledge Agreement (Missouri)................................................................64
8.8 Pledge Agreement (Nevada)..................................................................64
Article 9
PARENT NEGATIVE COVENANTS....................................................................................65
9.1 Restricted Payments........................................................................65
9.2 Disposition of Property....................................................................66
9.3 Mergers....................................................................................66
9.4 Hostile Acquisitions.......................................................................67
9.5 [Intentionally Omitted]....................................................................67
9.6 ERISA......................................................................................67
9.7 Change in Nature of Business...............................................................67
9.8 Liens and Negative Pledges.................................................................67
9.9 Indebtedness and Guaranty Obligations......................................................68
9.10 Transactions with Affiliates...............................................................70
9.11 [Intentionally Omitted]....................................................................70
9.12 [Intentionally Omitted]....................................................................70
9.13 [Intentionally Omitted]....................................................................70
9.14 [Intentionally Omitted]....................................................................70
9.15 [Intentionally Omitted]....................................................................70
9.16 Amendments to Other Financial Instruments..................................................70
Article 10
INFORMATION AND REPORTING REQUIREMENTS.......................................................................71
10.1 Financial and Business Information.........................................................71
10.2 Compliance Certificates....................................................................74
</TABLE>
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<TABLE>
<S> <C>
Article 11
CONDITIONS...................................................................................................75
11.1 Initial Advance............................................................................75
11.2 [Intentionally Omitted]....................................................................78
11.3 [Intentionally Omitted]....................................................................78
Article 12
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT......................................................................................................79
12.1 Events of Default..........................................................................79
12.2 Remedies Upon Event of Default.............................................................82
Article 13
THE ADMINISTRATIVE AGENT.....................................................................................85
13.1 Appointment and Authorization..............................................................85
13.2 Administrative Agent and Affiliates........................................................85
13.3 Proportionate Interest in any Collateral...................................................85
13.4 Lenders' Credit Decisions..................................................................86
13.5 Action by Administrative Agent.............................................................86
13.6 Liability of Administrative Agent..........................................................87
13.7 Indemnification............................................................................89
13.8 Successor Administrative Agent.............................................................89
13.9 Foreclosure on Collateral..................................................................90
13.10 No Obligations of Borrowers................................................................90
13.11 Authority Regarding Certain Documents......................................................90
Article 14
MISCELLANEOUS................................................................................................92
14.1 Cumulative Remedies; No Waiver.............................................................92
14.2 Amendments; Consents.......................................................................92
14.3 Costs, Expenses and Taxes..................................................................93
14.4 Nature of Lenders' Obligations.............................................................94
14.5 Survival of Representations and Warranties.................................................95
14.6 Notices....................................................................................95
14.7 Execution of Loan Documents................................................................95
14.8 Binding Effect; Assignment.................................................................95
14.9 Right of Setoff............................................................................99
</TABLE>
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<TABLE>
<S> <C>
14.10 Sharing of Setoffs.........................................................................99
14.11 Indemnity by Borrowers....................................................................100
14.12 Nonliability of the Lenders...............................................................101
14.13 No Third Parties Benefited................................................................102
14.14 Confidentiality...........................................................................102
14.15 Further Assurances........................................................................103
14.16 Integration...............................................................................103
14.17 Governing Law.............................................................................104
14.18 Severability of Provisions................................................................104
14.19 Headings..................................................................................104
14.20 Time of the Essence.......................................................................104
14.21 Foreign Lenders and Participants..........................................................104
14.22 Hazardous Material Indemnity..............................................................105
14.23 Gaming Boards.............................................................................106
14.24 Joint and Several.........................................................................106
14.25 Waiver of Right to Trial by Jury..........................................................107
14.26 Purported Oral Amendments.................................................................107
</TABLE>
Exhibits
- ---------
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Deed of Trust Amendment
D - Intercreditor Agreement
E - Note
F - Omnibus Documents Amendment
G-1 - Opinion of Counsel
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G-2 - Opinion of Counsel
G-3 - Opinion of Counsel
G-4 - Opinion of Counsel
H - Pledge Agreement (Missouri)
I - Request for Loan
J - Request for Re-Pricing
K - Joint Borrower Provisions
Schedules
- ----------
1.1A Lender Commitments
1.1B Peripheral Assets
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.18 Hazardous Materials Matters
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<PAGE>
TERM LOAN AGREEMENT
-------------------
Dated as of August 25, 1999
This TERM LOAN AGREEMENT is entered into by and among Palace
Station Hotel & Casino, Inc., a Nevada corporation ("Palace"), Boulder Station,
Inc., a Nevada corporation ("Boulder"), Texas Station, Inc., a Nevada
corporation ("Texas"), St. Charles Riverfront Station, Inc., a Missouri
corporation ("St. Charles"), Kansas City Station Corporation, a Missouri
corporation ("Kansas City") and Sunset Station, Inc., a Nevada Corporation
("Sunset" and, collectively with Palace, Boulder, Texas, St. Charles and Kansas
City, the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for the
purpose of making the covenants set forth in ARTICLES 8 and 9 hereof), each
lender whose name is set forth on the signature pages of this Agreement and each
lender which may hereafter become a party to this Agreement pursuant to Section
14.8 (collectively, the "Lenders" and individually, a "Lender"), and Bank of
America, N.A., as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ADMINISTRATIVE AGENT" means Bank of America, N.A., when acting
in its capacity as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrowers and the Lenders.
"ADVANCE" means any advance made or to be made by any Lender to
Borrowers as provided in ARTICLE 2.
"AFFILIATE" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or
is controlled by, such Person. As used in this definition, "control"
(and the correlative terms, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to
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direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership
interests, by contract or otherwise); PROVIDED that, in any event, any
Person that owns, directly or indirectly, 10% or more of the
securities having ordinary voting power for the election of directors
or other governing body of a corporation that has more than 100 record
holders of such securities, or 10% or more of the partnership or other
ownership interests of any other Person that has more than 100 record
holders of such interests, will be deemed to be an Affiliate of such
corporation, partnership or other Person.
"AGREEMENT" means this Term Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"ALTERNATE BASE RATE" means, as of any date of determination, the
rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the HIGHER OF (a) the Reference Rate in effect on such
date and (b) the Federal Funds Rate in effect on such date plus 1/2 of
1% (50 basis points).
"ALTERNATE BASE RATE LOAN" means, under the circumstances
described in Section 3.7, a Loan that is converted to an Alternate
Base Rate Loan pursuant to Section 3.7.
"AMORTIZATION AMOUNT" means (a) for March 31, 2000 and each
Amortization Date thereafter through and including December 31, 2004,
$500,000 and (b) for each Amortization Date thereafter, $47,500,000.
"AMORTIZATION DATE" means March 31, 2000 and each Quarterly
Payment Date thereafter.
"AVERAGE LIFE" means, as of any date of determination, with
reference to any Indebtedness, the quotient obtained by dividing (a)
the SUM OF the products of the number of years from the date of
determination to the dates of each successive scheduled principal
payment of such Indebtedness multiplied by the amount of such
principal payment by (b) the SUM OF all such principal payments.
"BANKING DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday, OTHER THAN a day on which banks are authorized or required to
be closed in California, Nevada or New York.
"BORROWERS" has the meaning set forth in the preamble of this
Agreement.
"BOULDER" has the meaning set forth in the preamble to this
Agreement.
"BOULDER DEED OF TRUST" means the Deed of Trust (Fee) and/or a
Deed of Trust (Leasehold) executed by Boulder covering the real
property comprising the Boulder Station Hotel & Casino in Las Vegas,
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Nevada.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with Generally Accepted Accounting Principles, is classified as a
capital lease.
"CASH" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with Generally Accepted Accounting Principles,
consistently applied.
"CERTIFICATE" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
"CHANGE IN CONTROL" means (a) any transaction or series of
related transactions in which any Unrelated Person or two or more
Unrelated Persons acting in concert acquire beneficial ownership
(within the meaning of Rule 13d-3(a)(1) under the Securities Exchange
Act of 1934, as amended), directly or indirectly, of 40% or more of
the outstanding Common Stock and at such time the Existing Equity
Holders together shall fail to beneficially own, directly or
indirectly, at least the same percentage of Common Stock as is
beneficially owned by such Unrelated Person, (b) Parent consolidates
with or merges into another Person or conveys, transfers or leases its
properties and assets substantially as an entirety to any Person or
any Person consolidates with or merges into Parent, in either event
pursuant to a transaction in which the outstanding Common Stock is
changed into or exchanged for cash, securities or other property, with
the effect that any Unrelated Person (OTHER THAN the Existing Equity
Holders) becomes the beneficial owner, directly or indirectly, of 40%
or more of Common Stock and at such time the Existing Equity Holders
together shall fail to beneficially own, directly or indirectly, at
least the same percentage of Common Stock as is beneficially owned by
such Unrelated Person or (c) during any period of 24 consecutive
months, individuals who at the beginning of such period constituted
the board of directors of Parent (together with any new or replacement
directors whose election by the board of directors, or whose
nomination for election, was approved by a vote of at least a majority
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
reelection was previously so approved) cease for any reason to
constitute a majority of the directors then in office. For purposes of
the foregoing, the term "UNRELATED PERSON" means any Person OTHER THAN
(i) a Subsidiary of Parent, (ii) an employee stock ownership plan or
other employee benefit plan covering the employees of Parent and its
Subsidiaries or (iii) any of the Existing Equity Holders, and the term
"EXISTING EQUITY HOLDERS" means Frank J. Fertitta III, Blake L.
Sartini, Delise F. Sartini, Lorenzo J. Fertitta, Glenn C. Christenson,
Joseph F. Canfora and Scott M. Nielson and their executors,
administrators or the legal
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representatives of their estates, their heirs, distributees and
beneficiaries, any trust as to which any of the foregoing is a settlor
co-settlor and any corporation, partnership or other entity which is
an Affiliate of any of the foregoing, and any lineal descendants of
such Persons, but only to the extent that the beneficial ownership of
Common Stock held by such lineal descendants was directly received (by
gift, trust or sale) from any such Person.
"CLOSING DATE" means the time and Banking Day on which the
conditions set forth in Section 11.1 are satisfied or waived. The
Administrative Agent shall notify Borrowers and the Lenders of the
date that is the Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by the
Collateral Documents.
"COLLATERAL AGENT" means Bank of America, N.A., as Collateral
Agent pursuant to the Intercreditor Agreement for the Lenders and the
Revolver Lenders.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Trademark Collateral Assignment, the Deeds of Trust,
the Preferred Ship Mortgages, as amended in each case by the Omnibus
Documents Amendment or the Deed of Trust Amendment, the Pledge
Agreement (Nevada), the Pledge Agreement (Missouri) (if and when
executed and delivered pursuant to SECTION 8.3) and any other security
agreement, pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and delivered by
Borrowers or any of the Guarantors to secure the Obligations.
"COMMITMENT" means $200,000,000. The respective Pro Rata Shares
of the Lenders with respect to the Commitment are set forth in
SCHEDULE 1.1.
"COMMITMENT ASSIGNMENT AND ACCEPTANCE" means a commitment
assignment and acceptance substantially in the form of EXHIBIT A.
"COMMON STOCK" means the common stock of Parent or its successor.
"COMPLETION GUARANTY AND KEEP-WELL AGREEMENT" means (a) the
guaranty by Parent, Borrowers or a Restricted Subsidiary of the
completion of the development, construction and opening of a new
gaming facility by an Affiliate of Parent, (b) the agreement by
Parent, Borrowers or a Restricted Subsidiary to advance funds,
property or services on behalf of an Affiliate of Parent in order to
maintain the financial condition of such Affiliate in connection with
the development, construction and operations of a new gaming facility
by such Affiliate and (c) performance bonds incurred in the ordinary
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course of business; PROVIDED that, in the case of clauses (A) and (B)
above, such guaranty or agreement is entered into in connection with
obtaining financing for such gaming facility or is required by a
Gaming Board.
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B, properly completed and signed by a Senior Officer of
Borrowers.
"CONSOLIDATED COVERAGE RATIO" means, for any period, the ratio of
the aggregate amount of Operating Cash Flow for such period to the
aggregate amount of Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
interest expense of Parent, Borrowers and the consolidated Restricted
Subsidiaries including (a) interest expense attributable to Capital
Lease Obligations, (b) amortization of debt discount, (c) capitalized
interest, (d) cash and noncash interest payments, (e) commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing, (f) net costs under Swap
Agreements (including amortization of discount) and (g) interest
expense in respect of obligations of other Persons deemed to be
Indebtedness of Parent, Borrowers or the Restricted Subsidiaries under
clause (a) or (b) of the definition of Indebtedness.
"CONSOLIDATED NET INCOME" means, for any period, the net income
of Parent, Borrowers and the consolidated Restricted Subsidiaries
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles; PROVIDED, HOWEVER, that there shall
not be included in such Consolidated Net Income: (a) any net income
(loss) of any Person if such Person is not a Borrower or a Restricted
Subsidiary, EXCEPT THAT (A) Parent's equity in the net income of any
such Person (INCLUDING an Unrestricted New Venture Entity) for such
period shall be included in such Consolidated Net Income up to the
aggregate amount of Cash actually distributed by such Person during
such period to Parent, Borrowers or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution to Borrowers or a Restricted Subsidiary, to the
limitations contained in clause (c) below); and (B) Parent's equity in
the net loss of any such Person for such period shall be included in
determining such Consolidated Net Income (subject, with respect to the
net loss of an Unrestricted New Venture Entity, to clause (F) below);
(b) any net income (loss) of any Person acquired by Parent, Borrowers
or a Restricted Subsidiary in a pooling of interests transaction for
any period prior to the date of such acquisition; (c) any net income
(loss) of Borrowers or any Restricted Subsidiary if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Subsidiary, directly
or indirectly, to Parent, EXCEPT THAT (A) Parent's equity in the net
income of any such Subsidiary for such period shall be included in
such Consolidated Net Income up to the
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aggregate amount of Cash which could have been distributed by such
Subsidiary during such period to Parent, Borrowers or another
Restricted Subsidiary as a dividend or other distribution (SUBJECT, in
the case of a dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause) unless at the
time of computation no Cash would be permitted to be distributed and
(B) Parent's equity in the net loss of Borrowers or any such
Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income; (d) any gain or loss realized upon the
sale or other disposition of any property, plant or equipment of
Parent, Borrowers or Parent's consolidated Restricted Subsidiaries
which is not sold or otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or other
disposition of any capital stock of any Person; (e) the cumulative
effect of a change in accounting principles; and (f) the net loss of
any Unrestricted New Venture Entity.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision
of any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party
or by which it or any of its Property is bound.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"DEED OF TRUST (FEE)" means a deed of trust in the form of
EXHIBIT C to the Predecessor Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"DEED OF TRUST (LEASEHOLD)" means a deed of trust in the form of
EXHIBIT D to the Predecessor Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"DEED OF TRUST AMENDMENT" means an amendment to each of the
Existing Deeds of Trust substantially in the form of EXHIBIT C.
"DEEDS OF TRUST" means the Existing Deeds of Trust and any other
deed of trust required to be provided to the Administrative Agent
pursuant to Section 5.11.
"DEFAULT" means any event that, with the giving of any applicable
notice or passage of time specified in Section 12.1, or both, would be
an Event of Default.
"DEFAULT RATE" means the interest rate prescribed in Section 3.8.
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"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Borrowers with Bank of America, N.A. or one of its
Affiliates, as from time to time designated by Borrowers by written
notification to the Administrative Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any
Eurodollar Rate Loan, (a) the London Eurodollar Market, (b) if prime
banks in the London Eurodollar Market are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent
determines in good faith that the London Eurodollar Market does not
represent at the relevant time the effective pricing to the Lenders
for deposits of Dollars in the London Eurodollar Market, the Cayman
Islands Eurodollar Market or (c) if prime banks in both the London and
Cayman Islands Eurodollar Markets are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent
determines in good faith that neither the London nor the Cayman
Islands Eurodollar Market represents at the relevant time the
effective pricing to the Lenders for deposits of Dollars in such
Eurodollar Market, such other Eurodollar Market as may from time to
time be selected by the Administrative Agent with the approval of
Borrowers and the Requisite Lenders.
"DEVELOPED PROPERTY" means, as of any date of determination, a
casino, hotel, casino/hotel, resort, casino/resort, riverboat casino,
dockside casino, excursion gambling boat, floating gaming facility,
golf course, entertainment center or similar facility owned by Parent
or any of its Subsidiaries (or owned by a Person in which Parent or
any of its Subsidiaries holds an Investment) and which is at such date
substantially complete and open for business.
"DISPOSITION" means the voluntary sale, transfer or other
disposition of any asset of Borrowers OTHER THAN (a) Cash, cash
equivalents, inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of Borrowers and (b)
equipment sold or otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been acquired, or
thereafter within 90 days is acquired, by Borrowers, or where
Borrowers determine in good faith that the failure to replace such
equipment will not be detrimental to the business of Borrowers.
"DOLLARS" or "$" means United States dollars.
"DOMESTIC REFERENCE LENDER" means Bank of America, N.A.
"ELIGIBLE ASSIGNEE" means (a) another Lender, (b) any Affiliate
or Related Fund of a Lender, (c) any commercial bank having a combined
capital and surplus of $100,000,000 or more, (d) any (i) savings bank,
savings and loan association or similar financial institution or (ii)
insurance company engaged in the business of writing insurance which,
in either case (A) has a net worth of $200,000,000 or more, (B) is
engaged in the business of lending money
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and extending credit, or purchasing loans, under credit facilities
substantially similar to those extended under this Agreement and (C)
is operationally and procedurally able to meet the obligations of a
Lender hereunder to the same degree as a commercial bank and (e) any
other financial institution (INCLUDING a mutual fund or other fund)
having total assets of $250,000,000 or more which meets the
requirements set forth in subclauses (B) and (C) of clause (d) above;
PROVIDED that (I) each Eligible Assignee must either (a) be organized
under the Laws of the United States of America, any State thereof or
the District of Columbia or (b) be organized under the Laws of the
Cayman Islands or any country which is a member of the Organization
for Economic Cooperation and Development, or a political subdivision
of such a country, and (i) act hereunder through a branch, agency,
funding office or representative located in the United States of
America and (ii) be exempt from withholding of tax on interest and
deliver the documents related thereto pursuant to Section 11.21 and
(II) to the extent required under applicable Gaming Laws, each
Eligible Assignee must be registered with, approved by, or not
disapproved by (whichever may be required under applicable Gaming
Laws), all applicable Gaming Boards.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"EURODOLLAR BANKING DAY" means any Banking Day on which dealings
in Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its office
or branch so designated by written notice to Borrowers and the
Administrative Agent as its Eurodollar Lending Office. If no
Eurodollar Lending Office is designated by a Lender, its Eurodollar
Lending Office shall be its office at its address for purposes of
notices hereunder.
"EURODOLLAR MARKET" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any
Governmental Agency having jurisdiction over any Lender.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan, the
period commencing on the date specified by Borrowers pursuant to
Section 2.1(b) or Section 2.2 and ending 1, 2, 3 or 6 months (or, with
the written consent of all of the Lenders, any other period)
thereafter, as specified by Borrowers in the applicable Request for
Loan or Request for Pre-Pricing, as applicable; PROVIDED that:
(a) The first day of any Eurodollar Period shall be a
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Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the next
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day
falls in another calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking Day;
(c) Borrowers may not specify a Eurodollar Period that
extends beyond the next Amortization Date unless the aggregate
principal amount of the Loans having a Eurodollar Period ending after
such Amortization Date is equal to or less than the aggregate
principal Indebtedness evidenced by the Notes (after giving effect to
payment of the Amortization Amount scheduled to be made on such
Amortization Date pursuant to Section 3.1(c)(II)); and
(d) No Eurodollar Period shall extend beyond the Maturity
Date.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/100 of 1%) at which deposits in Dollars are
offered by the Eurodollar Reference Lender to prime banks in the
Designated Eurodollar Market at or about 11:00 a.m. local time in the
Designated Eurodollar Market, two (2) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period in an aggregate
amount approximately equal to the amount of the Advance made by the
Eurodollar Reference Lender with respect to such Eurodollar Rate Loan
and for a period of time comparable to the number of days in the
applicable Eurodollar Period.
"EURODOLLAR RATE ADVANCE" means, with respect to, any Lender and
with respect to any Eurodollar Rate Loan, the portion of such Loan
advanced by that Lender.
"EURODOLLAR RATE LOAN" means any Loan consisting of the group of
Advances made by the Lenders pursuant to Section 2.1(a), and any
portion thereof for which the Interest Period is subsequently
redesignated pursuant to Section 2.1(h).
"EURODOLLAR REFERENCE LENDER" means Bank of America, N.A.
"EVENT OF DEFAULT" shall have the meaning provided in Section
12.1.
"EXCHANGEABLE STOCK" means any capital stock of Parent that is
exchangeable or convertible into another security (OTHER THAN into
capital stock of Parent that is neither Exchangeable Stock nor
Redeemable Stock).
"EXISTING DEEDS OF TRUST" means the Palace Deed of Trust, the
Boulder Deed of Trust, the Texas Deed of Trust, the St. Charles Deed
of Trust, the Kansas City Deeds of Trust and the Sunset Deed of
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Trust.
"EXISTING LOAN AGREEMENT" means the Second Amended and Restated
Reducing Revolving and Term Loan Agreement dated as of November 6,
1998 among Borrowers, Parent (as covenantor but not as borrower), Bank
of America, N.A. (formerly known as "Bank of America National Trust
and Savings Association"), as administrative agent, and the lenders
party thereto.
"EXISTING SUBORDINATED DEBT" means (a) Parent's 9-3/4% senior
subordinated notes due 2007, (b) Parent's 10-l/8% senior subordinated
notes due 2006 and (c) Parent's 8 7/8% senior subordinated notes due
2008.
"FEDERAL FUNDS RATE" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such
date opposite the caption "Federal Funds (Effective)". If for any
relevant date such rate is not yet published in H.15(519), the rate
for such date will be the rate set forth in the daily statistical
release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the
"Composite 3:30 p.m. Quotation") for such date under the caption
"Federal Funds Effective Rate". If on any relevant date the
appropriate rate for such date is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such
date will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that date by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
For purposes of this Agreement, any change in the Alternate Base Rate
due to a change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such change.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as it may be amended from time to time.
"FISCAL QUARTER" means the fiscal quarter of Borrowers or Parent,
as applicable, ending on each March 31, June 30, September 30 and
December 31.
"FISCAL YEAR" means the fiscal year of Borrowers or Parent, as
applicable, ending on each December 31.
"GAMING BOARD" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the
Missouri Gaming Commission and (d) any other Governmental Agency that
holds regulatory, licensing or permit authority over gambling, gaming
or casino activities conducted by Borrowers within its jurisdiction.
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"GAMING LAWS" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling,
gaming or casino activities conducted by Borrowers within its
jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any date
of determination, accounting principles (a) set forth as generally
accepted in then currently effective Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or
(c) that are then approved by such other entity as may be approved by
a significant segment of the accounting profession in the United
States of America. The term "CONSISTENTLY APPLIED," as used in
connection therewith, means that the accounting principles applied are
consistent in all material respects with those applied at prior dates
or for prior periods.
"GOVERNMENTAL AGENCY" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-governmental
agency, authority, board, bureau, commission, department,
instrumentality or public body (INCLUDING any Gaming Board), or (c)
any court or administrative tribunal of competent jurisdiction.
"GUARANTORS" means Parent and the Sibling Guarantors.
"GUARANTY OBLIGATION" means, as to any Person, any (a) guarantee
by that Person of Indebtedness of, or other obligation performable by,
any other Person or (b) assurance given by that Person to an obligee
of any other Person with respect to the performance of an obligation
by, or the financial condition of, such other Person, whether direct,
indirect or contingent, INCLUDING any purchase or repurchase agreement
covering such obligation or any collateral security therefor, any
agreement to provide funds (by means of loans, capital contributions
or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or
any "keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; PROVIDED, HOWEVER,
that the term Guaranty Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation in respect of
Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related Indebtedness (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in which case
to the extent of such amount) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith. The amount of any other
Guaranty Obligation shall be deemed to be zero unless and until the
amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5
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should be) quantified and reflected in the consolidated balance sheet
of Borrowers.
"HAZARDOUS MATERIALS" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq., or as "hazardous", "toxic" or "pollutant" substances or as
"solid waste" pursuant to the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or as "friable
asbestos" pursuant to the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq. or any other applicable Hazardous Materials Law,
in each case as such Laws are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials
applicable to any of the Real Property.
"IMMATERIAL SUBSIDIARY" means, as of any date of determination,
(a) in the case of a Subsidiary of any of the Borrowers, a Subsidiary
that has on such date total assets with a book value or fair market
value (whichever is greater) less than $100,000 and (b) in the case of
a Subsidiary of Parent (OTHER THAN a Subsidiary of any of the
Borrowers), a Subsidiary that has on such date total assets with a
book value or fair market value (whichever is greater) less than
$3,500,000.
"INDEBTEDNESS" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (EXCLUDING trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms), INCLUDING any Guaranty Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (A)
that is non-recourse to the credit of such Person but is secured by
assets of such Person, to the extent of the fair market value of such
assets as determined in good faith by such Person, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising
under bankers' acceptance facilities or under facilities for the
discount of accounts receivable of such Person, (e) any direct or
contingent obligations of such Person under letters of credit issued
for the account of such Person and (f) any net obligations of such
Person under Swap Agreements; PROVIDED that in no event shall the
obligations of a Person under an operating lease (as such term is
defined under Generally Accepted Accounting Principles) be deemed
Indebtedness of that Person.
"INTANGIBLE ASSETS" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, INCLUDING
customer lists, goodwill, copyrights, trade names, trademarks and
patents.
"INTERCREDITOR AGREEMENT" means the Intercreditor and
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Collateral Agency Agreement between the Collateral Agent, the
Administrative Agent (on behalf of the Lenders) and the Revolver Agent
(on behalf of the Revolver Lenders) substantially in the form of
EXHIBIT D, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplanted.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment of
a Eurodollar Rate Loan on a day other than the last day of the
applicable Interest Period and with respect to any failure to borrow a
Eurodollar Rate Loan on the date or in the amount specified in any
Request for Loan, (a) the Eurodollar Rate payable (or, with respect to
a failure to borrow, the Eurodollar Rate which would have been
payable) with respect to the Eurodollar Rate Loan MINUS (b) the
Eurodollar Rate on, or as near as practicable to the date of the
prepayment or failure to borrow for a Eurodollar Rate Loan with an
Interest Period commencing on such date and ending on the last day of
the Interest Period of the Eurodollar Rate Loan so prepaid or which
would have been borrowed on such date.
"INTEREST PERIOD" means, with respect to any Eurodollar Rate
Loan, the related Eurodollar Period.
"JOINDER AGREEMENT" means a joinder agreement to be executed and
delivered pursuant to Section 6.2 by Parent, or by an additional
Borrower pursuant to Section 8.2, substantially in the form of EXHIBIT
F to the Predecessor Loan Agreement, either as originally executed or
as it may from time to time be supplemented, modified, amended,
extended or supplanted.
"KANSAS CITY" has the meaning set forth in the preamble to this
Agreement.
"KANSAS CITY DEEDS OF TRUST" means (a) the Deed of Trust executed
by Kansas City covering (i) the leasehold estate in the real property
comprising the Kansas City Riverfront Station Casino dockside
facilities, (ii) the leasehold estate for pipeline purposes in the
adjacent river levee owned by the Birmingham Drainage District, (iii)
the fee simple estate in certain adjacent real property acquired from
Kansas City Power and Light Company and (iv) the leasehold estate in
certain adjacent real property commonly referred to as the "Western
Acreage" and (b) the Deed of Trust executed by Kansas City covering
the two adjacent parcels of wetlands mitigation property near "Jackass
Bend" in Jackson County, Missouri.
"KANSAS CITY LOCAL SHARES" means the shares of capital stock of
Kansas City that were or may be issued to certain Persons in
connection with development agreements entered between Kansas City and
Governmental
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Agencies located in Kansas City, Missouri.
"LANDLORD CONSENT" means a landlord consent certificate executed
by each of the lessors with respect to a leasehold estate comprising
Collateral, substantially in the form of EXHIBIT G to the Predecessor
Loan Agreement, either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"LAWS" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents.
"LEAD ARRANGERS AND BOOK MANAGERS" means Banc of America
Securities LLC and CIBC World Markets, Inc.
"LENDER" has the meaning set forth in the preamble to this
Agreement.
"LICENSE REVOCATION" means the revocation, involuntary failure to
renew or suspension of, or the appointment of a receiver, supervisor
or similar official with respect to, any casino, gambling or gaming
license issued by any Gaming Board covering any casino or gaming
facility of Parent or any Subsidiary of Parent.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or
charge of any kind, whether voluntarily incurred or arising by
operation of Law or otherwise, affecting any Property, INCLUDING any
currently effective agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature of a security interest, and/or the filing of or currently
effective agreement to give any financing statement (OTHER THAN a
precautionary financing statement with respect to a lease that is not
in the nature of a security interest) under the Uniform Commercial
Code or comparable Law of any jurisdiction with respect to any
Property.
"LOAN" means the aggregate of the Advances made at any one time
by the Lenders pursuant to ARTICLE 2.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes,
the Parent Guaranty, the Sibling Guaranty, the Collateral Documents,
and any other agreements of any type or nature hereafter executed and
delivered by Borrowers
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or the Guarantors to the Administrative Agent or any Lender in any way
relating to or in furtherance of this Agreement, in each case either
as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted
(INCLUDING pursuant to the Omnibus Documents Amendment).
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has had or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability
of any Loan Document (OTHER THAN as a result of any action or inaction
of the Administrative Agent, any Lender or any Affiliate of any
Lender), (b) has been or could reasonably be expected to be material
and adverse to the business or condition (financial or otherwise) of
Borrowers or (c) has materially impaired or could reasonably be
expected to materially impair the ability of Borrowers to perform the
Obligations.
"MATURITY DATE" means December 31, 2005.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrowers or any of
their ERISA Affiliates contribute or are obligated to contribute.
"NEGATIVE PLEDGE" means a Contractual Obligation that contains a
covenant binding on Borrowers or any of the Guarantors that prohibits
Liens on any of its or their Property, OTHER THAN (a) any such
covenant contained in a Contractual Obligation granting a Lien
permitted under SECTIONS 6.6 or 9.8 which affects only the Property
that is the subject of such permitted Lien and (b) any such covenant
that does not apply to Liens securing the Obligations.
"NET PROCEEDS" means, with respect to any issuance, sale or
contribution in respect of capital stock of Parent, the aggregate
proceeds of such issuance, sale or contribution, including the fair
market value (as determined by the Board of Directors of Parent and
net of any associated debt) of property other than Cash, received by
Parent, net of attorneys' fees, accountants' fees, underwriters' fees,
placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof;
PROVIDED, however, that
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if such fair market value as determined by the Board of Directors of
Parent of property other than Cash is greater than $15,000,000, the
determination of fair market value thereof shall be based upon an
opinion from an independent nationally recognized firm experienced in
the appraisal of similar types of transactions.
"NEW VENTURE " means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, excursion gambling
boat, floating gaming facility, golf course, entertainment center or
similar facility (or any site or proposed site for any of the
foregoing) owned or to be owned by Parent or any of its Subsidiaries
(or owned or to be owned by a Person in which Parent or any of its
Subsidiaries or a New Venture Entity owned directly or indirectly by
Parent or any of its Subsidiaries holds an Investment) and which is
not at the Closing Date a Developed Property; PROVIDED that the
acquisition by St. Charles of any TIF Real Property shall be
considered, in conjunction with its acquisition of all other TIF Real
Property, to be a New Venture.
"NEW VENTURE ENTITY" means (a) the Person that directly owns a
New Venture, and (b) any holding company for such a Person whose sole
assets consist (directly or indirectly through another New Venture
Entity) of Investments in that Person.
"NOTE" means any of the promissory notes made by Borrowers to a
Lender evidencing Advances under that Lender's Pro Rata Share of the
Commitment, substantially in the form of EXHIBIT E, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted
(INCLUDING pursuant to the Omnibus Documents Amendment).
"OBLIGATIONS" means all present and future obligations of every
kind or nature of Borrowers or the Guarantors at any time and from
time to time owed to the Administrative Agent or the Lenders or any
one or more of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, INCLUDING obligations of
performance as well as obligations of payment, and INCLUDING interest
that accrues after the commencement of any proceeding under any Debtor
Relief Law by or against Borrowers.
"OMNIBUS DOCUMENTS AMENDMENT" means the Third Omnibus Documents
Amendment and Collateral Assignment amending various Loan
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Documents to be executed by Borrowers, the Administrative Agent and
the Collateral Agent, in the form of EXHIBIT F, as of the Closing
Date, together with all ancillary amendments to the Loan Documents
referred to therein.
"OPERATING CASH FLOW" means, for any period, for any Person, the
aggregate amount of Consolidated Net Income before interest expense,
income taxes, depreciation expense, amortization expense and any
noncash amortization of debt issuance cost. Notwithstanding the
foregoing, the interest expense, income taxes, depreciation expense,
amortization expense and any noncash amortization of debt issuance
cost of a Subsidiary of a Person shall be added to Consolidated Net
Income to compute Operating Cash Flow in the same proportion that the
net income of such Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"OPINIONS OF COUNSEL" means the favorable written legal opinions
of (a) Milbank, Tweed, Hadley & McCloy, special counsel to Borrowers
and the Guarantors and (b) Schreck Morris, special Nevada counsel to
Borrowers and the Guarantors, (c) King, Hershey, Coleman, Koch &
Stone, special Missouri counsel to Kansas City and (d) Thompson &
Coburn, special Missouri counsel to St. Charles, substantially in the
form of EXHIBITS G-1, G-2, G-3 and G-4, respectively.
"PALACE" has the meaning set forth in the preamble to this
Agreement.
"PALACE DEED OF TRUST" means the Deed of Trust (Fee) and/or Deed
of Trust (Leasehold) executed by Palace covering the real property
comprising the Palace Station Hotel & Casino in Las Vegas, Nevada.
"PALACE EVENT OF DEFAULT" shall have the meaning provided in
Section 12.3.
"PARENT" has the meaning set forth in the preamble to this
Agreement.
"PARENT GUARANTY" means the continuing guaranty of the
Obligations in the form of EXHIBIT I to the Existing Loan Agreement.
"PARTY" means any Person other than the Administrative Agent, the
Lenders and any Affiliate of any Lender, which now or hereafter is a
party to any of the Loan Documents.
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"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), OTHER THAN a Multiemployer
Plan, which is subject to Title IV of ERISA and is maintained by
Borrowers or to which Borrowers contributes or has an obligation to
contribute.
"PERIPHERAL ASSETS" means (a) the capital stock or assets of
Southwest Gaming Services, Inc., (b) the capital stock or assets of
Southwest Services, Inc., (c) the out-of-service riverboat commonly
known as "Casino St. Charles" and (d) each other asset listed on
SCHEDULE 1.1B.
"PERMITTED ENCUMBRANCES" means:
(a) Inchoate Liens incident to construction on or
maintenance of Property; or Liens incident to construction on or
maintenance of Property now or hereafter filed of record for which
adequate reserves have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, PROVIDED
that, by reason of nonpayment of the obligations secured by such
Liens, no material Property is subject to a material impending risk of
loss or forfeiture;
(b) Liens for taxes and assessments on Property which are
not yet past due; or Liens for taxes and assessments on Property for
which adequate reserves have been set aside and are being contested in
good faith by appropriate proceedings and have not proceeded to
judgment, PROVIDED that, by reason of nonpayment of the obligations
secured by such Liens, no material Property is subject to a material
impending risk of loss or forfeiture;
(c) minor defects and irregularities in title to any
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is
or may reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire communication
lines, power lines and substations, streets, trails, walkways,
drainage, irrigation, water, and sewerage purposes, dikes, canals,
ditches, the removal of oil, gas, coal, or other minerals, and other
like purposes affecting Property which in the aggregate do not
materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be
expected to be held;
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(e) easements, exceptions, reservations, or other agreements
for the purpose of facilitating the joint or common use of Property in
or adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or impair the fair
market value or use of such Property for the purposes for which it is
or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses
(A) or (B) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested
in good faith, PROVIDED that, if delinquent, adequate reserves have
been set aside with respect thereto and, by reason of nonpayment, no
material Property is subject to a material impending risk of loss or
forfeiture;
(j) covenants, conditions, and restrictions affecting the
use of Property which in the aggregate do not materially impair the
fair market value or use of the Property for the purposes for which it
is or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of
the Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, PROVIDED the aggregate value of all such
pledges and deposits in connection with any such lease does not at any
time exceed 20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure bids
made with respect to, or performance of, contracts (OTHER THAN
contracts creating or evidencing an extension of credit to the
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depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrowers;
(q) Liens consisting of deposits of Property to secure (or
in lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or
legal proceeding in the ordinary course of business which is currently
being contested in good faith by appropriate proceedings, PROVIDED
that such Lien is junior to the Lien of the Collateral Documents,
adequate reserves have been set aside and no material Property is
subject to a material impending risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be
expected to be held.
"PERMITTED REFINANCING INDEBTEDNESS" means Indebtedness of
Parent, Borrowers or a Restricted Subsidiary (a) issued in exchange
for, or the proceeds from the issuance and sale or disbursement of
which are used to substantially concurrently repay, redeem, refund,
refinance, discharge or otherwise retire for value, in whole or in
part (collectively, "repay"), or (b) constituting an amendment,
modification or supplement to, or a deferral or renewal of
(collectively, an "amendment"), any Indebtedness of Parent, Borrowers
or a Restricted Subsidiary, as the case may be, (and any penalties,
fees and expenses actually incurred by Parent, Borrowers or such
Restricted Subsidiary, as the case may be, in connection with the
repayment or amendment thereof) existing immediately after the Closing
Date or incurred pursuant to clauses (F), (G) and (H) (subject to
proviso (C) below) of Section 9.9, in a principal amount (or, if such
Permitted Refinancing Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon the
acceleration thereof, with an original issue price) not in excess of
(1) the principal amount of the Indebtedness so refinanced (or, if
such Permitted Refinancing Indebtedness refinances Indebtedness under
an agreement providing a commitment for subsequent borrowings, with a
maximum commitment not to exceed the maximum commitment under such
agreement) plus (2) unpaid accrued interest on such Indebtedness plus
(3) penalties, fees and expenses actually
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incurred by Parent, Borrowers or such Restricted Subsidiary, as the
case may be, in connection with the repayment or amendment thereof;
PROVIDED THAT (A) Permitted Refinancing Indebtedness of Parent that
repays or constitutes an amendment to Subordinated Obligations shall
not have an Average Life less than the Indebtedness to be so
refinanced at the time of such incurrence, and shall contain
subordination and default provisions no less favorable in any material
respect to the Lenders than those contained in such repaid or amended
Indebtedness, (B) notwithstanding the foregoing, any Permitted
Refinancing Indebtedness incurred to repay all of the Notes then
outstanding shall not be limited in principal amount or otherwise if
Parent, contemporaneously with such issuance, irrevocably deposits
with the Administrative Agent an amount of the proceeds of such
Permitted Refinancing Indebtedness sufficient to prepay each
installment of the outstanding principal amount of the Notes on, and
all interest accrued to, the date fixed for such prepayment, together
with irrevocable instructions to prepay the Notes on the prepayment
date and (C) to the extent that Permitted Refinancing Indebtedness
includes Indebtedness incurred in connection with the refinancing of
the Revolving Loan Agreement (whether or not such Indebtedness is
existing on or after the date of the Closing Date) and the managing
agent for the lenders under such refinancing Indebtedness is a Person
other than a banking institution with over $500 million in assets and
subject to supervision and examination by federal or state banking
authorities, the provisions of clause (H) of Section 9.9 shall
terminate and be of no further force and effect with respect to such
refinancing Indebtedness.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting of
(a) an interest (OTHER THAN a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a
ground lease), that does not materially impair the fair market value
or use of Property for the purposes for which it is or may reasonably
be expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Encumbrance, (c) the subordination of a lease or
sublease in favor of a financing entity and (d) a license, or similar
right, of or to Intangible Assets granted in the ordinary course of
business.
"PERMITTED SALE/LEASEBACK" means the sale to a Person not an
Affiliate of Parent, and subsequent leaseback, of any or all of the
currently incomplete vessels and related dockside facilities located
at St. Charles, Missouri.
"PERSON" means any individual or entity, INCLUDING a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture or
Governmental Agency.
"PLEDGE AGREEMENT (MISSOURI)" means a pledge agreement
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substantially in the form of EXHIBIT H, either as originally executed
or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"PLEDGE AGREEMENT (NEVADA)" means the Pledge Agreement executed
and delivered by Parent in connection with the Existing Loan Agreement
covering the Pledged Collateral (Nevada).
"PLEDGE AGREEMENTS" means the Pledge Agreement (Nevada) and the
Pledge Agreement (Missouri).
"PLEDGED COLLATERAL (MISSOURI)" means certificates evidencing
100% of the shares of St. Charles and Kansas City (OTHER THAN any
Kansas City Local Shares).
"PLEDGED COLLATERAL (NEVADA)" means certificates evidencing 100%
of the shares of capital stock of (a) Palace, Boulder, Texas and
Sunset and (b) any additional Borrowers added pursuant to Section 8.2.
"PREDECESSOR LOAN AGREEMENT" means the Amended and Restated
Reducing Revolving Loan Agreement dated as of March 19, 1996, as
amended through November 5, 1998.
"PREFERRED SHIP MORTGAGE" means the preferred ship mortgage
executed and delivered by Kansas City in the form of EXHIBIT O to the
Predecessor Loan Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"PROJECTIONS" means the financial projections contained in the
Confidential Information Memorandum dated July 1999 distributed by or
on behalf of Borrowers to the Lenders.
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Commitment set forth opposite the name of that
Lender on SCHEDULE 1.1A, as such percentage may be increased or
decreased pursuant to a Commitment Assignment and Acceptance executed
in accordance with Section 14.8.
"QUARTERLY PAYMENT DATE" means each June 30, September 30,
December 31 and March 31.
"REAL PROPERTY" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by any of
Borrowers.
"REDEEMABLE STOCK" means any capital stock of Parent that by its
terms or otherwise (OTHER THAN in consideration of capital stock
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that is not Redeemable Stock) is, or upon the happening of an event
would be, required to be redeemed or repurchased, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option
of the holder thereof, in whole or in part, at any time prior to the
first anniversary of the Maturity Date.
"REFERENCE RATE" means the rate of interest publicly announced
from time to time by the Domestic Reference Lender in Charlotte, North
Carolina (or other headquarters city of the Domestic Reference
Lender), as its "reference rate." It is a rate set by the Domestic
Reference Lender based upon various factors including the Domestic
Reference Lender's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the Reference Rate announced by the
Domestic Reference Lender shall take effect at the opening of business
on the day specified in the public announcement of such change.
"REGULATION D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"REGULATION U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other
regulations in substance substituted therefor.
"RELATED FUND" means, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans
and is exclusively managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"REQUEST FOR LOAN" means a written request for a Loan
substantially in the form of EXHIBIT I, signed by a Responsible
Official of any of Borrowers, on behalf of Borrowers, and properly
completed to provide all information required to be included therein.
"REQUEST FOR RE-PRICING" means a written request to designate an
Interest Period substantially in the form of EXHIBIT J, signed by a
Responsible Official of any of Borrowers, on behalf of Borrowers, and
properly completed to provide all information required to be included
therein.
"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"REQUISITE LENDERS" means (a) as of any date of determination if
the Commitment is then in effect, Lenders having in the aggregate
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51% or more of the Commitment then in effect and (b) as of any date of
determination if the Commitment has then been terminated and there is
then any Indebtedness evidenced by the Notes, Lenders holding Notes
evidencing in the aggregate 51% or more of the aggregate Indebtedness
then evidenced by the Notes.
"RESPONSIBLE OFFICIAL" means (a) when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner of such Person, corporate officer of a corporate
general partner of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on
behalf thereof, and (b) when used with reference to a Person who is an
individual, such Person. The Lenders shall be entitled to conclusively
rely upon any document or certificate that is signed or executed by a
Responsible Official of Parent or any of its Subsidiaries as having
been authorized by all necessary corporate partnership and/or other
action on the part of Parent or such Subsidiary; PROVIDED that such
Responsible Official has been designated as a Responsible Official for
purposes of this Agreement in a written notice signed by a Senior
Officer and delivered to the Administrative Agent, which notice has
not been cancelled or superseded.
"RESTRICTED PAYMENT" means (a) declaration or payment of a
dividend on, or any distribution in respect of, or any purchase,
redemption or retirement for value of any capital stock of Parent,
Borrowers or any Restricted Subsidiary OTHER THAN (i) in the case of
Parent, through the issuance (as a dividend or stock split thereon or
in exchange therefor) solely of capital stock of Parent (EXCLUDING
Exchangeable Stock and Redeemable Stock) and (ii) in the case of
Borrowers or a Restricted Subsidiary, with respect to shares of the
capital stock thereof that are owned solely by Parent or a Restricted
Subsidiary that is a Wholly-Owned Subsidiary and (b) any principal
payment, or the redemption, repurchase, defeasance or other
acquisition or retirement for value prior to any scheduled principal
payment or maturity, of any Subordinated Obligation.
"RESTRICTED SUBSIDIARY" means, as of any date of determination,
all Subsidiaries of Parent OTHER THAN (a) the Borrowers and (b)
Unrestricted New Venture Entities.
"REVOLVER" means the $350,000,000 revolving loan facility made
available to Borrowers by the Revolver Lenders pursuant to the
Revolving Loan Agreement.
"REVOLVER AGENT" means Bank of America, N.A., in its capacity as
administrative agent under the Revolving Loan Agreement.
"REVOLVING LOAN AGREEMENT" means that certain Third Amended and
Restated Reducing Revolving Loan Agreement of even date herewith among
Borrowers, Parent (as a covenantor but not a borrower), the
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Revolver Agent and the Revolver Lenders.
"REVOLVER LENDERS" means the lenders party to the Revolving Loan
Agreement.
"RIGHT OF OTHERS" means, as to any Property in which a Person has
an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, INCLUDING any option or
right to acquire a Lien; PROVIDED, however, that (a) no covenant
restricting the use or disposition of Property of such Person
contained in any Contractual Obligation of such Person and (b) no
provision contained in a contract creating a right of payment or
performance in favor of a Person that conditions, limits, restricts,
diminishes, transfers or terminates such right shall be deemed to
constitute a Right of Others.
"SECURITY AGREEMENT" means the security agreement executed and
delivered by Borrowers, in the form of EXHIBIT R to the Predecessor
Loan Agreement, either as originally executed or as it may from time
to time be supplemented, modified, amended, extended or supplanted.
"SENIOR OFFICER" means (a) the chief executive officer, (b) the
president, (c) any executive vice president, (d) any senior vice
president, (e) the chief financial officer, (f) the treasurer or (g)
any assistant treasurer, in each case of any of the Borrowers or
Parent, as applicable.
"SIBLING GUARANTORS" means (a) Southwest Gaming Services, Inc.,
(b) Southwest Services, Inc., (c) Green Valley Station, Inc., (d)
Tropicana Station, Inc., and (e) any other future Restricted
Subsidiary that (i) is a Wholly-Owned Subsidiary and (ii) is not an
Immaterial Subsidiary.
"SIBLING GUARANTY" means the continuing guaranty of the
Obligations in the form of EXHIBIT M to the Existing Loan Agreement.
"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or
adoption after the Closing Date of any Law or interpretation, or any
change therein or thereof, or any change in the interpretation or
administration thereof by any Governmental Agency, central bank or
comparable authority charged with the interpretation or administration
thereof, or compliance by any Lender or its Eurodollar Lending Office
with any request or directive (whether or not having the force of Law)
of any such Governmental Agency, central bank or comparable authority.
"ST. CHARLES" has the meaning set forth in the preamble to this
Agreement.
"ST. CHARLES DEED OF TRUST" means the Deed of Trust (Fee)
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executed by St. Charles covering (a) the fee simple real property
comprising the St. Charles Riverfront Station in St. Charles, Missouri
and (b) the other fee simple real property owned by St. Charles
located in St. Charles, Missouri consisting of approximately 16
parcels comprising approximately 294 acres in the aggregate.
"SUBORDINATED OBLIGATIONS" means any Indebtedness that is
subordinated by its terms to the Existing Subordinated Obligations.
"SUBSIDIARY" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in either case, characterized as such or
as a "joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability
company, of which a majority of the securities having ordinary voting
power for the election of directors or other governing body (other
than securities having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person and/or
one or more Subsidiaries of such Person, or (b) in the case of a
partnership, of which a majority of the partnership or other ownership
interests are at the time beneficially owned by such Person and/or one
or more of its Subsidiaries.
"SUNSET" has the meaning set forth in the preamble to this
Agreement.
"SUNSET DEED OF TRUST" means the Deed of Trust dated as of
September 25, 1996, as amended, executed by Sunset creating a Lien on
the real Property comprising the Sunset Station Casino Hotel in
Henderson, Nevada.
"SUNSET INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor Agreement, dated as of November 6, 1998 executed by the
Administrative Agent on behalf of the Lenders, and First Security
Trust Company of Nevada (the "Trustee"), on behalf of the holders (the
"Holders") party to that certain Participation Agreement dated as of
September 25, 1996, among the Trustee, Parent and the Holders.
"SWAP AGREEMENT" means a written agreement between Borrowers or
Parent (or all or any of them) and one or more financial institutions
providing for "swap", "cap", "collar" or other interest rate
protection with respect to any Indebtedness.
"TEXAS" has the meaning set forth in the preamble to this
Agreement.
"TEXAS DEED OF TRUST" means the Deed of Trust (Leasehold)
executed by Texas covering the Texas Gambling Hall & Hotel, located in
Las Vegas, Nevada, as amended, supplemented or otherwise modified from
time to time.
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"TIF REAL PROPERTY" means any Real Property acquired by St.
Charles pursuant to the exercise of eminent domain by the City of St.
Charles.
"TITLE COMPANY" means Commonwealth Land Title Company, acting
through its representative, Nevada Title Insurance Company, or such
other title insurance company as is reasonably acceptable to the
Administrative Agent.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the
fact or situation described therein is known by the Person (or, in the
case of a Person other than a natural Person, known by a Responsible
Official of that Person) making the representation, warranty or other
statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known
by the Person (or, in the case of a Person other than a natural
Person, would have been known by a Responsible Official of that
Person).
"TRADEMARK COLLATERAL ASSIGNMENT" means the trademark collateral
assignment executed and delivered by Borrowers (and by Parent as
record owner of certain trademarks) in the form of EXHIBIT T to the
Existing Loan Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"TYPE", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Alternate Base Rate
Loan or Advance, or a Eurodollar Rate Loan or Advance.
"UNRESTRICTED NEW VENTURE ENTITY" means (a) any New Venture in
which any single Person OTHER THAN Parent and its Subsidiaries owns an
equity interest that is larger than the equity interest owned by
Parent and its Subsidiaries and (b) any other New Venture Entity
(EXCEPT a Restricted Subsidiary) designated by Parent to be an
Unrestricted New Venture Entity by a then effective written notice to
the Administrative Agent; PROVIDED that Parent may, by written notice
to the Administrative Agent, terminate any such designation if (i) the
aggregate Investments theretofore made by Parent in such New Venture
Entity does not exceed $10,000,000, (ii) such New Venture Entity is
either a Wholly-Owned Subsidiary or, if not, each other holder of an
equity interest in such New Venture Entity is reasonably acceptable to
the Requisite Lenders and (iii) no Default or Event of Default then
exists or would result therefrom, whereupon such New Venture Entity
shall become an additional borrower hereunder.
"VESSEL LIENOR CONSENT" means a vessel lienor consent certificate
executed by each holder of a Lien on the riverboat vessels owned by
St. Charles that are part of the St. Charles Riverfront Station,
substantially in the form of EXHIBIT U to the
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Predecessor Loan Agreement, either as originally executed or as the
same may from time to time be supplemented, modified, amended,
renewed, extended or supplemented.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of Parent, 100% of
the capital stock of which is owned, directly or indirectly, by
Parent, EXCEPT for director's qualifying shares required by applicable
Laws.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, Generally Accepted Accounting Principles applied on a
consistent basis, EXCEPT as otherwise specifically prescribed herein. In the
event that Generally Accepted Accounting Principles change during the term of
this Agreement such that the covenants contained in Sections 9.1 and 9.9 would
then be calculated in a different manner or with different components, (a)
Parent, Borrowers and the Lenders agree to amend this Agreement in such respects
as are necessary to conform those covenants as criteria for evaluating Parent's
or Borrowers' financial condition to substantially the same criteria as were
effective prior to such change in Generally Accepted Accounting Principles and
(b) Parent and Borrowers shall be deemed to be in compliance with the covenants
contained in the aforesaid Sections if and to the extent that Parent and
Borrowers would have been in compliance therewith under Generally Accepted
Accounting Principles as in effect immediately prior to such change, but shall
have the obligation to deliver each of the materials described in ARTICLE 10 to
the Administrative Agent and the Lenders, on the dates therein specified, with
financial data presented in a manner which conforms with Generally Accepted
Accounting Principles as in effect immediately prior to such change.
1.4 ROUNDING. Any financial ratios required to be maintained by
Borrowers or Parent pursuant to this Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 REFERENCES TO "BORROWERS AND THEIR SUBSIDIARIES". Any
reference herein to "Borrowers and their Subsidiaries" or the like shall
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refer solely to Borrowers during such times, if any, as Borrowers shall have no
Subsidiaries.
1.7 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2
LOANS
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this
Agreement on the Closing Date, each Lender shall, pro rata according
to that Lender's Pro Rata Share of the Commitment, make an Advance to
Borrowers under the Commitment in such amount as Borrowers may request
that does not result in the aggregate principal amount outstanding
under the Notes to exceed the Commitment. Borrowers may not borrow
under the Commitment subsequent to the Closing Date.
(b) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i)
date of such Loan, (ii) type of Loan, (iii) amount of such Loan, and
(iv) the Interest Period for such Loan. Unless the Administrative
Agent has notified, in its sole and absolute discretion, Borrowers to
the contrary, a Loan may be requested by telephone by a Responsible
Official of Borrowers, in which case Borrowers shall confirm such
request by promptly delivering a Request for Loan in person or by
telecopier conforming to the preceding sentence to the Administrative
Agent. Administrative Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic request for Loan purportedly
made by a Responsible Official of Borrowers, and Borrowers hereby
agree to indemnify the Administrative Agent from any loss, cost,
expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the applicable Interest Period, and
that Lender's Pro Rata Share of the Loan. Not later than 10:00 a.m.,
California time, on the date specified for any Loan (which must be a
Banking Day), each Lender shall make its Pro Rata Share of the Loan in
immediately available funds available to the Administrative Agent at
the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in ARTICLE 11, all Advances shall be
credited on that date in immediately available funds to the Designated
Deposit Account.
(d) Unless the Requisite Lenders otherwise consent, each Loan
shall be not less than $10,000,000 and, EXCEPT to the extent necessary
to permit a Loan to accommodate payment of an Amortization Amount
without incurring breakage costs under Section 3.7(E), in an integral
multiple of $1,000,000.
(e) The Advances made by each Lender under the Commitment shall
be evidenced by that Lender's Note.
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(f) Subject to Sections 3.7(C) and (E), a Request for Loan shall
be irrevocable upon the Administrative Agent's first notification
thereof.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(B), if applicable)
has been made within the requisite notice periods set forth in Section
2.2 prior to the end of the Interest Period for any Eurodollar Rate
Loan, then on the last day of such Interest Period, such Eurodollar
Rate Loan shall be automatically converted into an Alternate Base Rate
Loan in the same amount.
(h) Borrowers may from time to time redesignate the Interest
Period applicable to a Eurodollar Rate Loan pursuant to a Request for
Re-Pricing, which shall specify the requested (i) date of designation,
(ii) amount of the Eurodollar Rate Loan to be redesignated and (iii)
Interest Period for such Eurodollar Rate Loan. A Request for
Re-Pricing shall be subject to the same requirements and other
provisions applicable to a Request for Loan set forth in this Section
applicable to a Request for Loan EXCEPT that during the period
commencing two (2) months prior to an Amortization Date, the minimum
amount of a Eurodollar Rate Loan shall not be greater than the
Amortization Amount for that Amortization Date.
2.2 DESIGNATION OF INTEREST PERIODS.
(a) Each request by Borrowers to redesignate an Interest Period
shall be made pursuant to a Request for Re-Pricing (or telephonic or
other request for re-pricing referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 9:00 a.m.,
California time, at least three (3) Eurodollar Banking Days before the
first day of the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period, the Administrative
Agent shall confirm its determination of the applicable Eurodollar
Rate (which determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same to
Borrowers and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than ten (10) Interest Periods shall be
outstanding at any one time.
(d) Nothing contained herein shall require any Lender to fund any
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.3 [INTENTIONALLY OMITTED].
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2.4 [INTENTIONALLY OMITTED].
2.5 [INTENTIONALLY OMITTED].
2.6 [INTENTIONALLY OMITTED].
2.7 OPTIONAL TERMINATION OF COMMITMENT. Following the occurrence
of a Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the thirty (30) day period immediately subsequent to
the LATER OF (a) such occurrence or (b) the EARLIER of (i) receipt of Borrowers'
written notice to the Administrative Agent of such occurrence or (ii) if no such
notice has been received by the Administrative Agent, the date upon which the
Administrative Agent has actual knowledge thereof, to terminate the Commitment,
in which case the Commitment shall be terminated, and all Indebtedness then
evidenced by the Notes shall become due and payable, effective on the date which
is thirty (30) days subsequent to written notice from the Administrative Agent
to Borrowers thereof.
2.8 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Lender
no later than 11:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrowers a corresponding amount. If the Administrative Agent has made funds
available to Borrowers based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrowers and Borrowers shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to Borrowers to the date such corresponding amount
is recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its share of the Commitment or to prejudice any rights
which the Administrative Agent or Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
2.9 [INTENTIONALLY OMITTED].
2.10 [INTENTIONALLY OMITTED].
2.11 COLLATERAL AND GUARANTY. The Obligations shall be
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secured by the Collateral pursuant to the Collateral Documents and be guaranteed
by Parent pursuant to the Parent Guaranty and by the Sibling Guarantors pursuant
to the Sibling Guaranty.
2.12 SENIOR INDEBTEDNESS. The Obligations shall be "Senior
Indebtedness" with respect to all Subordinated Obligations.
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Article 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment
in full is made and shall accrue and be payable at the rates set forth
or provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Eurodollar Rate Loan which is for a
term of three months or less shall be due and payable on the last day
of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is
three months after the date such Eurodollar Rate Loan was made (and,
in the event that all of the Lenders have approved a Eurodollar Period
of longer than six months, every three months thereafter through the
last day of the Eurodollar Period) and on the last day of the related
Eurodollar Period. EXCEPT as otherwise provided in Section 3.8, the
unpaid principal amount of any Eurodollar Rate Loan shall bear
interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan PLUS 2.50% (250 basis points).
(c) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the amount, if any, by which the principal Indebtedness
evidenced by the Notes at any time exceeds the then applicable
Commitment shall be payable immediately;
(ii) the Notes shall be payable on each Amortization Date by
the related Amortization Amount; and
(iii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(d) The Notes may, at any time and from time to time, voluntarily
be paid or prepaid in whole or in part without premium or penalty,
EXCEPT that with respect to any voluntary prepayment under this
Section (i) any partial prepayment shall be not less than $5,000,000,
(ii) the Administrative Agent shall have received written notice of
any prepayment by 9:00 a.m. California time, three (3) Banking Days
before the date of prepayment, which notice shall identify the date
and amount of the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal shall be accompanied by payment of interest
accrued to the date of payment on the amount of principal paid, (iv)
any payment or prepayment of all or any part of
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any Eurodollar Rate Loan on a day other than the last day of the
applicable Interest Period shall be subject to Section 3.7(E) and (v)
upon any partial prepayment of a Eurodollar Rate Loan that reduces it
below $10,000,000, the remaining portion thereof shall automatically
convert to an Alternate Base Rate Loan. Any voluntary prepayment of
the Notes shall be applied to the remaining Amortization Amounts in
reverse order of maturity.
3.2 ARRANGEMENT FEE. On the Closing Date, Borrowers shall pay to
the Administrative Agent the arrangement fee as heretofore agreed upon by letter
agreement between Borrowers and the Administrative Agent. Such arrangement fee
is for the services of the Bank of America N.A. and its Affiliates in arranging
the credit facilities under this Agreement and is fully earned when paid. The
arrangement fee paid to the Administrative Agent is solely for its own account
and is nonrefundable.
3.3 [INTENTIONALLY OMITTED]
3.4 [INTENTIONALLY OMITTED]
3.5 AGENCY FEE. Borrowers shall pay to the Administrative Agent
an agency fee in such amounts and at such times as heretofore agreed upon by
letter agreement between Borrowers and the Administrative Agent. The agency fee
is for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
3.6 INCREASED COMMITMENT COSTS. If any Lender shall determine
in good faith that the introduction after the Closing Date of any applicable
law, rule, regulation or guideline regarding capital adequacy, or any change
therein or any change in the interpretation or administration thereof by any
central bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar
Lending Office) or any corporation controlling the Lender, with any request,
guideline or directive regarding capital adequacy (whether or not having the
force of Law) of any such central bank or other authority not imposed as a
result of such Lender's or such corporation's failure to comply with any
other Laws, affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy and such Lender's desired return on
capital) determines in good faith that the amount of such capital is
increased, or the rate of return on capital is reduced, as a consequence of
its obligations under this Agreement, then, within ten (10) Banking Days
after demand of such Lender, Borrowers shall pay to such Lender, from time to
time as specified in good faith by such Lender, additional amounts sufficient
to compensate such Lender in light of such circumstances, to the extent
reasonably allocable to such obligations under this Agreement, PROVIDED that
Borrowers shall not be obligated to pay any such amount which arose prior to
the date which is ninety (90) days preceding the date of such demand or is
attributable to periods prior to
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the date which is ninety (90) days preceding the date of such demand. Each
Lender's determination of such amounts shall be conclusive in the absence of
manifest error.
3.7 EURODOLLAR COSTS AND RELATED MATTERS.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (INCLUDING any emergency,
supplemental or other reserve) with respect to the Eurodollar
Obligations of that Lender, Borrowers shall pay that Lender within
five (5) Banking Days after demand all amounts necessary to compensate
such Lender (determined as though such Lender's Eurodollar Lending
Office had funded 100% of its Eurodollar Rate Advance in the
Designated Eurodollar Market) in respect of the imposition of such
reserve requirements (PROVIDED, that Borrowers shall not be obligated
to pay any such amount which arose prior to the date which is ninety
(90) days preceding the date of such demand or is attributable to
periods prior to the date which is ninety (90) days preceding the date
of such demand). The Lender's determination of such amount shall be
conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances, or shall change the basis of taxation of payments to
any Lender attributable to the principal of or interest on any
Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Advances (PROVIDED, that Borrowers shall not be
obligated to pay any such amount which arose prior to
the date which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which is
ninety (90) days preceding the date of such demand), EXCLUDING
(i) taxes imposed on or measured in whole or in part by
its overall net income by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is
"doing business" and (ii) any withholding taxes or other taxes
based on gross income imposed by the United States of America for
any period with respect to which it has failed to provide
Borrowers with the appropriate form or forms required by Section
14.21, to the extent such forms are then required by
applicable Laws;
(2) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof
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(INCLUDING any reserve imposed by the Board of Governors of the
Federal Reserve System, special deposit, capital or similar
requirements against assets of, deposits with or for the account
of, or credit extended by, any Lender or its Eurodollar Lending
Office); or
(3) shall impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar
Lending Office of making or maintaining any Eurodollar Rate Advance or
in respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances or reduces the amount of any sum received or receivable by
such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Loans or its obligation to make Eurodollar Rate Advances (assuming
such Lender's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar Market), then,
within five (5) Banking Days after demand by such Bank (with a copy to
the Administrative Agent), Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market). A statement of any
Lender claiming compensation under this subsection shall be conclusive
in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates
based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar
Rate Advances shall be suspended for the duration of such illegality
or impossibility and the Administrative Agent forthwith shall give
notice thereof to the other Lenders and Borrowers. Upon receipt of
such notice, the outstanding principal amount of such Lender's
Eurodollar Rate Advances, together with accrued interest thereon,
automatically shall be converted to Alternate Base Rate Advances on
either (1) the last day of the Eurodollar Period(s) applicable to such
Eurodollar Rate Advances if such Lender may lawfully continue to
maintain and fund such Eurodollar Rate Advances to such day(s) or (2)
immediately if such
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Lender may not lawfully continue to fund and maintain such Eurodollar
Rate Advances to such day(s), PROVIDED that in such event the
conversion shall not be subject to payment of a prepayment fee under
Section 3.7(E). Each Lender agrees to endeavor promptly to notify
Borrowers of any event of which it has actual knowledge, occurring
after the Closing Date, which will cause that Lender to notify the
Administrative Agent under this Section, and agrees to designate a
different Eurodollar Lending Office if such designation will avoid the
need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender. In the
event that any Lender is unable, for the reasons set forth above, to
make, maintain or fund its portion of any Eurodollar Rate Loan, such
Lender shall fund such amount as an Alternate Base Rate Advance for
the same period of time, and such amount shall be treated in all
respects as an Alternate Base Rate Advance. Any Lender whose
obligation to make Eurodollar Rate Advances has been suspended under
this Section shall promptly notify the Administrative Agent and
Borrowers of the cessation of the Special Eurodollar Circumstance
which gave rise to such suspension.
(d) Any Eurodollar Rate Loan, together with accrued interest
thereon, that is converted to an Alternate Base Rate Loan pursuant to
Sections 3.7(C) or 3.7(E), shall (A) bear interest at a rate per annum
equal to the Alternate Base Rate and (B) convert back to a Eurodollar
Rate Loan as soon as practicable following the cessation of the
Special Eurodollar Circumstance or the circumstances described in
clause (1) or (2) of Section 3.7(E), as applicable, which gave rise to
the conversion. If the amounts charged to Borrowers pursuant to
Sections 3.7(a) and 3.7(B) make it commercially unreasonable for
Borrowers to maintain such Eurodollar Rate Loan, Borrowers shall be
permitted to convert any Eurodollar Rate Loan to an Alternate Base
Rate Loan at any time thereafter upon notice to the Administrative
Agent (it being understood and agreed that Borrowers may so convert
such portions of any Loan as may be necessary to avoid breakage costs
under Section 3.7(F)). A Loan so converted shall bear interest as set
forth above and shall be re-converted to a Eurodollar Rate Loan upon
three (3) Eurodollar Banking Days' notice to the Administrative Agent
following the cessation of the Special Eurodollar Circumstance or the
circumstances described in Section 3.7(E) or the determination by the
Lender that it no longer chooses to require Borrowers to pay such
amounts.
(e) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar
Market generally that are beyond the reasonable control of the
Lenders, deposits in Dollars (in the applicable amounts) are not
being offered to any Lender in the Designated Eurodollar Market
for the applicable Eurodollar Period; or
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(2) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate as determined by the Administrative
Agent (i) does not represent the effective pricing to such
Lenders for deposits in Dollars in the Designated Eurodollar
Market in the relevant amount for the applicable Eurodollar
Period, or (ii) will not adequately and fairly reflect the cost
to such Lenders of making the applicable Eurodollar Rate
Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrowers and the Lenders, whereupon until the Administrative Agent
notifies Borrowers that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to make any
future Eurodollar Rate Advances shall be suspended. Upon any such
suspension, the Eurodollar Rate Loans shall be converted to Alternate
Base Rate Loans in accordance with Section 3.7(D) as of the first day
of the Interest Period during which such circumstances arise.
(f) Upon payment or prepayment of any Eurodollar Rate Loan (OTHER
THAN as the result of a conversion required under Section 3.7(C)), on
a day other than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrowers (for a reason other than
the breach by a Lender of its obligation pursuant to Sections 2.1(A)
or 2.1(B) to make an Advance or the suspension of any Lender's
obligation to make or maintain Eurodollar Rate Loans under Section
3.7) to borrow on the date or in the amount specified for a Eurodollar
Rate Loan in any Request for Loan, Borrowers shall pay to the
appropriate Lender within ten (10) Banking Days after demand a
prepayment fee or failure to borrow fee, as the case may be
(determined as though 100% of the Eurodollar Rate Advance had been
funded in the Designated Eurodollar Market) equal to the SUM of:
(1) the principal amount of the Eurodollar Rate Loan prepaid
or not borrowed, as the case may be, TIMES [the number of days
from and including the date of prepayment or failure to borrow,
as applicable, to but excluding the last day in the applicable
Eurodollar Period], DIVIDED BY 360, TIMES the applicable Interest
Differential (PROVIDED that the product of the foregoing formula
must be a positive number); PLUS
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure
to borrow.
Each Lender's determination of the amount of any prepayment fee
payable under this Section shall be conclusive in the absence of
manifest error.
(g) Each Lender agrees to endeavor promptly to notify Borrowers
of any event of which it has actual knowledge, occurring after the
Closing Date, which will entitle such Lender to
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compensation pursuant to clause (A) or clause (B) of this Section 3.7,
and agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for or reduce the amount of such
compensation and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender. Any request
for compensation by a Lender under this Section 3.7 shall set forth
the basis upon which it has been determined that such an amount is due
from Borrowers, a calculation of the amount due, and a certification
that the corresponding costs have been incurred by the Lender.
3.8 LATE PAYMENTS. If any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at an interest rate per annum at all times equal to the SUM OF the
then current Eurodollar Rate (for an Interest Period of six months) PLUS 4.5%
(450 basis points), to the fullest extent permitted by applicable Laws. Accrued
and unpaid interest on past due amounts (INCLUDING, without limitation, interest
on past due interest) shall be compounded monthly, on the last day of each
calendar month, to the fullest extent permitted by applicable Laws.
3.9 COMPUTATION OF INTEREST AND FEES. Computation of interest
and fees under this Agreement shall be calculated on the basis of a year of 360
days and the actual number of days elapsed. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid. Any
Loan that is repaid on the same day on which it is made shall bear interest for
one day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.10 NON-BANKING DAYS. If any payment to be made by Borrowers or
any other Party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.11 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments pursuant to
Sections 3.6, 3.7, 14.3, 14.11 and 14.22) or on the Notes or under
any other Loan Document shall be made to the Administrative Agent at
the Administrative Agent's Office for the account of the Lenders or
the Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. California time, on the day of payment
(which must be a Banking Day). All payments received after such time,
on any Banking Day, shall be deemed received on the next succeeding
Banking Day. The amount of all payments received by
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the Administrative Agent for the account of each Lender shall be
immediately paid by the Administrative Agent to the applicable Lender
in immediately available funds and, if such payment was received by
the Administrative Agent by 11:00 a.m., California time, on a Banking
Day and not so made available to the account of a Lender on that
Banking Day, the Administrative Agent shall reimburse that Lender for
the cost to such Lender of funding the amount of such payment at the
Federal Funds Rate. All payments shall be made in lawful money of the
United States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record (in
writing or by an electronic data entry system) of Advances made by it
and payments received by it with respect to each of its Notes and,
subject to Section 13.6(G), such record shall, as against Borrowers,
be presumptive evidence of the amounts owing. Notwithstanding the
foregoing sentence, the failure by any Lender to keep such a record
shall not affect Borrowers' obligation to pay the Obligations.
(d) Each payment of any amount payable by Borrowers or any other
Party under this Agreement or any other Loan Document shall be made
free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency,
central bank or comparable authority, EXCLUDING (i) taxes imposed on
or measured in whole or in part by its overall net income by (A) any
jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business" and (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide
Borrowers with the appropriate form or forms required by Section
14.21, to the extent such forms are then required by applicable Laws
(all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrowers are
obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this
Agreement, Borrowers shall (i) make such deduction or withholding and
pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Tax amount equal to the amount to which
that Lender would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results
in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrowers.
3.12 FUNDING SOURCES. Nothing in this Agreement shall be
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deemed to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.13 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest arising under Section 3.8), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (INCLUDING interest arising under Section 3.8), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.14 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE
BY BORROWERS. Unless the Administrative Agent shall have been notified by
Borrowers prior to the date on which any payment to be made by Borrowers
hereunder is due that Borrowers do not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that Borrowers have remitted
such payment when so due and the Administrative Agent may, in its discretion and
in reliance upon such assumption, make available to each Lender on such payment
date an amount equal to such Lender's share of such assumed payment. If
Borrowers have not in fact remitted such payment to the Administrative Agent,
each Lender shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent at the Federal Funds Rate.
3.15 FEE DETERMINATION DETAIL. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrowers regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under ARTICLE 3 has been determined, concurrently with demand for
such payment.
3.16 SURVIVABILITY. All of Borrowers' obligations under Sections
3.6 and 3.7 shall survive for the ninety (90) day period following the date on
which the Commitment is terminated and all Loans hereunder are fully paid, and
Borrowers shall remain obligated thereunder for all claims under such Sections
made by any Lender to Borrowers prior to the expiration of such period.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to the Lenders that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Each of Palace, Boulder, Texas, St. Charles, Kansas City and Sunset is a
corporation duly formed, validly existing and in good standing under the Laws of
Nevada (in the case of Palace, Boulder, Texas and Sunset) and Missouri (in the
case of St. Charles and Kansas City). Parent is a corporation duly formed,
validly existing and in good standing under the Laws of Nevada and each of the
Sibling Guarantors is a corporation duly formed, validly existing and in good
standing under the Laws of its state of incorporation. Each of Borrowers and the
Guarantors is duly qualified or registered to transact business and is in good
standing in each other jurisdiction in which the conduct of its business or the
ownership or leasing of its Properties makes such qualification or registration
necessary, EXCEPT where the failure so to qualify or register and to be in good
standing would not constitute a Material Adverse Effect. Each of Borrowers and
the Guarantors has all requisite corporate power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform its Obligations. The chief
executive offices of each of Borrowers is located in Nevada. All outstanding
shares of capital stock of Parent are duly authorized, validly issued, fully
paid and non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. Each of
Borrowers and the Guarantors is in compliance with all Laws and other legal
requirements applicable to its business, has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, EXCEPT where the failure so to comply, obtain
authorizations, etc., file, register, qualify or obtain exemptions does not
constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS
AND GOVERNMENT REGULATIONS. The execution, delivery and performance by each of
Borrowers and each of the Guarantors of the Loan Documents to which it is a
Party have been duly authorized by all necessary corporate action, and do not
and will not:
(a) Require any consent or approval not heretofore obtained of
any partner, director, stockholder, security holder or creditor of
such Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any Lien
or Right of Others upon or with respect to any Property now
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owned or leased or hereafter acquired by such Party (OTHER THAN Liens
and Rights of Others created by the Loan Documents);
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in SCHEDULE 4.3;
(e) Result in a breach of or constitute a default under, or cause
or permit the acceleration of any obligation owed under, any
Contractual Obligation (OTHER THAN the Loan Documents) to which such
Party is a party or by which such Party or any of its Property is
bound or affected;
and none of Borrowers or any of the Guarantors is in violation of, or default
under, any Requirement of Law or Contractual Obligation, INCLUDING any
Contractual Obligation described in Section 4.2(E), in any respect that
constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as set forth in
SCHEDULE 4.3 or previously obtained or made, no authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by each
of the Borrowers and the Guarantors of the Loan Documents to which it is a
Party.
4.4 SUBSIDIARIES. None of Borrowers has any Subsidiaries, EXCEPT
that Kansas City owns 100% of the outstanding capital stock of Station Casino
Kansas City Restaurants, Inc. SCHEDULE 4.4 hereto correctly sets forth the
names, form of legal entity, number of shares of capital stock issued and
outstanding, and the record owner thereof and jurisdictions of organization of
all Subsidiaries of Parent and specifies, as of the Closing Date, which thereof
are Restricted Subsidiaries and which thereof are Immaterial Subsidiaries.
Unless otherwise indicated in SCHEDULE 4.4, all of the outstanding shares of
capital stock, or all of the units of equity interest, as the case may be, of
each Restricted Subsidiary are owned of record and beneficially by Parent, there
are no outstanding options, warrants or other rights to purchase capital stock
of any such Subsidiary, and all such shares or equity interests so owned are
duly authorized, validly issued, fully paid and non-assessable, and were issued
in compliance with all applicable state and federal securities and other Laws,
and are free and clear of all Liens and Rights of Others, EXCEPT for Permitted
Encumbrances and Permitted Rights of Others.
4.5 FINANCIAL STATEMENTS. Borrowers have furnished to the
Lenders (a) the audited consolidated financial statements of Parent and its
Subsidiaries for the Fiscal Year (consisting of three Fiscal Quarters) ended
December 31, 1998 and (b) the unaudited consolidated and consolidating balance
sheet and statement of operations of Parent and its Subsidiaries for the Fiscal
Quarter ended June 30, 1999. The financial statements described in clause (A)
fairly present in all material respects the financial condition, results of
operations and changes in financial
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position, and the balance sheet and statement of operations described in clause
(B) fairly present the financial condition and results of operations of Parent
and its Subsidiaries as of such dates and for such periods in conformity with
Generally Accepted Accounting Principles, consistently applied.
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE CHANGES. As of the
Closing Date, Borrowers do not have any material liability or material
contingent liability required under Generally Accepted Accounting Principles to
be reflected or disclosed and not reflected or disclosed in the balance sheet
described in Section 4.5(B), other than liabilities and contingent liabilities
arising in the ordinary course of business since the date of such financial
statements. As of the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since June 30, 1999. As of any date
subsequent to the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since the Closing Date.
4.7 TITLE TO PROPERTY. As of the Closing Date, each Borrower has
valid title to its respective Property (OTHER THAN assets which are the subject
of a Capital Lease Obligation) reflected in the balance sheet described in
Section 4.5(B), other than items of Property or exceptions to title which are in
each case immaterial to Borrowers and Property subsequently sold or disposed of
in the ordinary course of business, free and clear of all Liens and Rights of
Others, OTHER THAN Liens or Rights of Others described in SCHEDULE 4.7,
Permitted Rights of Others or Liens permitted by Section 6.6.
4.8 INTANGIBLE ASSETS. Each Borrower owns, or possesses the
right to use to the extent necessary in its business, all material trademarks,
trade names, copyrights, patents, patent rights, computer software, licenses and
other Intangible Assets that are used in the conduct of its businesses as now
operated, and no such Intangible Asset, to the best knowledge of Borrowers,
conflicts with the valid trademark, trade name, copyright, patent, patent right
or Intangible Asset of any other Person to the extent that such conflict
constitutes a Material Adverse Effect. SCHEDULE 4.8 sets forth all trademarks,
trade names and trade styles used by Borrowers at any time within the five (5)
year period ending on the Closing Date and sets forth the owner of record of
each thereof.
4.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither any of Borrowers
nor any Guarantor is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 LITIGATION. EXCEPT for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Parent or any of its Subsidiaries of
less than $1,000,000, (c) matters of an adminis-
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trative nature not involving a claim or charge against Parent or any of its
Subsidiaries and (d) matters set forth in SCHEDULE 4.10, there are no actions,
suits, proceedings or investigations pending as to which Parent or any of its
Subsidiaries have been served or have received notice or, to the best knowledge
of Borrowers, threatened against or affecting Parent or any of its Subsidiaries
or any Property of any of them before any Governmental Agency.
4.11 BINDING OBLIGATIONS. Each of the Loan Documents to which any
of Borrowers or the Guarantors is a Party will, when executed and delivered by
such Party, constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, EXCEPT as
enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.12 NO DEFAULT. No event has occurred and is continuing that is
a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that
could reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that could reasonably be expected to have a
Material Adverse Effect; and
(iv) none of Parent nor any of its Subsidiaries has engaged
in any non-exempt "prohibited transaction" (as defined in Section
4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect.
(b) None of Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
4.14 REGULATION U; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulation U. Neither Parent nor any of its Subsidiaries is or is
required to be registered as an "investment company"
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under the Investment Company Act of 1940.
4.15 DISCLOSURE. No written statement made by a Senior Officer of
Parent to the Administrative Agent or any Lender in connection with this
Agreement, or in connection with any Loan, as of the date thereof contained any
untrue statement of a material fact or omitted a material fact necessary to make
the statement made not misleading in light of all the circumstances existing at
the date the statement was made.
4.16 TAX LIABILITY. Parent and its Subsidiaries have filed all
tax returns which are required to be filed, and have paid, or made provision for
the payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Parent or any
of its Subsidiaries, EXCEPT (a) such taxes, if any, as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
Property of Parent or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
4.17 PROJECTIONS. Borrowers have formulated the assumptions set
forth in the Projections based on their historical experience in the relevant
business or financial context, have adjusted such assumptions to take account of
what Borrowers believe to be current and projected business and financial
conditions and have performed what Borrowers believe is a reasonably thorough
due diligence process with respect to such assumptions. As of the Closing Date,
Borrowers believe that the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to Borrowers,
and that the Projections are reasonably based on such assumptions. Nothing in
this Section 4.17 shall be construed as a representation or covenant that the
Projections in fact will be achieved.
4.18 HAZARDOUS MATERIALS. Except as described in SCHEDULE 4.18,
as of the Closing Date (a) none of Borrowers at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under the Real Property in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b)
to the best knowledge of Borrowers, no condition exists that violates any
Hazardous Material Law affecting any Real Property except for such violations
that would not individually or in the aggregate constitute a Material Adverse
Effect, (c) no Real Property or any portion thereof is or has been utilized by
Borrowers as a site for the manufacture of any Hazardous Materials and (d) to
the extent that any Hazardous Materials are used, generated or stored by
Borrowers on any Real Property, or transported to or from such Real Property by
Borrowers, such use, generation, storage and transportation are in compliance
with all Hazardous Materials Laws except for such non-compliance that would not
constitute a Material Adverse Effect or be materially adverse to the interests
of the Lenders.
4.19 [INTENTIONALLY DELETED].
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4.20 GAMING LAWS. Each Borrower is in compliance with all
applicable Gaming Laws except for such non-compliance that would not constitute
a Material Adverse Effect.
4.21 SECURITY INTERESTS. Upon the execution and delivery of the
Omnibus Documents Amendment, the Security Agreement will continue to create a
valid first priority security interest in the Collateral described therein
securing the Obligations (subject only to Permitted Encumbrances, Permitted
Rights of Others, Liens permitted under Section 6.6(E) and matters disclosed in
SCHEDULE 4.7 and to such qualifications and exceptions as are contained in the
Uniform Commercial Code with respect to the priority of security interests
perfected by means other than the filing of a financing statement or with
respect to the creation of security interests in Property to which Division 9 of
the Uniform Commercial Code does not apply) and all action necessary to perfect
the security interests so created, other than filing of the UCC-1 financing
statements delivered to the Administrative Agent pursuant to Section 11.1 with
the appropriate Governmental Agency have been taken and completed. Upon the
execution and delivery of the Omnibus Documents Amendment, the Trademark
Collateral Assignment will continue to create a valid first priority collateral
assignment of the Collateral described therein securing the Obligations (subject
to the matters disclosed in SCHEDULE 4.7) and all action necessary to perfect
the collateral assignment so created, other than the filing thereof with the
United States Patent and Trademark Office, will have been taken and completed.
Upon execution and delivery of the Pledge Agreement (Missouri), the Pledge
Agreement (Missouri) will create a valid first priority security interest in the
Pledged Collateral (Missouri) and upon delivery of the Pledged Collateral
(Missouri) to the Administrative Agent (or its designee) in the State of
Missouri, all action necessary to perfect the security interest so created will
have been taken and completed. Upon the execution and delivery of the Omnibus
Documents Amendment, the Pledge Agreement (Nevada) will continue to create a
valid first priority security interest in the Pledged Collateral (Nevada) and
upon delivery of the Pledged Collateral (Nevada) to the Administrative Agent (or
its designee) in the State of Nevada, all action necessary to perfect the
security interest so created has been taken and completed. Upon the execution
and delivery of the Deed of Trust Amendment with respect to each of the Deeds of
Trust, such Deed of Trust will continue to create a valid Lien in the Collateral
described therein securing the Obligations, OTHER THAN those arising under
Sections 4.18, 5.10 and 14.22, (subject only to Permitted Encumbrances,
Permitted Rights of Others and matters described in SCHEDULE 4.7), and all
action necessary to perfect the Lien so created, OTHER THAN recordation or
filing thereof with the appropriate Governmental Agencies, will have been taken
and completed. Upon the execution and delivery of the Omnibus Documents
Amendment, the Preferred Ship Mortgage will continue to create a valid Lien in
the Collateral described therein securing the Obligations (subject only to
Permitted Encumbrances and Permitted Rights of Others), and all action necessary
to perfect the Lien so created, OTHER THAN recordation or filing thereof with
the appropriate Governmental Agencies, will have been taken and completed.
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Article 5
BORROWERS AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrowers
shall, unless the Administrative Agent (with the written approval of the
Requisite Lenders) otherwise consents:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof, EXCEPT that
Borrowers shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material Property of Borrowers is at material
risk of impending seizure, levy or forfeiture.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties EXCEPT where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect
all of their respective Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste of their
respective Properties, EXCEPT that the failure to maintain, preserve and protect
a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrowers and their Subsidiaries, taken as
a whole, shall not constitute a violation of this covenant.
5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrowers operate and, in any
event, such insurance as may be required under the Deeds of Trust.
5.5 COMPLIANCE WITH LAWS. Comply, within the time period, if
any, given for such compliance by the relevant Governmental Agency or
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Agencies with enforcement authority, with all Requirements of Law noncompliance
with which constitutes a Material Adverse Effect, EXCEPT that Borrowers need not
comply with a Requirement of Law then being contested by any of them in good
faith by appropriate proceedings.
5.6 INSPECTION RIGHTS. Upon reasonable notice, at any time
during regular business hours and as often as reasonably requested (but not so
as to materially interfere with the business of Parent or any of its
Subsidiaries) permit the Administrative Agent or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies and
abstracts from the records and books of account of, and to visit and inspect the
Properties of, Parent and its Subsidiaries and to discuss the affairs, finances
and accounts of Parent and its Subsidiaries with any of their officers, key
employees or accountants.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate
records and books of account reflecting all financial transactions in conformity
with Generally Accepted Accounting Principles, consistently applied, and in
material conformity with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over Borrowers.
5.8 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with
all Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, whether such
material agreements, indentures, leases or instruments are with a Lender or
another Person, EXCEPT for any such Contractual Obligations (a) the performance
of which would cause a Default or (b) then being contested by any of them in
good faith by appropriate proceedings or if the failure to comply with such
agreements, indentures, leases or instruments does not constitute a Material
Adverse Effect.
5.9 USE OF PROCEEDS. Use the proceeds of Loans (a) to refinance
the Term Loan (as such term is defined in the Existing Loan Agreement) and (b)
for general corporate purposes.
5.10 HAZARDOUS MATERIALS LAWS. Keep and maintain all Real
Property and each portion thereof in compliance with all applicable Hazardous
Materials Laws (except for such non-compliance that would not constitute a
Material Adverse Effect or be materially adverse to the interests of the
Lenders) and promptly notify the Administrative Agent in writing (attaching a
copy of any pertinent written material) of (a) any and all material enforcement,
cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened in writing by a Governmental Agency pursuant to any
applicable Hazardous Materials Laws, (b) any and all material claims made or
threatened in writing by any Person against Borrowers relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Materials and (c) discovery by any Senior Officer of any of Borrowers
of any material occurrence or condition on any real Property adjoining or in the
vicinity of such Real Property that could reasonably be expected to cause such
Real Property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such Real Property under
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any applicable Hazardous Materials Laws.
5.11 ADDITIONAL REAL PROPERTY. Upon the acquisition by any
Borrower after the Closing Date of any Real Property (OTHER THAN TIF Real
Property), promptly provide to the Administrative Agent such deeds of trust in
the form of the Deed of Trust (Fee) and/or Deed of Trust (Leasehold), as
applicable, covering such Real Property, together with such appraisals, title
insurance policies and environmental reports as the Administrative Agent or
Requisite Lenders may reasonably request. Upon the acquisition after the Closing
Date of any TIF Real Property, St. Charles shall promptly (a) use its best
efforts to obtain any necessary approvals of the relevant Governmental Agency
and (b) subject to such approvals, provide to the Administrative Agent such
deeds of trust in the form of the Deed of Trust (Fee) covering such Real
Property, together with such appraisals, title insurance policies and
environmental reports as the Administrative Agent or the Requisite Lenders may
reasonably request; PROVIDED that (i) the Obligations secured by such a deed of
trust on a particular parcel of TIF Property shall not exceed the acquisition
cost to St. Charles for such parcel and (ii) St. Charles need not so provide
such a deed of trust with respect to any parcel of TIF Real Property if the
acquisition cost thereof to St. Charles, when aggregated with the acquisition
costs of all other parcels of TIF Real Property previously acquired by St.
Charles and not covered by a Deed of Trust theretofore provided to the
Administrative Agent, is less than $5,000,000.
5.12 ADDITIONAL VESSELS. Upon the acquisition by any Borrower
after the Closing Date of any vessel documented under the Laws of the United
States of America, promptly provide to the Administrative Agent a duly executed
preferred ship mortgage in the form of the Preferred Ship Mortgage covering such
vessel, and upon the acquisition after the Closing Date of any vessel that is
not so documented, promptly provide to the Administrative Agent such other
appropriate Collateral Documents with respect thereto as the Administrative
Agent may request, together in each case with such related legal opinions,
certificates and other documentation as the Administrative Agent or Requisite
Lenders may reasonably request.
5.13 [INTENTIONALLY OMITTED]
5.14 YEAR 2000 COMPLIANCE. (a) Take such steps as are reasonably
necessary to assure that, prior to November 1, 1999, Borrowers and the
Restricted Subsidiaries are Year 2000 Compliant and (b) with respect to all
vendors of Borrowers and the Restricted Subsidiaries that are material to the
business of Borrowers and whose ability to perform their business obligations to
Borrowers may be materially affected by their not being Year 2000 Compliant,
take such steps as are reasonably necessary to prevent a Material Adverse Effect
resulting from such non-compliance of any such vendor. The term AYear 2000
Compliant@ means, for purposes of the foregoing, that all hardware, software,
firmware, equipment, goods, and systems used by or on behalf of a Person to
perform date-sensitive functions, will properly perform such date-sensitive
functions on and after January 1, 2000.
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5.15 DELIVERY OF DOCUMENTATION. Not later than one hundred twenty
(120) days following the Closing Date, Borrowers shall cause to be delivered to
the Administrative Agent, the Road Crossing License Consent and Agreement, dated
as of November 6, 1998, by the Missouri Department of Natural Resources, as
Licensor, and St. Charles Riverfront Station, Inc., as Licensee, for the benefit
of Bank of America, N.A., as Administrative Agent, each duly executed by each
party thereto other than the Administrative Agent.
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Article 6
BORROWERS NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrowers
shall not, unless the Administrative Agent (with the written approval of the
Requisite Lenders or, if required by Section 14.2, of all of the Lenders)
otherwise consents:
6.1 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired EXCEPT: (a) a Disposition to
another Borrower, (b) Dispositions of any of the Peripheral Assets to a Person
that is not an Affiliate of Parent, (c) a Disposition of assets included in any
Permitted Sale/ Leaseback, (d) Disposition of Investments (OTHER THAN
Investments in a Subsidiary of any Borrower that is not an Immaterial
Subsidiary) and (e) Dispositions of Property with an aggregate book value or
fair market value (whichever is greater) in any Fiscal Year not exceeding
$6,000,000.
6.2 MERGERS. Merge or consolidate with or into any Person,
EXCEPT (a) a merger or consolidation with another Borrower or (b) a merger or
consolidation of a Restricted Subsidiary with and into a Borrower or (c) a
merger or consolidation with or into Parent; PROVIDED that Parent concurrently
executes a Joinder Agreement.
6.3 HOSTILE ACQUISITIONS. Directly or indirectly use the
proceeds of any Loan in connection with the acquisition of part or all of a
voting interest of five percent (5%) or more in any corporation or other
business entity if such acquisition is opposed by the board of directors or
management of such corporation or business entity.
6.4 ERISA. (a) At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code), (ii) fail to comply with ERISA or any other applicable Laws, (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.5 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Borrowers.
6.6 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
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(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in SCHEDULE 4.7 and any renewals/extensions or amendments
thereof; PROVIDED that the obligations secured or benefited thereby
are not increased;
(d) Liens securing the Revolver that are pari-passu with the
Liens under the Collateral Documents, subject to the Intercreditor
Agreement, and Negative Pledges under the Revolving Loan Agreement;
(e) Liens on Property acquired by Borrowers that were in
existence at the time of the acquisition of such Property and were not
created in contemplation of such acquisition and Negative Pledges
limited to such Property;
(f) Liens securing Indebtedness permitted by Section 6.7 by
reason of Section 9.9(A) on and limited to the capital assets
acquired, constructed or financed with the proceeds of such
Indebtedness or with the proceeds of any Indebtedness directly or
indirectly refinanced by such Indebtedness and Negative Pledges
limited to such capital assets;
(g) Liens consisting of, or on assets owned by other Persons
which are leased to any Borrower under, an operating lease excluded
from the definition of Indebtedness and Negative Pledges limited to
such assets;
(h) Liens consisting of Cash deposits to secure obligations of
any Borrower under any operating lease of one or more aircraft
PROVIDED that the aggregate amount of such deposits does not exceed
$2,500,000; and
(i) any Permitted Sale/Leaseback.
6.7 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur or
assume any Indebtedness or Guaranty Obligation EXCEPT (a) Indebtedness under the
Revolving Loan Agreement and (b) other Indebtedness and Guaranty Obligations
permitted by Section 9.9.
6.8 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrowers OTHER THAN (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors of Parent and expressly authorized by a resolution of the
board of directors of Parent which is approved by a majority of the directors
not having an interest in the transaction, (c) transactions expressly permitted
by this Agreement, (d) transactions between Borrowers and any Guarantor and (e)
transactions on overall terms at least as favorable to Borrowers as would be the
case in
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an arm's-length transaction between unrelated parties of equal bargaining power.
6.9 [INTENTIONALLY OMITTED].
6.10 [INTENTIONALLY OMITTED].
6.11 [INTENTIONALLY OMITTED].
6.12 [INTENTIONALLY OMITTED].
6.13 [INTENTIONALLY OMITTED].
6.14 [INTENTIONALLY OMITTED].
6.15 NEW CAPITAL STOCK. Issue any shares of capital stock to any
Person OTHER THAN Parent, EXCEPT for the Kansas City Local Shares.
6.16 AMENDMENTS AND REFINANCINGS OF REVOLVER. Consent to the
amendment of the Revolving Loan Agreement, or refinance the Revolver in whole or
in part, in a manner that would have the effect of (a) shortening the maturity
date of the Revolver, (b) accelerating the scheduled reductions of the Revolver
or (c) amending or adding any mandatory prepayment provision in or to the
Revolver. Subject to the limits set forth in the preceding sentence, Borrowers
may amend or refinance the Revolver without notice to, or approval of, the
Lenders; PROVIDED that Borrowers shall promptly thereafter furnish to the
Administrative Agent a copy of the amendment or refinancing documents.
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Article 7
[INTENTIONALLY OMITTED]
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Article 8
PARENT AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Parent shall,
and shall cause each of the Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
8.1 ARTICLE 5 COVENANTS. Comply with the affirmative covenants
contained in Sections 5.1 through 5.8, 5.10, 5.13 and 5.14, MUTATIS MUTANDIS.
8.2 ADDITIONAL BORROWERS. Upon the formation or acquisition by
Parent of any New Venture Entity (OTHER THAN an Immaterial Subsidiary or an
Unrestricted New Venture Entity), cause such New Venture Entity to execute and
deliver the Joinder Agreement and such Collateral Documents, agreements,
financing statements and documents as the Administrative Agent or the Requisite
Lenders may reasonably request and deliver the capital stock of such New Venture
Entity to the Administrative Agent as additional Pledged Collateral (Nevada)
under the Pledge Agreement (Nevada), subject to any necessary Gaming Board
approval (which Parent agrees to use its best efforts to obtain).
8.3 ADDITIONAL REAL PROPERTY. Upon the acquisition by Parent or
any Restricted Subsidiary after the Closing Date of any Real Property, promptly
provide to the Administrative Agent such deeds of trust in the form of the Deed
of Trust (Fee) and/or Deed of Trust (Leasehold), as applicable, covering such
Real Property, together with such appraisals, title insurance policies and
environmental reports as the Administrative Agent or Requisite Lenders may
reasonably request.
8.4 ADDITIONAL VESSELS. Upon the acquisition by Parent or any
Restricted Subsidiary after the Closing Date of any vessel documented under the
Laws of the United States of America, promptly provide to the Administrative
Agent a duly executed preferred ship mortgage in the form of the Preferred Ship
Mortgage covering such vessel, and upon the acquisition after the Closing Date
of any vessel that is not so documented, promptly provide to the Administrative
Agent such other appropriate Collateral Documents with respect thereto as the
Administrative Agent may request, together in each case with such related legal
opinions, certificates and other documentation as the Administrative Agent or
Requisite Lenders may reasonably request.
8.5 ADDITIONAL CAPITAL STOCK. Upon the acquisition by Parent of
any capital stock (or other equity interest, in the case of Person that is not a
corporation) in any New Venture Entity, deliver the certificates evidencing such
capital stock (or other equity interest) to the Administrative Agent in pledge
pursuant to a pledge agreement substantially identical to the Pledge Agreements,
subject to any required approval of a Gaming Board (which Parent agrees to use
its best efforts to obtain).
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8.6 DESIGNATED SENIOR INDEBTEDNESS. Upon the issuance of any
Subordinated Obligations, deliver to the trustee under the related indenture a
written statement (in a form reasonably acceptable to the Administrative Agent)
designating the Obligations as "Designated Senior Indebtedness" thereunder.
8.7 PLEDGE AGREEMENT (MISSOURI). Use its best efforts to obtain,
and diligently pursue such best efforts until released from this covenant by the
Requisite Lenders, the approval of the Missouri Gaming Commission to the
execution and delivery by Parent of the Pledge Agreement (Missouri) and the
delivery to the Administrative Agent of the Pledged Collateral (Missouri), and
promptly following the obtaining of such approval, execute and deliver the
Pledge Agreement (Missouri) and deliver the Pledged Collateral (Missouri) to the
Administrative Agent, together with such related legal opinions, certificates
and other documentation as the Administrative Agent and the Requisite Lenders
may reasonably request.
8.8 PLEDGE AGREEMENT (NEVADA). Use its best efforts to obtain,
and diligently pursue such best efforts until released from this covenant by the
Requisite Lenders, the approval of the Nevada Gaming Commission to the execution
and delivery by Parent of an amendment to the Pledge Agreement (Nevada) to add
the Obligations as secured obligations thereunder, and promptly following the
obtaining of such approval, execute and deliver such amendment to the Pledge
Agreement (Nevada), together with such related legal opinions, certificates and
other documentation as the Administrative Agent and the Requisite Lenders may
reasonably request.
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Article 9
PARENT NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Parent shall
not, and shall not permit any of the Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 14.2, of all of the Lenders) otherwise consents:
9.1 RESTRICTED PAYMENTS. Make any Restricted Payment, UNLESS:
(a) at the time of and after giving effect to the proposed
Restricted Payment, no Default or Event of Default shall have
occurred and be continuing; and
(b) at the time of and after giving effect to the
proposed Restricted Payment (the value of which, if in a form
other than Cash, shall be determined in good faith by the
Board of Directors of Parent, whose determination shall be
conclusive and evidenced by a board resolution), the aggregate
amount of all Restricted Payments declared or made after June
2, 1993, shall not exceed the sum of, without duplication, (i)
50% of the cumulative Consolidated Net Income (or if such
cumulative Consolidated Net Income shall be a loss, 100% of
such loss) accrued after June 2, 1993, less any negative
extraordinary charges not reflected in Consolidated Net
Income; (ii) an amount equal to the Net Proceeds received by
Parent from the issuance and sale (other than to a Subsidiary)
after June 2, 1993 of capital stock (EXCLUDING Exchangeable
Stock, Redeemable Stock and capital stock issued in exchange
for previously outstanding shares of capital stock if such
exchange did not constitute a Restricted Payment); (iii)
$15,000,000; and (iv) an amount equal to 50% of any dividends
received (to the extent not included in Consolidated Net
Income) by Parent, Borrowers or a Restricted Subsidiary that
is a Wholly-Owned Subsidiary after the date of this Agreement
from an Unrestricted New Venture Entity; PROVIDED, however,
that Net Proceeds received from the sale of the stock of
Borrowers and the Sibling Guarantors, or any successor or
assignee thereof, by Parent shall not be included in clause
(ii) above.
For purposes of any calculation pursuant to the preceding
sentence which is required to be made within 60 days after the declaration of a
dividend by Parent or any Subsidiary, such dividend shall be deemed to be paid
at the date of declaration, and the subsequent payment of such dividend during
such 60-day period shall not be treated as an additional Restricted Payment.
Notwithstanding the foregoing, the provisions of this Section 9.1
will not prevent the payment of any dividend within 60 days after the date
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of its declaration if at the date of declaration such payment would be
permitted by this Section.
Prior to making any Restricted Payment, Parent will deliver to
the Administrative Agent an Officers' Certificate (dated the date of such
proposed payment) stating (a) that such proposed payment will be in compliance
with this Section and (b) no Default or Event of Default under this Section has
occurred or will occur as a result of such proposed payment.
9.2 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired, EXCEPT:
(a) a Disposition by a Restricted Subsidiary to Parent or to a
Borrower;
(b) a Disposition of any of the Peripheral Assets (and upon any
such Disposition, any Sibling Guarantor which is the subject of such
Disposition shall be released from the Sibling Guaranty);
(c) Dispositions of Property with an aggregate book value or fair
market value (whichever is greater) in any Fiscal Year not exceeding
$5,000,000; and
(d) Dispositions of Investments (OTHER THAN Investments in a
Subsidiary of Parent that is not an Immaterial Subsidiary);
PROVIDED that the applicability of this Section to any gaming license issued by
the State of Nevada, or to any Person that holds such a gaming license, is
subject to the approval of the Nevada Gaming Commission (if required by
applicable Law) or, if not so required, to the receipt by Parent of written
confirmation by the Nevada Gaming Commission that it is not so required (and
Parent agrees to use its best efforts to promptly obtain such approval or
written confirmation).
9.3 MERGERS. Merge or consolidate with or into any Person,
EXCEPT (a) mergers or consolidations permitted by Section 6.2 and (b) mergers
and consolidations of a Restricted Subsidiary into another Restricted
Subsidiary, into a Borrower or into Parent.
9.4 HOSTILE ACQUISITIONS. Directly or indirectly use any moneys
received from any Borrower that represent the proceeds of any Loan in connection
with the acquisition of part or all of a voting interest of five percent (5%) or
more in any corporation or other business entity if such acquisition is opposed
by the board of directors or management of such corporation or business entity.
9.5 [INTENTIONALLY OMITTED]
9.6 ERISA. (a) At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code), (ii) fail to comply with ERISA or any other
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applicable Laws, (iii) incur any material "accumulated funding deficiency" (as
defined in Section 302 of ERISA), or (iv) terminate in any manner, which, with
respect to each event listed above, could reasonably be expected to result in a
Material Adverse Effect, or (b) withdraw, completely or partially, from any
Multiemployer Plan if to do so could reasonably be expected to result in a
Material Adverse Effect.
9.7 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Parent and its Subsidiaries, taken as a whole.
9.8 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in SCHEDULE 4.7 and any renewals or extensions thereof;
PROVIDED that the obligations secured or benefited thereby are not
increased;
(d) Liens securing the Revolver that are pari passu with the
Liens under the Collateral Documents, subject to the Intercreditor
Agreement, and Negative Pledges under the Revolving Loan Agreement;
(e) Liens on Property acquired by Parent or any of the Restricted
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such
acquisition and Negative Pledges limited to such Property;
(f) Liens securing Indebtedness permitted by Section 9.9(A) on
and limited to the capital assets acquired, constructed or financed
with the proceeds of such Indebtedness or with the proceeds of any
Indebtedness directly or indirectly refinanced by such Indebtedness
and Negative Pledges limited to such capital assets;
(g) Liens consisting of, or on assets owned by other Persons
which are leased to Parent under, an operating lease excluded from the
definition of Indebtedness and Negative Pledges limited to such
assets;
(h) Liens consisting of Cash deposits to secure obligations of
Parent or any Restricted Subsidiary under an operating lease of one or
more aircraft PROVIDED that the aggregate amount of
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such deposits does not exceed $2,500,000;
PROVIDED that the applicability of this Section to any gaming license issued by
the State of Nevada, or to any Person that holds such a gaming license, is
subject to the approval of the Nevada Gaming Commission (if required by
applicable Law) or, if not so required, to the receipt by Parent of written
confirmation by the Nevada Gaming Commission that it is not so required (and
Parent agrees to use its best efforts to promptly obtain such approval or
written confirmation).
9.9 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur,
assume guarantee or suffer to exist any Indebtedness or Guaranty Obligation, or
permit Borrowers or any Restricted Subsidiary to do so, EXCEPT:
(a) Indebtedness which is non-recourse to Parent, Borrowers or
any Restricted Subsidiary the proceeds of which will be used to
finance the acquisition or lease by Parent, Borrowers or a Restricted
Subsidiary of furniture, fixtures or equipment used in the operation
of its business and secured by a Lien on such assets;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness and Guaranty Obligations under the Revolving
Loan Agreement and related loan documents or expressly permitted
thereby;
(d) the Existing Subordinated Debt;
(e) PROVIDED no Event of Default shall have occurred and be
continuing, other Indebtedness of Parent, Borrowers and Restricted
Subsidiaries in an amount not to exceed $15,000,000 in aggregate
principal amount;
(f) additional Indebtedness of Parent, Borrowers and Restricted
Subsidiaries, if at the time of the incurrence of such Indebtedness,
the pro forma Consolidated Coverage Ratio, calculated cumulatively for
the four most recent consecutive Fiscal Quarters and ending prior to
the date of incurrence (the "Reference Period"), is not less than 2.00
to 1.00, after giving effect to (i) the incurrence of such
Indebtedness as if such Indebtedness was incurred at the beginning of
the Reference Period and (if applicable) the application of the net
proceeds thereof to refinance other Indebtedness as if the application
of such proceeds occurred at the beginning of the Reference Period and
(ii) the acquisition or disposition of any company or business
acquired or disposed of by Parent, Borrowers or any Restricted
Subsidiary since the first day of the Reference Period, INCLUDING any
acquisition or disposition which will be consummated contemporaneously
with the incurrence of such Indebtedness, as if such acquisition or
disposition occurred at the beginning of the Reference Period;
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(g) Permitted Refinancing Indebtedness;
(h) Indebtedness incurred under the Revolving Loan Agreement not
to exceed the greater of (i) $200,000,000 or (ii) 1.5 times Operating
Cash Flow calculated cumulatively for the four most recent consecutive
Fiscal Quarters of Parent immediately preceding the date on which such
Indebtedness is incurred, PROVIDED that the exception in this clause
(h) shall not be applicable to any Indebtedness incurred in
refinancing the Revolving Loan Agreement if the managing agent for the
lenders of such refinancing Indebtedness is a Person OTHER THAN a
banking institution with over $500,000,000 in assets and subject to
supervision and examination by federal or state banking authorities;
(i) Swap Agreements covering solely Indebtedness of Parent,
Borrowers or any Restricted Subsidiary which is otherwise permitted to
be incurred pursuant to this Section;
(j) Indebtedness to Parent or a Restricted Subsidiary that is a
Wholly-Owned Subsidiary; and
(k) to the extent that such incurrence does not result in the
incurrence by Parent, Borrowers or any Restricted Subsidiary of any
obligation for the payment of borrowed money of others, Indebtedness
incurred solely as a result of the execution by Parent, Borrowers or
Restricted Subsidiaries of a Completion Guarantee and Keep-Well
Agreement; PROVIDED, however, that the foregoing exception shall not
be applicable to Indebtedness incurred in connection with the
performance by Parent, Borrowers or Restricted Subsidiaries of a
Completion Guarantee and Keep-Well Agreement.
9.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Parent OTHER THAN (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors of Parent and expressly authorized by a resolution of the
board of directors of Parent which is approved by a majority of the directors
not having an interest in the transaction, (c) transactions between or among any
of Parent, Borrowers and the Restricted Subsidiaries, and (d) transactions on
overall terms at least as favorable to Parent or the Restricted Subsidiaries as
would be the case in an arm's-length transaction between unrelated parties of
equal bargaining power.
9.11 [INTENTIONALLY OMITTED]
9.12 [INTENTIONALLY OMITTED]
9.13 [INTENTIONALLY OMITTED]
9.14 [INTENTIONALLY OMITTED]
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9.15 [INTENTIONALLY OMITTED]
9.16 AMENDMENTS TO OTHER FINANCIAL INSTRUMENTS. Amend or modify
any term or provision of any indenture, agreement or instrument evidencing or
governing any Subordinated Obligation or Permitted Preferred Stock in any
respect that will or may adversely affect the interests of the Lenders.
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Article 10
INFORMATION AND REPORTING REQUIREMENTS
10.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrowers shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrowers' sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 30 days after
the end of each calendar month, a consolidated and consolidating (in
accordance with past consolidating practices of Parent) summary
statement of operations of Parent and its Subsidiaries for such
calendar month, in a form reasonably acceptable to the Administrative
Agent, together with a written report as to current operating data and
a narrative statement discussing any significant trends reflected
therein;
(b) As soon as practicable, and in any event within 60 days after
the end of each Fiscal Quarter (OTHER THAN the fourth Fiscal Quarter
in any Fiscal Year), (i) the consolidated balance sheet of Parent and
its Subsidiaries as at the end of such Fiscal Quarter and the
consolidated statement of operations for such Fiscal Quarter, and its
statement of cash flows for the portion of the Fiscal Year ended with
such Fiscal Quarter and (ii) the consolidating (in accordance with
past consolidating practices of Parent) balance sheets and statements
of operations as at and for the portion of the Fiscal Year ended with
such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer of Parent as fairly
presenting the financial condition, results of operations and cash
flows of Parent and its Subsidiaries in accordance with Generally
Accepted Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject
only to normal year-end accruals and audit adjustments;
(c) [Intentionally Omitted]
(d) As soon as practicable, and in any event within 120 days
after the end of each Fiscal Year, (i) the consolidated balance sheet
of Parent and its Subsidiaries as at the end of such Fiscal Year and
the consolidated statements of operations, stockholders' equity and
cash flows, in each case of Parent and its Subsidiaries for such
Fiscal Year and (ii) consolidating (in accordance with past
consolidating practices of Parent) balance sheets and statements of
operations, in each case as at the end of and for the Fiscal Year, all
in reasonable detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles, consistently
applied, and such consolidated
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balance sheet and consolidated statements shall be accompanied by a
report of independent public accountants of recognized standing
selected by Parent and reasonably satisfactory to the Requisite
Lenders, which report shall be prepared in accordance with generally
accepted auditing standards as at such date, and shall not be subject
to any qualifications or exceptions as to the scope of the audit nor
to any other qualification or exception determined by the Requisite
Lenders in their good faith business judgment to be adverse to the
interests of the Lenders. Such accountants' report shall be
accompanied by a certificate stating that, in making the examination
pursuant to generally accepted auditing standards necessary for the
certification of such financial statements and such report, such
accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants
have reviewed Parent's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections
9.1 and 9.9, have read such Sections (including the definitions of all
defined terms used therein) and that nothing has come to the attention
of such accountants in the course of such examination that would cause
them to believe that the same were not calculated by Parent in the
manner prescribed by this Agreement;
(e) As soon as practicable, and in any event within 45 days after
the commencement of each Fiscal Year, a budget and projection by
Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next
four succeeding Fiscal Years, INCLUDING for the first such Fiscal
Year, projected consolidated and consolidating balance sheets,
statements of operations and statements of cash flow and, for the
second and third such Fiscal Years, projected consolidated and
consolidating condensed balance sheets and statements of operations
and cash flows, of Parent and its Subsidiaries, all in reasonable
detail;
(f) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of Parent by independent
accountants in connection with the accounts or books of Parent or any
of its Subsidiaries, or any audit of any of them;
(g) [Intentionally Omitted]
(h) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication
sent to the stockholders of Parent, and copies of all annual, regular,
periodic and special reports and registration statements which Parent
may file or be required to file with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, and not otherwise required to be delivered to the
Lenders pursuant to other provisions of this Section 10.1;
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(i) Promptly after the same are available, copies of the Nevada
"Regulation 6.090 Report" and "6-A Report", and copies of any written
communication to Parent or Borrowers from any Gaming Board advising it
of a violation of or non-compliance with any Gaming Law by Parent, any
Borrower or any Sibling Guarantor;
(j) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrowers with any Governmental Agency;
(k) Promptly upon a Senior Officer of any Borrower becoming
aware, and in any event within ten (10) Banking Days after becoming
aware, of the occurrence of any (i) "reportable event" (as such term
is defined in Section 4043 of ERISA) or (ii) "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) in connection with any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature thereof, and, no
more than five (5) Banking Days after such telephonic notice, written
notice again specifying the nature thereof and specifying what action
Borrowers is taking or proposes to take with respect thereto, and,
when known, any action taken by the Internal Revenue Service with
respect thereto;
(l) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer of any Borrower becomes aware of
the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period
of existence thereof, and, no more than two (2) Banking Days after
such telephonic notice, written notice again specifying the nature and
period of existence thereof and specifying what action Borrowers are
taking or propose to take with respect thereto;
(m) Promptly upon a Senior Officer of any Borrower becoming
aware that (i) any Person has commenced a legal proceeding with
respect to a claim against any Borrower that is $10,000,000 or more in
excess of the amount thereof that is fully covered by insurance, (ii)
any creditor under a credit agreement involving Indebtedness of
$10,000,000 or more or any lessor under a lease involving aggregate
rent of $10,000,000 or more has asserted a default thereunder on the
part of any Borrower, (iii) any Person has commenced a legal
proceeding with respect to a claim against any Borrower under a
contract that is not a credit agreement or material lease in excess of
$10,000,000 or which otherwise may reasonably be expected to result in
a Material Adverse Effect, (iv) any labor union has notified any
Borrower of its intent to strike such Borrower on a date certain and
such strike would involve more than 100 employees of such Borrower or
(v) any Gaming Board has indicated its intent to consider or act upon
a License Revocation or a fine or penalty of $1,000,000 or more with
respect to any Borrower, a written notice describing the pertinent
facts relating thereto and what action such Borrower is taking or
proposes to take with respect thereto; and
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(n) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through
the Administrative Agent) or the Requisite Lenders.
10.2 COMPLIANCE CERTIFICATES. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion
of the Commitment remains outstanding, Borrowers shall, at Borrowers' sole
expense, deliver to the Administrative Agent for distribution by it to the
Lenders concurrently with the financial statements required pursuant to
Sections 10.1(B) and 10.1(D), Compliance Certificates signed by a Senior
Officer of Borrowers.
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Article 11
CONDITIONS
11.1 INITIAL ADVANCE. The obligation of each Lender to make the
initial Advance to be made by it is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise
specified, each properly executed by a Responsible Official of each
Party thereto, each dated as of the Closing Date and each in form and
substance satisfactory to the Administrative Agent and its legal
counsel (unless otherwise specified or, in the case of the date of any
of the following, unless the Administrative Agent otherwise agrees or
directs):
(1) at least one (1) executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative
Agent for additional executed counterparts, sufficient in number
for distribution to the Lenders and Borrowers;
(2) a Note executed by Borrowers in favor of each Lender, in
a principal amount equal to that Lender's Pro Rata Share of the
Commitment;
(3) the Omnibus Documents Amendment executed by Borrowers,
Parent and the Sibling Guarantors;
(4) such financing statements on Form UCC-1 executed by
Borrowers with respect to the Security Agreement as the
Administrative Agent may request;
(5) a Deed of Trust Amendment with respect to the Palace
Deed of Trust executed by Palace;
(6) a Deed of Trust Amendment with respect to the Boulder
Deed of Trust executed by Boulder;
(7) a Deed of Trust Amendment with respect to the Texas
Deed of Trust executed by Texas;
(8) a Deed of Trust Amendment with respect to the St.
Charles Deed of Trust executed by St. Charles;
(9) a Deed of Trust Amendment with respect to each of the
Kansas City Deeds of Trust executed by Kansas City;
(10) a Deed of Trust Amendment with respect to the
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Sunset Deed of Trust executed by Sunset;
(11) the Intercreditor Agreement executed by the Collateral
Agent and the Revolver Agent;
(12) a written acknowledgment from First Security Trust
Company of Nevada to the effect that the Sunset Intercreditor
Agreement remains effective and applicable;
(13) assurances from the Title Company that it is prepared
to issue such endorsements with respect to the title insurance
policies issued in connection with the Existing Loan Agreement
as the Administrative Agent may reasonably require, and with
such assurances as the Administrative Agent may reasonably
require from title re-insurers acceptable to the Administrative
Agent;
(14) with respect to each Borrower and each of the
Guarantors, such documentation as the Administrative Agent may
require to establish the due organization, valid existence and
good standing of such Borrower and each such Guarantor, its
qualification to engage in business in each material jurisdiction
in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform any Loan
Documents to which it is a Party, the identity, authority and
capacity of each Responsible Official thereof authorized to act
on its behalf, INCLUDING certified copies of articles of
incorporation and amendments thereto, bylaws and amendments
thereto, certificates of good standing and/or qualification to
engage in business, tax clearance certificates, certificates of
corporate resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(15) the Opinions of Counsel, together with copies of all
factual certificates and legal opinions delivered to such
counsel in connection with such opinion upon which such counsel
has relied;
(16) a certificate of insurance issued by Borrowers'
insurance carrier or agent with respect to the insurance required
to be maintained pursuant to the Deeds of Trust, together with
lenders' loss payable endorsements thereof on Form 438BFU or
other form acceptable to the Administrative Agent;
(17) written confirmations from the landlords of all
leaseholds covered by the Deeds of Trust confirming that the
respective Landlord Consent previously delivered in connection
with the Existing Loan Agreement remains effective;
(18) such assurances as the Administrative Agent deems
appropriate that the relevant Gaming Boards have approved
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the transactions contemplated by the Loan Documents to the extent
that such approval is required by applicable Gaming Laws;
(19) a Certificate of a Senior Officer of Parent certifying
that incurrence by Borrowers of the Obligations will not violate
the Indentures governing any Subordinated Obligation;
(20) a Certificate of a Senior Officer of each of the
Borrowers certifying that the conditions specified in Sections
11.1(G) and 11.1(H) have been satisfied; and
(21) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Requisite
Lenders reasonably may require.
(b) The arrangement fee payable pursuant to Section 3.2 shall
have been paid.
(c) Any agency fees payable on the Closing Date pursuant to
Section 3.5 shall have been paid.
(d) The Revolving Loan Agreement shall concurrently close.
(e) The Term Loan (as such term is defined in the Existing Loan
Agreement) shall be concurrently repaid (with interest) in full.
(f) The reasonable costs and expenses of the Administrative Agent
in connection with the preparation of the Loan Documents payable
pursuant to Section 14.3, and invoiced to Borrowers prior to the
Closing Date, shall have been paid.
(g) Parent shall have delivered to the trustees under the
Indentures governing all Subordinated Obligations a written statement
designating the Obligations as "Designated Senior Indebtedness" under
such Indentures.
(h) The representations and warranties of Borrowers contained in
ARTICLE 4 shall be true and correct.
(i) Borrowers and any other Parties shall be in compliance with
all the terms and provisions of the Loan Documents, and giving effect
to the initial Advance no Default or Event of Default shall have
occurred and be continuing.
(j) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special
counsel to the Administrative Agent.
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(k) The Closing Date shall have occurred on or before October
31, 1999.
11.2 [INTENTIONALLY OMITTED]
11.3 [INTENTIONALLY OMITTED]
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Article 12
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
12.1 EVENTS OF DEFAULT. The existence or occurrence of any one
or more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrowers fail to pay any principal on any of the Notes, or
any portion thereof, on the date when due; or
(b) Borrowers fail to pay any interest on any of the Notes, or
any fees under Sections 3.4 or 3.5, or any portion thereof, within two
(2) Banking Days after the date when due; or fail to pay any other fee
or amount payable to the Lenders under any Loan Document, or any
portion thereof, within five (5) Banking Days after demand therefor;
or
(c) Borrowers fail to comply with any of the covenants contained
in ARTICLE 6 or Parent fails to comply with any of the covenants
contained in ARTICLE 9; or
(d) Borrowers fail to comply with Section 10.1(l) in any respect
that is materially adverse to the interests of the Lenders; or
(e) Borrowers or any other Party fails to perform or observe any
other covenant or agreement (not specified in clause (A), (B), (C) or
(D) above) contained in any Loan Document on its part to be performed
or observed within twenty (20) Banking Days after the giving of notice
by the Administrative Agent on behalf of the Requisite Lenders of such
Default; or
(f) Any representation or warranty of Borrowers or any of the
Guarantors made in any Loan Document, or in any certificate or other
writing delivered by Borrowers or such Guarantor pursuant to any Loan
Document, proves to have been incorrect when made or reaffirmed in any
respect that is materially adverse to the interests of the Lenders; or
(g) Borrowers or any of the Guarantors (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $10,000,000 or more (EXCEPT under the Revolving Loan
Agreement), or any guaranty of present or future Indebtedness of
$10,000,000 or more (EXCEPT under the Revolving Loan Agreement), on
its part to be paid, when due (or within any stated grace period),
whether at the stated maturity, upon acceleration, by reason of
required prepayment or otherwise or (ii) fails to perform or observe
any other term, covenant or agreement on its part to be performed or
observed, or suffers any event of default to occur, in connection with
any present or future Indebtedness of $10,000,000 or more (EXCEPT
under the Revolving Loan Agreement), or of any guaranty of
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present or future Indebtedness of $10,000,000 or more (EXCEPT under
the Revolving Loan Agreement), if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on
its or their behalf) has the right to declare such Indebtedness due
before the date on which it otherwise would become due or the right to
require Borrowers or any of the Guarantors to redeem or purchase, or
offer to redeem or purchase, all or any portion of such Indebtedness
(PROVIDED, that for the purpose of this clause (g), the principal
amount of Indebtedness consisting of a swap agreement shall be the
amount which is then payable by the counterparty to close out the swap
agreement); or
(h) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their
behalf) the right to declare such Subordinated Obligation due before
the date on which it otherwise would become due, or the right to
require the issuer thereof to redeem or purchase, or offer to redeem
or purchase, all or any portion of any Subordinated Obligation; or the
trustee for, or any holder of, a Subordinated Obligation breaches any
subordination provision applicable to such Subordinated Obligation; or
(i) Any Loan Document (OTHER THAN a Secured Swap Agreement), at
any time after its execution and delivery and for any reason, OTHER
THAN the agreement or action (or omission to act) of the
Administrative Agent or the Lenders or satisfaction in full of all the
payment Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void,
invalid or unenforceable in any respect which is materially adverse to
the interests of the Lenders; or any Collateral Document ceases (OTHER
THAN by action or inaction of the Administrative Agent or any Lender)
to create a valid and effective Lien in any material Collateral
covered thereby; or any Party thereto denies in writing that it has
any or further liability or obligation under any (other than a Secured
Swap Agreement) Loan Document, or purports to revoke, terminate or
rescind same; or
(j) A final judgment against any of (i) Borrowers, (ii) Parent
or (iii) any Sibling Guarantor that then has total assets of
$10,000,000 or more is entered for the payment of money in excess of
$5,000,000 (not covered by insurance or for which an insurer has
reserved its rights) and, absent procurement of a stay of execution,
such judgment remains unsatisfied for thirty (30) calendar days after
the date of entry of judgment, or in any event later than five (5)
days prior to the date of any proposed sale thereunder; or any writ or
warrant of attachment or execution or similar process is issued or
levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty (30)
calendar days after its issue or levy; or
(k) Any of (i) Borrowers, (ii) Parent or (iii) any Sibling
Guarantor that then has total assets of $10,000,000 or more
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institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or any material part of its
Property, or is unable or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator
or similar officer for it or for all or any material part of its
Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for sixty (60)
calendar days; or
(l) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document)
applicable to any Borrower or other Party (EXCLUDING an Event of
Default applicable to a counterparty other than any Borrower under a
Secured Swap Agreement) under any other Loan Document; or
(m) A final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(n) Any Pension Plan maintained by Parent or any of its
Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess
of an amount equal to 5% of the consolidated total assets of Parent
and its Subsidiaries as of the most-recently ended Fiscal Quarter; or
(o) The occurrence of a License Revocation that continues for
three (3) consecutive calendar days; or
(p) The occurrence of an Event of Default (as such term is
defined in the Revolving Loan Agreement) under the Revolving Loan
Agreement and the expiration of thirty (30) days thereafter without
the cure thereof by Borrowers or waiver thereof by the Revolver
Lenders.
12.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default OTHER THAN an Event of Default described in Section 12.1(K)
with respect to any Borrower:
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
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rights of Borrowers and any other Parties under the Loan
Documents shall be suspended without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, EXCEPT that
all of the Lenders or the Requisite Lenders (as the case may be,
in accordance with Section 14.2) may waive an Event of Default
or, without waiving, determine, upon terms and conditions
satisfactory to the Lenders or Requisite Lenders, as the case may
be, to reinstate the Commitment and such other obligations and
rights and make further Advances, which waiver or determination
shall apply equally to, and shall be binding upon, all the
Lenders; and
(2) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate
the Commitment and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice
of dishonor, demand or further notice of any kind, all of which
are expressly waived by Borrowers.
(b) Upon the occurrence of any Event of Default described in
Section 12.1(K) with respect to any Borrower:
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrowers and any other Parties under the Loan
Documents shall terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, EXCEPT that
all of the Lenders may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to all
the Lenders, to reinstate the Commitment and such other
obligations and rights and make further Advances, which
determination shall apply equally to, and shall be binding upon,
all the Lenders; and
(2) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrowers.
(c) Upon the occurrence of any Event of Default, the Lenders and
the Administrative Agent, or any of them, without notice to (EXCEPT as
expressly provided for in any Loan Document) or demand upon Borrowers,
which are expressly waived by Borrowers (EXCEPT as to notices
expressly provided for in any Loan Document), may proceed (but only
with the consent of the Requisite Lenders) to protect, exercise and
enforce their rights and remedies under the Loan Documents against
Borrowers and any other Party and such other rights
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and remedies as are provided by Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied
first to the costs and expenses (including reasonable attorneys' fees
and disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate payment
Obligations owed to each Lender under the Loan Documents bear to the
aggregate payment Obligations owed under the Loan Documents to all the
Lenders, without priority or preference among the Lenders. Regardless
of how each Lender may treat payments for the purpose of its own
accounting, for the purpose of computing Borrowers' payment
Obligations hereunder and under the Notes, payments of the proceeds
from the exercise of the Lenders' rights and remedies shall be applied
FIRST, to the costs and expenses of the Administrative Agent and the
Lenders, as set forth above, SECOND, to the payment of accrued and
unpaid interest due under any Loan Documents to and including the date
of such application (ratably, and without duplication, according to
the accrued and unpaid interest due the Lenders under each of the Loan
Documents), and THIRD, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the
Lenders under the Loan Documents. No application of payments of the
proceeds from the exercise of the Lenders' rights and remedies will
cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity for the
collection or recovery of all unpaid payment Obligations.
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Article 13
THE ADMINISTRATIVE AGENT
13.1 APPOINTMENT AND AUTHORIZATION. Subject to Section 13.8,
each Lender hereby irrevocably appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other purpose and, EXCEPT as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and ministerial capacity.
13.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America
National Trust and Savings Association (and each successor Administrative Agent)
has the same rights and powers under the Loan Documents as any other Lender and
may exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders" includes Bank of America, N.A. in its individual
capacity. Bank of America, N.A. (and each successor Administrative Agent) and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust or other business with Borrowers, any Subsidiary
thereof, or any Affiliate of Borrowers or any Subsidiary thereof, as if it were
not the Administrative Agent and without any duty to account therefor to the
Lenders. Bank of America, N.A. (and each successor Administrative Agent) need
not account to any other Lender for any monies received by it for reimbursement
of its costs and expenses as Administrative Agent hereunder, or for any monies
received by it in its capacity as a Lender hereunder. The Administrative Agent
shall not be deemed to hold a fiduciary relationship with any Lender and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent.
13.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents all items of any collateral or interests therein
received or held by the Administrative Agent. Subject to the Administrative
Agent's and the Lenders' rights to reimbursement for their costs and expenses
hereunder (INCLUDING reasonable attorneys' fees and disbursements and other
professional services and the reasonably allocated costs of attorneys employed
by the Administrative Agent or a Lender) and subject to the application of
payments in accordance with Section 12.2(D), each Lender shall have an interest
in the Lenders' interest in the Collateral or interests therein in the same
proportions that the aggregate Obligations owed such Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders, EXCEPT that
Obligations owed to any Lender (or Affiliate of a Lender) under a Secured Swap
Agreement shall
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be secured on a PARI PASSU basis with all other Obligations up
to an amount equal to the Administrative Agent's then customary credit risk
factor for Swap Agreements times the notional amount of Indebtedness covered by
such Secured Swap Agreement and shall be secured on a subordinate basis as to
amounts in excess of such amount.
13.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrowers and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
13.5 ACTION BY ADMINISTRATIVE AGENT.
(a) Absent actual knowledge of the Administrative Agent of
the existence of a Default, the Administrative Agent may assume
that no Default has occurred and is continuing, unless the
Administrative Agent (or the Lender that is then the
Administrative Agent) has received notice from Borrowers stating
the nature of the Default or has received notice from a Lender
stating the nature of the Default and that such Lender considers
the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume
that no Event of Default has occurred and is continuing, the
Administrative Agent may, but shall not be required to, exercise
its discretion to act or not act, EXCEPT that the Administrative
Agent shall be required to act or not act upon the instructions
of the Requisite Lenders (or of all the Lenders, to the extent
required by Section 11.2) and those instructions shall be binding
upon the Administrative Agent and all the Lenders, PROVIDED that
the Administrative Agent shall not be required to act or not act
if to do so would be contrary to any Loan Document or to
applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall
immediately give notice thereof to the Lenders and shall act or
not act upon the instructions of the Requisite Lenders (or of all
the Lenders, to the extent required by Section 14.2), PROVIDED
that the Administrative
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Agent shall not be required to act or not act if to do so would
be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent,
in substantial risk of liability to the Administrative Agent, and
EXCEPT that if the Requisite Lenders (or all the Lenders, if
required under Section 14.2) fail, for five (5) Banking Days
after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent,
in its sole discretion, may act or not act as it deems advisable
for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite
Lenders (or all the Lenders, if required under Section 14.2),
notwithstanding any other provision hereof.
13.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, EXCEPT for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the Administrative
Agent, signed by the payee, and may treat each Lender as the
owner of that Lender's interest in the Obligations for all
purposes of this Agreement until the Administrative Agent
receives notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by that Lender.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrowers
and/or their Subsidiaries or the Lenders, and shall not be liable
for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or
other professionals or experts.
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan
Documents or in any notice, certificate, report, request or other
statement (written or oral) given or made in connection with any
of the Loan Documents.
(d) EXCEPT to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the
performance or observance by Parent or its Subsidiaries of any of
the terms, conditions or covenants of any of the Loan Documents
or to
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inspect any Collateral or the Property, books or records of
Parent or its Subsidiaries.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any
other instrument or writing furnished pursuant thereto or in
connection therewith, or any Collateral.
(f) Will not incur any liability to any Lender by acting or
not acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing
believed in good faith by it to be genuine and signed or sent by
the proper party or parties.
(g) Will not incur any liability for any arithmetical error
in computing any amount paid or payable by the Borrowers or any
Subsidiary or Affiliate thereof or paid or payable to or received
or receivable from any Lender under any Loan Document, INCLUDING,
without limitation, principal, interest, commitment fees,
Advances and other amounts; PROVIDED that, promptly upon
discovery of such an error in computation, the Administrative
Agent, the Lenders and (to the extent applicable) Borrowers
and/or their Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore
the parties to the position that they would have occupied had the
error not occurred.
13.7 INDEMNIFICATION. Each Lender shall, ratably in accordance
with its Pro Rata Share of the Commitment (if the Commitment is then in effect)
or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes (if the Commitment has then been terminated), indemnify
and hold the Administrative Agent, the Co-Agents and their respective directors,
officers, agents, employees and attorneys harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (INCLUDING
reasonable attorneys' fees and disbursements and allocated costs of attorneys
employed by the Administrative Agent) that may be imposed on, incurred by or
asserted against it or them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the failure of Borrowers to
pay the Indebtedness represented by the Notes) or any action taken or not taken
by it as Administrative Agent thereunder, EXCEPT such as result from its own
gross negligence or willful misconduct. Without limitation on the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for that
Lender's Pro Rata Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization (INCLUDING a
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that Borrowers or any other Party is required by
Section 14.3 to pay that cost or expense but fails to do so upon demand. Nothing
in this Section 13.7 shall entitle the Administrative Agent or any indemnitee
referred to above
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to recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrowers or any of their Subsidiaries. To the
extent that the Administrative Agent or any indemnitee referred to above is
later reimbursed such amount by Borrowers or any of its Subsidiaries, it shall
return the amounts paid to it by the Lenders in respect of such amount.
13.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrowers effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrowers (and such approval shall not be unreasonably withheld
or delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrowers, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE 13, and Sections 14.3,
14.11 and 14.22, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid
its agency fees under Section 3.6 or has not been reimbursed for any expense
reimbursable to it under Section 14.3, in either case for a period of at least
one (1) year and (b) no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Administrative Agent as provided for above.
13.9 FORECLOSURE ON COLLATERAL. In the event of foreclosure or
enforcement of the Lien created by any of the Collateral Documents, title to the
Collateral covered thereby shall be taken and held by the Administrative Agent
(or an Affiliate or designee thereof) pro rata for the benefit of the Lenders in
accordance with the Obligations outstanding to each of them and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities.
13.10 NO OBLIGATIONS OF BORROWERS. Nothing contained in this
Article 13 shall be deemed to impose upon Borrowers any obligation in
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respect of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and Borrowers
shall have no liability to the Administrative Agent or any of the Lenders in
respect of any failure by the Administrative Agent or any Lender to perform any
of its obligations to the Administrative Agent or the Lenders under this
Agreement. Without limiting the generality of the foregoing, where any provision
of this Agreement relating to the payment of any amounts due and owing under the
Loan Documents provides that such payments shall be made by Borrowers to the
Administrative Agent for the account of the Lenders, Borrowers' obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
13.11 AUTHORITY REGARDING CERTAIN DOCUMENTS. The Lenders hereby
expressly authorize the Administrative Agent to execute, deliver and perform
under, on behalf of the Lenders, (a) the Intercreditor Agreement, (b) the
"Corporate Securities Financial Compliance Affidavit" required by the Missouri
Gaming Commission and (c) any other affidavit, report, native or document
required by any Gaming Board.
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Article 14
MISCELLANEOUS
14.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers,
privileges and remedies of the Administrative Agent and the Lenders provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of ARTICLE 11 hereof are
inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent's or the
Lenders' rights to assert them in whole or in part in respect of any other Loan.
14.2 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by the Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
any of the Borrowers or any of the Guarantors is a Party, signed by each such
Party, and, in the case of any amendment, modification or supplement to ARTICLE
13, signed by the Administrative Agent), and then only in the specific instance
and for the specific purpose given; and, without the approval in writing of all
the Lenders, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable
on, any Note, or the amount of the Commitment or the Pro Rata
Share of any Lender or the amount of any commitment fee payable
to any Lender, or any other fee or amount payable to any Lender
under the Loan Documents or to waive an Event of Default
consisting of the failure of Borrowers to pay when due principal,
interest or any commitment fee;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on,
any Note or any installment of any commitment fee, or to extend
the term of the Commitment.
(c) To release the Parent Guaranty, the Sibling Guaranty, or
any material portion of the Collateral EXCEPT as expressly
provided for in any Loan Document (PROVIDED that the
Administrative Agent is authorized to release the Lien created by
the Collateral Documents on (i) assets secured by Indebtedness
permitted by Section 9.9(A), (ii) assets which are the subject of
a Disposition
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permitted by Section 6.1, (iii) assets the sale, transfer or
other disposition of which is not a Disposition, and (iv) assets
that are transferred to an Unrestricted New Venture Entity as a
contribution to its capital, and shall do so upon request of
Borrowers subject to such reasonable and customary requirements
as the Administrative Agent may specify);
(d) To amend the provisions of the definition of
"AMORTIZATION AMOUNT," "AMORTIZATION DATE," "REQUISITE LENDERS,"
or "MATURITY DATE"; or
(e) To amend or waive ARTICLES 11 or 12, this Section 14.2,
or Sections 6.3 or 9.4; or
(f) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 14.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
14.3 COSTS, EXPENSES AND TAXES. Borrowers shall pay within five
(5) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents and any amendment thereto or waiver thereof. Borrowers shall also pay
on demand, accompanied by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent and the Lenders in connection with the refinancing,
restructuring, reorganization (INCLUDING a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (INCLUDING reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrowers or any Subsidiary
thereof. Such costs and expenses shall also include, in the case of any
amendment or waiver of any Loan Document requested by Borrowers, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Borrowers shall pay any and all documentary and other taxes, EXCLUDING
(i) taxes imposed on or measured in whole or in part by its overall net income
imposed on it by (A) any jurisdiction (or political subdivision thereof) in
which it is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business" or (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with respect to
which it has failed to provide Borrowers with the appropriate form or forms
required by
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Section 14.21, to the extent such forms are then required by applicable Laws,
and all costs, expenses, fees and charges payable or determined to be payable in
connection with the filing or recording of this Agreement, any other Loan
Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto,
and shall reimburse, hold harmless and indemnify on the terms set forth in 14.11
the Administrative Agent and the Lenders from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative Agent or any
Lender under this Section 14.3 shall bear interest from the second Banking Day
following the date of demand for payment at the Default Rate.
14.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Borrowers or any Affiliate of any of Borrowers. Each Lender's obligation to
make any Advance pursuant hereto is several and not joint or joint and several,
and in the case of the initial Advance only is conditioned upon the performance
by all other Lenders of their obligations to make initial Advances. A default by
any Lender will not increase the Pro Rata Share of the Commitment attributable
to any other Lender. Any Lender not in default may, if it desires, assume in
such proportion as the nondefaulting Lenders agree the obligations of any Lender
in default, but is not obligated to do so. The Administrative Agent agrees that
it will use its best efforts either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another Lender, reasonably
satisfactory to Borrowers, to replace such a Lender in default.
14.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
14.6 NOTICES. EXCEPT as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. EXCEPT as otherwise
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expressly provided in any Loan Document, if any notice, request, demand,
direction or other communication required or permitted by any Loan Document is
given by mail it will be effective on the earlier of receipt or the fourth
Banking Day after deposit in the United States mail with first class or airmail
postage prepaid; if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid; if given by telecopier, when sent; if dispatched
by commercial courier, on the scheduled delivery date; or if given by personal
delivery, when delivered.
14.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative
Agent otherwise specifies with respect to any Loan Document, (a) this Agreement
and any other Loan Document may be executed in any number of counterparts and
any party hereto or thereto may execute any counterpart, each of which when
executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may be,
when taken together will be deemed to be but one and the same instrument and (b)
execution of any such counterpart may be evidenced by a telecopier transmission
of the signature of such party. The execution of this Agreement or any other
Loan Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
14.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which
Borrowers are a Party will be binding upon and inure to the benefit of
Borrowers, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, EXCEPT that Borrowers may not
assign their rights hereunder or thereunder or any interest herein or
therein without the prior written consent of all the Lenders. Any
attempted assignment by any Borrower in contravention of this Section
14.8(a) shall be null and void. Each Lender represents that it is not
acquiring its Note with a view to the distribution thereof within the
meaning of the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within the control
of such Lender). Any Lender may at any time pledge its Note or any
other instrument evidencing its rights as a Lender under this
Agreement to a Federal Reserve Bank, but no such pledge shall release
that Lender from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent foreclosure of
such pledge. Any Lender that is a fund that invests in bank loans may,
without the consent of the Administrative Agent or the Borrowers,
pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to any holders of obligations owed, or
securities issued, by such fund as security for such obligations or
securities, or to any trustee for, or any other representative of,
such holders; PROVIDED that any foreclosure or similar action by such
trustee shall be subject to the provisions of this Section concerning
assignments.
(b) From time to time following the Closing Date, each
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Lender may assign to one or more Eligible Assignees all or any portion
of its Pro Rata Share of the Commitment; PROVIDED that (i) such
Eligible Assignee, if not then a Lender or an Affiliate or Related
Fund of a Lender, shall be approved by each of the Administrative
Agent and (if no Event of Default then exists) Borrowers (neither of
which approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by a Commitment Assignment and
Acceptance, a copy of which shall be furnished to the Administrative
Agent as hereinbelow provided, (iii) EXCEPT in the case of an
assignment to an Affiliate or Related Fund of the assigning Lender, to
another Lender or of the entire remaining Commitment of the assigning
Lender, the assignment shall not assign a Pro Rata Share of the
Commitment that is equivalent to less than $5,000,000, and (iv) the
effective date of any such assignment shall be as specified in the
Commitment Assignment and Acceptance, but not earlier than the date
which is five (5) Banking Days after the date the Administrative Agent
has received the Commitment Assignment and Acceptance. Upon the
effective date of such Commitment Assignment and Acceptance, the
Eligible Assignee named therein shall be a Lender for all purposes of
this Agreement, with the Pro Rata Share of the Commitment therein set
forth and, to the extent of such Pro Rata Share, the assigning Lender
shall be released from its further obligations under this Agreement.
Borrowers agree that they shall execute and deliver (against delivery
by the assigning Lender to Borrowers of its Note) to such assignee
Lender, a Note evidencing that assignee Lender's Pro Rata Share of the
Commitment, and to the assigning Lender, a Note evidencing the
remaining balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitment Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Pro Rata Share of the Commitment
being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or
the performance by Borrowers of the Obligations; (iii) it has received
a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 10.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) it will, independently and without reliance upon
the Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative
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Agent to take such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by this
Agreement; and (vi) it will perform in accordance with their terms all
of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Commitment Assignment and Acceptance
delivered to it and a register (the "Register") of the names and
address of each of the Lenders and the Pro Rata Share of the
Commitment held by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be available during
normal business hours for inspection by Borrowers or any Lender upon
reasonable prior notice to the Administrative Agent. After receipt of
a completed Commitment Assignment and Acceptance executed by any
Lender and an Eligible Assignee, and receipt of an assignment fee of
$2,500 from such Lender or Eligible Assignee, the Administrative Agent
shall, promptly following the effective date thereof, provide to
Borrowers and the Lenders a revised SCHEDULE 1.1A giving effect
thereto. Borrowers, the Administrative Agent and the Lenders shall
deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the Pro Rata Share of the Commitment listed
therein for all purposes hereof, and no assignment or transfer of any
such Pro Rata Share of the Commitment shall be effective, in each case
unless and until a Commitment Assignment and Acceptance effecting the
assignment or transfer thereof shall have been accepted by the
Administrative Agent and recorded in the Register as provided above.
Prior to such recordation, all amounts owed with respect to the
applicable Pro Rata Share of the Commitment shall be owed to the
Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register
as a Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Pro Rata Share of the
Commitment.
(e) Each Lender may from time to time grant participations to one
or more Lenders or other financial institutions (INCLUDING another
Lender) in a portion of its Pro Rata Share of the Commitment;
PROVIDED, HOWEVER, that (i) such Lender notifies the Administrative
Agent and Borrowers in writing at least five (5) Banking Days in
advance of granting such a participation, which notice shall identify
the proposed participant, (ii) the proposed participant (if not then a
Lender or an Affiliate of the granting Lender) shall be approved by
each of the Administrative Agent and (if no Event of Default then
exists) Borrowers (neither of which approvals shall be unreasonably
withheld or delayed), (iii) such Lender's obligations under this
Agreement shall remain unchanged, (iv) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (v) the participating Lenders or other financial
institutions shall not be a Lender hereunder for any purpose EXCEPT,
if the participation agreement so
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provides, for the purposes of Sections 3.7, 3.8, 14.11 and 14.22 but
only to the extent that the cost of such benefits to Borrowers does
not exceed the cost which Borrowers would have incurred in respect of
such Lender absent the participation, (vi) Borrowers, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (vii) the participation
interest shall be expressed as a percentage of the granting Lender's
Pro Rata Share of the Commitment as it then exists and shall not
restrict an increase in the Commitment, or in the granting Lender's
Pro Rata Share of the Commitment, so long as the amount of the
participation interest is not affected thereby and (viii) the consent
of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents OTHER THAN
those which (A) extend any Amortization Date, the Maturity Date or any
other date upon which any payment of money is due to the Lenders, (B)
reduce the rate of interest on the Notes, any fee or any other
monetary amount payable to the Lenders, (C) reduce the amount of any
installment of principal due under the Notes, or (D) release the
Parent Guaranty, the Sibling Guaranty or any material portion of the
Collateral (except as otherwise expressly provided for in any Loan
Document).
(f) Notwithstanding anything in this Section 14.8 to the
contrary, the rights of the Lenders to make assignments of, and grant
participations in, their Pro Rata Shares of the Commitment shall be
subject to the approval of any Gaming Board, to the extent required by
applicable Gaming Laws, and to compliance with applicable securities
laws.
14.9 RIGHT OF SETOFF. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may (a) exercise its rights under Article
9 of the Uniform Commercial Code and other applicable Laws and (b) to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrowers and/or any Property of Borrowers in its possession against
the Obligations.
14.10 SHARING OF SETOFFS. Each Lender severally agrees that if
it, through the exercise of any right of setoff, Lender's lien or counterclaim
against Borrowers, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, Banker's lien or
counterclaim or receipt
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of payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Lenders share any
payment obtained in respect of the Obligations ratably in accordance with each
Lender's share of the Obligations immediately prior to, and without taking into
account, the payment; PROVIDED that, if all or any portion of a disproportionate
payment obtained as a result of the exercise of the right of setoff, banker's
lien, counterclaim or otherwise is thereafter recovered from the purchasing
Lender by Borrowers or any Person claiming through or succeeding to the rights
of Borrowers, the purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of the recovery, but
without interest. Each Lender that purchases a participation in the Obligations
pursuant to this Section 14.10 shall from and after the purchase have the right
to give all notices, requests, demands, directions and other communications
under this Agreement with respect to the portion of the Obligations purchased to
the same extent as though the purchasing Lender were the original owner of the
Obligations purchased. Borrowers expressly consent to the foregoing arrangements
and agree that any Lender holding a participation in an Obligation so purchased
may exercise any and all rights of setoff, banker's lien or counterclaim with
respect to the participation as fully as if the Lender were the original owner
of the Obligation purchased.
14.11 INDEMNITY BY BORROWERS. Borrowers agree to indemnify, save
and hold harmless the Administrative Agent, the Co-Agents and each Lender and
their respective directors, officers, agents, attorneys and employees
(collectively the "INDEMNITEES") from and against: (a) any and all claims,
demands, actions or causes of action (EXCEPT a claim, demand, action, or cause
of action for any amount excluded from the definition of "Taxes" in Section
3.12(D)) if the claim, demand, action or cause of action arises out of or
relates to any act or omission (or alleged act or omission) of Borrowers, their
Affiliates or any of their officers, directors or stockholders relating to the
Commitment, the use or contemplated use of proceeds of any Loan, or the
relationship of Borrowers and the Lenders under this Agreement; (b) any
administrative or investigative proceeding by any Governmental Agency arising
out of or related to a claim, demand, action or cause of action described in
clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(INCLUDING reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or cause of action;
PROVIDED that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Borrowers, but the failure to so promptly notify Borrowers shall not
affect Borrowers' obligations under this Section unless such failure materially
prejudices Borrowers' right to participate in the contest of such claim, demand,
action or cause of action, as hereinafter provided. Such Indemnitee may (and
shall, if requested by Borrowers in writing) contest the validity, applicability
and
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amount of such claim, demand, action or cause of action and shall permit
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Borrowers may be liable for
payment of indemnity hereunder shall give Borrowers written notice of the terms
of such proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrowers' prior consent
(which shall not be unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this Section 14.11 against
more than one Indemnitee, all such Indemnitees shall be represented by the same
legal counsel (which may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrowers; PROVIDED, that if such legal
counsel determines in good faith that representing all such Indemnitees would or
could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrowers, with all
such legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and FURTHER PROVIDED that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrowers to any Indemnitee under this Section 14.11
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Obligations owed to
the Lenders.
14.12 NONLIABILITY OF THE LENDERS. Borrowers acknowledge and
agree that:
(a) Any inspections of any Property of Borrowers made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrowers are not entitled to rely
upon the same (whether or not such inspections are at the expense of
Borrowers);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Loan Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the
Lenders;
(c) The relationship between Borrowers and the
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Administrative Agent and the Lenders is, and shall at all times
remain, solely that of borrowers and lenders; neither the
Administrative Agent nor the Lenders shall under any circumstance be
construed to be partners or joint venturers of Borrowers or their
Affiliates; neither the Administrative Agent nor the Lenders shall
under any circumstance be deemed to be in a relationship of confidence
or trust or a fiduciary relationship with Borrowers or their
Affiliates, or to owe any fiduciary duty to Borrowers or their
Affiliates; neither the Administrative Agent nor the Lenders undertake
or assume any responsibility or duty to Borrowers or their Affiliates
to select, review, inspect, supervise, pass judgment upon or inform
Borrowers or their Affiliates of any matter in connection with their
Property or the operations of Borrowers or their Affiliates; Borrowers
and their Affiliates shall rely entirely upon their own judgment with
respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
the Administrative Agent or the Lenders in connection with such
matters is solely for the protection of the Administrative Agent and
the Lenders and neither Borrowers nor any other Person is entitled to
rely thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrowers
and/or its Affiliates and Borrowers hereby indemnify and hold the
Administrative Agent and the Lenders harmless on the terms set forth
in Section 14.11 from any such loss, damage, liability or claim.
14.13 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrowers, the Administrative Agent and the Lenders in connection with the
Loans, and is made for the sole benefit of Borrowers, the Administrative Agent
and the Lenders, and the Administrative Agent's and the Lenders' successors and
assigns. EXCEPT as provided in Sections 14.8 and 14.11, no other Person shall
have any rights of any nature hereunder or by reason hereof.
14.14 CONFIDENTIALITY. Each Lender agrees to hold any
confidential information that it may receive from Borrowers pursuant to this
Agreement in confidence, EXCEPT for disclosure: (a) to other Lenders; (b) to
legal counsel and accountants for Borrowers or any Lender; (c) to other
professional advisors to Borrowers or any Lender, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section 14.14; (d) to regulatory officials having
jurisdiction over that Lender; (e) to any Gaming Board having regulatory
jurisdiction over Parent or its Subsidiaries, provided that each Lender agrees
to notify Borrowers of any such disclosure unless prohibited by applicable Laws;
(f) as required by Law or legal process, provided that each Lender agrees to
notify Borrowers of any such disclosures unless prohibited by applicable Laws,
or in connection with any legal
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proceeding to which that Lender and any of Borrowers are adverse parties; (g) to
another financial institution in connection with a disposition or proposed
disposition to that financial institution of all or part of that Lender's
interests hereunder or a participation interest in its Note, provided that the
recipient has accepted such information subject to a confidentiality agreement
substantially similar to this Section 14.14; (h) to the National Association of
Insurance Commissioners; and (i) to a nationally-recognized credit rating agency
provided that each Lender agrees to notify Borrowers of any such disclosures.
For purposes of the foregoing, "confidential information" shall mean any
information respecting Parent or its Subsidiaries reasonably considered by
Borrowers to be confidential, OTHER THAN (i) information previously filed with
any Governmental Agency and available to the public, (ii) information previously
published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by Borrowers to any
Person not associated with Borrowers without a confidentiality agreement or
obligation substantially similar to this Section 14.14. Nothing in this Section
shall be construed to create or give rise to any fiduciary duty on the part of
the Administrative Agent or the Lenders to Borrowers.
14.15 FURTHER ASSURANCES. Borrowers and the Guarantors shall, at
their expense and without expense to the Lenders or the Administrative Agent,
do, execute and deliver such further acts and documents as the Requisite Lenders
or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Collateral
Document.
14.16 INTEGRATION. This Agreement, together with the other Loan
Documents and the letter agreements referred to in Sections 3.2, 3.3 and 3.5,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; PROVIDED that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
14.17 GOVERNING LAW. EXCEPT to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the Laws of California applicable to contracts made and
performed in California.
14.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
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inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
14.19 HEADINGS. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
14.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
14.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrowers (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a
participation interest herein pursuant to Section 14.8, if applicable) two duly
completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by Borrowers pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such Lender
by the Borrowers pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (INCLUDING, if reasonably necessary, Form
W-9) satisfactory to Borrowers and the Administrative Agent that no withholding
under the federal income tax laws is required with respect to such Lender.
Thereafter and from time to time, each such Lender shall (a) promptly submit to
Borrowers (with a copy to the Administrative Agent), such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrowers and the
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Lender by Borrowers pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Eurodollar Lending
Office, if any) to avoid any requirement of applicable Laws that Borrowers make
any deduction or withholding for taxes from amounts payable to such Lender. In
the event that Borrowers or the Administrative Agent become aware that a
participation has been granted pursuant to Section 14.8(E) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrowers or the Administrative
Agent to the Lender which granted such participation, such Lender shall cause
such participant financial institution to deliver the same documents and
information to Borrowers and the Administrative Agent as would be required under
this Section if such financial institution were a Lender. The foregoing three
sentences of this Section 14.21 apply to any
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Lender that is a "bank" within the meaning of Section 88(c)(3)(A) of the Code.
With respect to any Lender that is not a "bank" within the meaning of Section
88(c)(3)(A) of the Code that intends to claim exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payment of "portfolio interest," such a Lender shall deliver to Borrowers (with
a copy to the Administrative Agent) a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form W-8,
a certificate representing that such Non-U.S. Lender is not a "bank" for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of Borrowers and is not a
controlled foreign corporation related to Borrowers (within the meaning of
Section 864(d)(4) of the Code), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from U.S. Federal withholding tax on
payments of interest by Borrowers under this Agreement and the other Loan
Documents.
14.22 HAZARDOUS MATERIAL INDEMNITY. Each of Borrowers hereby
agrees to indemnify, hold harmless and defend (by counsel reasonably
satisfactory to the Administrative Agent) the Administrative Agent and each of
the Lenders and their respective directors, officers, employees, agents,
successors and assigns from and against any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial proceedings
and orders, judgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including but
not limited to reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by the Administrative Agent or any Lender, and expenses to
the extent that the defense of any such action has not been assumed by
Borrowers), arising directly or indirectly out of (i) the presence on, in, under
or about any Real Property of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from any Real Property and
(ii) any activity carried on or undertaken on or off any Real Property by
Borrowers or any of its predecessors in title, whether prior to or during the
term of this Agreement, and whether by Borrowers or any predecessor in title or
any employees, agents, contractors or subcontractors of Borrowers or any
predecessor in title, or any third persons at any time occupying or present on
any Real Property, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials at
any time located or present on, in, under or about any Real Property. The
foregoing indemnity shall further apply to any residual contamination on, in,
under or about any Real Property, or affecting any natural resources, and to any
contamination of any Property or natural resources arising in connection with
the generation, use, handling, storage, transport or disposal of any such
Hazardous Materials, and irrespective of whether any of such activities were or
will be undertaken in accordance with applicable Laws, but the foregoing
indemnity shall not apply to Hazardous Materials on any Real Property, the
presence of which is caused by the Administrative Agent or the Lenders.
Borrowers hereby acknowledge and agree that, notwithstanding any other provision
of this Agreement or any of the other Loan Documents to the contrary, the
obligations of Borrowers under this Section (and under Sections 4.18 and 5.10)
shall be unlimited corporate obligations of Borrowers and shall NOT be
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secured by any Lien on any Real Property. Any obligation or liability of
Borrowers to any Indemnitee under this Section 14.22 shall survive the
expiration or termination of this Agreement and the repayment of all Loans and
the payment and performance of all other Obligations owed to the Lenders.
14.23 GAMING BOARDS. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrowers and its
Subsidiaries, INCLUDING the provision of such documents or other information as
may be requested by any such Gaming Board relating to Parent or any of its
Subsidiaries or to the Loan Documents.
14.24 JOINT AND SEVERAL. Each of Borrowers shall be obligated for
all of the Obligations on a joint and several basis, notwithstanding which of
Borrowers may have directly received the proceeds of any particular Loan. Each
of Borrowers acknowledges and agrees that, for purposes of the Loan Documents,
Borrowers constitute a single integrated financial enterprise and that each
receives a benefit from the availability of credit under this Agreement to all
of Borrowers. Each of Borrowers waive all defenses arising under the Laws of
suretyship, to the extent such Laws are applicable, in connection with its joint
and several obligations under this Agreement. Without limiting the foregoing,
each of Borrowers agrees to the Joint Borrower Provisions set forth in EXHIBIT
K, incorporated by this reference.
14.25 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW.
14.26 PURPORTED ORAL AMENDMENTS. BORROWERS EXPRESSLY ACKNOWLEDGE
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE A PARTY MAY
ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 14.2.
BORROWERS AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF
PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER THAT DOES NOT COMPLY WITH SECTION 14.2 TO
EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
[THIS SPACE INTENTIONALLY LEFT BLANK - SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
PALACE STATION HOTEL & CASINO, INC.,
as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
BOULDER STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
TEXAS STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
ST. CHARLES RIVERFRONT STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
KANSAS CITY STATION CORPORATION, as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
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SUNSET STATION, INC., as a Borrower
By: s/ Glenn C. Christenson
Glenn C. Christenson
Senior Vice President
STATION CASINOS, INC., solely for purposes of
Articles 8 and 9
By: s/ Glenn C. Christenson
Glenn C. Christenson
Executive Vice President
Address for all the foregoing:
c/o Station Casinos, Inc.
2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attn: Glenn C. Christenson
Executive Vice President
Telecopier: (702) 367-2424
Telephone: (702) 367-2484
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BANK OF AMERICA, N.A., as Administrative Agent
By: s/ Janice Hammond
Janice Hammond
Vice President
Address:
Bank of America, N.A.
CA9-706-11-03
Agency Management #12048
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Janice Hammond
Vice President
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
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BANK OF AMERICA, N.A.
By: s/ Scott L. Faber
Scott L. Faber
Principal
Address:
Bank of America, N.A.
Credit Products - CA 9-706-11-01
Entertainment & Media Group
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Scott L. Faber
Principal
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
With a copy to:
Bank of America, N.A.
Credit Products - LA 3283
Entertainment & Media Group
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-2641
Telephone: (213) 228-2438
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BANK OF AMERICA, N.A.
By: s/ Edward Hamilton
Edward Hamilton
Managing Director
Address:
BancAmerica Securities, LLC
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attn: Perry White
Telecopier: (704) 386-2329
Telephone: (704) 388-4008
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CANADIAN IMPERIAL BANK OF COMMERCE
By: s/ Koren Volk
Koren Volk
Authorized Signatory
Address:
Canadian Imperial Bank of Commerce
425 Lexington Avenue, 7th Floor
New York, New York 10017
Attn: Koren Volk
Telecopier: (212) 856-3759
Telephone: (212) 856-3682
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PINEHURST TRADING, INC.
By: s/ Kelly C. Walker
Kelly C. Walker
Vice President
Address:
Banc of America Securities LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, North Carolina 28255
Attn: Kelly C. Walker
Telecopier: (704) 388-0648
Telephone: (704) 388-8943
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager and
Authorized Signatory
By: s/ Helen Y. Rhee
Helen Y. Rhee
Vice President
Portfolio Manager
Address:
ING Capital Advisors LLC
333 South Grand Avenue, Suite 4250
Los Angeles, California 90071
Attn: Helen Rhee
Telecopier: (213) 346-3995
Telephone: (213) 346-3983
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THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.
By: ING Capital Advisors LLC,
as Investment Advisor
By: s/ Helen Y. Rhee
Helen Y. Rhee
Vice President
Portfolio Manager
Address:
ING Capital Advisors LLC
333 South Grand Avenue, Suite 4250
Los Angeles, California 90071
Attn: Helen Rhee
Telecopier: (213) 346-3995
Telephone: (213) 346-3983
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By: s/ Sheila Finnerty
Sheila Finnerty
Vice President
Address:
Morgan Stanley Dean Witter Advisors
Morgan Stanley Dean Witter Prime Income Trust
Two World Trade Center, 72nd Floor
New York, New York 10048
Attn: Sheila Finnerty
Telecopier: (212) 392-5345
Telephone: (212) 392-3415
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BANK OF SCOTLAND
By: s/ Annie Glynn
Annie Glynn
Senior Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Glynn
Telecopier: (212) 557-9460
Telephone: (212) 450-0871
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: s/ F. Rick Rucker
F. Rick Rucker
Vice President
Address:
The CIT Group/Equipment Financing, Inc.
900 Ashwood Parkway, 6th Floor
Atlanta, Georgia 30338
Attn: Russell Hanley
Telecopier: (770) 206-9295
Telephone: (770) 551-7801
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WINGED FOOT FUNDING TRUST
By: s/ Kelly C. Walker
Kelly C. Walker
Authorized Agent
Address:
Banc of America Securities, LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, North Carolina 28255
Attn: Kelly C. Walker
Telecopier: (704) 388-0648
Telephone: (704) 388-8943
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: s/ John Urban
John Urban
Address:
Goldman Sachs Credit Partners L.P.
85 Broad Street, 6th Floor
New York, New York 10004
Attn: Barbara Aaron
Telecopier: (212) 357-4597
Telephone: (212) 357-3111
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: s/ Steven J. Katz
Steven J. Katz
---------------------------------
[Printed Name and Title]
Address:
Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, Massachusetts 01111-0001
Attn: Nancy Wood
Telecopier: 413/744-6210
Telephone: 413/744-8499
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BANK OF AMERICA, N.A.
By: s/ Sean P. Bonner
Sean P. Bonner
Vice President
Address:
Banc of America Securities, LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, North Carolina 28255
Attn: Sean P. Bonner
Telecopier: (704) 388-0648
Telephone: (704) 388-1081
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AMENDMENT NO. 1 TO TERM LOAN AGREEMENT
This Amendment No. 1 to Term Loan Agreement (this "Amendment")
dated as of September 24, 1999 among Palace Station Hotel & Casino, Inc.,
Boulder Station, Inc., Texas Station, Inc., St. Charles Riverfront Station,
Inc., Kansas City Station Corporation and Sunset Station, Inc. (collectively,
the "Borrowers"), Station Casinos, Inc. ("Parent") (but only for the purpose of
making the covenants set forth in Articles 8 and 9 of the Loan Agreement (as
defined below)), and Bank of America, N.A., as Administrative Agent (the
"Administrative Agent"), is entered into with reference to the Term Loan
Agreement dated as of August 25, 1999 among Borrowers, Parent, the Lenders party
thereto, and the Administrative Agent (the "Loan Agreement"). Capitalized terms
used but not defined herein are used with the meanings set forth for those terms
in the Loan Agreement.
RECITALS
A. Parent has entered into an agreement (the "KC Acquisition Agreement"
which, together with the other terms defined in this Recital A, is more
specifically defined below) to purchase substantially all of the operating
assets of the Flamingo Hilton Riverboat Casino in Kansas City, Missouri (the
"Flamingo Casino") for approximately $22,500,000 in cash plus the assumption of
certain liabilities (the "KC Acquisition"). Parent intends to assign its rights
under the KC Acquisition Agreement to Front Street Station, LLC ("Kansas
City-Front Street"), a Missouri limited liability company whose sole member is
St. Charles. The physical facilities of Flamingo Casino consist principally of
leasehold interests (the "Leaseholds") in a casino/entertainment vessel and a
parking garage and related structures, all of which are owned by the Port
Authority of Kansas City, Missouri and leased to Flamingo Casino. Parent has
requested that various provisions of the Loan Agreement be waived and amended in
order to (a) waive the requirement that the Lenders be granted a security
interest in the Leaseholds and (b) add Kansas City-Front Street as an additional
Borrower.
B. The Lenders are willing to waive and amend the necessary provisions of
the Loan Agreement as requested by Parent PROVIDED that (a) Kansas City-Front
Street grants a Lien in favor of the Lenders securing the Obligations on all of
its assets OTHER THAN the Leaseholds and (b) St. Charles confirms
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its obligation to pledge its equity interests in Kansas City-Front Street to the
Lenders to secure the Obligations, subject to necessary Gaming Board approval.
AGREEMENT
Borrowers, Parent and the Administrative Agent, acting with the
consent of the Requisite Lenders pursuant to Section 14.2 of the Loan Agreement,
agree as follows:
1. WAIVER OF SECTIONS 5.11, 5.12, 8.3 AND 8.4. The requirements set forth
in Sections 5.11, 5.12, 8.3 and 8.4 that Parent and Borrowers grant a Lien to
the Lenders in any Real Property or vessels acquired subsequent to the Amendment
Effective Date are hereby waived as to the Leaseholds acquired in the KC
Acquisition; PROVIDED that concurrently therewith (a) Kansas City-Front Street
(defined below) executes and delivers to the Administrative Agent the Joinder
Agreement making it an additional Borrower, (b) Borrowers deliver to the
Administrative Agent such amended Schedules to the Loan Agreement as are
necessary to reflect the addition of Kansas City-Front Street as an additional
Borrower, which amended Schedules shall be acceptable to the Administrative
Agent, (c) Kansas City-Front Street executes and delivers to the Administrative
Agent such Collateral Documents and related UCC-1 financing statements as may be
required to result in a First Priority Lien (defined below) on all of the assets
(OTHER THAN the Leaseholds, which term is defined below) of Kansas City-Front
Street in favor of the Administrative Agent to secure the Obligations, (d) St.
Charles executes and delivers to the Administrative Agent written confirmation
of its obligation to pledge its equity interest in Kansas City-Front Street to
the Lenders pursuant to Section 8.2, subject to any necessary Gaming Board
approval and (e) Parent, Kansas City-Front Street and the other Borrowers
deliver, or cause to be delivered, such authorizing resolutions, legal opinions
and other closing documents as may be reasonably requested by the Administrative
Agent. Nothing herein shall waive the obligation of Kansas City-Front Street to
perform its obligations under such Sections with respect to any Real Property or
vessel (including a leasehold interest therein) acquired by it subsequent to the
KC Acquisition.
2. SECTION 1.1. Section 1.1 of the Loan Agreement is amended to
add the following definitions:
"FIRST PRIORITY LIEN" means a Lien that is of the
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first priority, EXCEPT for Liens and Negative Pledges permitted by
Section 6.6 of the Loan Agreement.
"FLAMINGO CASINO" means the Flamingo Hilton Riverboat Casino in
Kansas City, Missouri.
"KANSAS CITY-FRONT STREET" means Front Street Station LLC, a
Missouri limited liability company.
"KC ACQUISITION" means the purchase by Kansas City-Front Street
of substantially all of the operating assets of the Flamingo Casino
pursuant to the KC Acquisition Agreement.
"KC ACQUISITION AGREEMENT" means that certain Asset Purchase
Agreement dated September __, 1999 among Hilton Hotel Corporation,
Flamingo Hilton Riverboat Casino, L.P., Parent and, by assignment,
Kansas City-Front Street.
"KC ACQUISITION DATE" means the date upon which the KC
Acquisition occurs.
"LEASEHOLDS" means the leasehold estates in Real Property and
vessels owned by the Port Authority of Kansas City, Missouri acquired
by Kansas City-Front Street pursuant to the KC Acquisition Agreement.
3. SECTION 1.1. Section 1.1 of the Loan Agreement is hereby
further amended to revise the following definition to read as follows:
"BORROWERS" means, collectively (a) Palace, Boulder, Texas, St.
Charles, Kansas City and Sunset and (b) upon its execution and
delivery of the Joinder Agreement, Kansas City-Front Street.
4. AMENDMENT OF CERTAIN EXHIBITS. Exhibits A and B are hereby
amended, as of the KC Acquisition Date, to add a reference to Kansas City-Front
Street as a Borrower in the introductory paragraphs thereof. Exhibit E is hereby
amended, as of the KC Acquisition Date, to add Kansas City-Front Street as a
maker of the Note.
5. RESCISSION OF APPROVAL AND AMENDMENTS. In the event that the
KC Acquisition Date has not occurred by December 31, 1999, the waiver set forth
in Paragraph 1 and the amendments set forth in Paragraphs 2, 3 and 4 shall be
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automatically rescinded.
6. CONDITIONS PRECEDENT. The effectiveness of this Amendment
shall be conditioned upon receipt by the Administrative Agent of all of the
following:
(a) Counterparts of this Amendment executed by all parties
hereto;
(b) Written consents of each of the Sibling Guarantors to the
execution, delivery and performance hereof in the form of
EXHIBIT A to this Amendment;
(c) Written consent of the Requisite Lenders as required under
Section 14.2 of the Loan Agreement in the form of EXHIBIT B
to this Amendment; and
(d) Such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Lenders
reasonably may require.
7. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent and
warrant that no Default or Event of Default has occurred and remains continuing.
8. CONSENT OF PARENT. The execution of this Amendment by Parent
shall constitute its consent, in its capacity as guarantor under the Parent
Guaranty, to this Amendment.
9. CONFIRMATION. In all other respects, the terms of the Loan
Agreement and the other Loan Documents are hereby confirmed.
-4-
<PAGE>
IN WITNESS WHEREOF, Borrowers and the Administrative Agent have
executed this Amendment as of the date first above written by their duly
authorized representatives.
PALACE STATION HOTEL & CASINOS, INC.
BOULDER STATION, INC.
TEXAS STATION, INC.
ST. CHARLES RIVERFRONT STATION, INC.
KANSAS CITY STATION CORPORATION
SUNSET STATION, INC.
By: s/ Glenn C. Christenson
Glenn C. Christenson
Vice President and
Chief Financial Officer
STATION CASINOS, INC.
By: s/ Glenn C. Christenson
Glenn C. Christenson
Executive Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: s/ Janice Hammond
Janice Hammond
Vice President
-5-
<PAGE>
Exhibit A to Amendment
CONSENT OF SIBLING GUARANTORS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
Each of the undersigned hereby consents to the execution,
delivery and performance by Borrowers of Amendment No. 1 to the Loan Agreement.
Each of the undersigned represents and warrants to the
Administrative Agent and the Lenders that the Subsidiary Guaranty remains in
full force and effect in accordance with its terms.
Dated: September 24, 1999
GREEN VALLEY STATION, INC. SOUTHWEST GAMING SERVICES, INC.
By: /s/ Glenn C. Christenson By: s/ Blake L. Sartini
Glenn C. Christenson Blake L. Sartini
Vice President and Secretary
Chief Financial Officer
SOUTHWEST SERVICES, INC.
By: s/ Blake L. Sartini
Blake L. Sartini
Secretary
-6-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
BANK OF AMERICA, N.A.
By: s/ Scott Faber
Scott Faber
Principal
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
AERIES FINANCE-II LIMITED
By: INVESCO Senior Secured
Management, Inc. as
Sub-Managing Agent
By: s/ Anne M. McCarthy
Anne M. McCarthy
Authorized Signatory
By: _________________________________
_____________________________________
[Printed Name and Title]
-8-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 21, 1999
BANK OF SCOTLAND
By: s/ Annie Glynn
Annie Glynn
Senior Vice President
-9-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
CANADIAN IMPERIAL BANK OF
COMMERCE
By: s/ Karen Volk
Karen Volk
Authorized Signatory
-10-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 23, 1999
FIRST UNION INSTITUTIONAL
DEBT MANAGEMENT
By: s/ E. A. Kratzman
E. A. Kratzman, III
Managing Director
IDM
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 23, 1999
GOLDMAN SACHS & CO.
By: s/ Stephen J. McGuinness
Stephen J. McGuinness
Authorized Signatory
-12-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED
By: Indosuez Capital as Portfolio
Advisor
By: s/ Melissa Marano
Vice President
INDOSUEZ CAPITAL FUNDING III,
LIMITED
By: Indosuez Capital as Portfolio
Advisor
By: s/ Melissa Marano
Vice President
INDOSUEZ CAPITAL FUNDING IV,
LIMITED
By: Indosuez Capital as Portfolio
Advisor
By: s/ Melissa Marano
Vice President
-13-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: s/ John B. Wheeler
John B. Wheeler
Managing Director
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 22, 1999
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.
as its investment manager
By: s/ Daniel A. Norman
Daniel A. Norman
Senior Vice President
-15-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 22, 1999
ML CLO XX PILGRIM
AMERICA (CAYMAN), LTD.
By: s/ Daniel A. Norman
Senior Vice President
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 22, 1999
PILGRIM AMERICA HIGH INCOME
INVESTMENT, INC.
By: Pilgrim Investments, Inc.
as its investment manager
By: s/ Daniel A. Norman
Daniel A. Norman
Senior Vice President
-17-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
PINEHURST TRADING, INC.
By: s/ Kelly C. Walker
Kelly C. Walker
Vice President
-18-
<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
PPM SPYGLASS FUNDING TRUST
By: s/ Kelly C. Walker
Kelly C. Walker
Authorized Agent
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<PAGE>
Exhibit B to Amendment
CONSENT OF LENDERS
Reference is hereby made to that certain Term Loan Agreement
dated as of August 25, 1999 among Palace Station Hotel & Casino, Inc., Boulder
Station, Inc., Texas Station, Inc., St. Charles Riverfront, Inc., Kansas City
Station Corporation and Sunset Station (collectively, the "Borrowers"), Station
Casinos, Inc. ("Parent") (but only for the purpose of making the covenants set
forth in Articles 8 and 9 of the Loan Agreement (as defined below)), the Lenders
party thereto, and Bank of America, N.A., as Administrative Agent, (as amended,
the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement.
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 1 to Term Loan Agreement, by the Administrative Agent
on its behalf, substantially in the form of the most recent draft presented to
the undersigned Lender.
Dated: September 24, 1999
WINGED FOOT FUNDING TRUST
By: s/ Kelly C. Walker
Kelly C. Walker
Authorized Agent
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<PAGE>
EXHIBIT 10.1
FIRST AMENDMENT TO LEASE
(WITH OPTION)
- -------------------------------------------------------------------------------
This First Amendment to Lease (With Option) ("Agreement") is entered
into on this 1st day of April, 1999 (the "Effective Date"), by and between
PALACE STATION HOTEL & CASINO, INC., a Nevada corporation or its designee
(hereinafter "Optionee" or "Tenant") and FLAMINGO ASSOCIATES, INC., a Nevada
corporation (hereinafter, "Optionor" or "Landlord") based upon the following
recitals:
A. Landlord is the owner of certain Property, as defined below and as set
forth on the attached Exhibit "A".
B. Pursuant to two (2) separate leases, which are attached hereto as
Exhibits B-1 and B-2, respectively, Landlord leases the Property to
Tenant as follows: one lease between Landlord and Tenant for
approximately 6.44 acres ("Lease B-1") and one lease between Landlord
and Tenant for approximately .84 acres ("Lease B-2") (collectively,
the "Leases").
C. Landlord and Tenant desire to amend the Leases as described herein.
D. Subject to the terms and conditions as set forth herein, and for and
in consideration of the amendments to the Leases as described herein,
Optionor has agreed to grant to Optionee the exclusive option to
purchase the Property and Optionee has agreed to purchase the Property
upon Optionee's exercise of the Option, as defined below.
NOW, THEREFORE, in consideration of the terms, covenants, conditions and
provisions hereinafter set forth and other good and valuable consideration,
the parties hereby agree to amend and modify the Lease to the limited extent
set forth herein. Any capitalized terms used in this First Amendment not
otherwise defined herein shall be defined as set forth in the Lease.
I. AMENDMENTS TO RENTAL PROVISIONS OF LEASES
A. LEASE B-1
1. The Rental provision as set forth in Lease B-1 at Section 2 shall
be deleted and the following shall be inserted in its place:
As of the Effective Date, Tenant shall pay to Landlord as
monthly rental for the Demised Premises the sum of
$8,293.27.
-1-
<PAGE>
The term "Lease Year" (or "lease year") as used herein shall
mean a period of twelve (12) consecutive months, the first
of which shall commence on the Effective Date.
2. In the "Addendum to Lease Agreement between Teddy Rich
Enterprises and Mini-Price Motor Inn, Inc., dated May 8, 1973,"
the third paragraph therein entitled "Page 28 - Paragraph 31,"
shall be deleted in its entirety.
B. LEASE B-2
The Rental provision as set forth in the Lease B-2 at Section 2 shall
be deleted and the following shall be inserted in its place:
As of the Effective Date, Tenant shall pay to Landlord as monthly
rental for the Demised Premises the sum of $1,081.73.
The term "Lease Year" (or "lease year") as used herein shall mean
a period of twelve (12) consecutive months, the first of which
shall commence on the Effective Date.
II. OPTION TO PURCHASE.
A. OPTION.
1. Grant of Option. Optionor hereby grants to Optionee an option to
purchase all, but not less than all, of the Property (the
"Option"). Optionee may exercise the Option, in Optionee's sole
and absolute discretion, by giving written notice to Optionor in
the manner described in Section IX.C. below (the "Notice") at any
time during the ten (10) year period following the Effective Date
(the "Option Term"). Upon exercise of the Option, Optionee shall
immediately open an escrow for the transaction (the "Escrow") at
Nevada Title Company (the "Title Company"), and Closing shall
occur through Escrow.
2. Consideration. Optionor agrees that adequate and just
consideration has passed from Optionee to Optionor based upon the
amendments to Leases as set forth above, that no further
consideration is due, and that Optionee, as of the Effective
Date, is entitled to exercise the Option in accordance with the
terms of this Agreement.
3. Purchase Price. At the Closing, Optionee shall pay Optionor,
through Escrow, the purchase price in the amount and manner set
forth on Exhibit "C" (the "Purchase Price"), in cash or
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<PAGE>
readily available U.S. funds. The rental increases in the
Leases as set forth above are not applicable to the Purchase
Price. If at any time prior to Closing, Optionor has been
awarded or received any amount for the condemnation of any
portion of the Property, Optionor shall be entitled to receive
or retain such award(s) and the Purchase Price shall be
reduced by an amount equal to all such awards.
4. Memorandum of Option. At the Effective Date, the parties shall
record a memorandum of option in the form attached hereto as
Exhibit "D" (the "Memorandum of Option") to provide public notice
that Optionee has obtained an Option to acquire the Property from
Optionors.
III. TITLE MATTERS.
A. CLTA POLICY. This Agreement is subject to the condition precedent that
on or before the Effective Date, the Title Company shall issue a CLTA
Policy (the "CLTA Policy") in the form of the Pro Forma attached
hereto as Exhibit "E" (the "Pro Forma"). The cost of the premium for
the CLTA Policy shall be paid solely by Optionee.
B. TITLE COMPANY. The Title Company shall provide an ALTA Policy (as
hereinafter defined) at Closing unless all parties hereto agree that
another title company shall provide such policy; provided however that
such selection of a substitute title company shall not delay the
Closing.
C. SURVEY. Upon giving Notice of its exercise of the Option, Optionee, at
its sole cost and expense, shall select a civil engineering firm to
promptly commence preparation of an ALTA-ACSM survey of the Property
to be delivered to Optionee (the "Survey"). The Survey shall comply
with all requirements of the Title Company for issuance of the ALTA
Policy and shall be otherwise acceptable to Optionee. If it is
necessary to prepare and file a record of survey or parcel map in
order to file the Deed, the parties shall cooperate in good faith with
one another to expeditiously complete and file such map. Optionee
shall bear the cost of preparing and filing said record of survey or
parcel map, if required.
D. ALTA POLICY. The Closing is subject to the Title Company delivering to
Optionee an ALTA Extended Coverage Owners Policy of Title Insurance
(the "ALTA Policy") issued by the Title Company, dated on the date of
the Closing, in the amount of the Purchase Price, insuring Optionee as
owner of fee title to the Property subject only to those exceptions to
title set forth on the Pro Forma and those exceptions
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<PAGE>
shown of record at the time of Closing that are common to the area
and which do not cause a materially adverse effect upon Optionee's
continued use of the Property as part of a resort hotel & casino
(the "Permitted Exceptions"). Optionee shall pay all costs
attributable to the ALTA Policy.
E. LIENS, ENCUMBRANCES, ETC. Except for the Permitted Exceptions,
Optionor will transfer and convey good and marketable title to the
Property to Optionee at Closing by grant, bargain and sale deed in
substantially the form of Exhibit "F" attached hereto (the "Deed"),
free and clear of any liens, encumbrances or security interests of any
nature whatsoever, and Optionee shall not succeed to or be responsible
for any liens, claims, charges, encumbrances, mortgages, pledges,
obligations or liabilities of any kind whatsoever, whether known or
unknown, fixed or contingent, contractual or statutory, of Optionors
including, without limitation:
1. Any of Optionors' liabilities or obligations for federal, state,
local or foreign taxes, assessments, impositions, deficiencies,
penalties or interest, whether or not imposed on or measured by
income, except for real property taxes and assessments payable
after the Closing; or
2. Any contract obligations with third parties of any nature
whatsoever, except as specifically assumed by Optionee in
writing, and in Optionee's sole and unlimited discretion.
IV. REPRESENTATIONS AND WARRANTIES.
A. OPTIONOR'S REPRESENTATIONS AND WARRANTIES. Optionor hereby represents
and warrants, which representations and warranties shall be true and
correct as of the date of Closing (unless otherwise specified below):
1. That Optionor is the owner of the Property and is able to convey
good, marketable title thereto, subject to the matters disclosed
in the Pro Forma.
2. That Richard Tam has full authority to execute this Agreement on
behalf of Optionor and to bind Optionor to this Agreement.
3. That Optionor is duly organized and validly existing as a
corporation in its state of incorporation, in good standing and
qualified to conduct its business, to own real property and to
consummate the transactions contemplated herein under the laws of
the State of Nevada.
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<PAGE>
4. That all necessary corporate action has been taken to authorize
all transactions herein contemplated.
5. That the execution, delivery and performance of this Agreement by
Optionor will not, with or without the giving of notice and/or
the passage of time, violate or constitute a default under any
provision of law, any administrative regulation or any judicial,
administrative or arbitration order, award, judgment or decree
applicable to Optionor or the Property or conflict with, violate,
result in a breach or termination of or cause a default under
Optionor's articles of incorporation or bylaws, or any other
agreement or obligation by which Optionor or the Property are
bound.
6. That no consent or approval of this Agreement is required by any
third party.
7. That there are no actions or claims pending or to Optionor's
knowledge threatened before any court, governmental agency,
arbitrator or other tribunal which would prevent Optionor from
completing the transactions provided herein in accordance with
the terms of this Agreement.
8. That Optionor has not received any notice of zoning changes or
any actions threatening condemnation of any part of the Property
through exercise of eminent domain by any governmental authority.
9. That Optionor has no actual knowledge of any violations of law,
municipal or county ordinances or other legal requirements
affecting the Property, or with respect to the use or occupancy
thereof.
10. That to the best of Optionor's knowledge, all documents that will
affect title to the Property at Closing have been provided to
Optionee.
11. That there are no mechanic's liens recorded against the Property
and none threatened to Optionor's knowledge; and all contractors,
subcontractors, workmen, materialmen and employees engaged by
Optionor have been paid in full for any labor, services or
materials supplied or delivered to the Property.
-5-
<PAGE>
12. That Optionor has not caused and shall not cause to be created
any encumbrances on the Property in favor of any person other
than Optionee or liens that have been previously released.
13. That all taxes, governmental assessments and utility charges to
the Property billed to Optionor are current and not delinquent.
14. That all representations and warranties made by Optionor and all
information contained in any of the documents furnished or to be
furnished to Optionee pursuant to this Agreement, do not and
shall not contain any untrue statement of a material fact or omit
to state any fact necessary in order to make the statements
contained herein or therein not misleading.
15. That Landlord is the owner of the Property and is the landlord
under the Lease.
16. That the Leases were validly assigned from Teddy Rich
Enterprises, the original landlord under the Lease, to Landlord,
with Landlord succeeding to all rights and assuming all
obligations thereunder.
17. That Landlord has reviewed and certified that the Leases attached
hereto as Exhibit B-1 and Exhibit B-2 constitute true and correct
copies of the Leases and all amendments and modifications thereto
and that there are no leases affecting the Property currently in
effect not contained in Exhibit B-1 and Exhibit B-2.
B. OPTIONEE'S REPRESENTATIONS AND WARRANTIES. Optionee hereby represents
and warrants, which representations and warranties shall be true and
correct as of the date of Closing (unless otherwise specified below):
1. That the execution, delivery and performance of this Agreement by
Optionee will not, with or without the giving of notice and/or
the passage of time, violate or constitute a default under any
provision of law, any administrative regulation or any judicial,
administrative or arbitration order, award, judgment or decree
applicable to Optionee or conflict with, violate, result in a
breach or termination of or cause a default under Optionee's
articles of incorporation or bylaws, or any other agreement or
obligation by which Optionee is bound.
-6-
<PAGE>
2. That no consent or approval of this Agreement is required by any
third party, other than any approvals required by Optionee's
secured lenders.
3. That there are no actions or claims pending or to Optionee's
knowledge threatened before any court, governmental agency,
arbitrator or other tribunal which would prevent Optionee from
completing the transactions provided herein in accordance with
the terms of this Agreement.
4. That Optionee is duly organized and validly existing as a
corporation in its state of incorporation, in good standing and
qualified to conduct its business, to own real property and to
consummate the transactions contemplated herein under the laws of
the State of Nevada.
5. That all necessary corporate action has been taken to authorize
all transactions herein contemplated.
6. That the execution, delivery and performance of this Agreement by
Optionee will not, with or without the giving of notice and/or
the passage of time, violate or constitute a default under any
provision of law, any administrative regulation or any judicial,
administrative or arbitration order, award, judgment or decree
applicable to Optionee or conflict with, violate, result in a
breach or termination of or cause a default under Optionee's
articles of incorporation or bylaws, or any other agreement or
obligation by which Optionee is bound.
7. That all representations and warranties made by Optionee and all
information contained in any of the documents furnished or to be
furnished to Optionor pursuant to this Agreement, do not and
shall not contain any untrue statement of a material fact or omit
to state any fact necessary in order to make the statements
contained herein or therein not misleading.
C. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as otherwise set
forth herein, all of Optionor's and Optionee's Representations and
Warranties set forth in Sections IV.A. and IV.B. shall survive for a
period of sixty (60) months.
V. CLOSING
A. COVENANTS PENDING CLOSING. Pending and prior to the Closing, Optionor
covenants and agrees as follows:
-7-
<PAGE>
1. That Optionor, without prior written consent of Optionee, shall
not cause any liens or encumbrances, other than mortgages or
deeds of trust securing consensual loans as permitted in Section
X, to be filed or recorded against the Property and shall not
assign, transfer, encumber, hypothecate or convey any or all of
Optionor's interest in the Property to any third party or
parties.
2. That Optionor shall give Optionee written notice of any casualty
occurring on the Property or of any condemnation or proposed
condemnation of all or any part of the Property of which Optionor
has or obtains actual knowledge.
B. EXPRESS CONDITIONS TO CLOSING.
1. In the event Optionee exercises the Option, Optionee's obligation
to proceed to Closing shall be subject to the satisfaction of the
following:
a) Optionor shall not be in material default of any of its
covenants set forth herein.
b) Optionor's representations and warranties as set forth
herein shall be true and correct as of the date of Closing.
c) The Title Company shall be irrevocably committed to issuing
the ALTA Policy.
d) Optionor shall have executed and delivered into an escrow
account (the "Escrow") at the Title Company all other
documents and instruments and shall have taken all actions
necessary to consummate the transactions contemplated hereby
in accordance with the terms of this Agreement.
2. Optionor's obligation to proceed to Closing shall be subject to
satisfaction of the following:
a) Optionee shall not be in material default of any of its
covenants set forth herein.
b) Optionee's representations and warranties as set forth
herein shall be true and correct as of the date of Closing.
-8-
<PAGE>
c) Optionee shall have deposited the Purchase Price into
Escrow.
d) Optionee shall have executed and delivered into Escrow all
other documents and instruments and shall have taken all
actions necessary to consummate the transactions
contemplated hereby in accordance with the terms of this
Agreement.
C. CLOSING. Subject to the satisfaction of the conditions set forth in
Section V(B), on or before the sixtieth (60th) day after Optionee
gives Optionor Notice of the exercise of the Option, the parties shall
perform as follows (the "Closing"):
1. Optionor shall deliver or cause to be delivered the following:
a) The Deed to Escrow for recordation in the property records
of Clark County, with subsequent delivery to Optionee;
b) An affidavit as required by the Foreign Investment Real
Property Tax Act, Internal Revenue Code Sections1445
("FIRPTA"), to Escrow;
c) An assignment, if applicable, by Optionor to Optionee of all
rights to additional compensation and all rights in or to
any abandoned or vacated portion of the Property which is
the subject of any condemnation proceeding; this assignment
of all of Optionor's rights in and to any additional
compensation beyond any condemnation award, and any portion
of the Property that, after the Closing, is abandoned or
vacated, shall be recorded in the public records, at
Closing, if applicable, and such obligations as set forth in
this paragraph shall survive the Closing indefinitely
irrespective of any other limitation of liability contained
herein or in law or equity.; and
d) To Optionee or Title Company, as applicable, any other
documents, fully executed, as are customarily executed in
the State of Nevada in connection with the conveyance of
real property, including all required closing statements,
releases, affidavits and any other instrument that the
parties may agree to in good faith;
e) Exclusive possession of the Property.
-9-
<PAGE>
2. Optionee shall deliver or cause to be delivered the following:
a) The Purchase Price, subject to the Prorations (as defined in
Section V.D. below), for disbursement pursuant to Optionor's
instructions; and
b) To Optionor or Title Company, as applicable, any other
documents, fully executed, as are customarily executed in
the State of Nevada in connection with the conveyance of
real property, including all required closing statements,
releases, affidavits and any other instrument that the
parties may agree to in good faith.
D. CLOSING COSTS, EXPENSES AND PRORATIONS. All of the following closing
costs, expenses and prorations shall be collectively defined as the
"Prorations."
1. Optionor hereby agrees to pay for the following costs and
expenses associated with the consummation of this Agreement and
the Closing:
a) All real property transfer taxes and documentation taxes;
b) One-half (1/2) of any Escrow or closing fees charged by the
Title Company; and
c) Any other closing costs customarily paid by a seller of real
property in the State of Nevada.
2. Optionee hereby agrees to pay for the following costs and
expenses associated with the consummation of this Agreement and
the Closing:
a) Recording fees for the Deed;
b) One-half (1/2) of any Escrow or closing fees charged by the
Title Company;
c) All costs of the ALTA Policy;
d) The cost of the Survey;
e) Any other closing costs customarily paid by a purchaser of
real property in the State of Nevada.
-10-
<PAGE>
3. All real estate taxes, assessments and utilities relating to the
Property and not paid by Optionee under the Leases shall be paid
as of Closing by Optionor. Nothing herein shall limit the
parties' respective obligations elsewhere contained in this
Agreement.
VI. INDEMNITIES
A. From and after the Closing, Optionor shall indemnify, defend and hold
Optionee harmless from any and all claims, demands, liabilities,
judgments or expenses (including without limitation attorney's fees)
arising out of or resulting from Optionor's breach of any of its
representations, warranties or covenants set forth herein.
B. From and after the Closing, Optionee shall indemnify, defend and hold
Optionor harmless from any and all claims, demands, liabilities,
judgments or expenses (including without limitation attorney's fees)
arising out of or resulting from (i) Optionee's breach of any of its
representations, warranties or covenants set forth herein, or (ii)
events occurring on or with respect to the Property after Closing.
C. If either party receives notice of any matter which would give rise to
a claim for indemnity under subsections A or B above, that party shall
promptly notify the other party, and such other party shall be
entitled to defend the claim at its own expense with counsel of its
own choosing, subject to the approval of such counsel by the
indemnified party, which approval shall not unreasonably be withheld
or delayed.
VII. REMEDIES UPON DEFAULT
A. If Optionee exercises the Option and the Closing fails to occur solely
as a result of Optionor's default, Optionee shall be entitled as its
only remedies, to either (i) recover from Optionor the reasonable
costs incurred by Optionee for the Survey, attorney's fees associated
with this Agreement and transaction, and other costs of due diligence,
and to terminate the Escrow; or (ii) to obtain a decree of specific
performance.
B. If Optionee exercises the Option and the Closing fails to occur solely
as a result of Optionee's default, Optionor, shall be entitled as its
sole and exclusive remedy to reasonable attorney's fees and
out-of-pocket costs associated with this Agreement.
VIII. 1031 EXCHANGE. Optionee agrees to cooperate with Optionor in qualifying
this transaction as a tax-free exchange under Section 1031 of the Internal
Revenue Code as long as such cooperation does not result in any
-11-
<PAGE>
additional expense, liability, or obligation on the part of Optionee or
in the delay of the Closing. Failure to qualify this transaction as a
tax-free exchange will not release Optionor from its obligations
hereunder.
IX. MISCELLANEOUS.
A. ATTORNEY'S FEES. Each party shall pay all attorneys' fees incurred by
that party in the negotiation and delivery of this Agreement. However,
in the event that any action or proceeding is instituted to interpret
or enforce the terms and provisions of this Agreement, the prevailing
party shall be entitled to its costs and attorneys' fees, in addition
to any other remedies it may obtain or be entitled to.
B. BROKERS' COMMISSIONS. The parties each represent one to the other that
no broker, finder or other financial consultant has acted on their
behalf in connection with this agreement or the transactions
contemplated hereby. The parties each agree to indemnify and hold the
other harmless from any claim, settlement, cost or demand for
commission or other compensation by any broker, finder, financial
consultant or similar agent claiming to have been employed by or on
behalf of the indemnifying party, and to bear the cost of legal
expenses incurred in defending against such claims.
C. NOTICES. Any notices desired or required to be given hereunder (a
"Notice") shall be faxed, with the original deposited in the U.S.
Mail, postage prepaid, or sent by overnight courier service, and shall
be deemed received upon the earlier of attempted delivery or receipt.
Either party hereto may change its address hereunder by providing the
other party with notice of such changed address.
If to Optionor, Richard Tam
addressed to: Richard Tam Investments
2140 West Charleston Blvd.
Las Vegas, Nevada 89102
Facsimile: (702)382-9877
With a copy to: Jim Shadlaus
Richard Tam Investments
2140 West Charleston Blvd.
Las Vegas, Nevada 89102
Facsimile: (702)382-9877
If to Optionee, Palace Station Hotel & Casino, Inc.
addressed to: 2411 West Sahara Avenue
Las Vegas, Nevada 891092
Attn: Scott M Nielson
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<PAGE>
General Counsel
Facsimile: (702)221-6613
With a copy to: Schreck Morris
12th Floor Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Attn: L.T. Jones, Esq.
Facsimile: (702)382-8135
D. COUNTERPARTS. This agreement may be executed in multiple counterparts,
which together shall constitute one and the same document.
E. FURTHER ASSURANCES. The parties agree to negotiate diligently and in
good faith at all times, to execute and deliver such other and further
documents and instruments as may be necessary to fully effectuate the
transactions contemplated hereby. The parties further agree to execute
and deliver to the Title Company such other and further escrow
instructions, documents and instruments as may be reasonably necessary
to effectuate this transaction in accordance with its terms.
X. LANDLORD'S RIGHT TO ENCUMBER. Notwithstanding any provision of the Lease to
the contrary, Landlord shall have the right from time-to-time, to pledge,
mortgage or encumber its interest in the Lease or assign its interest in
the Rental amounts due thereunder without the prior consent of Tenant;
provided, however, that if and when Landlord makes such assignment, pledge,
mortgage or encumbrance, any such lender shall agree that Tenant's quiet
possession and enjoyment of the Demised Premises will not be disturbed as a
result of such assignment, pledge, mortgage or encumbrance or for any
reason related thereto so long as Tenant pays all amounts due pursuant to
the Lease and keeps the covenants on its part to be performed thereunder
and that said assignment, pledge, mortgage or encumbrance shall be
subordinate to the Option in favor of Optionee. In the event of such
assignment, pledge, mortgage or encumbrance, Landlord shall provide Tenant
with a copy of the documents evidencing such action prior to the effective
date thereof.
-13-
<PAGE>
XI. BINDING EFFECT ON LEASE. All terms and provisions of the Lease, other than
as set forth above, shall remain in full force and effect in their
entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above-written
"Optionor"
FLAMINGO ASSOCIATES, INC.,
a Nevada corporation
By: /s/ RICHARD TAM
-----------------------------------
Name: Richard Tam
-----------------------------------
Title: President
-----------------------------------
Date: 4/7/99
-----------------------------------
"Optionee"
PALACE STATION HOTEL & CASINO, INC.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
-----------------------------------
Name: Scott M Nielson
-----------------------------------
Title: Secretary
-----------------------------------
Date: 4/7/99
-----------------------------------
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<PAGE>
TITLE COMPANY
RECEIPT AND CONSENT
- -------------------------------------------------------------------------------
The Title Company acknowledges receipt of an executed copy of the Agreement
and agrees to perform as the Title Company thereunder.
Nevada Title Company, a Nevada corporation
By: /s/ FRANK W. BRADER
------------------------
Name: Frank W. Brader
------------------------
Title: Commercial Title Officer
------------------------
Dated: 4/8/99
------------------------
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<PAGE>
EXHIBIT "A"
[PROPERTY]
- -------------------------------------------------------------------------------
The "Property" is hereby defined as all property owned by Optionor which is
generally located at the intersection of Sahara Avenue and Rancho Drive, in the
County of Clark, State of Nevada, as described below, as shown on the attached
diagram, and as described on the legal descriptions that follow, together with
Optionor's interest, if any, in any buildings and improvements located thereon
and all rights, licenses and easements appurtenant there and any contiguous real
property owned by Optionor or that is subsequently conveyed or awarded to
Optionor as a result of the vacation or abandonment of any easement, right of
way or public street. Upon completion of the Survey, the legal description of
the Property therein shall be used for all purposes hereunder.
The Property consists of three (3) contiguous parcels, which for
convenience are numbered as set forth on the Pro Forma, and which are owned by
Optionor as follows:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Optionor Approx. Affecting Lease (as Owned by
owner Acreage Parcels numbered on Grant,
Pro Forma) Bargain, Sale
(legal Deed
descriptions (Lease #)
follow) (recording
information:
book/number)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Flamingo 6.44 Parcels II & II-A 6 (Lease B-1) 740/699146
Associates
- ------------------------------------------------------------------------------------------------------------
Flamingo .84 Parcel I 8 (Lease B-2) 740/699147
Associates
- ------------------------------------------------------------------------------------------------------------
</TABLE>
-16-
<PAGE>
ATTACHMENT
[PROPERTY DIAGRAM AND LEGAL DESCRIPTIONS]
-17-
<PAGE>
EXHIBIT "B-1"
[LEASE B-1]
-18-
<PAGE>
EXHIBIT "B-2"
[LEASE B-2]
-19-
<PAGE>
EXHIBIT "C"
Purchase Price Formula and Appraisal Process
- -------------------------------------------------------------------------------
The Purchase Price in the first seven (7) years of the Option Term
shall be determined by the following schedule:
<TABLE>
<CAPTION>
Year Purchase Price
---- --------------
<S> <C>
1 $1,250,000
2 $1,250,000
3 $1,250,000
4 $1,312,500
5 $1,375,000
6 $1,437,500
7 $1,500,000
</TABLE>
During years eight (8), nine (9) and ten (10) of the Option Term, the
Purchase Price shall be determined by the following appraisal process:
A. Within ten (10) days of Optionee's Notice to Optionor to exercise the
Option, each party shall appoint an appraiser. Within thirty (30) days
of Optionee's Notice, the two (2) appraisers (the "Two Appraiser
Board") shall meet and confer and attempt to agree on a fair market
value of the Property to serve as the Purchase Price.
B. If the Two Appraiser Board is unable to agree on a Purchase Price
within said thirty (30) days, they shall promptly notify the parties
in writing. The Two Appraiser Board will, within two (2) business days
thereafter, appoint a third appraiser who shall be an MAI with at
least ten (10) years experience in appraising gaming real estate and
improvements in southern Nevada. In the event the Two Appraiser Board
cannot agree on the name of the third appraiser within said two (2)
days, then application shall be made to the Eighth Judicial District
Court of the State of Nevada for appointment of the third appraiser
pursuant to NRS 38.055, who is an MAI with at least ten (10) years
experience in appraising commercial real estate in southern Nevada.
The third appraiser shall promptly determine the Purchase Price, which
shall not be lower than the lowest appraisal or higher than the
highest appraisal of the Two Appraiser Board.
C. The Purchase Price determined by this appraisal process shall be
binding on the parties.
D. In the event one party fails to appoint an appraiser to the Two
Appraiser Board, the other party's appraisal shall be binding.
E. The parties agree that the Closing shall be postponed until this
appraisal process is complete, and the Closing shall take place
promptly thereafter.
Further, in the event that at Closing, if any Optionor has received a
condemnation award or the ability to withdraw or obtain a condemnation award
because any portion of the Property was condemned or was or is the subject of
any pending proceeding in eminent domain, the Purchase Price as determined by
the formula set forth above shall be reduced by the amount of any condemnation
award awarded to any Optionor.
-20-
<PAGE>
EXHIBIT "D"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Schreck Morris
300 S. 4th Street, Ste. 1200
Las Vegas, NV 89101
Attn.: L.T. Jones, Esq.
MEMORANDUM OF OPTION
NOTICE IS HEREBY GIVEN THAT:
Effective as of April 1, 1999 (the "Effective Date") and pursuant to that
certain First Amendment to Lease (With Option) (the "Agreement"), by and between
Flamingo Associates, Inc., a Nevada corporation ("Optionor"), and Palace Station
Hotel & Casino, Inc., a Nevada corporation ("Optionee"), Optionor has granted to
Optionee an option to purchase that certain real property generally located at
Sahara Avenue and Rancho Drive, as specifically described on the attached
Exhibit "A," which may be exercised within ten (10) years of the Effective Date.
IN WITNESS WHEREOF, this Memorandum of Option is effective as of the
Effective Date.
OPTIONOR:
Flamingo Associates, Inc.,
a Nevada corporation
By: /s/ RICHARD TAM
---------------------------
Name: Richard Tam, President
---------------------------
Dated: 4/7/99
---------------------------
OPTIONEE:
Palace Station Hotel & Casino, Inc.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
---------------------------
Name: Scott M Nielson
---------------------------
Dated: 4/7/99
---------------------------
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
Signed or attested before me on April 7, 1999 by Richard Tam, as President
of Flamingo Associates, Inc.
SEAL /s/ Michelle Y. Flater
-----------------------------
My commission expires Jan. 22, 2002 Signature of Notarial Officer
-21-
<PAGE>
EXHIBIT "D"
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
Signed or attested before me on April 7, 1999 by Scott Nielson, as
Secretary of Palace Station Hotel & Casino.
SEAL /s/ Michelle Y. Flater
-----------------------------
My commission expires Jan. 22, 2002 Signature of Notarial Officer
-22-
<PAGE>
EXHIBIT "E"
[PRO FORMA POLICY]
-23-
<PAGE>
EXHIBIT "F"
[THE DEED]
-24-
<PAGE>
SECOND AMENDMENT TO LEASE
(WITH OPTION)
- -------------------------------------------------------------------------------
This Second Amendment to Lease (With Option) ("Agreement") is
effective as of the 1st day of April, 1999 (the "Effective Date"), by and
between PALACE STATION HOTEL & CASINO, INC., a Nevada corporation or its
designee (hereinafter "Optionee" or "Tenant") and FLAMINGO ASSOCIATES, INC.,
a Nevada corporation (hereinafter, "Optionor" or "Landlord") based upon the
following recitals:
A. Optionor and Optionee entered into that certain First
Amendment to Lease (With Option) dated April 1, 1999 (the
"First Amendment").
B. Optionor and Optionee desire to amend the First Amendment as
described herein.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable
consideration, the parties hereby agree to amend and modify the First
Amendment to the limited extent set forth herein. Any capitalized terms used
in this Agreement not otherwise defined herein shall be defined as set forth
in the First Amendment.
1. The following is inserted as Section II(A)(5) of the First Amendment:
5. Assignment Separate from Leases. Optionor and
Optionee agree, for the express benefit of Optionee's
leasehold mortgagees, (a) that the Option is not
assignable separate from an assignment of all of the
Leases, (b) that any successor tenant who acquires
Optionee's right, title and interest in and to all of
the Leases shall automatically and concurrently
succeed to Optionee's right, title and interest in
and to the Option, and (c) that any attempted
assignment of the Option separate from the Leases
shall be void.
2. Section X of the First Amendment is hereby deleted and replaced with
the following:
X. LANDLORD'S RIGHT TO ENCUMBER. Notwithstanding any
provision of the Leases to the contrary, Landlord
shall have the right from time-to-time, to pledge,
mortgage or encumber its interest in the Leases or
assign its interest in the Rental amounts due
thereunder without the prior consent of Tenant;
provided, however, that if and when Landlord makes
such assignment, pledge, mortgage or encumbrance,
-1-
<PAGE>
any such lender shall agree that Tenant's quiet
possession and enjoyment of the Demised Premises
will not be disturbed as a result of such
assignment, pledge, mortgage or encumbrance or for
any reason related thereto (provided that this
sentence shall not be construed as a waiver of any
right that any purchaser by foreclosure or deed in
lieu thereof may have, as the landlord under the
Leases, to terminate the Leases or exercise other
available remedies with respect to a default by
Tenant thereunder, subject to all applicable
provisions of the Leases) and that said
assignment, pledge, mortgage or encumbrance shall
be subordinate to the Option in favor of Optionee.
In the event of such assignment, pledge, mortgage
or encumbrance, Landlord shall provide Tenant with
a copy of the documents evidencing such action
prior to the effective date thereof.
3. All terms and provisions of the First Amendment, other than as set
forth above, shall remain in full force and effect in their entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above-written
"Optionor"
FLAMINGO ASSOCIATES, INC.,
a Nevada corporation
By: /s/ IAN ROSS, VICE - PRES.
----------------------------------
Name: Ian Ross
----------------------------------
Title: Vice - Pres.
----------------------------------
Date:
----------------------------------
"Optionee"
PALACE STATION HOTEL & CASINO, INC.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
----------------------------------
Name: Scott M Nielson
----------------------------------
Title: Secretary
----------------------------------
Date:
----------------------------------
Bank of America, N.A., as Collateral Agent ("Beneficiary"), as the leasehold
mortgagee with respect to the above-referenced Leases, hereby consents to the
First Amendment and this Agreement and agrees that a successor to Tenant
pursuant to a foreclosure of Beneficiary's deed of trust (or transfer by deed
in lieu thereof) shall
-2-
<PAGE>
be bound by such amendments (and shall also, as more particularly described
in such deed of trust, succeed to Tenant's right, title and interest in and
to the Option).
BANK OF AMERICA, N.A., as Collateral Agent
By: /s/ JANICE HAMMOND
--------------------------------------
Janice Hammond
Vice President, Agency Specialist
-3-
<PAGE>
EXHIBIT 10.3
FIRST AMENDMENT TO LEASE
(WITH OPTION)
- --------------------------------------------------------------------------------
This First Amendment to Lease (With Option) ("Agreement") is entered
into on this 1st day of April, 1999 (the "Effective Date"), by and between
PALACE STATION HOTEL & CASINO, INC., a Nevada corporation or its designee
(hereinafter "Optionee" or "Tenant") and RICHFIELD DEVELOPMENT CO., a California
corporation, which acquired title to the Property, as defined below, as
Richfield Development, Inc. (hereinafter, "Optionor" or "Landlord") based upon
the following recitals:
A. Landlord is the owner of certain Property, as defined below
and as set forth on the attached Exhibit "A".
B. Pursuant to that certain lease attached hereto as Exhibit "B,"
Landlord leases the Property to Tenant (the "Lease").
C. Landlord and Tenant desire to amend the Lease as described
herein.
D. Subject to the terms and conditions as set forth herein, and
for and in consideration of the amendment to the Lease as
described herein, Optionor has agreed to grant to Optionee the
exclusive option to purchase the Property and Optionee has
agreed to purchase the Property upon Optionee's exercise of
the Option, as defined below.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable consideration,
the parties hereby agree to amend and modify the Lease to the limited extent set
forth herein. Any capitalized terms used in this First Amendment not otherwise
defined herein shall be defined as set forth in the Lease.
I. AMENDMENTS TO RENTAL PROVISIONS] OF LEASE
The Rental provision as set forth in at Section 2 of the Lease shall be
deleted and the following shall be inserted in its place:
As of the Effective Date, Tenant shall pay to Landlord as
monthly rental for the Demised Premises the sum of $3,750.00.
The term "Lease Year" (or "lease year") as used herein shall
mean a period of twelve (12) consecutive months, the first of
which shall commence on the Effective Date.
-1-
<PAGE>
II. OPTION TO PURCHASE.
A. OPTION.
1. Grant of Option. Optionor hereby grants to Optionee
an option to purchase all, but not less than all, of
the Property (the "Option"). Optionee may exercise
the Option, in Optionee's sole and absolute
discretion, by giving written notice to Optionor in
the manner described in Section IX.C. below (the
"Notice") at any time during the ten (10) year period
following the Effective Date (the "Option Term").
Upon exercise of the Option, Optionee shall
immediately open an escrow for the transaction (the
"Escrow") at Nevada Title Company (the "Title
Company"), and Closing shall occur through Escrow.
2. Consideration. Optionor agrees that adequate and just
consideration has passed from Optionee to Optionor
based upon the amendments to the Lease as set forth
above, that no further consideration is due, and that
Optionee, as of the Effective Date, is entitled to
exercise the Option in accordance with the terms of
this Agreement.
3. Purchase Price. At the Closing, Optionee shall pay
Optionor, through Escrow, the purchase price in the
amount and manner set forth on Exhibit "C" (the
"Purchase Price"), in cash or readily available U.S.
funds. The rental increase in the Lease as set forth
above are not applicable to the Purchase Price. If at
any time prior to Closing, Optionor has been awarded
or received any amount for the condemnation of any
portion of the Property, Optionor shall be entitled
to receive or retain such award(s) and the Purchase
Price shall be reduced by an amount equal to all such
awards.
4. Memorandum of Option. At the Effective Date, the
parties shall record a memorandum of option in the
form attached hereto as Exhibit "D" (the "Memorandum
of Option") to provide public notice that Optionee
has obtained an Option to acquire the Property from
Optionors.
III. TITLE MATTERS.
A. CLTA POLICY. This Agreement is subject to the condition
precedent that on or before the Effective Date, the Title
Company shall issue a CLTA Policy (the "CLTA Policy") in the
form of the Pro Forma attached hereto as Exhibit "E" (the "Pro
Forma"). The cost of the premium for the CLTA Policy shall be
paid solely by Optionee.
-2-
<PAGE>
B. TITLE COMPANY. The Title Company shall provide an ALTA Policy
(as hereinafter defined) at Closing unless all parties hereto
agree that another title company shall provide such policy;
provided however that such selection of a substitute title
company shall not delay the Closing.
C. SURVEY. Upon giving Notice of its exercise of the Option,
Optionee, at its sole cost and expense, shall select a civil
engineering firm to promptly commence preparation of an
ALTA-ACSM survey of the Property to be delivered to Optionee
(the "Survey"). The Survey shall comply with all requirements
of the Title Company for issuance of the ALTA Policy and shall
be otherwise acceptable to Optionee. If it is necessary to
prepare and file a record of survey or parcel map in order to
file the Deed, the parties shall cooperate in good faith with
one another to expeditiously complete and file such map.
Optionee shall bear the cost of preparing and filing said
record of survey or parcel map, if required.
D. ALTA POLICY. The Closing is subject to the Title Company
delivering to Optionee an ALTA Extended Coverage Owners Policy
of Title Insurance (the "ALTA Policy") issued by the Title
Company, dated on the date of the Closing, in the amount of
the Purchase Price, insuring Optionee as owner of fee title to
the Property subject only to those exceptions to title set
forth on the Pro Forma and those exceptions shown of record at
the time of Closing that are common to the area and which do
not cause a materially adverse effect upon Optionee's
continued use of the Property as part of a resort hotel &
casino (the "Permitted Exceptions"). Optionee shall pay all
costs attributable to the ALTA Policy.
E. LIENS, ENCUMBRANCES, ETC. Except for the Permitted Exceptions,
Optionor will transfer and convey good and marketable title to
the Property to Optionee at Closing by grant, bargain and sale
deed in substantially the form of Exhibit "F" attached hereto
(the "Deed"), free and clear of any liens, encumbrances or
security interests of any nature whatsoever, and Optionee
shall not succeed to or be responsible for any liens, claims,
charges, encumbrances, mortgages, pledges, obligations or
liabilities of any kind whatsoever, whether known or unknown,
fixed or contingent, contractual or statutory, of Optionors
including, without limitation:
1. Any of Optionors' liabilities or obligations for
federal, state, local or foreign taxes, assessments,
impositions, deficiencies, penalties or interest,
whether or not imposed on or measured by income,
except for real property taxes and assessments
payable after the Closing; or
-3-
<PAGE>
2. Any contract obligations with third parties of any
nature whatsoever, except as specifically assumed by
Optionee in writing, and in Optionee's sole and
unlimited discretion.
IV. REPRESENTATIONS AND WARRANTIES.
A. OPTIONOR'S REPRESENTATIONS AND WARRANTIES. Optionor hereby
represents and warrants, which representations and warranties
shall be true and correct as of the date of Closing (unless
otherwise specified below):
1. That Optionor is the owner of the Property (although
the underlying deed to the Property states that the
property was conveyed to Richfield Development, Inc.)
and Owner is able to convey good, marketable title
thereto, subject to the matters disclosed in the Pro
Forma.
2. That Richard Tam has full authority to execute this
Agreement on behalf of Optionor and to bind Optionor
to this Agreement.
3. That Optionor is duly organized and validly existing
as a corporation in its state of incorporation, in
good standing and qualified to conduct its business,
to own real property and to consummate the
transactions contemplated herein under the laws of
the State of Nevada.
4. That all necessary corporate action has been taken to
authorize all transactions herein contemplated.
5. That the execution, delivery and performance of this
Agreement by Optionor will not, with or without the
giving of notice and/or the passage of time, violate
or constitute a default under any provision of law,
any administrative regulation or any judicial,
administrative or arbitration order, award, judgment
or decree applicable to Optionor or the Property or
conflict with, violate, result in a breach or
termination of or cause a default under Optionor's
articles of incorporation or bylaws, or any other
agreement or obligation by which Optionor or the
Property are bound.
6. That no consent or approval of this Agreement is
required by any third party.
7. That there are no actions or claims pending or to
Optionor's knowledge threatened before any court,
governmental agency, arbitrator or other tribunal
which would prevent Optionor
-4-
<PAGE>
from completing the transactions provided herein in
accordance with the terms of this Agreement.
8. That Optionor has not received any notice of zoning
changes or any actions threatening condemnation of
any part of the Property through exercise of eminent
domain by any governmental authority.
9. That Optionor has no actual knowledge of any
violations of law, municipal or county ordinances or
other legal requirements affecting the Property, or
with respect to the use or occupancy thereof.
10. That to the best of Optionor's knowledge, all
documents that will affect title to the Property at
Closing have been provided to Optionee.
11. That there are no mechanic's liens recorded against
the Property and none threatened to Optionor's
knowledge; and all contractors, subcontractors,
workmen, materialmen and employees engaged by
Optionor have been paid in full for any labor,
services or materials supplied or delivered to the
Property.
12. That Optionor has not caused and shall not cause to
be created any encumbrances on the Property in favor
of any person other than Optionee or liens that have
been previously released.
13. That all taxes, governmental assessments and utility
charges to the Property billed to Optionor are
current and not delinquent.
14. That all representations and warranties made by
Optionor and all information contained in any of the
documents furnished or to be furnished to Optionee
pursuant to this Agreement, do not and shall not
contain any untrue statement of a material fact or
omit to state any fact necessary in order to make the
statements contained herein or therein not
misleading.
15. That Landlord is the owner of the Property and is the
landlord under the Lease.
16. That Landlord has reviewed and certified that the
Lease attached hereto constitutes a true and correct
copy of the Lease and all amendments and
modifications thereto and that there are no leases
affecting the Property currently in effect not
contained in Exhibit B.
-5-
<PAGE>
B. OPTIONEE'S REPRESENTATIONS AND WARRANTIES. Optionee hereby
represents and warrants, which representations and warranties
shall be true and correct as of the date of Closing (unless
otherwise specified below):
1. That the execution, delivery and performance of this
Agreement by Optionee will not, with or without the
giving of notice and/or the passage of time, violate
or constitute a default under any provision of law,
any administrative regulation or any judicial,
administrative or arbitration order, award, judgment
or decree applicable to Optionee or conflict with,
violate, result in a breach or termination of or
cause a default under Optionee's articles of
incorporation or bylaws, or any other agreement or
obligation by which Optionee is bound.
2. That no consent or approval of this Agreement is
required by any third party, other than any approvals
required by Optionee's secured lenders.
3. That there are no actions or claims pending or to
Optionee's knowledge threatened before any court,
governmental agency, arbitrator or other tribunal
which would prevent Optionee from completing the
transactions provided herein in accordance with the
terms of this Agreement.
4. That Optionee is duly organized and validly existing
as a corporation in its state of incorporation, in
good standing and qualified to conduct its business,
to own real property and to consummate the
transactions contemplated herein under the laws of
the State of Nevada.
5. That all necessary corporate action has been taken to
authorize all transactions herein contemplated.
6. That the execution, delivery and performance of this
Agreement by Optionee will not, with or without the
giving of notice and/or the passage of time, violate
or constitute a default under any provision of law,
any administrative regulation or any judicial,
administrative or arbitration order, award, judgment
or decree applicable to Optionee or conflict with,
violate, result in a breach or termination of or
cause a default under Optionee's articles of
incorporation or bylaws, or any other agreement or
obligation by which Optionee is bound.
-6-
<PAGE>
7. That all representations and warranties made by
Optionee and all information contained in any of the
documents furnished or to be furnished to Optionor
pursuant to this Agreement, do not and shall not
contain any untrue statement of a material fact or
omit to state any fact necessary in order to make the
statements contained herein or therein not
misleading.
C. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as
otherwise set forth herein, all of Optionor's and Optionee's
Representations and Warranties set forth in Sections IV.A. and
IV.B. shall survive for a period of sixty (60) months.
V. CLOSING
A. COVENANTS PENDING CLOSING. Pending and prior to the Closing,
Optionor covenants and agrees as follows:
1. That Optionor, without prior written consent of
Optionee, shall not cause any liens or encumbrances,
other than mortgages or deeds of trust securing
consensual loans as permitted in Section X, to be
filed or recorded against the Property and shall not
assign, transfer, encumber, hypothecate or convey any
or all of Optionor's interest in the Property to any
third party or parties.
2. That Optionor shall give Optionee written notice of
any casualty occurring on the Property or of any
condemnation or proposed condemnation of all or any
part of the Property of which Optionor has or obtains
actual knowledge.
B. EXPRESS CONDITIONS TO CLOSING.
1. In the event Optionee exercises the Option,
Optionee's obligation to proceed to Closing shall be
subject to the satisfaction of the following:
a) Optionor shall not be in material default of
any of its covenants set forth herein.
b) Optionor's representations and warranties as
set forth herein shall be true and correct
as of the date of Closing.
c) The Title Company shall be irrevocably
committed to issuing the ALTA Policy.
-7-
<PAGE>
d) Optionor shall have executed and delivered
into an escrow account (the "Escrow") at the
Title Company all other documents and
instruments and shall have taken all actions
necessary to consummate the transactions
contemplated hereby in accordance with the
terms of this Agreement.
2. Optionor's obligation to proceed to Closing shall be
subject to satisfaction of the following:
a) Optionee shall not be in material default of
any of its covenants set forth herein.
b) Optionee's representations and warranties as
set forth herein shall be true and correct
as of the date of Closing.
c) Optionee shall have deposited the Purchase
Price into Escrow.
d) Optionee shall have executed and delivered
into Escrow all other documents and
instruments and shall have taken all actions
necessary to consummate the transactions
contemplated hereby in accordance with the
terms of this Agreement.
C. CLOSING. Subject to the satisfaction of the conditions set
forth in Section V(B), on or before the sixtieth (60th) day
after Optionee gives Optionor Notice of the exercise of the
Option, the parties shall perform as follows (the "Closing"):
1. Optionor shall deliver or cause to be delivered
the following:
a) The Deed to Escrow for recordation in the
property records of Clark County, with
subsequent delivery to Optionee;
b) An affidavit as required by the Foreign
Investment Real Property Tax Act, Internal
Revenue Code Section1445 ("FIRPTA"), to
Escrow;
c) An assignment, if applicable, by Optionor to
Optionee of all rights to additional
compensation and all rights in or to any
abandoned or vacated portion of the Property
which is the subject of any condemnation
proceeding; this assignment of all of
Optionor's rights in and to any additional
compensation beyond any condemnation
-8-
<PAGE>
award, and any portion of the Property that,
after the Closing, is abandoned or vacated,
shall be recorded in the public records, at
Closing, if applicable, and such obligations
as set forth in this paragraph shall survive
the Closing indefinitely irrespective of any
other limitation of liability contained
herein or in law or equity.; and
d) To Optionee or Title Company, as applicable,
any other documents, fully executed, as are
customarily executed in the State of Nevada
in connection with the conveyance of real
property, including all required closing
statements, releases, affidavits and any
other instrument that the parties may agree
to in good faith;
e) Exclusive possession of the Property.
2. Optionee shall deliver or cause to be delivered the
following:
a) The Purchase Price, subject to the
Prorations (as defined in Section V.D.
below), for disbursement pursuant to
Optionor's instructions; and
b) To Optionor or Title Company, as applicable,
any other documents, fully executed, as are
customarily executed in the State of Nevada
in connection with the conveyance of real
property, including all required closing
statements, releases, affidavits and any
other instrument that the parties may agree
to in good faith.
D. CLOSING COSTS, EXPENSES AND PRORATIONS. All of the following
closing costs, expenses and prorations shall be collectively
defined as the "Prorations."
1. Optionor hereby agrees to pay for the following costs
and expenses associated with the consummation of this
Agreement and the Closing:
a) All real property transfer taxes and
documentation taxes;
b) One-half (1/2) of any Escrow or closing fees
charged by the Title Company; and
c) Any other closing costs customarily paid by
a seller of real property in the State of
Nevada.
-9-
<PAGE>
2. Optionee hereby agrees to pay for the following costs
and expenses associated with the consummation of this
Agreement and the Closing:
a) Recording fees for the Deed;
b) One-half (1/2) of any Escrow or closing fees
charged by the Title Company;
c) All costs of the ALTA Policy;
d) The cost of the Survey;
e) Any other closing costs customarily paid by
a purchaser of real property in the State of
Nevada.
3. All real estate taxes, assessments and utilities
relating to the Property and not paid by Optionee
under the shall be paid as of Closing by Optionor.
Nothing herein shall limit the parties' respective
obligations elsewhere contained in this Agreement.
VI. INDEMNITIES
A. From and after the Closing, Optionor shall indemnify, defend
and hold Optionee harmless from any and all claims, demands,
liabilities, judgments or expenses (including without
limitation attorney's fees) arising out of or resulting from
Optionor's breach of any of its representations, warranties or
covenants set forth herein.
B. From and after the Closing, Optionee shall indemnify, defend
and hold Optionor harmless from any and all claims, demands,
liabilities, judgments or expenses (including without
limitation attorney's fees) arising out of or resulting from
(i) Optionee's breach of any of its representations,
warranties or covenants set forth herein, or (ii) events
occurring on or with respect to the Property after Closing.
C. If either party receives notice of any matter which would give
rise to a claim for indemnity under subsections A or B above,
that party shall promptly notify the other party, and such
other party shall be entitled to defend the claim at its own
expense with counsel of its own choosing, subject to the
approval of such counsel by the indemnified party, which
approval shall not unreasonably be withheld or delayed.
VII. REMEDIES UPON DEFAULT
A. If Optionee exercises the Option and the Closing fails to
occur solely as a result of Optionor's default, Optionee shall
be entitled as its only
-10-
<PAGE>
remedies, to either (i) recover from
Optionor the reasonable costs incurred by Optionee for the
Survey, attorney's fees associated with this Agreement and
transaction, and other costs of due diligence, and to
terminate the Escrow; or (ii) to obtain a decree of specific
performance.
B. If Optionee exercises the Option and the Closing fails to
occur solely as a result of Optionee's default, Optionor,
shall be entitled as its sole and exclusive remedy to
reasonable attorney's fees and out-of-pocket costs associated
with this Agreement.
VIII. 1031 EXCHANGE. Optionee agrees to cooperate with Optionor in qualifying
this transaction as a tax-free exchange under Section 1031 of the
Internal Revenue Code as long as such cooperation does not result in
any additional expense, liability, or obligation on the part of
Optionee or in the delay of the Closing. Failure to qualify this
transaction as a tax-free exchange will not release Optionor from its
obligations hereunder.
IX. MISCELLANEOUS.
A. ATTORNEY'S FEES. Each party shall pay all attorneys' fees
incurred by that party in the negotiation and delivery of this
Agreement. However, in the event that any action or proceeding
is instituted to interpret or enforce the terms and provisions
of this Agreement, the prevailing party shall be entitled to
its costs and attorneys' fees, in addition to any other
remedies it may obtain or be entitled to.
B. BROKERS' COMMISSIONS. The parties each represent one to the
other that no broker, finder or other financial consultant has
acted on their behalf in connection with this agreement or the
transactions contemplated hereby. The parties each agree to
indemnify and hold the other harmless from any claim,
settlement, cost or demand for commission or other
compensation by any broker, finder, financial consultant or
similar agent claiming to have been employed by or on behalf
of the indemnifying party, and to bear the cost of legal
expenses incurred in defending against such claims.
C. NOTICES. Any notices desired or required to be given hereunder
(a "Notice") shall be faxed, with the original deposited in
the U.S. Mail, postage prepaid, or sent by overnight courier
service, and shall be deemed received upon the earlier of
attempted delivery or receipt. Either party hereto may change
its address hereunder by providing the other party with notice
of such changed address.
If to Optionor, addressed to: Richard Tam
Richard Tam Investments
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<PAGE>
2140 West Charleston Blvd.
Las Vegas, Nevada 89102
Facsimile: (702)382-9877
With a copy to: Jim Shadlaus
Richard Tam Investments
2140 West Charleston Blvd.
Las Vegas, Nevada 89102
Facsimile: (702)382-9877
If to Optionee, addressed to: Palace Station Hotel &
Casino, Inc.
2411 West Sahara Avenue
Las Vegas, Nevada 891092
Attn: Scott M Nielson
General Counsel
Facsimile: (702)221-6613
With a copy to: Schreck Morris
12th Floor Bank of America
Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Attn: L.T. Jones, Esq.
Facsimile: (702)382-8135
D. COUNTERPARTS. This agreement may be executed in multiple
counterparts, which together shall constitute one and the same
document.
E. FURTHER ASSURANCES. The parties agree to negotiate diligently
and in good faith at all times, to execute and deliver such
other and further documents and instruments as may be
necessary to fully effectuate the transactions contemplated
hereby. The parties further agree to execute and deliver to
the Title Company such other and further escrow instructions,
documents and instruments as may be reasonably necessary to
effectuate this transaction in accordance with its terms.
X. LANDLORD'S RIGHT TO ENCUMBER. Notwithstanding any provision of the
Lease to the contrary, Landlord shall have the right from time-to-time,
to pledge, mortgage or encumber its interest in the Lease or assign its
interest in the Rental amounts due thereunder without the prior consent
of Tenant; provided, however, that if and when Landlord makes such
assignment, pledge, mortgage or encumbrance, any such lender shall
agree that Tenant's quiet possession and enjoyment of the Demised
Premises will not be disturbed as a result of such assignment, pledge,
mortgage or encumbrance or for any reason related thereto so long as
Tenant pays all amounts due
-12-
<PAGE>
pursuant to the Lease and keeps the covenants on its part to be
performed thereunder and that said assignment, pledge, mortgage or
encumbrance shall be subordinate to the Option in favor of Optionee.
In the event of such assignment, pledge, mortgage or encumbrance,
Landlord shall provide Tenant with a copy of the documents
evidencing such action prior to the effective date thereof.
XI. BINDING EFFECT ON LEASE. All terms and provisions of the Lease, other
than as set forth above, shall remain in full force and effect in their
entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above-written
"Optionor"
RICHFIELD DEVELOPMENT, CO.,
a California corporation
By: /s/ RICHARD TAM
----------------------
Name: Richard Tam
Title: President
Date: 4/7/99
----------------------
"Optionee"
PALACE STATION HOTEL & CASINO, INC.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
----------------------
Name: Scott M Nielson
Title: Secretary
Date: 4/7/99
----------------------
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<PAGE>
TITLE COMPANY
RECEIPT AND CONSENT
- -------------------------------------------------------------------------------
The Title Company acknowledges receipt of an executed copy of the
Agreement and agrees to perform as the Title Company thereunder.
Nevada Title Company, a Nevada corporation
By: /s/ FRANK W. BRADER
-------------------------
Name: Frank W. Brader
-------------------------
Title: Commercial Title Officer
-------------------------
Dated: 4/8/99
-------------------------
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<PAGE>
EXHIBIT "A"
[PROPERTY]
- -------------------------------------------------------------------------------
The "Property" is hereby defined as all property owned by Optionor
which is generally located at the intersection of Sahara Avenue and Rancho
Drive, in the County of Clark, State of Nevada, as described below, as shown on
the attached diagram, and as described on the legal descriptions that follow,
together with Optionor's interest, if any, in any buildings and improvements
located thereon and all rights, licenses and easements appurtenant there and any
contiguous real property owned by Optionor or that is subsequently conveyed or
awarded to Optionor as a result of the vacation or abandonment of any easement,
right of way or public street. Upon completion of the Survey, the legal
description of the Property therein shall be used for all purposes hereunder.
The Property consists of one (1) parcel, which for convenience is
numbered as set forth on the Pro Forma, and which is owned by Optionor as
follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Optionor owner Approx. Acreage Affecting Parcel Lease (as numbered Owned by Grant,
(legal descriptions on Pro Forma) Bargain, Sale Deed
follow) (recording
information:
book/number)
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
Richfield
Development, Co. .93 Parcel III 14 593/552864
- --------------------------------------------------------------------------------------------------------------
</TABLE>
-15-
<PAGE>
ATTACHMENTS
[PROPERTY DIAGRAM AND LEGAL DESCRIPTION]
-16-
<PAGE>
EXHIBIT "B"
[THE LEASE]
-17-
<PAGE>
EXHIBIT "C"
PURCHASE PRICE FORMULA AND APPRAISAL PROCESS
- -------------------------------------------------------------------------------
The Purchase Price in the first seven (7) years of the Option Term
shall be determined by the following schedule:
<TABLE>
<CAPTION>
Year Purchase Price
---- --------------
<S> <C>
1 $500,000
2 $500,000
3 $500,000
4 $525,000
5 $550,000
6 $575,000
7 $600,000
</TABLE>
During years eight (8), nine (9) and ten (10) of the Option Term, the
Purchase Price shall be determined by the following appraisal process:
A. Within ten (10) days of Optionee's Notice to Optionor to
exercise the Option, each party shall appoint an appraiser.
Within thirty (30) days of Optionee's Notice, the two (2)
appraisers (the "Two Appraiser Board") shall meet and confer
and attempt to agree on a fair market value of the Property to
serve as the Purchase Price.
B. If the Two Appraiser Board is unable to agree on a Purchase
Price within said thirty (30) days, they shall promptly notify
the parties in writing. The Two Appraiser Board will, within
two (2) business days thereafter, appoint a third appraiser
who shall be an MAI with at least ten (10) years experience in
appraising gaming real estate and improvements in southern
Nevada. In the event the Two Appraiser Board cannot agree on
the name of the third appraiser within said two (2) days, then
application shall be made to the Eighth Judicial District
Court of the State of Nevada for appointment of the third
appraiser pursuant to NRS 38.055, who is an MAI with at least
ten (10) years experience in appraising commercial real estate
in southern Nevada. The third appraiser shall promptly
determine the Purchase Price, which shall not be lower than
the lowest appraisal or higher than the highest appraisal of
the Two Appraiser Board.
C. The Purchase Price determined by this appraisal process shall
be binding on the parties.
D. In the event one party fails to appoint an appraiser to the
Two Appraiser Board, the other party's appraisal shall be
binding.
E. The parties agree that the Closing shall be postponed until
this appraisal process is complete, and the Closing shall take
place promptly thereafter.
Further, in the event that at Closing, if any Optionor has received a
condemnation award or the ability to withdraw or obtain a condemnation award
because any portion of the Property was condemned or was or is the subject of
any pending proceeding in eminent domain, the Purchase Price as determined by
the formula set forth above shall be reduced by the amount of any condemnation
award awarded to any Optionor.
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<PAGE>
EXHIBIT "D"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Schreck Morris
300 S. 4th Street, Ste. 1200
Las Vegas, NV 89101
Attn.: L.T. Jones, Esq.
MEMORANDUM OF OPTION
NOTICE IS HEREBY GIVEN THAT:
Effective as of April 1, 1999 (the "Effective Date") and pursuant to
that certain First Amendment to Lease (With Option) (the "Agreement"), by and
between Richfield Development Co., a California corporation ("Optionor"), and
Palace Station Hotel & Casino, Inc., a Nevada corporation ("Optionee"), Optionor
has granted to Optionee an option to purchase that certain real property
generally located at Sahara Avenue and Rancho Drive, as specifically described
on the attached Exhibit "A," which may be exercised within ten (10) years of the
Effective Date.
IN WITNESS WHEREOF, this Memorandum of Option is effective as of the
Effective Date.
OPTIONOR:
Richfield Development Co.
a California corporation
By: /s/ RICHARD TAM
-------------------------
Name: Richard Tam, President
-------------------------
Dated: 4/7/99
-------------------------
OPTIONEE:
Palace Station Hotel & Casino, Inc.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
-------------------------
Name: Scott M. Nielson
-------------------------
Dated: 4/7/99
-------------------------
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
Signed or attested before me on April 7,1999 by Richard Tam, as
President of Richfield Development Co.
SEAL /s/ Michelle Y. Flater
-----------------------------
My commission expires Jan. 22, 2002 Signature of Notarial Officer
-19-
<PAGE>
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
Signed or attested before me on April 7, 1999 by Scott Nielson, as
Secretary of Palace Station Hotel & Casino.
SEAL /s/ Michelle Y. Flater
-----------------------------
My commission expires Jan. 22, 2002 Signature of Notarial Officer
-20-
<PAGE>
EXHIBIT "E"
[PRO FORMA POLICY]
-21-
<PAGE>
EXHIBIT "F"
[THE DEED]
-22-
<PAGE>
EXHIBIT "G"
[LEASE, INCLUDING ALL AMENDMENTS, ADDENDA, ETC.]
-23-
<PAGE>
EXHIBIT 10.4
SECOND AMENDMENT TO LEASE
(WITH OPTION)
- -------------------------------------------------------------------------------
This Second Amendment to Lease (With Option) ("Agreement") is effective
as of the 1st day of April, 1999 (the "Effective Date"), by and between PALACE
STATION HOTEL & CASINO, INC., a Nevada corporation or its designee (hereinafter
"Optionee" or "Tenant") and RICHFIELD DEVELOPMENT CO., a California
corporation(hereinafter, "Optionor" or "Landlord") based upon the following
recitals:
A. Optionor and Optionee entered into that certain First
Amendment to Lease (With Option) dated April 1, 1999 (the
"First Amendment").
B. Optionor and Optionee desire to amend the First Amendment as
described herein.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable consideration,
the parties hereby agree to amend and modify the First Amendment to the limited
extent set forth herein. Any capitalized terms used in this Agreement not
otherwise defined herein shall be defined as set forth in the First Amendment.
1. The following is inserted as Section II(A)(5) of the First Amendment:
5. Assignment Separate from Lease. Optionor and Optionee
agree, for the express benefit of Optionee's
leasehold mortgagees, (a) that the Option is not
assignable separate from an assignment of the Lease,
(b) that any successor tenant who acquires Optionee's
right, title and interest in and to the Lease shall
automatically and concurrently succeed to Optionee's
right, title and interest in and to the Option, and
(c) that any attempted assignment of the Option
separate from the Lease shall be void.
2. Section X of the First Amendment is hereby deleted and replaced with
the following:
X. LANDLORD'S RIGHT TO ENCUMBER. Notwithstanding any
provision of the Lease to the contrary, Landlord
shall have the right from time-to-time, to pledge,
mortgage or encumber its interest in the Lease or
assign its interest in the Rental amounts due
thereunder without the prior consent of Tenant;
provided, however, that if and when Landlord makes
such assignment, pledge, mortgage or encumbrance, any
such lender shall agree that Tenant's quiet
possession and enjoyment of the Demised Premises will
not be disturbed as a result of such assignment,
pledge, mortgage or encumbrance or
-1-
<PAGE>
for any reason related thereto (provided that this
sentence shall not be construed as a waiver of any
right that any purchaser by foreclosure or deed in
lieu thereof may have, as the landlord under the
Lease, to terminate the Lease or exercise other
available remedies with respect to a default by
Tenant thereunder, subject to all applicable Lease
provisions) and that said assignment, pledge,
mortgage or encumbrance shall be subordinate to
the Option in favor of Optionee. In the event of
such assignment, pledge, mortgage or encumbrance,
Landlord shall provide Tenant with a copy of the
documents evidencing such action prior to the
effective date thereof.
3. All terms and provisions of the First Amendment, other than as set
forth above, shall remain in full force and effect in their entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above-written
"Optionor"
RICHFIELD DEVELOPMENT, CO.,
a California corporation
By: /s/ IAN ROSS, VICE - PRES.
---------------------------
Name: Ian Ross
---------------------------
Title: Vice - Pres.
---------------------------
Date:
---------------------------
"Optionee"
PALACE STATION HOTEL & CASINO, INC.,
a Nevada corporation
By: SCOTT M NIELSON
---------------------------
Name: Scott M Nielson
---------------------------
Title: Secretary
---------------------------
Date:
---------------------------
Bank of America, N.A., as Collateral Agent ("Beneficiary"), as the leasehold
mortgagee with respect to the above-referenced Leases, hereby consents to the
First Amendment and this Agreement and agrees that a successor to Tenant
pursuant to a foreclosure of Beneficiary's deed of trust (or transfer by deed in
lieu thereof) shall
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<PAGE>
be bound by such amendments (and shall also, as more particularly described
in such deed of trust, succeed to Tenant's right, title and interest in and
to the Option).
BANK OF AMERICA, N.A., as Collateral Agent
By: /s/ JANICE HAMMOND
---------------------------------
Janice Hammond
Vice President, Agency Specialist
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<PAGE>
EXHIBIT 10.5
FIRST AMENDMENT TO LEASE
(WITH OPTION)
- -------------------------------------------------------------------------------
This First Amendment to Lease (With Option) ("Agreement") is entered
into on this 1st day of April, 1999 (the "Effective Date"), by and between
PALACE STATION HOTEL & CASINO, INC., a Nevada corporation or its designee
(hereinafter "Optionee" or "Tenant") and RICHARD TAM, Trustee, under Trust
Agreement Dated December 30, 1977 (hereinafter, "Optionor" or "Landlord") based
upon the following recitals:
A. Landlord is the owner of certain Property, as defined below
and as set forth on the attached Exhibit "A".
B. Pursuant to three (3) separate leases, which are attached
hereto as Exhibits B-1, B-2, and B-3, respectively, Landlord
leases the Property to Tenant as follows: one lease between
Landlord and Tenant for approximately 3.47 acres ("Lease
B-1"), one lease between Landlord and Tenant for approximately
1.39 acres ("Lease B-2"), and one lease between Landlord, as a
co-tenant, and Tenant for approximately .34 acres
(collectively, the "Leases").
C. Landlord and Tenant desire to amend the Leases as described
herein.
D. Subject to the terms and conditions as set forth herein, and
for and in consideration of the amendments to the Leases as
described herein, Optionor has agreed to grant to Optionee the
exclusive option to purchase the Property and Optionee has
agreed to purchase the Property upon Optionee's exercise of
the Option, as defined below.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable consideration,
the parties hereby agree to amend and modify the Lease to the limited extent set
forth herein. Any capitalized terms used in this First Amendment not otherwise
defined herein shall be defined as set forth in the Lease.
I. AMENDMENTS TO RENTAL PROVISIONS OF LEASES
A. LEASE B-1
The Rental provision as set forth in Lease B-1 at Section 2 shall be
deleted and the following shall be inserted in its place:
As of the Effective Date, Tenant shall pay to
Landlord as monthly rental for the Demised Premises
the sum of $17,138.94.
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<PAGE>
The term "Lease Year" (or "lease year") as used
herein shall mean a period of twelve (12) consecutive
months, the first of which shall commence on the
Effective Date.
B. LEASE B-2
The Rental provision as set forth in the Lease B-2 at Section 2, 3, and
4 shall be deleted and the following shall be inserted in its place:
As of the Effective Date, Tenant shall pay to
Landlord as monthly rental for the Demised Premises
the sum of $7,236.06.
The term "Lease Year" (or "lease year") as used
herein shall mean a period of twelve (12) consecutive
months, the first of which shall commence on the
Effective Date.
II. OPTION TO PURCHASE.
A. OPTION.
1. Grant of Option. Optionor hereby grants to Optionee
an option to purchase all, but not less than all, of
the Property (the "Option"). Optionee may exercise
the Option, in Optionee's sole and absolute
discretion, by giving written notice to Optionor in
the manner described in Section IX.C. below (the
"Notice") at any time during the ten (10) year period
following the Effective Date (the "Option Term").
Upon exercise of the Option, Optionee shall
immediately open an escrow for the transaction (the
"Escrow") at Nevada Title Company (the "Title
Company"), and Closing shall occur through Escrow.
2. Consideration. Optionor agrees that adequate and just
consideration has passed from Optionee to Optionor
based upon the amendments to Leases as set forth
above, that no further consideration is due, and that
Optionee, as of the Effective Date, is entitled to
exercise the Option in accordance with the terms of
this Agreement.
3. Purchase Price. At the Closing, Optionee shall pay
Optionor, through Escrow, the purchase price in the
amount and manner set forth on Exhibit "C" (the
"Purchase Price"), in cash or readily available U.S.
funds. The rental increases in the Leases as set
forth above are not applicable to the Purchase Price.
If at any time prior to Closing, Optionor has been
awarded or received any amount for the condemnation
of any portion of the Property, Optionor shall be
entitled to receive or retain
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<PAGE>
such award(s) and the Purchase Price shall be
reduced by an amount equal to all such awards.
4. Memorandum of Option. At the Effective Date, the
parties shall record a memorandum of option in the
form attached hereto as Exhibit "D" (the "Memorandum
of Option") to provide public notice that Optionee
has obtained an Option to acquire the Property from
Optionors.
III. TITLE MATTERS.
A. CLTA POLICY. This Agreement is subject to the condition
precedent that on or before the Effective Date, the Title
Company shall issue a CLTA Policy (the "CLTA Policy") in the
form of the Pro Forma attached hereto as Exhibit "E" (the "Pro
Forma"). The cost of the premium for the CLTA Policy shall be
paid solely by Optionee.
B. TITLE COMPANY. The Title Company shall provide an ALTA Policy
(as hereinafter defined) at Closing unless all parties hereto
agree that another title company shall provide such policy;
provided however that such selection of a substitute title
company shall not delay the Closing.
C. SURVEY. Upon giving Notice of its exercise of the Option,
Optionee, at its sole cost and expense, shall select a civil
engineering firm to promptly commence preparation of an
ALTA-ACSM survey of the Property to be delivered to Optionee
(the "Survey"). The Survey shall comply with all requirements
of the Title Company for issuance of the ALTA Policy and shall
be otherwise acceptable to Optionee. If it is necessary to
prepare and file a record of survey or parcel map in order to
file the Deed, the parties shall cooperate in good faith with
one another to expeditiously complete and file such map.
Optionee shall bear the cost of preparing and filing said
record of survey or parcel map, if required.
D. ALTA POLICY. The Closing is subject to the Title Company
delivering to Optionee an ALTA Extended Coverage Owners Policy
of Title Insurance (the "ALTA Policy") issued by the Title
Company, dated on the date of the Closing, in the amount of
the Purchase Price, insuring Optionee as owner of fee title to
the Property subject only to those exceptions to title set
forth on the Pro Forma and those exceptions shown of record at
the time of Closing that are common to the area and which do
not cause a materially adverse effect upon Optionee's
continued use of the Property as part of a resort hotel &
casino (the "Permitted Exceptions"). Optionee shall pay all
costs attributable to the ALTA Policy.
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<PAGE>
E. LIENS, ENCUMBRANCES, ETC. Except for the Permitted Exceptions,
Optionor will transfer and convey good and marketable title to
the Property to Optionee at Closing by grant, bargain and sale
deed in substantially the form of Exhibit "F" attached hereto
(the "Deed"), free and clear of any liens, encumbrances or
security interests of any nature whatsoever, and Optionee
shall not succeed to or be responsible for any liens, claims,
charges, encumbrances, mortgages, pledges, obligations or
liabilities of any kind whatsoever, whether known or unknown,
fixed or contingent, contractual or statutory, of Optionors
including, without limitation:
1. Any of Optionors' liabilities or obligations for
federal, state, local or foreign taxes, assessments,
impositions, deficiencies, penalties or interest,
whether or not imposed on or measured by income,
except for real property taxes and assessments
payable after the Closing; or
2. Any contract obligations with third parties of any
nature whatsoever, except as specifically assumed by
Optionee in writing, and in Optionee's sole and
unlimited discretion.
IV. REPRESENTATIONS AND WARRANTIES.
A. OPTIONOR'S REPRESENTATIONS AND WARRANTIES. Optionor hereby
represents and warrants, which representations and warranties
shall be true and correct as of the date of Closing (unless
otherwise specified below):
1. That Optionor is the owner of the Property and is
able to convey good, marketable title thereto,
subject to the matters disclosed in the Pro Forma.
2. That Richard Tam has full authority to execute this
Agreement on behalf of Optionor and to bind Optionor
to this Agreement.
3. That Optionor is duly organized, is validly existing,
and is a trust in good standing under the laws of its
jurisdiction or organization.
4. That Optionor has all necessary power and authority
to carry on its business and to own, lease and
operate its properties, and is duly qualified and
authorized to do business in each jurisdiction in
which the nature of its business or its ownership or
leasing of property requires such qualification.
5. That the execution, delivery and performance of this
Agreement by Optionor will not, with or without the
giving of
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<PAGE>
notice and/or the passage of time, violate or
constitute a default under any provision of law,
any administrative regulation or any judicial,
administrative or arbitration order, award, judgment
or decree applicable to Optionor or the Property or
conflict with, violate, result in a breach or
termination of or cause a default under Optionor's
articles of incorporation or bylaws, or any other
agreement or obligation by which Optionor or the
Property are bound.
6. That no consent or approval of this Agreement is
required by any third party.
7. That there are no actions or claims pending or to
Optionor's knowledge threatened before any court,
governmental agency, arbitrator or other tribunal
which would prevent Optionor from completing the
transactions provided herein in accordance with the
terms of this Agreement.
8. That Optionor has not received any notice of zoning
changes or any actions threatening condemnation of
any part of the Property through exercise of eminent
domain by any governmental authority.
9. That Optionor has no actual knowledge of any
violations of law, municipal or county ordinances or
other legal requirements affecting the Property, or
with respect to the use or occupancy thereof.
10. That to the best of Optionor's knowledge, all
documents that will affect title to the Property at
Closing have been provided to Optionee.
11. That there are no mechanic's liens recorded against
the Property and none threatened to Optionor's
knowledge; and all contractors, subcontractors,
workmen, materialmen and employees engaged by
Optionor have been paid in full for any labor,
services or materials supplied or delivered to the
Property.
12. That Optionor has not caused and shall not cause to
be created any encumbrances on the Property in favor
of any person other than Optionee or liens that have
been previously released.
13. That all taxes, governmental assessments and utility
charges to the Property billed to Optionor are
current and not delinquent.
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<PAGE>
14. That all representations and warranties made by
Optionor and all information contained in any of the
documents furnished or to be furnished to Optionee
pursuant to this Agreement, do not and shall not
contain any untrue statement of a material fact or
omit to state any fact necessary in order to make the
statements contained herein or therein not
misleading.
15. That Landlord is the owner of the Property and is the
landlord under the Lease.
16. That Landlord has reviewed and certified that the
Leases attached hereto as Exhibit B-1, Exhibit B-2,
and Exhibit B-3 constitute true and correct copies of
the Leases and all amendments and modifications
thereto and that there are no leases affecting the
Property currently in effect not contained in Exhibit
B-1, Exhibit B-2, and Exhibit B-3.
17. Irrespective of anything herein to the contrary, for
the remainder of the term of the Leases, Landlord
shall be solely responsible for making monthly
payments to Scripps Resources International in the
sum of $1,875.00 and to Jeri Ehrecke Trust in the sum
of $750.00, and shall hold Tenant harmless from such
obligations.
19. Irrespective of anything herein to the contrary, at
the Closing, Optionor shall be solely responsible for
paying to Scripps Resources International the sum of
$250,000.00 and to Jeri Ehrecke Trust the sum of
$100,000.00, and shall hold Optionee harmless from
such obligations.
B. OPTIONEE'S REPRESENTATIONS AND WARRANTIES. Optionee hereby
represents and warrants, which representations and warranties
shall be true and correct as of the date of Closing (unless
otherwise specified below):
1. That the execution, delivery and performance of this
Agreement by Optionee will not, with or without the
giving of notice and/or the passage of time, violate
or constitute a default under any provision of law,
any administrative regulation or any judicial,
administrative or arbitration order, award, judgment
or decree applicable to Optionee or conflict with,
violate, result in a breach or termination of or
cause a default under Optionee's articles of
incorporation or bylaws, or any other agreement or
obligation by which Optionee is bound.
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<PAGE>
2. That no consent or approval of this Agreement is
required by any third party, other than any approvals
required by Optionee's secured lenders.
3. That there are no actions or claims pending or to
Optionee's knowledge threatened before any court,
governmental agency, arbitrator or other tribunal
which would prevent Optionee from completing the
transactions provided herein in accordance with the
terms of this Agreement.
4. That Optionee is duly organized and validly existing
as a corporation in its state of incorporation, in
good standing and qualified to conduct its business,
to own real property and to consummate the
transactions contemplated herein under the laws of
the State of Nevada.
5. That all necessary corporate action has been taken to
authorize all transactions herein contemplated.
6. That the execution, delivery and performance of this
Agreement by Optionee will not, with or without the
giving of notice and/or the passage of time, violate
or constitute a default under any provision of law,
any administrative regulation or any judicial,
administrative or arbitration order, award, judgment
or decree applicable to Optionee or conflict with,
violate, result in a breach or termination of or
cause a default under Optionee's articles of
incorporation or bylaws, or any other agreement or
obligation by which Optionee is bound.
7. That all representations and warranties made by
Optionee and all information contained in any of the
documents furnished or to be furnished to Optionor
pursuant to this Agreement, do not and shall not
contain any untrue statement of a material fact or
omit to state any fact necessary in order to make the
statements contained herein or therein not
misleading.
C. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as
otherwise set forth herein, all of Optionor's and Optionee's
Representations and Warranties set forth in Sections IV. A.
and IV. B. shall survive for a period of sixty (60) months.
V. CLOSING
A. COVENANTS PENDING CLOSING. Pending and prior to the Closing,
Optionor covenants and agrees as follows:
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<PAGE>
1. That Optionor, without prior written consent of
Optionee, shall not cause any liens or encumbrances,
other than mortgages or deeds of trust securing
consensual loans as permitted in Section X, to be
filed or recorded against the Property and shall not
assign, transfer, encumber, hypothecate or convey any
or all of Optionor's interest in the Property to any
third party or parties.
2. That Optionor shall give Optionee written notice of
any casualty occurring on the Property or of any
condemnation or proposed condemnation of all or any
part of the Property of which Optionor has or obtains
actual knowledge.
B. EXPRESS CONDITIONS TO CLOSING.
1. In the event Optionee exercises the Option,
Optionee's obligation to proceed to Closing shall be
subject to the satisfaction of the following:
a) Optionor shall not be in material default of
any of its covenants set forth herein.
b) Optionor's representations and warranties as
set forth herein shall be true and correct
as of the date of Closing.
c) The Title Company shall be irrevocably
committed to issuing the ALTA Policy.
d) Optionor shall have executed and delivered
into an escrow account (the "Escrow") at the
Title Company all other documents and
instruments and shall have taken all actions
necessary to consummate the transactions
contemplated hereby in accordance with the
terms of this Agreement.
2. Optionor's obligation to proceed to Closing shall be
subject to satisfaction of the following:
a) Optionee shall not be in material default of
any of its covenants set forth herein.
b) Optionee's representations and warranties as
set forth herein shall be true and correct
as of the date of Closing.
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<PAGE>
c) Optionee shall have deposited the Purchase
Price into Escrow.
d) Optionee shall have executed and delivered
into Escrow all other documents and
instruments and shall have taken all actions
necessary to consummate the transactions
contemplated hereby in accordance with the
terms of this Agreement.
C. CLOSING. Subject to the satisfaction of the conditions set
forth in Section V(B), on or before the sixtieth (60th) day
after Optionee gives Optionor Notice of the exercise of the
Option, the parties shall perform as follows (the "Closing"):
1. Optionor shall deliver or cause to be delivered
the following:
a) The Deed to Escrow for recordation in the
property records of Clark County, with
subsequent delivery to Optionee;
b) An affidavit as required by the Foreign
Investment Real Property Tax Act, Internal
Revenue Code Section1445 ("FIRPTA"), to
Escrow;
c) An assignment, if applicable, by Optionor to
Optionee of all rights to additional
compensation and all rights in or to any
abandoned or vacated portion of the Property
which is the subject of any condemnation
proceeding; this assignment of all of
Optionor's rights in and to any additional
compensation beyond any condemnation award,
and any portion of the Property that, after
the Closing, is abandoned or vacated, shall
be recorded in the public records, at
Closing, if applicable, and such obligations
as set forth in this paragraph shall survive
the Closing indefinitely irrespective of any
other limitation of liability contained
herein or in law or equity.; and
d) To Optionee or Title Company, as applicable,
any other documents, fully executed, as are
customarily executed in the State of Nevada
in connection with the conveyance of real
property, including all required closing
statements, releases, affidavits and any
other instrument that the parties may agree
to in good faith;
e) Exclusive possession of the Property.
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<PAGE>
2. Optionee shall deliver or cause to be delivered the
following:
a) The Purchase Price, subject to the
Prorations (as defined in Section V.D.
below), for disbursement pursuant to
Optionor's instructions; and
b) To Optionor or Title Company, as applicable,
any other documents, fully executed, as are
customarily executed in the State of Nevada
in connection with the conveyance of real
property, including all required closing
statements, releases, affidavits and any
other instrument that the parties may agree
to in good faith.
D. CLOSING COSTS, EXPENSES AND PRORATIONS. All of the following
closing costs, expenses and prorations shall be collectively
defined as the "Prorations."
1. Optionor hereby agrees to pay for the following costs
and expenses associated with the consummation of this
Agreement and the Closing:
a) All real property transfer taxes and
documentation taxes;
b) One-half (1/2) of any Escrow or closing fees
charged by the Title Company; and
c) Any other closing costs customarily paid by
a seller of real property in the State of
Nevada.
2. Optionee hereby agrees to pay for the following costs
and expenses associated with the consummation of this
Agreement and the Closing:
a) Recording fees for the Deed;
b) One-half (1/2) of any Escrow or closing fees
charged by the Title Company;
c) All costs of the ALTA Policy;
d) The cost of the Survey;
e) Any other closing costs customarily paid by
a purchaser of real property in the State of
Nevada.
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<PAGE>
3. All real estate taxes, assessments and utilities
relating to the Property and not paid by Optionee
under the Leases shall be paid as of Closing by
Optionor. Nothing herein shall limit the parties'
respective obligations elsewhere contained in this
Agreement.
VI. INDEMNITIES
A. From and after the Closing, Optionor shall indemnify, defend
and hold Optionee harmless from any and all claims, demands,
liabilities, judgments or expenses (including without
limitation attorney's fees) arising out of or resulting from
Optionor's breach of any of its representations, warranties or
covenants set forth herein.
B. From and after the Closing, Optionee shall indemnify, defend
and hold Optionor harmless from any and all claims, demands,
liabilities, judgments or expenses (including without
limitation attorney's fees) arising out of or resulting from
(i) Optionee's breach of any of its representations,
warranties or covenants set forth herein, or (ii) events
occurring on or with respect to the Property after Closing.
C. If either party receives notice of any matter which would give
rise to a claim for indemnity under subsections A or B above,
that party shall promptly notify the other party, and such
other party shall be entitled to defend the claim at its own
expense with counsel of its own choosing, subject to the
approval of such counsel by the indemnified party, which
approval shall not unreasonably be withheld or delayed.
VII. REMEDIES UPON DEFAULT
A. If Optionee exercises the Option and the Closing fails to
occur solely as a result of Optionor's default, Optionee shall
be entitled as its only remedies, to either (i) recover from
Optionor the reasonable costs incurred by Optionee for the
Survey, attorney's fees associated with this Agreement and
transaction, and other costs of due diligence, and to
terminate the Escrow; or (ii) to obtain a decree of specific
performance.
B. If Optionee exercises the Option and the Closing fails to
occur solely as a result of Optionee's default, Optionor,
shall be entitled as its sole and exclusive remedy to
reasonable attorney's fees and out-of-pocket costs associated
with this Agreement.
VIII. 1031 EXCHANGE. Optionee agrees to cooperate with Optionor in qualifying
this transaction as a tax-free exchange under Section 1031 of the
Internal Revenue Code as long as such cooperation does not result in
any
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<PAGE>
additional expense, liability, or obligation on the part of Optionee
or in the delay of the Closing. Failure to qualify this transaction
as a tax-free exchange will not release Optionor from its
obligations hereunder.
IX. MISCELLANEOUS.
A. ATTORNEY'S FEES. Each party shall pay all attorneys' fees
incurred by that party in the negotiation and delivery of this
Agreement. However, in the event that any action or proceeding
is instituted to interpret or enforce the terms and provisions
of this Agreement, the prevailing party shall be entitled to
its costs and attorneys' fees, in addition to any other
remedies it may obtain or be entitled to.
B. BROKERS' COMMISSIONS. The parties each represent one to the
other that no broker, finder or other financial consultant has
acted on their behalf in connection with this agreement or the
transactions contemplated hereby. The parties each agree to
indemnify and hold the other harmless from any claim,
settlement, cost or demand for commission or other
compensation by any broker, finder, financial consultant or
similar agent claiming to have been employed by or on behalf
of the indemnifying party, and to bear the cost of legal
expenses incurred in defending against such claims.
C. NOTICES. Any notices desired or required to be given hereunder
(a "Notice") shall be faxed, with the original deposited in
the U.S. Mail, postage prepaid, or sent by overnight courier
service, and shall be deemed received upon the earlier of
attempted delivery or receipt. Either party hereto may change
its address hereunder by providing the other party with notice
of such changed address.
If to Optionor, Richard Tam
addressed to: Richard Tam Investments
2140 West Charleston Blvd.
Las Vegas, Nevada 89102
Facsimile: (702)382-9877
With a copy to: Jim Shadlaus
Richard Tam Investments
2140 West Charleston Blvd.
Las Vegas, Nevada 89102
Facsimile: (702)382-9877
If to Optionee, Palace Station Hotel & Casino, Inc.
addressed to: 2411 West Sahara Avenue
Las Vegas, Nevada 891092
Attn: Scott M Nielson
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<PAGE>
General Counsel
Facsimile: (702)221-6613
With a copy to: Schreck Morris
12th Floor Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Attn: L.T. Jones, Esq.
Facsimile: (702)382-8135
D. COUNTERPARTS. This agreement may be executed in multiple
counterparts, which together shall constitute one and the same
document.
E. FURTHER ASSURANCES. The parties agree to negotiate diligently
and in good faith at all times, to execute and deliver such
other and further documents and instruments as may be
necessary to fully effectuate the transactions contemplated
hereby. The parties further agree to execute and deliver to
the Title Company such other and further escrow instructions,
documents and instruments as may be reasonably necessary to
effectuate this transaction in accordance with its terms.
X. LANDLORD'S RIGHT TO ENCUMBER. Notwithstanding any provision of the
Lease to the contrary, Landlord shall have the right from time-to-time,
to pledge, mortgage or encumber its interest in the Lease or assign its
interest in the Rental amounts due thereunder without the prior consent
of Tenant; provided, however, that if and when Landlord makes such
assignment, pledge, mortgage or encumbrance, any such lender shall
agree that Tenant's quiet possession and enjoyment of the Demised
Premises will not be disturbed as a result of such assignment, pledge,
mortgage or encumbrance or for any reason related thereto so long as
Tenant pays all amounts due pursuant to the Lease and keeps the
covenants on its part to be performed thereunder and that said
assignment, pledge, mortgage or encumbrance shall be subordinate to the
Option in favor of Optionee. In the event of such assignment, pledge,
mortgage or encumbrance, Landlord shall provide Tenant with a copy of
the documents evidencing such action prior to the effective date
thereof.
XI. BINDING EFFECT ON LEASE. All terms and provisions of the Lease, other
than as set forth above, shall remain in full force and effect in their
entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above-written
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<PAGE>
"Optionor"
RICHARD TAM, TRUSTEE, U/T/A DATED DECEMBER 30, 1977
By: /s/ RICHARD TAM
------------------------------
Name: Richard Tam
------------------------------
Dated:
------------------------------
"Optionee"
PALACE STATION HOTEL & CASINO, INC.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
------------------------------
Name: Scott M Nielson
------------------------------
Title: Secretary
------------------------------
Dated: 4/7/99
------------------------------
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TITLE COMPANY
RECEIPT AND CONSENT
- -------------------------------------------------------------------------------
The Title Company acknowledges receipt of an executed copy of the
Agreement and agrees to perform as the Title Company thereunder.
Nevada Title Company, a Nevada corporation
By: /s/ FRANK W. BRADER
-------------------------
Name: Frank W. Brader
-------------------------
Title: Commercial Title Officer
-------------------------
Dated: 4/8/99
-------------------------
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<PAGE>
EXHIBIT "A"
[PROPERTY]
- -------------------------------------------------------------------------------
The "Property" is hereby defined as all property owned by Optionor
which is generally located at the intersection of Sahara Avenue and Rancho
Drive, in the County of Clark, State of Nevada, as described below, as shown on
the attached diagram, and as described on the legal descriptions that follow,
together with Optionor's interest, if any, in any buildings and improvements
located thereon and all rights, licenses and easements appurtenant there and any
contiguous real property owned by Optionor or that is subsequently conveyed or
awarded to Optionor as a result of the vacation or abandonment of any easement,
right of way or public street. Upon completion of the Survey, the legal
description of the Property therein shall be used for all purposes hereunder.
The Property consists of three (3) contiguous parcels, which for
convenience are numbered as set forth on the Pro Forma, and which are owned by
Optionor as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Optionor owner Approx. Acreage Affecting Parcels Lease Owned by Grant,
(legal descriptions (as Bargain, Sale Deed
follow) numbered on Pro Forma) (recording
(Lease #) information:
book/number)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Richard Tam, Trustee, 3.47 Parcel V 21 (Lease B-1) 949/908111
under Trust Agreement (Memorandum of Lease
dated December 30, 1977 AND Doc. 761414)
1.39 Parcel V-A
20 (Lease B-2)
(Memorandum of Lease
Doc. 761413)
Richard Tam, Trustee, .34 Parcel IV-undivided 1/3 7 (Lease B-3) 86037/00625
under Trust Agreement interest
dated December 30, 1977
- --------------------------------------------------------------------------------------------------------------
</TABLE>
-16-
<PAGE>
ATTACHMENT
[PROPERTY DIAGRAMS AND LEGAL DESCRIPTIONS]
-17-
<PAGE>
EXHIBIT "B-1"
[LEASE B-1]
-18-
<PAGE>
EXHIBIT "B-2"
[Lease B-2]
-19-
<PAGE>
EXHIBIT "B-3"
[Lease B-3]
-20-
<PAGE>
EXHIBIT "C"
Purchase Price Formula and Appraisal Process
- -------------------------------------------------------------------------------
The Purchase Price in the first seven (7) years of the Option Term
shall be determined by the following schedule:
<TABLE>
<CAPTION>
Year Purchase Price
---- --------------
<S> <C>
1 $3,250,000
2 $3,250,000
3 $3,250,000
4 $3,412,500
5 $3,575,000
6 $3,737,500
7 $3,900,000
</TABLE>
During years eight (8), nine (9) and ten (10) of the Option Term, the
Purchase Price shall be determined by the following appraisal process:
A. Within ten (10) days of Optionee's Notice to Optionor to
exercise the Option, each party shall appoint an appraiser.
Within thirty (30) days of Optionee's Notice, the two (2)
appraisers (the "Two Appraiser Board") shall meet and confer
and attempt to agree on a fair market value of the Property to
serve as the Purchase Price.
B. If the Two Appraiser Board is unable to agree on a Purchase
Price within said thirty (30) days, they shall promptly notify
the parties in writing. The Two Appraiser Board will, within
two (2) business days thereafter, appoint a third appraiser
who shall be an MAI with at least ten (10) years experience in
appraising gaming real estate and improvements in southern
Nevada. In the event the Two Appraiser Board cannot agree on
the name of the third appraiser within said two (2) days, then
application shall be made to the Eighth Judicial District
Court of the State of Nevada for appointment of the third
appraiser pursuant to NRS 38.055, who is an MAI with at least
ten (10) years experience in appraising commercial real estate
in southern Nevada. The third appraiser shall promptly
determine the Purchase Price, which shall not be lower than
the lowest appraisal or higher than the highest appraisal of
the Two Appraiser Board.
C. The Purchase Price determined by this appraisal process shall
be binding on the parties.
D. In the event one party fails to appoint an appraiser to the
Two Appraiser Board, the other party's appraisal shall be
binding.
E. The parties agree that the Closing shall be postponed until
this appraisal process is complete, and the Closing shall take
place promptly thereafter.
Further, in the event that at Closing, if any Optionor has received a
condemnation award or the ability to withdraw or obtain a condemnation award
because any portion of the Property was condemned or was or is the subject of
any pending proceeding in eminent domain, the
-21-
<PAGE>
Purchase Price as determined by the formula set forth above shall be reduced
by the amount of any condemnation award awarded to any Optionor.
-22-
<PAGE>
EXHIBIT "D"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Schreck Morris
300 S. 4th Street, Ste. 1200
Las Vegas, NV 89101
Attn.: L.T. Jones, Esq.
MEMORANDUM OF OPTION
NOTICE IS HEREBY GIVEN THAT:
Effective as of April 1, 1999 (the "Effective Date") and pursuant to
that certain First Amendment to Lease (With Option) (the "Agreement"), by and
between Richard Tam, Trustee, U/T/A Dated December 30, 1977 ("Optionor"), and
Palace Station Hotel & Casino, Inc., a Nevada corporation ("Optionee"), Optionor
has granted to Optionee an option to purchase that certain real property
generally located at Sahara Avenue and Rancho Drive, as specifically described
on the attached Exhibit "A," which may be exercised within ten (10) years of the
Effective Date.
IN WITNESS WHEREOF, this Memorandum of Option is effective as of the
Effective Date.
OPTIONOR:
Richard Tam, Trustee, U/T/A Dated December 30, 1977
By: /s/ RICHARD TAM
------------------------------
Name: Richard Tam, Trustee
------------------------------
Dated: 4/7/99
------------------------------
OPTIONEE:
Palace Station Hotel & Casino, Inc.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
------------------------------
Name: Scott M Nielson
------------------------------
Dated: 4/7/99
------------------------------
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
Signed or attested before me on April 7, 1999 by Richard Tam, as
Trustee of Richard Tam, Trustee.
SEAL /s/ Michelle Y. Flater
-----------------------------
My commission expires Jan. 22, 2002 Signature of Notarial Officer
-23-
<PAGE>
EXHIBIT "D"
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
Signed or attested before me on April 7, 1999 by Scott Nielson, as
Secretary of Palace Station Hotel & Casino.
SEAL /s/ Michelle Y. Flater
-----------------------------
My commission expires Jan. 22, 2002 Signature of Notarial Officer
-24-
<PAGE>
EXHIBIT "E"
[PRO FORMA POLICY]
-25-
<PAGE>
EXHIBIT "F"
[THE DEED]
-26-
<PAGE>
EXHIBIT 10.6
SECOND AMENDMENT TO LEASE
(WITH OPTION)
- -------------------------------------------------------------------------------
This Second Amendment to Lease (With Option) ("Agreement") is effective
as of the 1st day of April, 1999 (the "Effective Date"), by and between PALACE
STATION HOTEL & CASINO, INC., a Nevada corporation or its designee (hereinafter
"Optionee" or "Tenant") and RICHARD TAM, Trustee, under Trust Agreement Dated
December 30, 1977 (hereinafter, "Optionor" or "Landlord") based upon the
following recitals:
A. Optionor and Optionee entered into that certain First
Amendment to Lease (With Option) dated April 1, 1999 (the
"First Amendment").
B. Optionor and Optionee desire to amend the First Amendment as
described herein.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable consideration,
the parties hereby agree to amend and modify the First Amendment to the limited
extent set forth herein. Any capitalized terms used in this Agreement not
otherwise defined herein shall be defined as set forth in the First Amendment.
1. The following is inserted as Section II(A)(5) of the First Amendment:
5. Assignment Separate from Leases. Optionor and
Optionee agree, for the express benefit of Optionee's
leasehold mortgagees, (a) that the Option is not
assignable separate from an assignment of all of the
Leases, (b) that any successor tenant who acquires
Optionee's right, title and interest in and to all of
the Leases shall automatically and concurrently
succeed to Optionee's right, title and interest in
and to the Option, and (c) that any attempted
assignment of the Option separate from the Leases
shall be void.
2. Section X of the First Amendment is hereby deleted and replaced with
the following:
X. LANDLORD'S RIGHT TO ENCUMBER. Notwithstanding any
provision of the Leases to the contrary, Landlord
shall have the right from time-to-time, to pledge,
mortgage or encumber its interest in the Leases or
assign its interest in the Rental amounts due
thereunder without the prior consent of Tenant;
provided, however, that if and when Landlord makes
such assignment, pledge, mortgage or encumbrance, any
such lender shall agree that Tenant's quiet
possession and enjoyment of the Demised Premises will
not be disturbed as a result of such assignment,
pledge, mortgage or encumbrance
-1-
<PAGE>
or for any reason related thereto (provided that
this sentence shall not be construed as a waiver
of any right that any purchaser by foreclosure or
deed in lieu thereof may have, as the landlord
under the Leases, to terminate the Leases or
exercise other available remedies with respect to
a default by Tenant thereunder, subject to all
applicable provisions of the Leases) and that said
assignment, pledge, mortgage or encumbrance shall
be subordinate to the Option in favor of Optionee.
In the event of such assignment, pledge, mortgage
or encumbrance, Landlord shall provide Tenant with
a copy of the documents evidencing such action
prior to the effective date thereof.
3. All terms and provisions of the First Amendment, other than as set
forth above, shall remain in full force and effect in their entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above-written
"Optionor"
RICHARD TAM, TRUSTEE, U/T/A DATED DECEMBER 30, 1977
By: /s/ IAN ROSS, TRUSTEE
----------------------------
Name: Ian Ross, Trustee
----------------------------
Dated:
----------------------------
"Optionee"
PALACE STATION HOTEL & CASINO, INC.,
a Nevada corporation
By: /s/ SCOTT M NIELSON
----------------------------
Name: Scott M Nielson
----------------------------
Title: Secretary
----------------------------
Dated:
----------------------------
Bank of America, N.A., as Collateral Agent ("Beneficiary"), as the leasehold
mortgagee with respect to the above-referenced Leases, hereby consents to the
First Amendment and this Agreement and agrees that a successor to Tenant
pursuant to a foreclosure of Beneficiary's deed of trust (or transfer by deed in
lieu thereof) shall be bound by such amendments (and shall also, as more
particularly described in
-2-
<PAGE>
such deed of trust, succeed to Tenant's right, title and interest in and to
the Option).
BANK OF AMERICA, N.A., as Collateral Agent
By: /s/ JANICE HAMMOND
---------------------------------
Janice Hammond
Vice President, Agency Specialist
-3-
<PAGE>
EXHIBIT 10.7
MASTER CERTIFICATE PURCHASE
AGREEMENT
This MASTER CERTIFICATE PURCHASE AGREEMENT (this "Agreement"), dated as
of October 22, 1999, is entered into by and among Sunset Station Leasing
Company, LLC, a Nevada limited liability company ("Purchaser"), First Security
Trust Company of Nevada, in its capacity as "Trustee", as described below, each
of the "Holders" a party to the Participation Agreement referred to below and
listed on the signature pages hereto (each a "Seller" and collectively,
"Sellers"), Sunset Station, Inc., a Nevada corporation ("Sunset"), in its
individual capacity and as "Sublessee" as described below, and Station Casinos,
Inc., a Nevada corporation ("Parent"), in its individual capacity and as
"Lessee" as described below, with reference to the following facts:
RECITALS
A. Pursuant to the terms of that certain Lease Intended for Security
(as amended, supplemented or otherwise modified from time to time, the "Lease"),
dated as of September 25, 1996, by and between First Security Trust Company of
Nevada, not in its individual capacity, except as expressly stated therein, but
solely as trustee (in such capacity, "Trustee") under the Sunset Station 1996
Trust Agreement (as amended, supplemented or otherwise modified from time to
time, the "Trust Agreement"), dated as of September 25, 1996, between Parent, as
grantor, and Trustee, as trustee, as lessor (Trustee, in such capacity,
"Lessor"), and Parent, as lessee (in such capacity, "Lessee"), Lessor has leased
to Lessee, and Lessee has leased from Lessor, the Equipment (as defined in the
Participation Agreement referred to below) on a "lease intended for security"
basis.
B. Simultaneously with the execution and delivery of the Lease, Lessee
entered into that certain Sublease dated as of September 25, 1996, between
Lessee, as sublessor, and Sunset, as sublessee (in such capacity, "Sublessee"),
pursuant to which Lessee subleased the Equipment to Sublessee on a "true lease"
basis.
C. For purposes of providing financing to Lessor and funding payment of
Equipment Costs (as defined in the Participation Agreement), Sellers entered
into that certain Participation Agreement (as amended, supplemented or otherwise
modified from time to time, the "Participation Agreement") dated as of September
25, 1996 by and among Lessee, Lessor, Trustee, and each of the holders a party
thereto, pursuant to which Sellers agreed to make advances to the Trustee in
respect of the Equipment in an amount not to exceed (i) in respect of each
Seller, such
-1-
<PAGE>
Seller's Commitment (as defined in the Participation Agreement) and (ii) an
aggregate principal amount of $40,000,000 (the "Commitment Amount").
D. Pursuant to the terms of the Trust Agreement and the Participation
Agreement, the Certificates (as defined in the Participation Agreement) were
issued to the initial holders and such Certificates are currently held by such
Sellers in such amounts as are set forth in SCHEDULE I hereto.
E. Sunset is also a party to (i) that certain Third Amended and
Restated Reducing Revolving Loan Agreement (the "Revolving Loan Agreement")
dated as of August 25, 1999, by and among Sunset and each of the other borrowers
parties thereto (collectively, the "Borrowers"), Parent (but solely for purposes
of making the covenants set forth in ARTICLES 8 AND 9 thereof), each of the
lenders from time to time parties thereto (each a "Revolver Lender and
collectively, the "Revolver Lenders"), Societe Generale, as Documentation Agent,
Bank of Scotland, as Co-Agent, and Bank of America, N.A., as Administrative
Agent, (ii) that certain Term Loan Agreement (the "Term Loan Agreement"; and
collectively, with the Revolving Loan Agreement, the "Loan Agreements") dated as
of August 25, 1999 among Borrowers, the lenders from time to time parties
thereto (each a "Term Lender" and collectively, the "Term Lenders"; the "Term
Lenders" collectively with the "Revolver Lenders" are hereinafter referred to as
the "Lenders"), Parent (but solely for purposes of making the covenants set
forth in ARTICLES 8 and 9 thereof) and Bank of America, N.A., as Administrative
Agent, and (iii) the Security Agreement (as defined in the Loan Agreements).
F. Pursuant to the terms of the Security Agreement and certain other of
the Loan Documents (as defined in the Loan Agreements), including, without
limitation the Sunset Intercreditor Agreement (as defined in the Loan
Agreements), Sunset has granted to Bank of America, N.A., as Collateral Agent
(in such capacity, the "Collateral Agent") for the benefit of the Lenders, a
security interest in, among other things, all of Sunset's right, title and
interest in and to the Equipment and the Sublease (the "Lease Collateral"), it
being understood and agreed that the lien of the Collateral Agent on the Lease
Collateral was subject and subordinated to the right, title and interest of
Lessor and the Sellers therein.
G. Pursuant to the terms hereof, Purchaser now desires to purchase from
Sellers, and Sellers now desire to sell to Purchaser, all of Sellers' right,
title and interest in and to the Commitment, the Certificate Advances, the
Operative Documents and the Certificates (collectively, the "Purchased
Interests").
H. As a condition to the purchase and sale of the Purchased Interests,
the Sellers desire that (i) Purchaser assume such obligations and make such
payments
-2-
<PAGE>
as are referred to below and (ii) each of Sunset and Lessee grant to the
Indemnitees (as defined below) the indemnities set forth in SECTION 3 hereof.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein and such other consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Participation Agreement. The following
terms shall have the following meanings:
"ASSIGNMENT AND ACCEPTANCE(S)" means, collectively, each Commitment
Assignment and Acceptance, dated as of the Certificate Purchase Closing Date,
executed by each Seller, as assignor, and Purchaser, as assignee, substantially
in the form of EXHIBIT A attached hereto with the blanks appropriately
completed.
"ASSIGNMENT LETTER(S)" means, collectively, each of the separate letter
agreements, dated the Certificate Purchase Closing Date, executed by Purchaser
and acknowledged by each Seller respectively, substantially in the form of
EXHIBIT B attached hereto with the blanks appropriately completed.
"CERTIFICATE PURCHASE CLOSING DATE" means that date on which all of the
conditions precedent set forth in SECTION 4 hereof shall have been satisfied or
waived in writing by the applicable parties.
"INDEMNITEE" means each Seller, each Lender, the Collateral Agent, the
Trustee and the respective successors, assigns, directors, shareholders,
partners, officers, employees and agents of each of the foregoing.
"PURCHASE PRICE" has the meaning set forth in each Assignment Letter.
2. PURCHASE OF CERTIFICATES
a. PURCHASE AND SALE OF CERTIFICATES. Subject to the terms and
conditions of this Agreement, each Assignment and Acceptance and each
Assignment Letter, Purchaser shall purchase on the Certificate Purchase
Closing Date from each and every Seller, and each Seller shall sell to
Purchaser, without representation or warranty except as expressly
provided herein, in its respective Assignment and Acceptance and in its
respective Assignment Letter, all of such Seller's right, title and
interest in and to the Purchased Interests, including, without
limitation, such Seller's Certificate. As full payment for the portion
of the Purchased Interests purchased from each
-3-
<PAGE>
Seller, Purchaser shall pay to each Seller, on the Certificate
Purchase Closing Date, the Purchase Price with respect thereto. Upon
receipt of the Purchase Price, each Seller shall deliver its
Certificate to the Trustee in the manner prescribed by the Trust
Agreement and the Assignment Letter to which such Seller is a party.
b. CLOSING. The Certificate Purchase Closing Date shall take
place on such date as each of the conditions precedent set forth in
SECTION 4 hereof shall have been satisfied.
c. RESTRICTIONS ON AND EFFECT OF TRANSFER. Notwithstanding the
provisions of SECTION 6.2 of the Participation Agreement, each of the
parties to this Agreement hereby consents to the sale of the Purchased
Interests to the Purchaser.
d. REQUIRED NOTICE AND EFFECTIVE DATE. Notwithstanding the
provisions of SECTION 6.2.1 of the Participation Agreement, (i)
Trustee, each Seller and Lessee hereby waive the requirement that such
parties receive five (5) Business Days prior written notice of the
transfer of the Purchased Interests contemplated by this Agreement,
(ii) the parties hereto agree that (x) all reasonable out-of pocket
costs (including any applicable transfer tax) incurred by the Trustee
in connection with the transfer of the Purchased Interests contemplated
by this Agreement, together with the administrative fee payable to the
Trustee in the amount of $2,500, and (y) any expenses incurred by
Purchaser in connection with its review of the Operative Documents and
its investigation of the transactions contemplated thereby, shall be
borne by the Purchaser.
e. TRANSFER FEE. Purchaser hereby agrees to pay to each
Seller, on the Certificate Purchase Closing Date, as part of the
Purchase Price, an amount equal to the product of (i) $266,281.73
multiplied by (ii) such Seller's Commitment Percentage.
f. NO TRANSFER TAXES. Purchaser, Parent and Sunset hereby
represent and warrant to Sellers that no sales, use, excise, transfer
or other tax, fee or imposition shall result from the sale, transfer or
purchase of any interest in any item of Equipment or all or any portion
of the Purchased Interests pursuant to (i) SECTION 2 hereof, (ii) any
Assignment and Acceptance or (iii) any Assignment Letter, EXCEPT such
taxes, fees or impositions that have been paid in full on or prior to
the Certificate Purchase Closing Date.
-4-
<PAGE>
3. INDEMNITIES. Without in any way limiting any indemnity contained in
the Participation Agreement or any other Operative Document, including, without
limitation, those indemnities contained in SECTIONS 7.1 and 8.1 of the
Participation Agreement as in effect on the date of this Agreement, the parties
hereto hereby agree that (a) each such indemnity shall expressly survive the
termination of the Participation Agreement, (b) each such indemnity, each of
which is hereby incorporated herein by this reference together with such defined
terms as shall be required to assign meaning thereto, shall be made by Sunset in
addition to Lessee, (c) each such indemnity shall expressly apply to the
Certificate sale and other transactions contemplated by this Agreement and each
of the documents executed and delivered in connection herewith, and (d) each
such indemnity shall be made in favor of the "Indemnitees" as defined herein.
4. CONDITIONS PRECEDENT. The obligations of each Seller to consummate
the sale referred to in SECTION 2 hereof is subject to the following conditions
precedent:
a. Sellers shall have received all of the following, each of
which shall be originals unless otherwise specified, each duly executed
by a Responsible Official of the parties thereto (other than Sellers,
the Lenders or the Collateral Agent), each dated as of the Certificate
Purchase Closing Date, and each in form and substance satisfactory to
Sellers (unless otherwise agreed to by Sellers):
(1) at lease one (1) counterpart of this Agreement duly
executed by each Seller and each of Purchaser, Parent, the
Trustee and Sunset, together with arrangements satisfactory
to Sellers for additional executed counterparts, sufficient
in number for distribution to Sellers and Purchaser;
(2) counterparts of each Assignment and Acceptance duly
executed by Purchaser and consented to by Lessee;
(3) counterparts of each Assignment Letter duly executed
by Purchaser and acknowledged by each Seller;
(4) a certificate of a Responsible Official of Purchaser
that each of the representations and warranties referred to in
SECTION 4.d. are true and correct;
(5) such other assurances, certificates, documents,
consents or opinions as the Sellers reasonably may require;
-5-
<PAGE>
b. The Purchase Price shall have been paid to each Seller;
c. All of (i) the amounts specified in SECTION 2.d. and (ii)
the reasonable costs and expenses of Sellers (including the reasonable
fees and expenses of Sheppard, Mullin Richter & Hampton LLP ("Sheppard,
Mullin"), special counsel to Sellers) incurred and invoiced in
connection with the preparation of this Agreement and the other
documents contemplated hereby, shall have been paid;
d. The representations and warranties of Purchaser, Sunset and
Parent contained in this Agreement, each of the Assignment and
Acceptances and each of the Assignment Letters are true and correct;
e. All legal matters relating to this Agreement and the
documents and transactions contemplated hereby and thereby shall be
satisfactory to Sheppard, Mullin; and
f. The Certificate Purchase Closing Date shall have occurred
on or before November 30, 1999.
5. Miscellaneous.
a. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the locals Laws of Nevada
applicable to contracts made and performed in Nevada.
b. SEVERABILITY OF PROVISIONS. Any provisions in this
Agreement that are held to be inoperative, unenforceable or invalid as
to any party or in any jurisdiction shall, as to that party or
jurisdiction, be inoperative, unenforceable or invalid without
affecting the remaining provisions as to any other party or in any
other jurisdiction, and to this end the provisions of this Agreement
are declared to be severable.
c. HEADINGS. Section headings in this Agreement are included
for convenience of reference only and are not part of this Agreement
for any other purpose.
d. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT
OR IN ANY WAY
-6-
<PAGE>
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY
PARTY HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR
THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER ARISING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
[THIS SPACE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGES TO FOLLOW]
-7-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
SUNSET STATION LEASING COMPANY, LLC, a Nevada limited
liability company, as Purchaser
By: Station Casinos, Inc., a Nevada
corporation, its sole member
By: /s/
---------------------
Glenn C. Christenson,
Executive
Vice President
SUNSET STATION, INC., a Nevada corporation,
individually and as Sublessee
By: /s/
---------------------
Glenn C. Christenson
Senior Vice President
STATION CASINOS, INC., a Nevada corporation,
individually and as Lessee
By: /s/
---------------------
Glenn C. Christenson
Executive Vice President
FIRST SECURITY TRUST COMPANY OF NEVADA, not in its
individual capacity, but solely as Trustee and Lessor
By: /s/
---------------------
Nancy M. Dahl
Trust Officer
-8-
<PAGE>
"Sellers"
BANC OF AMERICA LEASING & CAPITAL, LLC, SUCCESSOR BY
MERGER TO BA LEASING & CAPITAL CORPORATION
By: /s/
---------------------
Christine Lee
Vice President
BANCBOSTON LEASING INC.
By: /s/
---------------------
Philip Washburn
Assistant Vice President
ABN AMRO BANK N.V.
By: /s/
---------------------
Jeffrey A. French
Senior Vice President
By: /s/
---------------------
Corinna Fong
Credit Officer
SOCIETE GENERALE FINANCIAL CORPORATION
By: /s/
---------------------
Powell Robinson III
First Vice President
ORIX USA CORPORATION
By: /s/
---------------------
Hiroyuki Miyauchi
Executive Vice President
-9-
<PAGE>
BANK OF THE WEST
By: /s/
---------------------
Donald C. Young
Vice President
FIRST SECURITY BANK, N.A.
By: /s/
---------------------
David P. Williams
Vice President
BOEING CAPITAL CORPORATION
By: /s/
---------------------
James C. Hammersmith
Senior Documentation Officer
PNC LEASING CORP.
By: /s/
---------------------
Scott A. Reich
Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/
---------------------
J.E. Palmer
Assistant Vice President
-10-
<PAGE>
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
-11-
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT LETTER
-12-
<PAGE>
SCHEDULE I
LIST OF SELLERS AND COMMITMENTS
-13-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEETS AND CONDENSED CONSOLIDATED STATEMENTS
OF OPERATIONS FOUND ON PAGES 3 AND 4 OF THE COMPANY'S FORM 10-Q FOR THE NINE
MONTHS ENDED SEPTEMBER 30, 1999, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 53,735
<SECURITIES> 0
<RECEIVABLES> 11,095
<ALLOWANCES> 0
<INVENTORY> 4,948
<CURRENT-ASSETS> 100,533
<PP&E> 1,381,433
<DEPRECIATION> 250,069
<TOTAL-ASSETS> 1,311,032
<CURRENT-LIABILITIES> 125,546
<BONDS> 542,177
0
0
<COMMON> 421
<OTHER-SE> 299,763
<TOTAL-LIABILITY-AND-EQUITY> 1,311,032
<SALES> 0
<TOTAL-REVENUES> 702,833
<CGS> 0
<TOTAL-COSTS> 368,737
<OTHER-EXPENSES> 53,483
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 63,027
<INCOME-PRETAX> 68,498
<INCOME-TAX> 25,344
<INCOME-CONTINUING> 43,154
<DISCONTINUED> 0
<EXTRAORDINARY> (10,653)
<CHANGES> 0
<NET-INCOME> 30,690
<EPS-BASIC> .80
<EPS-DILUTED> .75
</TABLE>
