Exhibit 4.10
CREDIT AGREEMENT
among
JCC HOLDING COMPANY, as a Guarantor,
JAZZ CASINO COMPANY, L.L.C., as Borrower,
VARIOUS BANKS,
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
----------------------------------
Dated as of October 29, 1998
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit..............................................................................1
1.01 The Commitments...............................................................................................1
1.02 Minimum Amount of Each Borrowing..............................................................................4
1.03 Notice of Borrowing...........................................................................................4
1.04 Disbursement of Funds.........................................................................................5
1.05 Notes.........................................................................................................6
1.06 Conversions Into Loans of Another Type.......................................................................10
1.07 Pro Rata Borrowings..........................................................................................10
1.08 Interest.....................................................................................................11
1.09 Interest Periods.............................................................................................12
1.10 Increased Costs, Illegality, etc.............................................................................13
1.11 Compensation.................................................................................................15
1.12 Change of Lending Office.....................................................................................16
1.13 Replacement of Banks.........................................................................................16
1.14 Conversion of Tranche A-1 and B-1 Term Loans to Tranche B-2 Term Loans.......................................18
SECTION 2. Letters of Credit.......................................................................................19
2.01 Letters of Credit............................................................................................19
2.02 Minimum Stated Amount........................................................................................20
2.03 Letter of Credit Requests....................................................................................20
2.04 Letter of Credit Participations..............................................................................21
2.05 Agreement to Repay Letter of Credit Drawings.................................................................23
2.06 Increased Costs..............................................................................................23
SECTION 3. Commitment Commission; Fees; Reductions of Commitment...................................................24
3.01 Fees ........................................................................................................24
3.02 Voluntary Termination of the Total Unutilized Revolving Loan Commitment......................................25
3.03 Mandatory Reduction of Commitments...........................................................................26
SECTION 4. Prepayments; Payments; Deferrals; Taxes.................................................................28
4.01 Voluntary Prepayments........................................................................................28
4.02 Mandatory Repayments and Commitment Reductions...............................................................29
4.03 Method and Place of Payment..................................................................................37
4.04 Net Payments.................................................................................................37
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SECTION 5. Conditions Precedent to Initial Credit Events...........................................................39
5.01 Execution of Agreement; Notes................................................................................39
5.02 Fees, etc....................................................................................................39
5.03 Officer's Certificate........................................................................................39
5.04 Opinions of Counsel..........................................................................................39
5.05 Corporate Documents; Proceedings; etc........................................................................40
5.06 Employee Benefit Plans; Collective Bargaining Agreements; Debt Agreements....................................41
5.07 Project Documents; etc.......................................................................................41
5.08 Confirmation of Plan of Reorganization.......................................................................42
5.09 Junior Subordinated Credit Facility..........................................................................42
5.10 Convertible Junior Subordinated Debentures...................................................................42
5.11 Xxxxxx'x Investor Cash Investment............................................................................42
5.12 Releases.....................................................................................................43
5.13 New Bonds....................................................................................................43
5.14 Issuance of New Class A Common Stock.........................................................................43
5.15 Management Agreement.........................................................................................43
5.16 Pledge Agreement.............................................................................................43
5.17 Security Agreement...........................................................................................43
5.18 Mortgage; Title Insurance; Surveys; etc......................................................................44
5.19 Guaranties...................................................................................................46
5.20 Intercreditor Agreement......................................................................................46
5.21 Consent Letter...............................................................................................46
5.22 Manager Subordination Agreement..............................................................................46
5.23 Completion Guarantor Loan Documents; etc.....................................................................47
5.24 Adverse Change; Approvals; Permits; etc......................................................................47
5.25 Litigation...................................................................................................48
5.26 Environmental Analyses; Evidence of Insurance; Utilities; Zoning.............................................48
5.27 Pro Forma Balance Sheet......................................................................................49
5.28 Construction Contracts.......................................................................................49
5.29 Minimum Payment Guaranty; Etc................................................................................49
5.30 No Default; Representations and Warranties...................................................................49
5.31 Notices of Borrowing; Letter of Credit Requests..............................................................50
SECTION 6. Conditions Precedent to Credit Events Occurring After the Initial Borrowing Date........................50
6.01 Absence of Certain Events of Default; Accuracy of Representations and Warranties.............................50
6.02 Notice of Borrowing; Letter of Credit Request................................................................50
6.03 Utilization of Other Available Proceeds......................................................................50
SECTION 7. Representations, Warranties and Agreements..............................................................51
7.01 Status.......................................................................................................51
7.02 Power and Authority..........................................................................................51
7.03 No Violation.................................................................................................52
7.04 Governmental Approvals.......................................................................................52
(ii)
Page
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Financial Projections;
Construction Budgets; Construction Schedule; Plans and Specifications .......................................52
7.06 Litigation...................................................................................................54
7.07 True and Complete Disclosure.................................................................................54
7.08 Use of Proceeds; Margin Regulations..........................................................................54
7.09 Tax Returns and Payments.....................................................................................54
7.10 Compliance with ERISA........................................................................................55
7.11 The Security Documents.......................................................................................55
7.12 Representations and Warranties in Documents..................................................................56
7.13 Properties...................................................................................................57
7.14 Capitalization...............................................................................................57
7.15 Subsidiaries.................................................................................................57
7.16 Compliance with Statutes, etc................................................................................57
7.17 Investment Company Act.......................................................................................58
7.18 Public Utility Holding Company Act...........................................................................58
7.19 Environmental Matters........................................................................................58
7.20 Labor Relations..............................................................................................59
7.21 Patents, Licenses, Franchises and Formulas...................................................................59
7.22 Indebtedness.................................................................................................60
7.23 Access; Utilities............................................................................................60
7.24 Project Documents............................................................................................60
7.25 Special Purpose Corporation..................................................................................61
7.26 Year 2000....................................................................................................61
SECTION 8. Affirmative Covenants...................................................................................61
8.01 Information Covenants........................................................................................61
8.02 Books, Records and Inspections...............................................................................65
8.03 Maintenance of Property; Insurance...........................................................................65
8.04 Corporate Franchises.........................................................................................66
8.05 Compliance with Statutes, etc................................................................................66
8.06 Compliance with Environmental Laws...........................................................................67
8.07 ERISA........................................................................................................67
8.08 End of Fiscal Years; Fiscal Quarters.........................................................................68
8.09 Performance of Obligations...................................................................................68
8.10 Payment of Taxes.............................................................................................68
8.11 Additional Mortgages; Further Assurances; Surveys............................................................69
8.12 Construction of Improvements; Amendments to Plans and Specifications, Construction Budget and
Construction Schedule .......................................................................................69
8.13 Inspection by the Administrative Agent.......................................................................71
8.14 Settlement of Claims.........................................................................................71
8.15 Notices......................................................................................................71
8.16 PIK Payments.................................................................................................72
8.17 Project Account; Operating Accounts; Payment of Project Costs; Etc...........................................72
8.18 Covenants With Respect to Material Leases....................................................................73
8.19 Conditions to Material Alterations or Restorations...........................................................74
(iii)
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8.20 Maintaining the Premises.....................................................................................75
8.21 Releases of Mortgaged Properties..........................................................................76
SECTION 9. Negative Covenants......................................................................................76
9.01 Liens........................................................................................................76
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.......................................................79
9.03 Restricted Payments..........................................................................................80
9.04 Indebtedness.................................................................................................82
9.05 Advances, Investments and Loans..............................................................................85
9.06 Transactions with Affiliates.................................................................................86
9.07 Capital Expenditures.........................................................................................88
9.08 Consolidated Interest Coverage Ratio.........................................................................89
9.09 Minimum Consolidated EBITDA..................................................................................89
9.10 Consolidated Debt to Consolidated EBITDA.....................................................................90
9.11 Limitation on Payments of Certain Indebtedness; Modifications of Certain Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.....................91
9.12 Limitation on Certain Restrictions on Subsidiaries...........................................................93
9.13 Limitation on Issuance of Capital Stock......................................................................93
9.14 Business.....................................................................................................93
9.15 Limitation on Creation of Subsidiaries.......................................................................94
9.16 Casino Manager...............................................................................................94
SECTION 10. Events of Default......................................................................................95
10.01 Payments.....................................................................................................95
10.02 Representations, etc.........................................................................................95
10.03 Covenants....................................................................................................95
10.04 Default Under Other Indebtedness.............................................................................95
10.05 Project Documents............................................................................................96
10.06 Bankruptcy, etc..............................................................................................96
10.07 ERISA........................................................................................................97
10.08 Security Documents...........................................................................................97
10.09 Guaranties; etc..............................................................................................97
10.10 Subordination Agreements.....................................................................................98
10.11 Judgments....................................................................................................98
10.12 Change of Control............................................................................................98
10.13 Gaming Authority.............................................................................................98
10.14 Management Agreement.........................................................................................98
10.15 Trademark Permission.........................................................................................99
10.16 Completion of Casinos........................................................................................99
(iv)
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10.17 Minimum Payment Guaranty; Etc................................................................................99
SECTION 11. Definitions and Accounting Terms......................................................................100
11.01 Defined Terms...............................................................................................100
SECTION 12. The Administrative Agent.............................................................................143
12.01 Appointment.................................................................................................143
12.02 Nature of Duties............................................................................................143
12.03 Lack of Reliance on the Administrative Agent................................................................143
12.04 Certain Rights of the Administrative Agent..................................................................144
12.05 Reliance....................................................................................................144
12.06 Indemnification.............................................................................................144
12.07 The Administrative Agent in its Individual Capacity.........................................................145
12.08 Holders.....................................................................................................145
12.09 Resignation by the Administrative Agent.....................................................................145
SECTION 13. Subordination of Tranche B and Revolving Obligations to Tranche A Obligations........................146
13.01 Tranche B and Revolving Obligations Subordinated to Tranche A Obligations...................................146
13.02 Tranche B and Revolving Obligations Subordinated to Prior Payment of All Tranche A
Obligations on Dissolution, Liquidation, Reorganization, etc. of the Borrower ..............................146
13.03 Holders of Tranche B and Revolving Obligations to be Subrogated to Rights of Holders of Tranche A
Obligations ................................................................................................148
13.04 Obligations of the Borrower Unconditional...................................................................148
13.05 Borrower Not to Make Payments With Respect to Tranche B and Revolving Obligations in Certain Circumstances..148
13.06 Administrative Agent Entitled to Assume Payments Not Prohibited in Absence of Notice........................149
13.07 Application by Administrative Agent of Monies Deposited With It.............................................150
13.08 Subordination Rights Not Impaired by Acts or Omissions of Borrower or Holders of Tranche A Obligations......150
13.09 Holders of Tranche B and Revolving Obligations Authorize Administrative Agent to Effectuate
Subordination of Tranche B and Revolving Obligations .......................................................151
13.10 Right of Administrative Agent to Hold Tranche A Obligations; Preservation of Administrative Agent's Rights..152
13.11 Section 13 Not to Prevent Events of Default.................................................................152
13.12 Administrative Agent Not Fiduciary for Holders of Tranche A Obligations.....................................152
13.13 Certain Payments Not Subordinated...........................................................................152
SECTION 14. Lien Priorities......................................................................................153
14.01 Priorities of Various Tranches..............................................................................153
14.02 Acknowledgment of Prior Security Interest...................................................................153
(v)
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SECTION 15. Subordination of Tranche B-2 Obligations to Tranche B-1 Obligations...................................153
15.01 Tranche B-2 Obligations Subordinated to TrancheB-1 Obligations..............................................153
15.02 Tranche B-2 Obligations Subordinated to Prior Payment of All Tranche B-1 Obligations on
Dissolution, Liquidation, Reorganization, etc. of the Borrower..............................................153
15.03 Holders of Tranche B-2 Obligations to be Subrogated to Rights of Holders of Tranche B-1 Obligations.........155
15.04 Obligations of the Borrower Unconditional...................................................................155
15.05 Borrower Not to Make Payments With Respect to Tranche B-2 Obligations in Certain Circumstances..............156
15.06 Administrative Agent Entitled to Assume Payments Not Prohibited in Absence of Notice........................157
15.07 Application by Administrative Agent of Monies Deposited With It.............................................157
15.08 Subordination Rights Not Impaired by Acts or Omissions of Borrower or Holders of Tranche B-1 Obligations....157
15.09 Holders of Tranche B-2 Obligations Authorize Administrative Agent to Effectuate
Subordination of Tranche B-2 Obligations ...................................................................159
15.10 Right of Administrative Agent to Hold Tranche B-1 Obligations; Preservation of Administrative Agent's Rights159
15.11 Section 15 Not to Prevent Events of Default.................................................................159
15.12 Administrative Agent Not Fiduciary for Holders of Tranche B-1 Obligations...................................159
15.13 Certain Payments Not Subordinated...........................................................................160
15.14 Conflicting Subordination Provisions........................................................................160
SECTION 16. Miscellaneous.........................................................................................160
16.01 Payment of Expenses, etc....................................................................................160
16.02 Right of Setoff.............................................................................................161
16.03 Notices.....................................................................................................162
16.04 Benefit of Agreement........................................................................................162
16.05 No Waiver; Remedies Cumulative..............................................................................165
16.06 Payments Pro Rata...........................................................................................166
16.07 Calculations; Computations..................................................................................166
16.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL......................................167
16.09 Counterparts................................................................................................168
16.10 Effectiveness...............................................................................................168
16.11 Headings Descriptive........................................................................................168
16.12 Amendment or Waiver; etc....................................................................................168
16.13 Survival....................................................................................................171
16.14 Domicile of Loans...........................................................................................171
16.15 Application of Gaming Regulations...........................................................................171
16.16 Confidentiality.............................................................................................172
16.17 Register....................................................................................................172
16.18 Execution of Documents by the Administrative Agent and Collateral Agent.....................................173
16.19 Certain Waivers and Releases................................................................................173
16.20 No Third Party Beneficiaries................................................................................176
(vi)
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SECTION 17. JCC Holding Guaranty.................................................................................176
17.01 The JCC Holding Guaranty....................................................................................176
17.02 Bankruptcy..................................................................................................176
17.03 Nature of Liability.........................................................................................176
17.04 Independent Obligation......................................................................................177
17.05 Authorization...............................................................................................177
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Indebtedness
SCHEDULE V Insurance
SCHEDULE VI Existing Liens
SCHEDULE VII Specified Real Estate
SCHEDULE VIII Title Reinsurers
SCHEDULE IX Threshold Amounts
SCHEDULE X Tax Matters
SCHEDULE XI Options
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Tranche A-1 Term Note
EXHIBIT B-2 Tranche A-2 Term Note
EXHIBIT B-3 Tranche A-3 Term Note
EXHIBIT B-4 Tranche B-1 Term Note
EXHIBIT B-5 Tranche B-2 Term Note
EXHIBIT B-6 Revolving Note
EXHIBIT B-7 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Xxxxxx & Xxxxxxx, Special Counsel to the
Completion Guarantors
EXHIBIT E-2 Opinion X.X. Xxxxxxxx, Xx., Esq., General Counsel to
the Completion Guarantors
EXHIBIT E-3 Opinion of Xxxxxx Xxxxxx L.L.P., Louisiana Counsel
to the Borrower
EXHIBIT E-4 Opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
counsel to the Borrower
EXHIBIT E-5 Opinion of Xxxxxxx X. Xxxxxxx, Esq., Special Counsel
to the Borrower for Louisiana Gaming Matters
EXHIBIT E-6 Opinion of Xxxxx X. Xxxx, Esq., Counsel to HET and
HOC for New Jersey Gaming Matters
EXHIBIT E-7 Opinion of Xxxxxxx Xxxxxx, Counsel to HET and HOC
for Nevada Gaming Matters
(vii)
EXHIBIT F Officers' Certificate
EXHIBIT G Pledge Agreement
EXHIBIT H Security Agreement
EXHIBIT I-1 Borrower Mortgage
EXHIBIT I-2 CPD Mortgage
EXHIBIT I-3 FPD Mortgage
EXHIBIT I-4 JCC Development Mortgage
EXHIBIT J Railroad Estoppel Certificate
EXHIBIT K-1 Bank Completion Guarantee
EXHIBIT K-2 HET/HOC Guaranty and Loan Purchase Agreement
EXHIBIT K-3 Subsidiaries Guaranty
EXHIBIT L Intercreditor Agreement
EXHIBIT M Consent Letter
EXHIBIT N Manager Subordination Agreement
EXHIBIT O-1 Completion Guarantor Subordination Agreement
EXHIBIT O-2 Subordinated Lender Subordination Agreement
EXHIBIT P Credit Enhancement Fee Agreement (Bank Credit
Agreement)
EXHIBIT Q-1 Certificate of General Contractor - Centex
EXHIBIT Q-2 Certificate of General Contractor - Broadmoor
EXHIBIT Q-3 Certificate of Rivergate Architect
EXHIBIT Q-4 Certificate of Poydras Street Support Facility
Architect
EXHIBIT Q-5 Certificate of Authorized Officer - Project
Certificate
EXHIBIT Q-6 Consent and Continuation Agreement
EXHIBIT R Assignment and Assumption Agreement
(viii)
CREDIT AGREEMENT, dated as of October 29, 1998, among JCC
HOLDING COMPANY, a Delaware corporation, as a Guarantor ("JCC Holding"), JAZZ
CASINO COMPANY, L.L.C., a Louisiana limited liability company (the "Borrower"),
the Banks party hereto from time to time, and BANKERS TRUST COMPANY, as
Administrative Agent (all capitalized terms used herein and defined in Section
11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set
forth herein, the Banks are willing to make available to the Borrower the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Tranche A-1 Term Loan Commitment
severally agrees to make, on the Initial Borrowing Date, a term loan or term
loans (each a "Tranche A-1 Term Loan" and, collectively, the "Tranche A-1 Term
Loans") to the Borrower, which Tranche A-1 Term Loans (i) shall, at the option
of the Borrower, be incurred and maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 1.10(b), all Tranche A-1 Term Loans comprising the same
Borrowing shall at all times be of the same Type and (ii) shall be made by each
Bank in that initial aggregate principal amount as is equal to the Tranche A-1
Term Loan Commitment of such Bank on such date (before giving effect to any
reductions thereto on such date pursuant to Section 3.03(a)). Once repaid,
Tranche A-1 Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche A-2 Term Loan Commitment severally agrees to
make, from time to time on or after the Initial Borrowing Date and on or prior
to the Tranche A-2 Term Loan Commitment Termination Date, a term loan or term
loans (each a "Tranche A-2 Term Loan" and, collectively, the "Tranche A-2 Term
Loans") to the Borrower, which Tranche A-2 Term Loans (i) shall, at the option
of the Borrower, be incurred and maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 1.10(b), all Tranche A-2 Term Loans comprising the same
Borrowing shall at all times be of the same Type and (ii) made by each Bank on a
given Tranche A-2 Term Loan Borrowing Date shall not exceed, in principal
amount, the amount of such Bank's Tranche A-2 Term Loan Commitment on such date
(before giving effect to any reductions thereto pursuant to Section 3.03(b)(i)
or (ii) but after giving effect to any reductions thereto on or prior to such
date pursuant to Sections 3.03(b)(iii)). Once repaid, Tranche A-2 Term Loans
incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche A-3 Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date,
a term loan or term loans (each a "Tranche A-3 Term Loan" and, collectively, the
"Tranche A-3 Term Loans") to the Borrower, which Tranche A-3 Term Loans (i)
shall, at the option of the Borrower, be incurred and maintained as and/or
converted into Base Rate Loans or Eurodollar Loans, provided that, except as
otherwise specifically provided in Section 1.10(b), all Tranche A-3 Term Loans
comprising the same Borrowing shall at all times be of the same Type and (ii)
shall be made by each Bank in that initial aggregate principal amount as is
equal to the Tranche A-3 Term Loan Commitment of such Bank on such date (before
giving effect to any reductions thereto on such date pursuant to Section
3.03(a)). Once repaid, Tranche A-3 Term Loans incurred hereunder may not be
reborrowed.
(d) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche B-1 Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan or term loans (each a "Tranche
B-1 Term Loan" and, collectively, the "Tranche B-1 Term Loans") to the Borrower,
which Tranche B-1 Term Loans (i) shall, at the option of the Borrower, be
incurred and maintained as and/or converted into Base Rate Loans or Eurodollar
Loans, provided that, except as otherwise specifically provided in Section
1.10(b), all Tranche B-1 Term Loans comprising the same Borrowing shall at all
times be of the same Type and (ii) shall be made by each Bank in that initial
aggregate principal amount as is equal to such Bank's Tranche B-1 Term Loan
Commitment on such date (before giving effect to any reductions thereto on such
date pursuant to Section 3.03(a)). Once repaid, Tranche B-1 Term Loans incurred
hereunder may not be reborrowed.
(e) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche B-2 Term Loan Commitment severally agrees to
make, from time to time on or after the Initial Borrowing Date and on or prior
to the Tranche B-2 Term Loan Commitment Termination Date, a term loan or term
loans (each a "Tranche B-2 Term Loan" and, collectively, the "Tranche B-2 Term
Loans") to the Borrower, which Tranche B-2 Term Loans (i) shall, at the option
of the Borrower, be incurred and maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 1.10(b), all Tranche B-2 Term Loans comprising the same
Borrowing shall at all times be of the same Type and (ii) made by each Bank on a
given Tranche B-2 Term Loan Borrowing Date shall not exceed, in principal
amount, the amount of such Bank's Tranche B-2 Term Loan Commitment on such date
(before giving effect to any reductions thereto pursuant to Section 3.03(c)(i)
and (ii) but after giving effect to any reductions thereto on or prior to such
date pursuant to Sections 3.03(c)(iii)). Once repaid, Tranche B-2 Term Loans
incurred hereunder may not be reborrowed.
(f) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees to make,
from time to time on or after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, a revolving loan or revolving loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower,
which Revolving Loans (i) shall, at the option of the Borrower, be incurred and
maintained as and/or converted into Base Rate Loans or Eurodollar Loans,
provided that, except as otherwise specifically provided in Section 1.10(b), all
Revolving Loans comprising the same Borrowing shall at all times be of the same
Type, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such Bank's
Adjusted Percentage and (y) the
2
sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at such
time and (II) the aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Bank at such time and
(iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which, when added to (x) the amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (y) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at
such time.
(g) Subject to and upon the terms and conditions set forth
herein, BTCo in its individual capacity agrees to make, from time to time after
the Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving
loan or revolving loans (each a "Swingline Loan" and, collectively, the
"Swingline Loans") to the Borrower, which Swingline Loans (i) shall be made and
maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance
with the provisions hereof, (iii) shall not exceed in aggregate principal amount
at any time outstanding, when combined with the aggregate principal amount of
all Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter
of Credit Outstandings at such time, an amount equal to the Adjusted Total
Revolving Loan Commitment at such time (after giving effect to any reductions to
the Adjusted Total Revolving Loan Commitment on such date) and (iv) shall not
exceed in aggregate principal amount at any time outstanding the Maximum
Swingline Amount.
(h) On any Business Day, BTCo may, in its sole discretion,
give notice to the Banks that its outstanding Swingline Loans shall be funded
with a Borrowing of Revolving Loans (provided that such notice shall be deemed
to have been automatically given upon the occurrence of a Default or an Event of
Default under Section 10.06 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Banks with a Revolving Loan Commitment (without giving effect to any reductions
thereto pursuant to the last paragraph of Section 10) pro rata based on each
Bank's Adjusted Percentage (determined before giving effect to any termination
of the Revolving Loan Commitments pursuant to the last paragraph of Section 10)
and the proceeds thereof shall be applied directly to BTCo to repay BTCo for
such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to
make Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by BTCo notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the minimum amount for Borrowings
otherwise required hereunder, (ii) whether any conditions specified in Section 6
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at
such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including,
3
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each such Bank hereby agrees
that it shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from BTCo such
participations in the outstanding Swingline Loans as shall be necessary to cause
such Banks to share in such Swingline Loans ratably based upon their respective
Adjusted Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10),
provided that (x) all interest payable on the Swingline Loans shall be for the
account of BTCo until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Bank shall be required to pay BTCo interest on the
principal amount of participation purchased for each day from and including the
day upon which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation, at the overnight Federal
Funds Rate for the first three days and at the rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of any Tranche of Term Loans shall not be less than
$5,000,000, provided that any Borrowing of Tranche A-1 Term Loans or Tranche B-1
Term Loans which is split into two Borrowings, one of Tranche A-1 Term Loans or
Tranche B-1 Term Loans, as the case may be, and one of Tranche B-2 Term Loans,
as a result of a conversion pursuant to Section 1.14, shall be permitted to
remain outstanding, although a new Interest Period may be designated for any
such Borrowing upon the termination of the Interest Period applicable thereto on
the Tranche B-2 Term Loan Commitment Termination Date only if such Borrowing
meets the requirements (determined without regard to this proviso) provided in
this Section 1.02. The aggregate principal amount of each Borrowing of Revolving
Loans shall be not less than $1,000,000 and, if greater, shall be in an integral
multiple of $500,000, provided that Mandatory Borrowings shall be made in the
amounts required by Section 1.01(h). The aggregate principal amount of each
Borrowing of Swingline Loans shall not be less than $250,000 and, if greater,
shall be in an integral multiple of $50,000. More than one Borrowing may occur
on the same date, but at no time shall there be outstanding more than nine
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to
incur Loans hereunder (excluding Borrowings (x) of Swingline Loans and Mandatory
Borrowings and (y) resulting from conversions of Tranche A-1 Term Loans and/or
Tranche B-1 Term Loans into Tranche B-2 Term Loans pursuant to Section 1.14),
the Borrower shall give the Administrative Agent at its Notice Office at least
one Business Day's prior written notice of each Base Rate Loan and at least
three Business Days' prior written notice of each Eurodollar Loan to be incurred
hereunder, provided that any such notice shall be deemed to have been given on a
certain day only if given before 11:00 A.M. (New York time) (12:00 Noon (New
York time) in the case of a Borrowing of Base Rate Loans) on such day. Each such
written notice (each a "Notice of Borrowing"), except as otherwise expressly
provided in Section 1.10, shall be irrevocable and shall be given by the
Borrower in the form of Exhibit A, appropriately completed to specify the
aggregate principal amount of the Loans to be made pursuant to such Borrowing,
the date of such
4
Borrowing (which shall be a Business Day), whether the Loans being made pursuant
to such Borrowing shall constitute Tranche A-1 Term Loans, Tranche A-2 Term
Loans, Tranche A-3 Term Loans, Tranche B-1 Term Loans, Tranche B-2 Term Loans or
Revolving Loans and whether the Loans being made pursuant to such Borrowing are
to be initially maintained as Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Bank which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice of
such proposed Borrowing, of such Bank's proportionate share thereof and of the
other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (New York time) on the
date that a Swingline Loan is to be incurred, written notice or telephonic
notice promptly confirmed in writing of each Swingline Loan to be incurred
hereunder. Each such notice shall be irrevocable and specify in each case (A)
the date of Borrowing (which shall be a Business Day) and (B) the aggregate
principal amount of the Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(h), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(h).
(iii) Borrowings of Tranche B-2 Term Loans resulting from
conversions pursuant to Section 1.14 shall be made as provided therein, with the
Borrower irrevocably agreeing, by its incurrence of any Tranche A-1 Term Loans
or Tranche B-1 Term Loans, to the conversion thereof into one or more Borrowings
of Tranche B-2 Term Loans as set forth, and to the extent provided, in Section
1.14.
(c) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing of
Swingline Loans, BTCo may act without liability upon the basis of telephonic
notice of such Borrowing, believed by BTCo in good faith to be from an
Authorized Officer of the Borrower prior to receipt of written confirmation.
In each such case, the Borrower hereby waives the right to dispute BTCo's
record of the terms of such telephonic notice of such Borrowing of Swingline
Loans.
1.04 Disbursement of Funds. Except as otherwise specifically
provided in the second succeeding sentence, not later than 12:00 Noon (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not
later than 12:00 Noon (New York time) on the date specified in Section 1.01(h)),
each Bank with a Commitment of the respective Tranche will make available its
pro rata portion of each such Borrowing requested to be made on such date (or in
the case of Swingline Loans, BTCo shall make available the full amount thereof).
All such amounts shall be made available in Dollars and in immediately available
funds at the Payment Office of the Administrative Agent, and the Administrative
Agent will make available to the Borrower at the Payment Office the aggregate of
the amounts so made available by the Banks (prior to 1:00 P.M. (New York time)
on such day, to the extent of funds actually received by the Administrative
5
Agent prior to 12:00 Noon (New York time) on such day). Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Administrative
Agent such Bank's portion of any Borrowing to be made on such date, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date of Borrowing and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Bank, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Bank. If such
Bank does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower and the Borrower agrees immediately to pay such corresponding amount to
the Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Bank or the Borrower, as the case may be, interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Bank, the overnight Federal Funds Rate and (ii) if recovered from the Borrower,
the rate of interest applicable to the respective Borrowing, as determined
pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to
relieve any Bank from its obligation to make Loans hereunder or to prejudice any
rights which the Borrower may have against any Bank as a result of any failure
by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Bank shall be evidenced (i) if
Tranche A-1 Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1 with blanks appropriately
completed in conformity herewith (each a "Tranche A-1 Term Note" and,
collectively, the "Tranche A-1 Term Notes"), (ii) if Tranche A-2 Term Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-2 with blanks appropriately completed in conformity
herewith (each a "Tranche A-2 Term Note" and, collectively, the "Tranche A-2
Term Notes"), (iii) if Tranche A-3 Term Loans, by a promissory note duly
executed and delivered by the Borrower substantially in form of Exhibit B-3 with
blanks appropriately completed in conformity herewith (each a "Tranche A-3 Term
Note" and, collectively, the "Tranche A-3 Term Notes"), (iv) if Tranche B-1 Term
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-4 with blanks appropriately completed in
conformity herewith (each a "Tranche B-1 Term Note" and, collectively, the
"Tranche B-1 Term Notes"), (v) if Tranche B-2 Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of Exhibit
B-5 with blanks appropriately completed in conformity herewith (each a "Tranche
B-2 Term Note" and, collectively, the "Tranche B-2 Term Notes"), (vi) if
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-6, with blanks appropriately
completed in conformity herewith (each a "Revolving Note" and, collectively, the
"Revolving Notes") and (v) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-7,
with blanks appropriately completed in conformity herewith (the "Swingline
Note").
6
(b) The Tranche A-1 Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the aggregate principal
amount of Tranche A-1 Term Loans made by such Bank on the Initial Borrowing Date
(or, if issued after the Initial Borrowing Date, the aggregate principal amount
of Tranche A-1 Term Loans of such Bank on the date of the respective issuance)
and be payable in the principal amount of the outstanding Tranche A-1 Term Loans
evidenced thereby from time to time, (iv) mature on the Tranche A-1 and Tranche
A-2 Term Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment
as provided in Section 4.01 and mandatory repayment as provided in Section 4.02,
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents, except that the Tranche A-1 Term Notes shall not be entitled to the
benefits of the HET/HOC Guaranty and Loan Purchase Agreement and (viii) be
subject to mandatory conversion into Tranche B-2 Term Loans in the
circumstances, and to the extent, provided in Section 1.14.
(c) The Tranche A-2 Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Tranche A-2 Term
Loan Commitment of such Bank on the Initial Borrowing Date (or, if issued
thereafter, equal to the sum of the Tranche A-2 Term Loans of such Bank then
outstanding plus the amount of such Bank's Tranche A-2 Term Loan Commitment as
then in effect) and be payable in the principal amount of the outstanding
Tranche A-2 Term Loans evidenced thereby from time to time, (iv) mature on the
Tranche A-1 and A-2 Term Loan Maturity Date, (v) bear interest as provided in
the appropriate clause of Section 1.08 in respect of Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents (including the HET/HOC Guaranty and Loan Purchase
Agreement).
(d) The Tranche A-3 Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the aggregate principal
amount of Tranche A-3 Term Loans made by such Bank on the Initial Borrowing Date
(or, if issued after the Initial Borrowing Date, the aggregate principal amount
of Tranche A-3 Term Loans of such Bank on the date of the respective issuance)
and be payable in the principal amount of the outstanding Tranche A-3 Term Loans
evidenced thereby from time to time, (iv) mature on the Tranche A-3 Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents,
except that the Tranche A-3 Term Notes shall not be entitled to the benefits of
the HET/HOC Guaranty and Loan Purchase Agreement.
(e) The Tranche B-1 Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or,
7
if issued thereafter, the date of the issuance thereof), (iii) be in a stated
principal amount equal to the aggregate principal amount of Tranche B-1 Term
Loans made by such Bank on the Initial Borrowing Date (or, if issued after the
Initial Borrowing Date, the aggregate principal amount of Tranche B-1 Term Loans
of such Bank on the date of the respective issuance) and be payable in the
principal amount of the outstanding Tranche B-1 Term Loans evidenced thereby
from time to time, (iv) mature on the Tranche B Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02, (vii) be subordinated to the
Tranche A Obligations in accordance with the provisions of Section 13 of this
Agreement, (viii) be entitled to the benefits of this Agreement and the other
Credit Documents, except that the Tranche B-1 Term Notes shall not be entitled
to the benefits of the HET/HOC Guaranty and Loan Purchase Agreement and (ix) be
subject to mandatory conversion into Tranche B-2 Term Loans in the
circumstances, and to the extent, provided in Section 1.14.
(f) The Tranche B-2 Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Tranche B-2 Term
Loan Commitment of such Bank on the Initial Borrowing Date (or, if issued
thereafter, equal to the sum of the Tranche B-2 Term Loans of such Bank then
outstanding plus the amount of such Bank's Tranche B-2 Term Loan Commitment as
then in effect) and be payable in the principal amount of the outstanding
Tranche B-2 Term Loans evidenced thereby from time to time, (iv) mature on the
Tranche B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of Base Rate Loans and Eurodollar
Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary
prepayment as provided in Section 4.01, and mandatory repayment as provided in
Section 4.02, (vii) be subordinated to the Tranche A Obligations in accordance
with the provisions of Section 13 of this Agreement and be subordinated to the
Tranche B-1 Obligations in accordance with the provisions of Section 15 of this
Agreement and (viii) be entitled to the benefits of this Agreement and the other
Credit Documents (including the HET/HOC Guaranty and Loan Purchase Agreement).
On the Tranche B-2 Term Loan Commitment Termination Date, if any Tranche A-1
Term Loans or Tranche B-1 Term Loans are converted into Tranche B-2 Term Loans
in accordance with the provisions of Section 1.14, then on such date the
Borrower shall deliver to each Bank with Loans so converted new Tranche B-2 Term
Notes to the extent needed to reflect the increased principal amount of Tranche
B-2 Term Loans of the respective Banks then outstanding, although any failure of
the Borrower to comply with its obligations pursuant to this sentence shall in
no event affect the conversion as provided in Section 1.14 or the obligations of
the Borrower (including the obligation to pay principal and interest thereon)
with respect to the Tranche B-2 Term Loans resulting from such conversion.
(g) The Revolving Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank and be payable in the principal amount of the
outstanding Revolving Loans evidenced thereby from time to time, (iv) mature on
the Revolving Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in
8
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02, (vii) be
subordinated to the Tranche A Obligations in accordance with the provisions of
Section 13 of this Agreement and (viii) be entitled to the benefits of this
Agreement and the other Credit Documents (including the HET/HOC Guaranty and
Loan Purchase Agreement).
(h) The Swingline Note issued to BTCo shall (i) be executed by
the Borrower, (ii) be payable to the order of BTCo and be dated the Initial
Borrowing Date (or, if issued thereafter, the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Maximum Swingline Amount and
be payable in the principal amount of the outstanding Swingline Loans evidenced
thereby from time to time, (iv) mature on the Swingline Expiry Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02,
(vii) be subordinated to the Tranche A Obligations in accordance with the
provisions of Section 13 of this Agreement and (viii) be entitled to the
benefits of this Agreement and the other Credit Documents (including the HET/HOC
Guaranty and Loan Purchase Agreement).
(i) In addition to the terms set forth above in this Section
1.05, (i) each Note shall also contain the following legend (which shall be
printed thereon in bold face):
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN
THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE AGREEMENT), WHICH
INTERCREDITOR AGREEMENT, AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS
WITH RESPECT TO THE SECURITY FOR THIS NOTE AND THE SHARING OF PROCEEDS
THEREOF WITH CERTAIN OTHER SECURED CREDITORS (AS DEFINED IN THE
INTERCREDITOR AGREEMENT). COPIES OF SUCH INTERCREDITOR AGREEMENT WILL
BE FURNISHED TO ANY HOLDER OF THIS NOTE UPON REQUEST TO THE BORROWER.
(ii) each Tranche B-1 Term Note, each Revolving Note and each Swingline Note
shall also contain the following legend (which shall be printed thereon in bold
face):
THIS NOTE IS SUBORDINATED TO THE TRANCHE A OBLIGATIONS (AS DEFINED IN
THE AGREEMENT) IN ACCORDANCE WITH THE PROVISIONS OF SECTION 13 OF THE
AGREEMENT.
(iii) each Tranche B-2 Term Note shall also contain the following legend
(which shall be printed thereon in bold face):
THIS NOTE IS SUBORDINATED TO THE TRANCHE A OBLIGATIONS (AS
DEFINED IN THE AGREEMENT) IN ACCORDANCE WITH THE PROVISIONS OF SECTION
13 OF THE AGREEMENT AND IS SUBORDINATED TO THE
9
TRANCHE B-1 OBLIGATIONS (AS DEFINED IN THE AGREEMENT) IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 15 OF THE AGREEMENT.
and (iv) each Tranche A-2 Term Note, each Revolving Note, each Swingline Note
and each Tranche B-2 Term Note shall also contain the following legend (which
shall be printed thereon in bold face), except that the bracketed language
contained below shall not appear in the Tranche A-2 Term Notes:
FURTHERMORE, [BUT SUBJECT TO THE SUBORDINATION DESCRIBED IN
THE IMMEDIATELY PRECEDING SENTENCE,] CERTAIN AMOUNTS PAYABLE AS
INTEREST ON THIS NOTE ARE REQUIRED TO BE PAID BY, OR ON BEHALF OF, THE
HOLDER OF THIS NOTE TO HET AND/OR HOC (EACH AS DEFINED IN THE
AGREEMENT) PURSUANT TO SECTION 1.08(f) OF THE AGREEMENT AND THE CREDIT
ENHANCEMENT FEE AGREEMENT (BANK CREDIT AGREEMENT) REFERRED TO THEREIN.
(j) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect the Borrower's
obligations in respect of such Loans.
1.06 Conversions Into Loans of Another Type. The Borrower
shall have the option to convert, on any Business Day, all or a portion equal to
at least (x) in the case of a conversion of Term Loans, $5,000,000 and (y) in
the case of a conversion of Revolving Loans, $1,000,000 (and, if greater, in an
integral multiple of $500,000), of the outstanding principal amount of Loans
made pursuant to one or more Borrowings (so long as of the same Tranche) of one
or more Types of Loans into a Borrowing (of the same Tranche) of another Type of
Loan, provided that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being converted and no such partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
such Eurodollar Loans made pursuant to a single Borrowing to less than (x) in
the case of Term Loans, $5,000,000 and (y) in the case of Revolving Loans,
$1,000,000, (ii) Base Rate Loans may only be converted into Eurodollar Loans if
no Default or Event of Default is in existence on the date of the conversion,
(iii) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings of Eurodollar Loans than is permitted under Section 1.02
and (iv) Swingline Loans may not be converted pursuant to this Section 1.06.
Each such conversion shall be effected by the Borrower giving the Administrative
Agent at its Notice Office prior to 12:00 Noon (New York time) at least three
Business Days' prior notice (each a "Notice of Conversion") specifying the Loans
to be so converted, the Borrowing(s) pursuant to which such Loans were made and,
if to be converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Bank prompt notice
of any such proposed conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A-1 Term
Loans, Tranche A-2 Term Loans, Tranche A-3 Term Loans, Tranche B-1 Term Loans,
Tranche B-2
10
Term Loans and Revolving Loans under this Agreement shall be
incurred from the Banks pro rata on the basis of their Tranche A-1 Term Loan
Commitments, Tranche A-2 Term Loan Commitments, Tranche A-3 Term Loan
Commitments, Tranche B-1 Term Loan Commitments, Tranche B-2 Term Loan
Commitments or Revolving Loan Commitments, as the case may be, provided that (x)
all Borrowings of Revolving Loans made pursuant to a Mandatory Borrowing shall
be incurred from the Banks with Revolving Loan Commitments pro rata on the basis
of their Adjusted Percentages and (y) Borrowings of Tranche B-2 Term Loans
resulting from conversions pursuant to Section 1.14 shall be made through the
conversion of outstanding Tranche A-2 Term Loans and/or Tranche B-1 Term Loans
as more fully provided in, and in accordance with the provisions of, Section
1.14. It is understood that no Bank shall be responsible for any default by any
other Bank of its obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Bank to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Base Rate Loan and (ii)
the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section
1.06, at a rate per annum which shall be equal to the sum of the Applicable
Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Eurodollar Loan and (ii) the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06,
1.09 or 1.10, as applicable, at a rate per annum which shall, during each
Interest Period applicable thereto, be equal to the sum of the Applicable Margin
plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case (notwithstanding any provision of the Mortgage
that would result in a different rate of interest being applicable to any such
amount), bear interest at a rate per annum equal to the greater of (x) 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans of the
respective Tranche of Loans from time to time and (y) the rate which is 2% in
excess of the rate then borne by such Loans, in each case with such interest to
be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
11
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
(f) Without limiting or otherwise affecting the obligations of
the Borrower to pay interest as provided above, each Bank hereby authorizes the
Administrative Agent, on its behalf, to enter into the Credit Enhancement Fee
Agreement (Bank Credit Agreement) and further agrees that from interest payments
actually received by them (or received by the Administrative Agent on their
behalf) in respect of Revolving Loans, Swingline Loans, Tranche A-2 Term Loans
and/or Tranche B-2 Term Loans (but, in the case of Tranche B-2 Term Loans, only
to the extent the aggregate principal amount of such Tranche B-2 Term Loans for
all Banks outstanding from time to time exceeds $10 million), as the case may
be, and from Letter of Credit Fees payable to the Banks pursuant to Section
3.03(c), Credit Support Fees shall be paid by the respective Banks to HET and/or
HOC as provided in the Credit Enhancement Fee Agreement (Bank Credit Agreement).
Each Bank which has outstanding Revolving Loans, Swingline Loans, Tranche A-2
Term Loans or Tranche B-2 Term Loans and/or participates in outstanding Letters
of Credit hereby authorizes and directs the Administrative Agent to deduct, from
payments of interest on the relevant Loans and Letter of Credit Fees actually
received by it, such amounts as the Administrative Agent determines from time to
time are owing as Credit Support Fees pursuant to the Credit Enhancement Fee
Agreement (Bank Credit Agreement). Each Bank further agrees that the
Administrative Agent shall have no liability if it fails to deduct the amounts
so payable, in which case the respective Bank receiving the interest or Letter
of Credit Fee shall be obligated to remit to HET and/or HOC as provided in the
Credit Fee Enhancement Agreement (Bank Credit Agreement) its share (based upon
interest payments and/or Letter of Credit Fees actually received by it) of any
such Credit Support Fees. In connection with payments made by the Administrative
Agent of Credit Support Fees as contemplated herein, it is agreed that the
Administrative Agent shall have no liability to any Person (including without
limitation the Banks, HET and/or HOC) except to the extent resulting from the
gross negligence or willfulness conduct of the Administrative Agent.
1.09 Interest Periods. At the time the Borrower gives any
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of an
Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period (each an
"Interest Period") applicable to such Eurodollar Loan, which Interest Period
shall, at the option of the Borrower, be a one, two, three or six-month period,
provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type)
and each Interest Period occurring thereafter in respect of such
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Eurodollar Loan shall commence on the day on which the next preceding
Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a Default
or an Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of Tranche
A-1 Term Loans, Tranche A-2 Term Loans, Tranche A-3 Term Loans,
Tranche B-1 Term Loans or Tranche B-2 Term Loans, as the case may be,
shall be selected which extends beyond any date upon which a mandatory
repayment of such Tranche of Term Loans will be required to be made
under Section 4.02(b) if the aggregate principal amount of such
Tranche of Term Loans which have Interest Periods which will expire
after such date will be in excess of the aggregate principal amount of
such Tranche of Term Loans then outstanding less the aggregate amount
of such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Bank shall have determined in good faith (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but,
with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
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(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the
date of this Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any
Bank of the principal of or interest on such Eurodollar Loan or any
other amounts payable hereunder (except for changes in the rate of tax
on, or determined by reference to, the net income or profits of such
Bank pursuant to the laws of the jurisdiction in which it is organized
or in which its principal office or applicable lending office is
located or any subdivision thereof or therein) or (B) a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation
of the Eurodollar Rate and/or (y) other circumstances since the date
of this Agreement affecting such Bank or the interbank Eurodollar
market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower agrees to pay to such Bank, upon
written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Bank in its sole discretion shall determine) as shall be required to compensate
such Bank for such increased costs or reductions in amounts received or
receivable hereunder (a written notice as to the additional amounts owed to such
Bank, showing the basis for the calculation thereof, submitted to the Borrower
by such Bank in good faith shall, absent manifest error, be final and conclusive
and binding on all the parties hereto) and (z) in the case of clause (iii)
above, the Borrower shall take one of the actions specified in Section 1.10(b)
as promptly as possible and, in any event, within the time period required by
law. Each of the Administrative Agent and each Bank agrees that if it gives
notice to the Borrower of any of the events described in clause (i) or (iii)
above, it shall promptly notify the Borrower and, in the case of any such Bank,
the Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Bank, the obligations of
such Bank to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
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(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii), the Borrower may, and in the
case of a Eurodollar Loan affected by the circumstances described in Section
1.10(a)(iii) the Borrower shall, either (x) if the affected Eurodollar Loan is
then being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank or
the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Bank to convert
such Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If at any time any Bank determines that the introduction
of or any change in any applicable law or governmental rule, regulation, order,
guideline, directive or request (whether or not having the force of law and
including, without limitation, those announced or published prior to the
Effective Date) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency, will have the effect of increasing the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank
based on the existence of such Bank's Commitments hereunder or its obligations
hereunder, then the Borrower agrees to pay to such Bank, upon its written demand
therefor, such additional amounts as shall be required to compensate such Bank
or such other corporation for the increased cost to such Bank or such other
corporation or the reduction in the rate of return to such Bank or such other
corporation as a result of such increase of capital. In determining such
additional amounts, each Bank will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable, provided that such
Bank's reasonable good faith determination of compensation owing under this
Section 1.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. Each Bank, upon determining that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
prompt written notice thereof to the Borrower, which notice shall show the basis
for calculation of such additional amounts.
1.11 Compensation. The Borrower agrees to compensate each
Bank, upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Eurodollar Loans but excluding any loss of
anticipated profit) which such Bank may sustain: (i) if for any reason (other
than a default by such Bank or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii)
if any repayment (including any repayment made pursuant to Section 4.01 or 4.02
or a result of an acceleration of the Loans pursuant to Section 10) or
conversion of any of its Eurodollar Loans occurs on a date which is not the last
day of an Interest Period with respect thereto; (iii) if any prepayment of any
of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to
15
repay Loans when required by the terms of this Agreement or any Note held by
such Bank or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Bank,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Banks. If any Bank (i) becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (ii) is incurring or is reasonably expected to incur costs
which are or would be material in amount and are associated with a Gaming
Authority's investigation of whether or not such Bank is a Qualified Person or
(iii) refuses to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as provided in Section 16.12(b), the Borrower shall have the
right, in accordance with the requirements of Section 16.04(b), if no Event of
Default would exist after giving effect to such replacement, to either replace
such Bank (the "Replaced Bank") with one or more other Qualified Person or
Persons, none of whom shall constitute a Defaulting Bank at the time of such
replacement (collectively, the "Replacement Bank") acceptable to the
Administrative Agent and each Issuing Bank or, at the option of the Borrower in
cases where the various Tranches held by the Banks are affected differently or
where the respective Bank's consent is required with respect to less than all of
the Tranches in which it participates, to replace only (u) the Revolving Loan
Commitment (and outstandings pursuant thereto) of the Replaced Bank with an
identical Revolving Loan Commitment (and related outstandings) provided by the
Replacement Bank, (v) the Tranche A-1 Term Loans of the Replaced Bank with
identical Tranche A-1 Term Loans provided by the Replacement Bank, (w) the
Tranche A-2 Term Loan Commitment and/or Tranche A-2 Term Loans of the Replaced
Bank with an identical Tranche A-2 Term Loan Commitment and/or Tranche A-2 Term
Loans, as the case may be, provided by the Replacement Bank, (x) the Tranche A-3
Term Loans of the Replaced Bank with identical Tranche A-3 Term Loans provided
by the Replacement Bank, (y) the Tranche B-1 Term Loans of the Replaced Bank
with identical Tranche B-1 Term Loans provided by the Replacement Bank and/or
(z) the Tranche B-2 Term Loan Commitment and/or Tranche B-2 Term Loans of the
Replaced Bank with an identical Tranche B-2 Term Loan Commitment and/or Tranche
B-2 Term Loans, as the case may be, provided by the Replacement Bank, provided
that (i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 16.04(b) (and with all fees payable pursuant to
said Section 16.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Revolving Loan Commitment, Tranche A-1
Term Loans, Tranche A-2 Term Loans and/or Tranche A-2 Term Loan Commitment, as
the case may be, Tranche A-3 Term Loans, Tranche B-1 Term Loans, Tranche B-2
Term Loans and/or Tranche B-2 Term Loan Commitment, as the case may be, of the
Replaced Bank and, in connection therewith, shall pay to
16
(x) the Replaced Bank in respect thereof an amount equal to the sum of (A) if
the Revolving Loan Commitment is being replaced, an amount equal to the
principal of, and all accrued interest on, all outstanding Revolving Loans of
the Replaced Bank and an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank, together with all then
unpaid interest with respect thereto at such time, (B) if the Tranche A-1 Term
Loans are being replaced, an amount equal to the principal of, and all accrued
interest on, all outstanding Tranche A-1 Term Loans of the Replaced Bank, (C) if
the Tranche A-2 Term Loans are being replaced, an amount equal to the principal
of, and all accrued interest on, all outstanding Tranche A-2 Term Loans of the
Replaced Bank, (D) if the Tranche A-3 Term Loans are being replaced, an amount
equal to the principal of, and all accrued interest on, all outstanding Tranche
A-3 Term Loans of the Replaced Bank, (E) if the Tranche B-1 Term Loans are being
replaced, an amount equal to the principal of, and all accrued interest on, all
outstanding Tranche B-1 Term Loans of the Replaced Bank, (F) if the Tranche B-2
Term Loans are being replaced, an amount equal to the principal of, and all
accrued interest on, all outstanding Tranche B-2 Term Loans of the Replaced Bank
and (G) an amount equal to all accrued, but theretofore unpaid, Fees owing to
the Replaced Bank (but only with respect to the relevant Tranche or Tranches, in
the case of the replacement of less than all Tranches in which the respective
Replaced Bank participates) pursuant to Section 3.01, (y) except in the case of
the replacement of only the Term Loans and/or Term Loan Commitments of a
Replaced Bank, the Issuing Bank an amount equal to such Replaced Bank's Adjusted
Percentage (for this purpose, determined as if the adjustment described in
clause (y) of the immediately succeeding sentence had been made with respect to
such Replaced Bank) of any Unpaid Drawing (which at such time remains an Unpaid
Drawing) to the extent such amount was not theretofore funded by such Replaced
Bank, and (z) in the case of any replacement of Revolving Loan Commitments, BTCo
an amount equal to such Replaced Bank's Adjusted Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such Replaced
Bank and (ii) all obligations of the Borrower owing to the Replaced Bank (other
than those (a) specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid or (b)
relating to any Tranche in which the respective Replaced Bank will continue to
participate after giving effect to the respective replacement) shall be paid in
full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment and Assumption Agreements, the payment of
amounts referred to in clauses (i) and (ii) above, recordation of the assignment
on the Register by the Administrative Agent pursuant to Section 16.17 and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement Bank
shall become a Bank hereunder and, unless the respective Replaced Bank continues
to participate as a Bank in any Tranche hereunder, the Replaced Bank shall cease
to constitute a Bank hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2.06, 4.04, 12.06 and 16.01), which shall survive as to such Replaced Bank
and (y) in the case of a replacement of the Revolving Loan Commitment of a
Defaulting Bank with the Revolving Loan Commitment of a Non-Defaulting Bank, the
Adjusted Percentages of the Banks shall be automatically adjusted at such time
to give effect to such replacement (and to give effect to the replacement of a
Defaulting Bank with one or more Non-Defaulting Banks). If any event described
in clauses (i) or (ii) above shall occur and the Borrower is unable within a
reasonable period of time to replace all of the Revolving Loans and the
Revolving Loan Commitment, and/or Term Loans and related Term
17
Loan Commitments, as the case may be, of any such Bank through one or more
Replacement Banks, then the Borrower may replace a portion thereof with one or
more Replacement Banks on substantially the same terms described in this Section
1.13.
1.14 Conversion of Tranche A-1 and B-1 Term Loans to Tranche
B-2 Term Loans. (a) If, for any reason whatsoever, on the Tranche B-2 Term Loan
Commitment Termination Date (and after giving effect to all Tranche B-2 Term
Loans made on such date), less than $121.5 million aggregate principal amount of
Tranche B-2 Term Loans have theretofore been incurred under this Agreement, then
on such date, and automatically and without the taking of any further action by
the Borrower or any Bank, first, outstanding Tranche A-1 Term Loans and, second,
to the extent in excess thereof, Tranche B-1 Term Loans in an aggregate
principal amount equal to the remainder of (x) $121.5 million less (y) the
aggregate principal amount of Tranche B-2 Term Loans theretofore incurred
pursuant to this Agreement (or, if less than such remainder, the aggregate
principal amount of Tranche A-1 Term Loans and Tranche B-1 Term Loans then
outstanding) shall be automatically converted into Tranche B-2 Term Loans, with
such conversion to become effective on the Tranche B-2 Term Loan Commitment
Termination Date.
(b) Each Bank which has outstanding Tranche A-1 Term Loans on
the Tranche B-2 Term Loan Commitment Termination Date shall, if Section 1.14(a)
is applicable, have converted into Tranche B-2 Term Loans that portion of the
principal of its then outstanding Tranche A-1 Term Loans as is equal to the
aggregate amount of Tranche A-1 Term Loans to be converted for all Banks into
Tranche B-2 Term Loans as described in Section 1.14(a) multiplied by a fraction
the numerator of which is the aggregate principal amount of Tranche A-1 Term
Loans of such Bank outstanding on the Tranche B-2 Term Loan Commitment
Termination Date (immediately before giving effect to the conversions on such
date pursuant to this Section) and the denominator of which is all then
outstanding Tranche A-1 Term Loans of all Banks on such date (and before giving
effect to such conversions). In addition, each Bank with Tranche A-1 Term Loans
being converted into Tranche B-2 Term Loans shall share proportionately in each
Borrowing designated as being applicable to such converted Tranche B-2 Term
Loans pursuant to following clause (d).
(c) Each Bank which has outstanding Tranche B-1 Term Loans on
the Tranche B-2 Term Loan Commitment Termination Date shall, if Section 1.14(a)
is applicable, have converted into Tranche B-2 Term Loans that portion of the
principal of its then outstanding Tranche B-1 Term Loans as is equal to the
aggregate amount of Tranche B-1 Term Loans to be converted for all Banks into
Tranche B-2 Term Loans as described in Section 1.14(a) multiplied by a fraction
the numerator of which is the aggregate principal amount of Tranche B-1 Term
Loans of such Bank outstanding on the Tranche B-2 Term Loan Commitment
Termination Date (immediately before giving effect to the conversions on such
date pursuant to this Section) and the denominator of which is all then
outstanding Tranche B-1 Term Loans of all Banks on such date (and before giving
effect to such conversions). In addition, each Bank with Tranche B-1 Term Loans
being converted into Tranche B-2 Term Loans shall share proportionately in each
Borrowing designated as being applicable to such converted Tranche B-2 Term
Loans pursuant to following clause (d).
18
(d) In furtherance of the requirements of the preceding
paragraphs of this Section 1.14, on the Tranche B-2 Term Loan Commitment
Termination Date, if any Tranche A-1 Term Loans or Tranche B-1 Term Loans are
being converted into Tranche B-2 Term Loans in accordance with this Section
1.14, the Borrower shall designate one or more Borrowings (or portions thereof)
of outstanding Tranche A-1 Term Loans and/or Tranche B-1 Term Loans, as the case
may be, as being converted into Borrowings of Tranche B-2 Term Loans. At the
time of any conversion pursuant to this Section 1.14, to the extent any
borrowings then outstanding as Eurodollar Loans are so being converted, such
conversion shall be deemed to constitute a termination of the Interest Period
then applicable thereto, which for purposes of Section 1.11 shall be deemed to
constitute a payment of Eurodollar Loans on a day that is not the last day of
the Interest Period with respect thereto (and at the time of such conversion,
the Borrower shall pay any amounts owing in connection therewith pursuant to
said Section 1.11). At the time of the conversions pursuant to this Section
1.14, the Borrower may designate one or more new Interest Periods to be
applicable to the converted loans in accordance with the provisions of Section
1.06. Notwithstanding anything to the contrary contained above, however,
immediately following any conversion pursuant to this Section 1.14, all Banks
with outstanding Tranche B-2 Term Loans shall be required to hold pro rata
shares (based upon their relative principal amounts of then outstanding Tranche
B-2 Term Loans) in each Borrowing which remains outstanding after giving effect
to the conversions pursuant to this Section 1.14. In connection therewith,
portions of the Loans being converted into Tranche B-2 Term Loans shall, to the
extent needed to cause the various banks to maintain such pro rata interests, be
required to remain outstanding as a part of one or more theretofore outstanding
Borrowings of Eurodollar Loans. In such case, however, the Borrower shall
compensate each Bank which has Loans which are to be outstanding as part of a
Borrowing of Eurodollar Loans with an Interest Period which began before the
Tranche B-2 Term Loan Commitment Termination Date and which ends thereafter for
any costs to such Bank of funding its portion of such Borrowing (as a result of
a conversion of its loans as otherwise provided above) during an Interest Period
already applicable thereto. In the absence of such a designation by the
Borrower, the Administrative Agent shall make such designation in its sole
discretion.
(e) Following any conversion of Tranche A-1 Term Loans and/or
Tranche B-1 Term Loans into Tranche B-2 Term Loans pursuant to this Section
1.14, all such Loans shall, for all purposes of this Agreement and the related
Credit Documents, be thereafter treated as Tranche B-2 Term Loans, although all
interest calculations on such Loans shall treat same as Tranche A-1 Term Loans
and/or Tranche B-1 Term Loans, as the case may be, for all periods occurring on
or prior to the Tranche B-2 Term Loan Commitment Termination Date.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that an Issuing Bank
issue, at any time and from time to time on and after the Initial Borrowing Date
and prior to the Revolving Loan Maturity Date, for the account of the Borrower
and for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Indebtedness of the
Borrower or any of its Subsidiaries, an irrevocable standby letter of credit, in
a form customarily used by such Issuing Bank or in such other form as has been
approved by such Issuing Bank (each such standby letter of credit, a "Letter of
Credit") in support of such L/C Supportable Indebtedness.
19
(b) Each Issuing Bank hereby agrees that it will (subject to
the terms and conditions contained herein), at any time and from time to time on
or after the Initial Borrowing Date and prior to the Revolving Loan Maturity
Date, following its receipt of the respective Letter of Credit Request, issue
for the account of the Borrower one or more Letters of Credit, in support of
such L/C Supportable Indebtedness of the Borrower or any of its Subsidiaries as
is permitted to remain outstanding without giving rise to a Default or an Event
of Default, provided that the respective Issuing Bank shall be under no
obligation to issue any Letter of Credit of the types described above if at the
time of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Bank from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Bank shall prohibit, or
request that such Issuing Bank refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Bank with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated) not in effect on the date
hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Bank as of the date
hereof and which such Issuing Bank in good xxxxx xxxxx material to it;
or
(ii) such Issuing Bank shall have received notice from any Bank
prior to the issuance of such Letter of Credit of the type described
in the penultimate sentence of Section 2.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $10,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans made by Non-Defaulting Banks and then outstanding
and Swingline Loans then outstanding, an amount equal to the Adjusted Total
Revolving Loan Commitment at such time, (ii) each Letter of Credit shall be
denominated in Dollars and (iii) each Letter of Credit shall by its terms
terminate on or before the earlier of (x) the date which occurs 12 months after
the date of the issuance thereof (although any such Letter of Credit may be
extendible for successive periods of up to 12 months, but not beyond the
Revolving Loan Maturity Date, on terms acceptable to the Issuing Bank thereof)
and (y) the Revolving Loan Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of each Letter
of Credit shall be not less than $50,000 or such lesser amount as is acceptable
to the respective Issuing Bank.
2.03 Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank at least five
Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) written notice thereof. Each notice shall be in the form of
Exhibit C (each a "Letter of Credit Request").
20
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Bank has received notice from
any Bank before it issues a Letter of Credit that one or more of the conditions
specified in Section 6 are not then satisfied, or that the issuance of such
Letter of Credit would violate Section 2.01(c), then such Issuing Bank shall
issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Bank's usual and customary practices. Upon its
issuance of any Letter of Credit, such Issuing Bank shall promptly notify each
Bank of such issuance, which notice shall be accompanied by a copy of the Letter
of Credit actually issued.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be
deemed to have sold and transferred to each Bank with a Revolving Loan
Commitment, other than such Issuing Bank (each such Bank, in its capacity under
this Section 2.04, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from such Issuing
Bank, without recourse or warranty, an undivided interest and participation, to
the extent of such Participant's Adjusted Percentage, in such Letter of Credit,
each drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty pertaining
thereto. Upon any change in the Revolving Loan Commitments or Adjusted
Percentages of the Banks pursuant to Section 1.13 or 16.04 or as a result of a
Bank Default, it is hereby agreed that, with respect to all outstanding Letters
of Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new Adjusted
Percentages of the assignor and assignee Bank or of all Banks with Revolving
Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Bank shall have no obligation relative to the other Banks other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by any Issuing Bank under or in connection with any Letter of Credit
if taken or omitted in the absence of gross negligence or willful misconduct,
shall not create for such Issuing Bank any resulting liability to the Borrower
or any Bank.
(c) In the event that any Issuing Bank makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed such amount in
full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Adjusted Percentage of the amount of such payment available
to such Issuing Bank, such Participant agrees to pay to such Issuing Bank,
forthwith on demand such amount, together with
21
interest thereon, for each day from such date until the date such amount is paid
to such Issuing Bank at the overnight Federal Funds Rate. The failure of any
Participant to make available to such Issuing Bank its Adjusted Percentage of
any payment under any Letter of Credit shall not relieve any other Participant
of its obligation hereunder to make available to such Issuing Bank its Adjusted
Percentage of any Letter of Credit on the date required, as specified above, but
no Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Bank such other Participant's Adjusted Percentage
of any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to each
Participant which has paid its Adjusted Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, any Participant, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the
Borrower or any of its Subsidiaries and the beneficiary named in any
such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
22
2.05 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by such Issuing Bank under
any Letter of Credit issued by it (each such amount, so paid until reimbursed,
an "Unpaid Drawing"), immediately after, and in any event on the date of, the
date of such payment or disbursement, with interest on the amount so paid or
disbursed by such Issuing Bank, to the extent not reimbursed prior to 12:00 Noon
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but excluding the date such Issuing Bank was
reimbursed by the Borrower therefor at a rate per annum which shall be the Base
Rate in effect from time to time plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans, provided, however, to the extent such amounts are
not reimbursed prior to 12:00 Noon (New York time) on the third Business Day
following such payment or disbursement, interest shall thereafter accrue on the
amounts so paid or disbursed by such Issuing Bank (and until reimbursed by the
Borrower) at a rate per annum which shall be the Base Rate in effect from time
to time plus the Applicable Margin for Revolving Loans maintained as Base Rate
Loans plus 2%, in each such case, with interest to be payable by the Borrower on
demand. The respective Issuing Bank shall give the Borrower prompt notice of
each Drawing under any Letter of Credit, provided that the failure to give any
such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as issuer of the Letter of
Credit or as Participant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Bank's only
obligation to the Borrower being to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit; provided, however, that the Borrower shall not be obligated to reimburse
such Issuing Bank for any wrongful payment made by such Issuing Bank under a
Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Issuing Bank. Any action
taken or omitted to be taken by any Issuing Bank under or in connection with any
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such Issuing Bank any resulting
liability to the Borrower.
2.06 Increased Costs. If at any time the introduction of or
any change in any applicable law, rule, regulation, order, guideline or request
or in the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Issuing Bank or any Participant with any request or directive by any such
authority (whether or not having the force of law), or any change in generally
acceptable accounting principles, shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement against
letters of credit issued by any Issuing Bank or participated in by any
Participant, or (ii) impose on any Issuing Bank or any Participant any other
conditions relating, directly or indirectly, to this Agreement or any Letter of
Credit; and the result of any of the foregoing is to increase the cost to any
Issuing Bank or any Participant of issuing,
23
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by any Issuing Bank or any Participant hereunder
or reduce the rate of return on its capital with respect to Letters of Credit
(except for changes in the rate of tax on, or determined by reference to, the
net income or profits of such Issuing Bank or such Participant pursuant to the
laws of the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), then, upon demand to the Borrower by such Issuing Bank or any
Participant (a copy of which demand shall be sent by such Issuing Bank or such
Participant to the Administrative Agent), the Borrower agrees to pay (and shall
pay) to such Issuing Bank or such Participant such additional amount or amounts
as will compensate such Bank for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Bank
or any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.06, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Bank or such Participant (a copy of which certificate shall be sent
by such Issuing Bank or such Participant to the Administrative Agent), setting
forth in reasonable detail the basis for the calculation of such additional
amount or amounts necessary to compensate such Issuing Bank or such Participant.
The certificate required to be delivered pursuant to this Section 2.06 shall, if
delivered in good faith and absent manifest error, be final and conclusive and
binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a)(i) The Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting Bank with a Tranche
A-2 Term Loan Commitment, a commitment commission (the "Tranche A-2 Term Loan
Commitment Commission") for the period from the Effective Date to but excluding
the Tranche A-2 Term Loan Commitment Termination Date, computed at a rate for
each day equal to the HET Applicable Commitment Commission Percentage on the
daily average Tranche A-2 Term Loan Commitment of such Non-Defaulting Bank.
Accrued Tranche A-2 Term Loan Commitment Commission shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the date on which
the Total Tranche A-2 Term Loan Commitment is terminated.
(ii) The Borrower agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting Bank with a Tranche B-2 Term Loan
Commitment, a commitment commission (the "Tranche B-2 Term Loan Commitment
Commission") for the period from the Effective Date to but excluding the Tranche
B-2 Term Loan Commitment Termination Date, computed at a rate for each day equal
to the HET Applicable Commitment Commission Percentage on the daily average
Tranche B-2 Term Loan Commitment of such Non-Defaulting Bank. Accrued Tranche
B-2 Term Loan Commitment Commission shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the date on which the Total
Tranche B-2 Term Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a
commitment commission (the "Revolving Loan Commitment Commission") for the
period from the Effective Date to but excluding the Revolving Loan Maturity Date
(or such earlier date as the Total Revolving Loan Commitment shall have been
terminated), computed at a rate for each day equal to the HET
24
Applicable Commitment Commission Percentage on the daily average Unutilized
Revolving Loan Commitment of such Non-Defaulting Bank. Accrued Revolving Loan
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the Revolving Loan Maturity Date or such earlier
date upon which the Total Revolving Loan Commitment is terminated.
(c) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective Adjusted Percentages) a fee in respect of each Letter of
Credit issued hereunder (the "Letter of Credit Fee"), for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate per annum equal to the
Applicable Margin for Revolving Loans maintained as Eurodollar Loans as in
effect from time to time on the daily average Stated Amount of such Letter of
Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding. Without limiting or otherwise affecting the
obligations of the Borrower as provided above in this clause (c), it is
acknowledged and agreed by the Banks that, from payments of Letter of Credit
Fees actually received, certain amounts shall be payable to HET and/or HOC as
Credit Support Fees as described in Section 1.08(f) and as more fully provided
in the Credit Enhancement Fee Agreement (Bank Credit Agreement).
(d) The Borrower agrees to pay to the respective Issuing Bank,
for its own account, a facing fee in respect of each Letter of Credit issued for
their account hereunder (the "Facing Fee") for the period from and including the
date of issuance of such Letter of Credit to and including the termination of
such Letter of Credit, computed at a rate per annum equal to 1/4 of 1% per annum
of the daily average Stated Amount of such Letter of Credit. Accrued Facing Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the date upon which the Total Revolving Loan Commitment has been terminated
and such Letter of Credit has been terminated in accordance with its terms.
(e) The Borrower agrees to pay, upon each payment under,
issuance of, or amendment to, any Letter of Credit, such amount as shall at the
time of such event be the administrative charge which the respective Issuing
Bank is generally imposing in connection with such occurrence with respect to
letters of credit.
(f) The Borrower agrees to pay to the Administrative Agent,
for its own account, (x) on each anniversary of the date of this Agreement
occurring on or prior to the Termination Date and (y) on the Termination Date, a
non-refundable administration fee in an amount equal to $100,000; provided that
if the Termination Date occurs on a date other than an anniversary of the date
of this Agreement, the amount of the fee payable on such Termination Date shall
be pro rated by multiplying $100,000 by a fraction the numerator of which is the
number of days which have elapsed since the preceding October 29 and the
denominator of which is 365 or 366, as the case may be.
3.02 Voluntary Termination of the Total Unutilized Revolving
Loan Commitment. (a) Upon at least two Business Days' prior notice to the
Administrative Agent at its Notice Office
25
(which notice the Administrative Agent shall promptly transmit to each of the
Banks), the Borrower shall have the right, at any time or from time to time,
without premium or penalty, to terminate the Total Unutilized Revolving Loan
Commitment, in whole or in part, in integral multiples of $1,000,000 in the case
of partial reductions to the Total Unutilized Revolving Loan Commitment,
provided that (i) each such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment of each Bank with such a Commitment, (ii)
the reduction to the Total Unutilized Revolving Loan Commitment shall in no case
be in an amount which would cause the Revolving Loan Commitment of any Bank to
be reduced (as required by preceding clause (i)) by an amount which exceeds the
remainder of (x) the Unutilized Revolving Loan Commitment of such Bank as in
effect immediately before giving effect to such reduction minus (y) such Bank's
Adjusted Percentage of the aggregate principal amount of Swingline Loans then
outstanding and (iii) prior to the occurrence of the Termination of Construction
Date, no reduction or termination of the Total Unutilized Revolving Loan
Commitment pursuant to this Section 3.02(a) shall be effective unless a written
consent thereto is furnished to the Administrative Agent by each of the
Completion Guarantors.
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Section 16.12(b), the Borrower may, upon five Business Days' written notice to
the Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), terminate all of the
Revolving Loan Commitment and/or, if prior to the Tranche A-2 Term Loan
Commitment Termination Date, the Tranche A-2 Term Loan Commitment of such Bank
and/or, if prior to the Tranche B-2 Term Loan Commitment Termination Date, the
Tranche B-2 Term Loan Commitment of such Bank so long as all Loans, together
with accrued and unpaid interest, Fees and all other amounts, owing to such Bank
(other than amounts owing in respect of any Tranche with respect to which such
Bank shall continue to act as a Bank hereunder) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I hereto shall be
deemed modified to reflect such changed amounts), and at such time, unless the
respective Bank continues to act as a Bank with respect to any Tranche, such
Bank shall no longer constitute a "Bank" for purposes of this Agreement, except
with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 16.01), which shall
survive as to such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) In addition to
any other mandatory commitment reductions pursuant to this Section 3.03, the
Total Tranche A-1 Term Loan Commitment (and the Tranche A-1 Term Loan Commitment
of each Bank), the Total Tranche A-3 Term Loan Commitment (and the Tranche A-3
Term Loan Commitment of each Bank) and the Total Tranche B-1 Term Loan
Commitment (and the Tranche B-1 Term Commitment of each Bank) shall terminate in
its entirety on the first to occur of (i) the Initial Borrowing Date (after
giving effect to the making of Loans on such date) and (ii) December 31, 1998,
if the Initial Borrowing has not theretofore occurred.
(b) The Total Tranche A-2 Term Loan Commitment (and the
Tranche A-2 Term Loan Commitment of each Bank) shall (i) terminate in its
entirety on the first to occur of (x) the Tranche A-2 Term Loan Commitment
Termination Date (after giving effect to the making of
26
Tranche A-2 Term Loans on such date) and (y) December 31, 1998, if the Initial
Borrowing Date has not theretofore occurred, (ii) be reduced, on each date upon
which any Tranche A-2 Term Loans are incurred hereunder, by the aggregate
principal amount of Tranche A-2 Term Loans so incurred on such date and (iii)
prior to the termination of the Total Tranche A-2 Term Loan Commitment as
provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02.
(c) The Total Tranche B-2 Term Loan Commitment (and the
Tranche B-2 Term Loan Commitment of each Bank) shall (i) terminate in its
entirety on the first to occur of (x) the Tranche B-2 Term Loan Commitment
Termination Date (after giving effect to the making of the Tranche B-2 Term
Loans on such date) and (y) December 31, 1998, if the Initial Borrowing Date has
not theretofore occurred , (ii) be reduced, on each date upon which any Tranche
B-2 Term Loans are incurred hereunder, by the aggregate principal amount of
Tranche B-2 Term Loans so incurred on such date and (iii) prior to the
termination of the Total Tranche B-2 Term Loan Commitment as provided in clause
(i) above, be reduced from time to time to the extent required by Section 4.02.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
first to occur of (i) the Revolving Loan Maturity Date and (ii) December 31,
1998, if the Initial Borrowing has not theretofore occurred.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Effective Date upon which
a mandatory repayment of Term Loans pursuant to Section 4.02(d), (e), (f), (g),
(h) or (i) is required (and exceeds in amount the aggregate principal amount of
Term Loans then outstanding plus the sum of the Total Tranche A-2 Term Loan
Commitment as then in effect and the Total Tranche B-2 Term Loan Commitment as
then in effect) or would be required if Term Loans were then outstanding or
Tranche A-2 Term Loan Commitments or Tranche B-2 Term Loan Commitments were then
in effect, the Total Revolving Loan Commitment shall be permanently reduced by
the amount, if any, by which the amount required to be applied pursuant to said
Sections (determined as if an unlimited amount of Term Loans were actually
outstanding) exceeds the aggregate principal amount of Term Loans then
outstanding plus the sum of the Total Tranche A-2 Term Loan Commitment as then
in effect and the Total Tranche B-2 Term Loan Commitment as then in effect.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the 15th day after the date on which a New
Bond Change of Control occurs, the Total Commitments (and the Commitments of
each Bank), but excluding any Commitments at such time held by HET, HOC or any
of their Affiliates which were previously purchased pursuant to the HET/HOC
Guaranty and Loan Purchase Agreement, shall be reduced to zero unless, and then
only to the extent, the Required Banks otherwise agree in writing in their sole
discretion.
(g) Each reduction to the Total Tranche A-1 Term Loan
Commitment, the Total Tranche A-2 Term Loan Commitment, the Total Tranche A-3
Term Loan Commitment, the Total Tranche B-1 Term Loan Commitment, the Total
Tranche B-2 Term Loan Commitment or the Total Revolving Loan Commitment pursuant
to this Section 3.03 (or pursuant to Section 4.02)
27
shall be applied proportionately to reduce the Tranche A-1 Term Loan Commitment,
the Tranche A-2 Term Loan Commitment, the Tranche A-3 Term Loan Commitment, the
Tranche B-1 Term Loan Commitment, the Tranche B-2 Term Loan Commitment or the
Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Deferrals; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right
to prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent prior to 12:00 Noon (New York time) at its
Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of the Borrower's intent to
prepay Base Rate Loans (or same day notice in the case of Swingline Loans
provided such notice is given prior to 11:00 A.M. (New York time)) and (y) at
least three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of the Borrower's intent to prepay Eurodollar Loans,
whether Tranche X-0 Xxxx Xxxxx, Xxxxxxx X-0 Xxxx Loans, Tranche A-3 Term Loans,
Tranche B-1 Term Loans, Tranche B-2 Term Loans, Revolving Loans or Swingline
Loans shall be prepaid, the amount of such prepayment and the Types of Loans to
be prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall
promptly transmit to each of the Banks; (ii) each prepayment shall be in an
aggregate principal amount of at least $1,000,000 (or $250,000 in the case of
Swingline Loans), provided that if any partial prepayment of Eurodollar Loans
made pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than (1) in the case of Term
Loans, $5,000,000 and (2) in the case of Revolving Loans, $1,000,000, then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by the Borrower shall
have no force or effect; (iii) each prepayment in respect of any Loans made
pursuant to a Borrowing shall be applied pro rata among such Loans; provided
that at the Borrower's election in connection with any prepayment of Revolving
Loans pursuant to this Section 4.01, such prepayment shall not be applied to any
Revolving Loan of a Defaulting Bank; (iv) in the event of certain refusals by a
Bank as provided in Section 16.12(b) to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Banks, the Borrower may, subject to compliance
with all the provisions of Section 16.12(b), upon five Business Days' written
notice to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks) repay all
Loans, together with accrued and unpaid interest, Fees, and other amounts owing
to such Bank (or owing to such Bank with respect to each Tranche which gave rise
to the need to obtain such Bank's individual consent) in accordance with said
Section 16.12(b) so long as (A) in the case of the repayment of Revolving Loans
of any Bank pursuant to this clause (iv) the Revolving Loan Commitment of such
Bank is terminated concurrently with such repayment (at which time Schedule I
shall be deemed modified to reflect the changed Revolving Loan Commitments) and
(B) the consents required by Section 16.12(b) in connection with the repayment
pursuant to this clause (iv) have been obtained; (v) except as provided in
preceding clause (iv), prepayments of Term Loans pursuant to this Section 4.01
shall be applied in the following manner: first, to prepay the outstanding
principal amount of Tranche A-1 Term Loans and Tranche A-2 Term Loans on a pro
rata basis (based upon the relative outstanding principal
28
amounts of such Tranches of Term Loans), second, to the extent in excess
thereof, to prepay the outstanding principal amount of Tranche B-1 Term Loans,
third, to the extent in excess thereof, to prepay the outstanding principal
amount of Tranche A-3 Term Loans and fourth, to the extent in excess thereof, to
prepay the outstanding principal amount of Tranche B-2 Term Loans; and (vi)
unless the Majority Tranche A-1 and A-3 Banks (if any Tranche A-1 Term Loans or
Tranche A-3 Term Loans are then outstanding) specifically consent thereto, no
Revolving Loan or Swingline Loan shall be prepaid pursuant to this Section 4.01
at any time when an Event of Default is in existence. Each prepayment of
principal of Tranche A-1 and A-2 Term Loans, Tranche A-3 Term Loans or Tranche B
Term Loans pursuant to this Section 4.01 shall be applied to reduce the then
remaining Tranche A-1 and A-2 Scheduled Repayments, Tranche A-3 Scheduled
Repayments or Tranche B Scheduled Repayments, as the case may be, pro rata based
upon the then remaining amount of each such Tranche A Scheduled Repayments or
Tranche B Scheduled Repayments, as the case may be, after giving effect to all
prior reductions thereto.
4.02 Mandatory Repayments and Commitment Reductions. (a)(i) On
any day on which the sum of the aggregate outstanding principal amount of the
Revolving Loans of Non-Defaulting Banks, the aggregate outstanding principal
amount of Swingline Loans and the amount of Letter of Credit Outstandings
exceeds the Adjusted Total Revolving Loan Commitment as then in effect, the
Borrower agrees to prepay principal of Swingline Loans and, after the Swingline
Loans have been repaid in full, Revolving Loans of Non-Defaulting Banks in an
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans of Non-Defaulting Banks, the
aggregate amount of the Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Loan Commitment as then in effect, the Borrower agrees to pay to the
Administrative Agent at the Payment Office on such date an amount of cash or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the Letter of Credit Outstandings at such time), such cash or Cash
Equivalents to be held as security for all obligations of the Borrower to
Non-Defaulting Banks hereunder in a cash collateral account to be established by
the Administrative Agent.
(ii) On any day on which the aggregate outstanding principal
amount of the Revolving Loans made by any Defaulting Bank exceeds the Revolving
Loan Commitment of such Defaulting Bank, the Borrower agrees to prepay principal
of Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(b)(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, but subject to the deferral
provisions contained in clause (iv) below, on each date set forth below there
shall be required to be repaid that aggregate principal amount of Tranche A-1
Term Loans and Tranche A-2 Term Loans, to the extent then outstanding, as is set
forth opposite such date (each such repayment, as the same may be (x) modified
pursuant to clause (iv) below and/or (y) reduced as provided in the last
sentence of Section 4.01, in the last paragraph of this Section 4.02(b)(i) and
in Section 4.02(h), a "Tranche A-1 and A-2 Scheduled Repayment," and each such
date, a "Tranche A-1 and A-2 Scheduled Repayment Date"):
29
Tranche A-1 and A-2
Scheduled Repayment Date Amount
------------------------ ------
July 31, 2000 $100,000
October 31, 2000 $100,000
January 31, 2001 $100,000
April 30, 2001 $100,000
July 31, 2001 $100,000
October 31, 2001 $100,000
January 31, 2002 $100,000
April 30, 2002 $100,000
July 31, 2002 $100,000
October 31, 2002 $100,000
January 31, 2003 $100,000
April 30, 2003 $100,000
July 31, 2003 $100,000
October 31, 2003 $100,000
January 31, 2004 $100,000
April 30, 2004 $100,000
July 31, 2004 $100,000
October 31, 2004 $100,000
January 31, 2005 $100,000
April 30, 2005 $100,000
July 31, 2005 $100,000
October 31, 2005 $100,000
Tranche A-1 and A-2
Term Loan Maturity Date $27,800,000
In the event that less than $20 million of Tranche A-2 Term
Loans are incurred hereunder, an amount equal to such deficiency shall be
applied to reduce the Tranche A-1 and Tranche A-2 Scheduled Repayments in
inverse order of maturity. Furthermore, in the event that any Tranche A-1 Term
Loans are converted into Tranche B-2 Term Loans pursuant to Section 1.14, an
amount equal to the principal amount of Tranche A-1 Term Loans so converted
shall apply to reduce the Tranche A-1 and Tranche A-2 Scheduled Repayment in
inverse order of maturity. All repayments of Tranche A-1 Term Loans and Tranche
A-2 Term Loans pursuant to this section 4.02(b)(i) shall be allocated to the
outstanding principal amount of Tranche A-1 Term Loans and Tranche A-2 Term
Loans on a pro rata basis (based upon the relative outstanding principal amounts
of such Tranches of Term Loans).
(ii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, but subject to the deferral
provisions contained in clause (iv) below, on each date set forth below there
shall be required to be repaid that aggregate principal amount of Tranche A-3
Term Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be (x) modified pursuant to clause (iv)
below and/or
30
(y) reduced as provided in the last sentence of Section 4.01, and in Section
4.02(h), a "Tranche A-3 Scheduled Repayment," and each such date, a "Tranche A-3
Scheduled Repayment Date"):
Tranche A-3
Scheduled Repayment Date Amount
------------------------ ------
July 31, 2000 $1,000,000
October 31, 2000 $1,000,000
January 31, 2001 $1,000,000
April 30, 2001 $1,000,000
July 31, 2001 $1,500,000
October 31, 2001 $1,500,000
January 31, 2002 $1,500,000
April 30, 2002 $1,500,000
July 31, 2002 $1,500,000
October 31, 2002 $1,500,000
January 31, 2003 $1,500,000
April 30, 2003 $1,500,000
July 31, 2003 $1,750,000
October 31, 2003 $1,750,000
January 31, 2004 $1,750,000
April 30, 2004 $1,750,000
July 31, 2004 $1,750,000
October 31, 2004 $1,750,000
January 31, 2005 $1,750,000
Tranche A-3 Term $1,750,000
Loan Maturity Date
(iii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, but subject to the deferral
provisions contained in clause (iv) below, on each date set forth below there
shall be required to be repaid that aggregate principal amount of Tranche B Term
Loans, to the extent then outstanding, as is set forth below opposite such date
(each such repayment, as the same may be (x) modified pursuant to clause (iv)
below and/or (y) reduced as provided in the last sentence of Section 4.01, in
the last paragraph of this Section 4.02(b)(iii) and in Section 4.02(h), a
"Tranche B Scheduled Repayment," and each such date, a "Tranche B Scheduled
Repayment Date"):
Tranche B
Scheduled Repayment Date Amount
------------------------ ------
July 31, 2000 $1,500,000
October 31, 2000 $1,500,000
January 31, 2001 $1,500,000
April 30, 2001 $1,500,000
July 31, 2001 $2,500,000
October 31, 2001 $2,500,000
31
Tranche B
Scheduled Repayment Date Amount
------------------------ ------
January 31, 2002 $2,500,000
April 30, 2002 $2,500,000
July 31, 2002 $2,500,000
October 31, 2002 $2,500,000
January 31, 2003 $2,500,000
April 30, 2003 $2,500,000
July 31, 2003 $2,500,000
October 31, 2003 $2,500,000
January 31, 2004 $2,500,000
April 30, 2004 $2,500,000
July 31, 2004 $2,500,000
October 31, 2004 $2,500,000
January 31, 2005 $2,500,000
April 30, 2005 $2,500,000
July 31, 2005 $4,250,000
October 31, 2005 $4,250,000
Tranche B Term
Loan Maturity Date $97,000,000
In the event the aggregate principal amount of Tranche B Term
Loans incurred on or prior to the Tranche B-2 Term Loan Commitment Termination
Date (for this purpose, including the aggregate principal amount of Tranche A-1
Term Loans converted into Tranche B-2 Term Loans in accordance with the
provisions of Section 1.14) is less than $151,500,000, an amount equal to such
deficiency shall be applied to reduce the Tranche B Scheduled Repayments in
inverse order of maturity. All repayments of Tranche B Term Loans pursuant to
this Section 4.02(b)(iii) shall be allocated (i) first, to the outstanding
principal amount of Tranche B-1 Term Loans and (ii) only after the outstanding
principal of such Tranche B-1 Term Loans has been repaid in full, to the
outstanding principal of Tranche B-2 Term Loans.
(iv) (A) With respect to the Scheduled Repayments occurring on
any Scheduled Repayment Date occurring on or before October 31, 2001, the
Borrower may elect, by written notice as provided below and subject to the
conditions hereinafter contained in this clause (iv)(A), that the amount of such
Scheduled Repayments shall be deferred (in which case the amount of the
respective Scheduled Repayment as shown in clause (i), (ii) or (iii) above, as
the case may be, shall instead be added to the final Scheduled Repayment for the
respective Tranche or Tranches as otherwise provided above in clause (i), (ii)
or (iii), as the case may be). The Borrower may make an election as described in
this clause (iv)(A) only if, at the time the respective Scheduled Repayment
would otherwise be required to be made (1) for each period which has ended on or
prior to the respective Scheduled Repayment Date the Borrower has exercised its
option to defer, pursuant to Article 9.01(c) of the Management Agreement, all of
the Management Fees payable to Xxxxxx'x Management for each of said periods, (2)
for each semi-annual period ended on or prior to the respective Scheduled
Repayment Date with respect to which interest is payable on the
32
Senior Subordinated Notes, the Borrower shall have elected the pay-in-kind
feature applicable to the fixed interest payments in respect of the Senior
Subordinated Notes and (3) for all periods ending on or prior to the respective
Scheduled Repayment Date, HET and HOC shall have deferred and, as a condition of
such election is hereby required to defer, all Minimum Payment Guaranty Fees
pursuant to the terms of the applicable Minimum Payment Guaranty Documents. The
option of the Borrower pursuant to this clause (iv)(A) may be exercised, in the
circumstances provided above, with respect to all Scheduled Repayments occurring
on a given Scheduled Repayment Date or with respect to less than all of said
Scheduled Repayments; provided that if the election does not apply to all
Scheduled Repayments on the respective Scheduled Repayment Date the election
must apply (i) first, to defer in its entirety the Tranche B Scheduled Repayment
which would otherwise be owing on the respective Scheduled Repayment Date, (ii)
second, to defer in its entirety the Tranche A-3 Scheduled Repayment which would
otherwise be due and payable on the respective Scheduled Repayment Date and
(iii) third, to defer in its entirety the Tranche A-1 and A-2 Scheduled
Repayment which would otherwise be due and payable on the respective Scheduled
Repayment Date. To exercise its option pursuant to this clause (iv)(A) the
Borrower shall deliver a written notice to the Administrative Agent, at least
two Business Days, but not more than 10 Business Days, before the respective
Scheduled Repayment Date, notifying the Administrative Agent of its election of
such option (and specifying the amounts and dates of the Scheduled Repayments
being deferred pursuant to this clause (iv)(A) and certifying the Borrower's
entitlement (in accordance with the requirements of this clause (iv)(A)) to
exercise the option provided in this clause (iv)(A).
(B) With respect to each Scheduled Repayment Date occurring
after October 31, 2001, if Consolidated EBITDA is less than $28,500,000 for the
twelve consecutive calendar month period (taken as one accounting period) ending
on the last date of the Semiannual Period ended immediately prior to the most
recent Senior Subordinated Notes Semi-Annual Interest Payment Date ended on or
prior to the respective Scheduled Repayment Date, then, so long as the Borrower
delivers the written notice specified below and the conditions described below
are met, all Scheduled Repayments otherwise to occur on the respective Scheduled
Repayment Date shall be deferred, with the amount thereof to be added to the
final Scheduled Repayment of the respective Tranche or Tranches as provided
above in clause (i), (ii) or (iii) of this Section 4.02(b), as the case may be.
Notwithstanding anything to the contrary contained above, in no event will the
final Scheduled Repayment applicable to any Tranche or Tranches as specified
above in clause (i), (ii) or (iii) of this Section 4.02(b), as the case may be,
be deferred pursuant to this clause (iv), and in no event shall any Scheduled
Repayment applicable to any Tranche or Tranches be extended beyond the last
Scheduled Repayment Date for the respective Tranche or Tranches as specified in
clause (i), (ii) or (iii) of this Section 4.02(b), as the case may be, above. To
exercise its right pursuant to this clause (iv)(B), the Borrower shall deliver
an officer's certificate to the Administrative Agent at least two Business Days,
but not more than ten Business Days, prior to the respective Scheduled Repayment
Date, which certificate shall (1) notify the Administrative Agent of the
exercise of the option pursuant to this clause (iv)(B) for the respective
Scheduled Repayment Date, (2) provide the calculations of Consolidated EBITDA
for the respective period specified above and (3) certify that (x) fixed
interest payments on the Senior Subordinated Notes have been, or will be, paid
in-kind (and not in cash) for the Senior Subordinated Notes Semi-Annual Interest
Payment Date specified above, (y) all Management Fees will be (and in the case
33
of such exercise of such right, are hereby required to be) deferred for the
semi-annual period ending on the Senior Subordinated Notes Semi-Annual Interest
Payment Date referred to in preceding clause (x) and (z) the Minimum Payment
Guaranty Fees will be (and in the case of such exercise of such right, are
hereby required to be) deferred for the respective semi-annual period ending on
the Senior Subordinated Notes Semi-Annual Interest Payment Date referred to in
preceding clause (x), in each case in accordance with the provisions of the
Senior Subordinated Note Indenture, the Management Agreement or the applicable
Minimum Payment Guaranty Documents, as the case may be.
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each Semi-Annual Free
Cash Flow Payment Date, an amount equal to the Applicable ECF Percentage of
Semi-Annual Free Cash Flow for the Semi-Annual Free Cash Flow Payment Period
last ended before the respective Semi-Annual Free Cash Flow Payment Date shall
be applied as a mandatory prepayment of outstanding Term Loans and/or to reduce
the Total Tranche A-2 Term Loan Commitment and/or the Total Tranche B-2 Term
Loan Commitment on the basis required by Section 4.02(h).
(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which JCC Holding or any of its Subsidiaries receives any
proceeds from any capital contributions or from any sale or issuance of its
equity (other than (i) equity contributions to any Subsidiary of the Borrower
made by the Borrower or any other Subsidiary of the Borrower and (ii) to the
extent utilized to make Contingent Payments as required under the Senior
Subordinated Note Indenture, the proceeds from the exercise of the HET Warrant),
an amount equal to 100% of the cash proceeds of the respective equity
contribution or sale (net of underwriting or placement discounts and commissions
and other reasonable costs associated therewith) shall be applied as a mandatory
prepayment of outstanding Term Loans and/or to reduce the Total Tranche A-2 Term
Loan Commitment and/or the Total Tranche B-2 Term Loan Commitment on the basis
required by Section 4.02(h).
(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which JCC Holding or any of its Subsidiaries receives any
proceeds from any incurrence by JCC Holding or any of its Subsidiaries of
Indebtedness for borrowed money (other than Indebtedness for borrowed money
permitted to be incurred pursuant to Section 9.04 as such Section is in
effect on the Effective Date), an amount equal to 100% of the cash proceeds
of the respective incurrence of Indebtedness (net of underwriting or
placement discounts and commissions and other reasonable costs associated
therewith) shall be applied as a mandatory prepayment of outstanding Term
Loans and/or to reduce the Total Tranche A-2 Term Loan Commitment and/or the
Total Tranche B-2 Term Loan Commitment on the basis required by Section
4.02(h).
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which the JCC Holding or any of its Subsidiaries receives
proceeds from any sale of assets (but excluding sales permitted by Sections
9.02(iii) and (iv)), an amount equal to 100% of the Net Sale Proceeds
therefrom shall be applied as a mandatory prepayment of outstanding Term
Loans and/or to reduce the Total
34
Tranche A-2 Term Loan Commitment and/or the Total Tranche B-2 Term Loan
Commitment on the basis required by Section 4.02(h).
(g) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on the 30th day following
each date after the Effective Date on which the Borrower or any of its
Subsidiaries receives any proceeds from any Recovery Event, an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs incurred in
connection with such Recovery Event) shall be applied as a mandatory prepayment
of outstanding Term Loans and/or to reduce the Total Tranche A-2 Term Loan
Commitment and/or the Total Tranche B-2 Term Loan Commitment on the basis
required by Section 4.02(h), provided that such proceeds shall not be required
to be so applied on such date to the extent that the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used to replace or restore any properties or assets in
respect of which such proceeds were paid within 180 days (or such longer period
of time as is permitted by the Senior Subordinated Note Indenture, but in no
event beyond 18 months) following the date of such Recovery Event (which
certificate shall set forth the estimates of the proceeds to be so expended),
and provided further, that if all or any portion of such proceeds not required
to be applied pursuant to this Section 4.02(g) by reason of the preceding
proviso are not so used within 180 days (or such longer period of time as
provided above) after the date of the respective Recovery Event, such remaining
portion shall be applied on the date which is 180 days (or such longer period of
time as provided above) after the date of the respective Recovery Event as
provided above in this Section 4.02(g) (without giving effect to the first
proviso hereof).
(h) All amounts required to be applied pursuant to this clause
(h) as a result of the requirements of Sections 4.02(c), (d), (e), (f) and (g)
shall be applied (w) first, to repay the outstanding principal amount of Tranche
A-1 Term Loans and Tranche A-2 Term Loans (with such repayments to apply to each
such Tranche pro rata based upon the relative outstanding principal amounts
thereof ), (x) second, to the extent in excess thereof, if either (i) the
Opening Date has not yet occurred on the date of the required application
pursuant to this clause (h) or (ii) the Opening Date has theretofore occurred
but one or more Scheduled Repayments have previously been deferred pursuant to
Section 4.02(b)(iv), payments shall next be applied to repay the principal of
then outstanding Tranche B-1 Term Loans and, after the repayment in full
thereof, of outstanding Tranche A-3 Term Loans until the repayment in full
thereof; provided that if the Opening Date has theretofore occurred, the amount
to be applied pursuant to this clause (x) on any date shall not exceed, when
added to the aggregate amount theretofore applied pursuant to this clause (x)
after the Opening Date, an amount equal to the Deferred A-3 and B Amortization
Amount (as such amount is determined on the date of the respective application
pursuant to this clause (h)), (y) third, to the extent in excess of the amounts
required (or permitted) to be applied pursuant to preceding clauses (w) and (x),
such amounts shall be applied pro rata to the repayment of principal of all then
remaining outstanding Tranches of Term Loans based upon the then outstanding
relative principal amounts thereof; provided that for so long as any Tranche A-3
Term Loans or Tranche B-1 Term Loans remain outstanding, the amount applied
pursuant to this clause (y) to repay Tranche B-2 Term Loans shall not exceed,
during any fiscal year of the Borrower, the Threshold Amount for such fiscal
year and, after the Threshold Amount has been so applied to repay Tranche B-2
Term Loans, subsequent amounts to be applied pursuant to this clause (y) shall,
until all outstanding Tranche A-3 Term Loans and Tranche B-1 Term Loans have
35
been repaid in full, be applied as provided in preceding clause (x), but for
this purpose determined as if the Opening Date had not yet occurred, and, after
all Tranche A Term Loans and Tranche B-1 Term Loans have been repaid in full,
any proceeds remaining to be applied pursuant to this sub-clause (y) shall be
applied to repay the principal of any Tranche B-2 Term Loans which remain
outstanding and (z) fourth, to the extent the amount to be applied pursuant to
this clause (h) exceeds the aggregate principal amount of all outstanding Term
Loans, such excess shall be applied (1) first, to reduce the Total Tranche A-2
Term Loan Commitment (if same is then in effect in an amount greater than zero)
and (2) second, to the extent in excess thereof, to reduce the Total Tranche B-2
Term Loan Commitment (if same is then in effect in an amount greater than zero).
The amount of each principal repayment of Term Loans (and the amount of each
reduction to the Total Tranche A-2 Term Loan Commitment and/or Total Tranche B-2
Term Loan Commitment) made as required by this Section 4.02(h) shall be applied
to reduce the then remaining Tranche A-1 and A-2 Scheduled Repayments, Tranche
A-3 Scheduled Repayments or Tranche B Scheduled Repayments, as the case may be,
in the inverse order of maturity after giving effect to all prior reductions
thereto. Notwithstanding the requirements of this Section 4.02(h), to the extent
amounts are distributed to the Banks representing the proceeds of Collateral
distributed in accordance with the requirements of the Bank/Bondholder
Intercreditor Agreement, the provisions of the Bank/Bondholder Intercreditor
Agreement shall govern the application thereof in the event of an inconsistency
with the requirements of this Section 4.02(h). Furthermore, and without
affecting the obligation of the Borrower to repay Loans as expressly required by
this Section 4.02, it is acknowledged by the Banks that their right to retain
certain prepayments as otherwise provided above in this Section 4.02 will be
subject to the relevant subordination provisions contained in Sections 13 and 15
of this Agreement.
(i) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans of the respective Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than (x) in
the case of Term Loans, $5,000,000 and (y) in the case of Revolving Loans,
$1,000,000, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; (iii) each repayment of any
Tranche of Term Loans made pursuant to a Borrowing shall be applied pro rata
among the Term Loans of such Tranche; (iv) each repayment of any Revolving Loans
made by Non-Defaulting Banks pursuant to a Borrowing shall be applied pro rata
among such Revolving Loans; and (v) each repayment of any Revolving Loans made
by Defaulting Banks pursuant to a Borrowing shall be made pro rata among such
Revolving Loans. In the absence of a designation by the Borrower as described in
the preceding sentence, the Administrative Agent shall, subject to the above,
make such designation in its sole discretion.
(j) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, all then outstanding Loans
(excluding Loans at such time held by HET, HOC or any Affiliate thereof which
were previously purchased pursuant to the HET/HOC
36
Guaranty and Loan Purchase Agreement) shall be repaid in full on the 15th day
after the date on which a New Bond Change of Control occurs unless, and then
only to the extent, the Required Banks otherwise agree in writing in their sole
discretion.
(k) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall be
repaid in full on the Swingline Expiry Date and (ii) all other then outstanding
Loans shall be repaid in full on the respective Maturity Date for such Loans.
(l) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on the Termination of the
Construction Date, all Revolving Loans and Swingline Loans shall be repaid in
full and the aggregate amount of Letter of Credit Outstandings on such date
shall not exceed $2 million; provided that not more than $10 million of new
Revolving Loans may be incurred on the Termination of Construction Date to the
extent all proceeds thereof are immediately deposited to fund the Minimum
Balance as defined in the Management Agreement, as in effect on the date hereof.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any other
Credit Document shall be made to the Administrative Agent for the account of the
Bank or Banks entitled thereto not later than 12:00 Noon (New York time) on the
date when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder, under any Note and any other Credit Document will be made without
setoff, counterclaim or other defense. Except as provided in Section 4.04(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax imposed on or measured by the net income or
profits of a Bank or any franchise tax based on the net income of a Bank
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office
37
or applicable lending office of such Bank is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imports, duties, fees, assessments
or other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction for
or on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
two preceding sentences, the Borrower agrees to reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net income
or profits of such Bank or any franchise tax based on the net income of such
Bank pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Bank is located and for
any withholding of income or similar taxes imposed by the United States of
America as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding two sentences and in respect of any amounts paid to or on behalf of
such Bank pursuant to this sentence. The Borrower will furnish to the
Administrative Agent within 45 days after the date the payment of any Taxes is
due pursuant to applicable law certified copies of tax receipts evidencing such
payment by the Borrower. The Borrower agrees to indemnify and hold harmless each
Bank, and reimburse such Bank upon its written request, for the amount of any
Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Effective Date, or in the case
of a Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 16.04 (unless the respective Bank was already a Bank
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement and
under any Note. In addition, each Bank agrees that from time to time after the
Effective Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate. Notwithstanding anything to
the contrary contained in Section 4.04(a), but subject to Section 16.04(b) and
the immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Bank which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Bank has not provided to the Borrower U.S.
Internal Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall not be obligated pursuant to
Section 4.04(a) hereof to gross-up payments to be made to a Bank in respect of
38
income or similar taxes imposed by the United States if (I) such Bank has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case of
a payment, other than interest, to a Bank described in clause (ii) above, to the
extent that such Forms do not establish a complete exemption from withholding of
such taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 4.04 and except as set forth in Section
16.04(b), the Borrower agrees to pay additional amounts and to indemnify each
Bank in the manner set forth in Section 4.04(a) (without regard to the identity
of the jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it as described in the immediately preceding
sentence as a result of any changes after the Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Bank and such Bank determines that it has received or realized
in connection therewith any refund or any reduction of, or credit against, its
liabilities for Taxes in or with respect to the taxable year in which the
additional amount is paid, such Bank shall pay to the Borrower an amount that
the Bank shall, in its sole discretion, determine is equal to the net benefit,
after tax, which was obtained by the Bank in such taxable year as a consequence
of such refund, reduction or credit.
SECTION 5. Conditions Precedent to Initial Credit Events. The
obligation of each Bank to make Loans, and of any Issuing Bank to issue Letters
of Credit, on the Initial Borrowing Date is subject to the satisfaction of the
following conditions:
5.01 Execution of Agreement; Notes. (i) This Agreement shall
have been executed and delivered as provided in Section 16.10 and (ii) there
shall have been delivered to the Administrative Agent for the account of each of
the Banks the appropriate Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Xxxx Note, Tranche
X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Note, Tranche B-2 Term Note and/or Revolving
Note executed by the Borrower, and to BTCo the Swingline Note executed by the
Borrower, in each case in the amount, maturity and as otherwise provided herein.
5.02 Fees, etc. Subject to the provisions of Section 16.01
hereof, on the Initial Borrowing Date, the Borrower shall have paid to the
Administrative Agent and the Banks all costs, fees and expenses (including,
without limitation, legal fees and expenses of counsel to the Administrative
Agent only, title premiums, survey charges and recording taxes and fees) payable
to the Administrative Agent and the Banks to the extent then due.
5.03 Officer's Certificate. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate dated the Initial
Borrowing Date signed on behalf of the Borrower by an Authorized Officer of the
Borrower stating that all of the conditions in Sections 5.08, 5.09, 5.10, 5.11,
5.12, 5.13, 5.14, 5.23, 5.24, 5.25, 5.29 and 5.30 have been satisfied on such
date.
5.04 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from Xxxxxx & Xxxxxxx, special
counsel to the Completion Guarantors, an opinion addressed to the Administrative
Agent and each of the Banks and dated
39
the Initial Borrowing Date covering the matters set forth in Exhibit E-1 (with
such modifications as are acceptable to the Administrative Agent) and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request, (ii) from X.X. Xxxxxxxx, Xx., General Counsel to
the Completion Guarantors, an opinion addressed to the Administrative Agent and
each of the Banks dated the Initial Borrowing Date covering the matters set
forth in Exhibit E-2 (with such modifications as are acceptable to the
Administrative Agent) and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request, (iii)
from Xxxxxx Xxxxxx, L.L.P., Louisiana counsel to the Borrower, an opinion
addressed to the Administrative Agent and each of the Banks and dated the
Initial Borrowing Date covering the matters set forth in Exhibit E-3 (with such
modifications as are acceptable to the Administrative Agent) and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request, (iv) from Winthrop, Stimson, Xxxxxx & Xxxxxxx, New
York counsel to the Borrower, an opinion addressed to the Administrative Agent
and each of the Banks and dated the Initial Borrowing date covering the matter
set forth in Exhibit E-4, (v) from Xxxxxxx X. Xxxxxxx, Esq., special counsel to
the Borrower for Louisiana gaming matters, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Initial Borrowing Date
covering the matters set forth in Exhibit E-5 with such modifications as are
acceptable to the Administrative Agent and such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably
request, (vi) from Xxxxx X. Xxxx, Esq., counsel to HET and HOC for New Jersey
gaming matters, an opinion addressed to the Administrative Agent and each of the
Banks and dated the Initial Borrowing Date covering the matters set forth in
Exhibit E-6 (with such modifications as are acceptable to the Administrative
Agent) and such other matters incident to the transactions contemplated herein
as the Administrative Agent may reasonably request and (vii) from Xxxxxxx
Xxxxxx, Esq., counsel to HET and HOC for Nevada gaming matters, an opinion
addressed to the Administrative Agent and each of the Banks and dated the
Initial Borrowing Date covering the matters set forth in Exhibit E-7 (with such
modifications as are acceptable to the Administrative Agent) and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request.
5.05 Corporate Documents; Proceedings; etc. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by an Authorized Officer of each of the
Credit Parties, and attested to by another Authorized Officer of each such
Credit Party, in the form of Exhibit F with appropriate insertions, together
with copies of such Credit Party's certificate of incorporation and by-laws (or
other relevant organizational documents), as the case may be, and the
resolutions or other appropriate authorizing documents of such Credit Party
referred to in such certificate, and the foregoing shall be in form and
substance satisfactory to the Administrative Agent and the Required Banks.
(b) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Documents shall be satisfactory in form and substance to
the Administrative Agent and the Required Banks, and the Administrative Agent
shall have received all information and copies of all documents and papers,
including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down telegrams or facsimiles, if any, which the
Administrative Agent reasonably may
40
have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
5.06 Employee Benefit Plans; Collective Bargaining Agreements;
Debt Agreements. On the Initial Borrowing Date, there shall have been delivered
to the Administrative Agent true and correct copies, certified as true and
complete by an Authorized Officer of JCC Holding, of (i) all "employee benefit
plans" as defined in Section 3(3) of ERISA (other than multiemployer plans as
defined in Section 4001(a)(3) of ERISA), and any other plans or arrangements for
the benefit of employees of JCC Holding or any of its Subsidiaries and any
profit sharing plans and deferred compensation plans of JCC Holding or any of
its Subsidiaries (collectively, the "Employee Benefit Plans"), (ii) all
collective bargaining agreements applying or relating to any employee of JCC
Holding or any of its Subsidiaries (collectively, the "Collective Bargaining
Agreements") and (iii) all agreements evidencing or relating to Indebtedness of
JCC Holding or any of its Subsidiaries which is to remain outstanding after the
Initial Borrowing Date (collectively, the "Debt Agreements"); all of which
Employee Benefit Plans, Collective Bargaining Agreements and Debt Agreements
shall be in form and substance satisfactory to the Administrative Agent and the
Required Banks and shall be in full force and effect.
5.07 Project Documents; etc. (a) On the Initial Borrowing
Date, there shall have been delivered to the Administrative Agent, true and
correct copies, certified as true and complete by an Authorized Officer of the
Borrower, of all Project Documents, all of which Project Documents shall be in
form and substance satisfactory to the Administrative Agent and the Required
Banks and shall be in full force and effect. Furthermore, (i) the Collateral
Agent shall have been registered as the Registered Leasehold Mortgagee under
(and as defined in) the Casino Operating Contract, (ii) the notice address for
the Collateral Agent as Leasehold Mortgagee under (and as defined in) the Casino
Lease shall have been delivered to the RDC, and (iii) a copy of the Borrower
Mortgage and the name and address of the Collateral Agent as Leasehold Mortgagee
under (and as defined in) the Railroad Lease shall have been delivered to the
Lessor under (and as defined in) the Railroad Lease.
(b) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent, true and correct copies, certified as
true and complete by an Authorized Officer of the Borrower, of all Construction
Contracts, all of which Construction Contracts shall provide for a guaranteed
maximum or fixed price consistent with the Construction Budget and otherwise
shall be on arms-length, commercially reasonable terms and conditions with
licensed reputable construction firms and shall be in full force and effect.
(c) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent true and correct copies, certified as true
and complete by an Authorized Officer of the Borrower, of (i) all material
architectural contracts and Plans and Specifications (to the extent completed)
for the construction of the Project (which Plans and Specifications shall be
prepared in accordance with industry standards by a licensed reputable
engineering or architectural firm), and material contracts (including
maintenance, management, leasing and service contracts) entered into with
respect thereto, (ii) the construction budgets, as the same may be amended in
accordance with the terms hereunder (collectively, the "Construction Budget"),
prepared by the Borrower and satisfactory to the Administrative Agent setting
forth on a line by line
41
basis the total Amounts Required for Casino Completion anticipated to be
incurred in connection with the completion of the Project, (iii) an itemized
analysis of any increases in Project Costs as a result of escalation,
remediation or other Project Cost increases, (iv) the Financial Forecast and (v)
a commercially reasonable timetable for the completion of the Improvements (the
"Initial Construction Schedule"), which shall show, on a monthly basis, the
anticipated progress of the work; all of which contracts shall be on arms-length
commercially reasonable terms and conditions with licensed reputable
construction, engineering and architectural firms, as applicable.
(d) On the Initial Borrowing Date, the Administrative Agent
shall receive from each General Contractor an executed Consent.
5.08 Confirmation of Plan of Reorganization. On or prior to
the Initial Borrowing Date, (i) there shall have been delivered to the
Administrative Agent true and correct copies of the Plan of Reorganization and
the Disclosure Statement, which Plan of Reorganization and Disclosure Statement
shall be in form and substance satisfactory to the Administrative Agent and the
Required Banks, (ii) a Notice of Confirmation, in form and substance
satisfactory to the Administrative Agent and the Required Banks, shall have been
entered into, (iii) the Notice of Confirmation referenced in preceding clause
(ii) shall not have been stayed and shall have become final and non-appealable
and (iv) all conditions precedent to the effective date of the Plan of
Reorganization shall have been satisfied (and not waived without the consent of
the Administrative Agent and the Required Banks) to the satisfaction of the
Administrative Agent and the Required Banks.
5.09 Junior Subordinated Credit Facility. On or prior to the
Initial Borrowing Date, (i) the Borrower and HET shall have entered into the
Junior Subordinated Credit Facility and (ii) there shall have been delivered to
the Administrative Agent true and correct copies of the Junior Subordinated
Credit Facility Documents, which Junior Subordinated Credit Facility Documents
shall be in form and substance satisfactory to the Administrative Agent and the
Required Banks (including, without limitation, as to interest rates, maturities,
amortization, covenants, subordination provisions, defaults and remedies with
respect thereto).
5.10 Convertible Junior Subordinated Debentures. On or prior
to the Initial Borrowing Date, (i) JCC shall have received approximately $27
million of gross cash proceeds from the issuance of the Convertible Junior
Subordinated Debentures and (ii) there shall have been delivered to the
Administrative Agent true and correct copies of the Convertible Junior
Subordinated Debenture Documents, which Convertible Junior Subordinated
Debenture Documents shall be in form and substance satisfactory to the
Administrative Agent and the Required Banks (including, without limitation, as
to amortization, maturities, interest rates, covenants, subordination
provisions, defaults and remedies with respect thereto).
5.11 Xxxxxx'x Investor Cash Investment. On or prior to the
Initial Borrowing Date, (i) JCC Holding shall have received, as an equity
investment, gross cash proceeds in an amount equal to the difference between $75
million and the aggregate principal amount of DIP Indebtedness then outstanding
(such difference, the "Xxxxxx'x Investor Cash Investment"), (ii) JCC Holding
shall have contributed the full amount of such cash proceeds to the capital of
the Borrower and (iii) there shall have been delivered to the Administrative
Agent true and correct
42
copies of the Xxxxxx'x Investor Equity Investment Documents, which Xxxxxx'x
Investor Equity Investment Documents shall be in form and substance satisfactory
to the Administrative Agent and the Required Banks.
5.12 Releases. On or prior to the Initial Borrowing Date,
there shall have been delivered to the Administrative Agent true and correct
copies of the Releases (as defined in the Plan of Reorganization), which
Releases shall be in form and substance satisfactory to the Administrative Agent
and the Required Banks.
5.13 New Bonds. On or prior to the Initial Borrowing Date, (i)
the New Bonds shall have been issued by the Borrower and delivered to the
Bondholders and (ii) there shall have been delivered to the Administrative Agent
true and correct copies of the New Bond Documents, which New Bond Documents
shall be in form and substance satisfactory to the Administrative Agent and the
Required Banks (including, without limitation, as to amortization, maturities,
interest rates, covenants, subordination provisions, defaults and remedies with
respect thereto).
5.14 Issuance of New Class A Common Stock. On or prior to the
Initial Borrowing Date, (i) JCC Holding shall have issued approximately
5,200,000 shares of New Class A Common Stock to the Bondholders pursuant to the
Plan of Reorganization and (ii) there shall have been delivered to the
Administrative Agent true and correct copies of the New Class A Common Stock
Documents, which New Class A Common Stock Documents shall be in form and
substance satisfactory to the Administrative Agent and the Required Banks.
5.15 Management Agreement. On the Initial Borrowing Date,
there shall have been delivered to the Administrative Agent (i) a true and
correct copy, certified as true and complete by an Authorized Officer of the
Borrower, of the Management Agreement and the Management Fee Repayment Guarantee
(including all exhibits and schedules thereto), which Management Agreement and
Management Fee Repayment Guarantee shall be in form and substance satisfactory
to the Administrative Agent and the Required Banks and shall be in full force
and effect. Except for the Management Agreement and the Management Fee Repayment
Guarantee, the Borrower shall not be a party to any other management agreement
or arrangement with respect to the Casino or otherwise.
5.16 Pledge Agreement. On the Initial Borrowing Date, JCC
Holding, the Borrower and each Subsidiary Guarantor shall have duly authorized,
executed and delivered a Pledge Agreement in the form of Exhibit G (as modified,
supplemented or amended from time to time, the "Pledge Agreement") and shall
have delivered to the Collateral Agent, as Pledgee, all the Pledged Securities,
if any, referred to therein then owned by JCC Holding, the Borrower and each
Subsidiary Guarantor (to the extent required to be delivered on the Initial
Borrowing Date pursuant to the terms thereof), (x) endorsed in blank in the case
of promissory notes constituting Pledged Securities and (y) together with
executed and undated stock powers, in the case of capital stock constituting
Pledged Securities.
5.17 Security Agreement. On the Initial Borrowing Date, JCC
Holding, the Borrower and each Subsidiary Guarantor shall have duly authorized,
executed and delivered a Security Agreement in the form of Exhibit H (as
modified, supplemented or amended from time to
43
time, the "Security Agreement") covering all of JCC Holding's, the Borrower's
and each Subsidiary Guarantor's present and future Security Agreement
Collateral, together with:
(a) proper Financing Statements (Form UCC-1) fully executed for
filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the opinion of the Collateral
Agent or the Administrative Agent, desirable to perfect the security
interests purported to be created by the Security Agreement;
(b) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing
statements that name JCC Holding, the Borrower or any Subsidiary
Guarantor as debtor and that are filed in the jurisdictions referred
to in clause (a) above, together with copies of such other financing
statements (none of which shall cover the Collateral except to the
extent evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination or assignment
statements (Form UCC-3) or such other termination statements as shall
be required by local law) fully executed for filing;
(c) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the opinion of the Collateral Agent or the
Administrative Agent, desirable to perfect the security interests
intended to be created by the Security Agreement;
(d) evidence that JCC Holding, the Borrower and the Subsidiary
Guarantors have obtained all necessary consents to permit them to
assign to the Collateral Agent pursuant to the Security Agreement all
of the their right, title and interest in and to all material Permits
required to be obtained by the Initial Borrowing Date in connection
with the ownership, lease, construction, equipping and operation of
the Project or any facilities or services ancillary thereto and the
other transactions contemplated by the Credit Documents and the other
Documents and otherwise referred to herein or therein, Project
Documents, Construction Documents, architectural and engineering
documents, maintenance, management (including the Management
Agreement), leasing and service documents and franchise contracts
relating to the Project (other than (x) the Casino Operating Contract
and (y) to the extent a security interest therein cannot be so granted
under applicable law, any other Permit); and
(e) evidence that all other actions necessary or, in the opinion
of the Collateral Agent or the Administrative Agent, desirable to
perfect and protect the security interests purported to be created by
the Security Agreement have been taken.
5.18 Mortgage; Title Insurance; Surveys; etc. On the Initial
Borrowing Date, the Collateral Agent shall have received (with copies for each
of the Banks):
(a) a copy certified by the Recorder of Mortgages for Orleans
Parish, Louisiana of fully executed mortgages in the form of Exhibits
I-1 through I-4, inclusive, (as modified, supplemented or amended from
time to time, each a "Mortgage" and, collectively, the "Mortgages"),
which Mortgages shall cover (i) in the case of the Mortgage executed
and
44
delivered in the form of Exhibit I-1 (as modified, supplemented or
amended from time to time, the "Borrower Mortgage"), the Casino Lease
and the Railroad Lease and the Borrower's fee simple estate or
leasehold estate or other interest, as the case may be, in such other
Real Property owned or leased by the Borrower as shall be designated
as such in Part A of Schedule III (each, a "Borrower Mortgaged
Property" and, collectively, the "Borrower Mortgaged Properties"),
(ii) in the case of the Mortgage executed and delivered in the form of
Exhibit I-4 (as modified, supplemented or amended from time to time,
the "JCC Development Mortgage"), JCC Development's interest as
sublessee in the Second Floor Sublease and JCC Development's fee
simple estate or leasehold estate or other interest, as the case may
be, in such other Real Property owned or leased by JCC Development as
shall be designated as such in Part B of Schedule III (each a "JCC
Development Mortgaged Property" and, collectively, the "JCC
Development Mortgaged Properties"), (iii) in the case of the Mortgage
executed and delivered in the form of Exhibit I-2 (as modified,
supplemented or amended from time to time, the "CPD Mortgage"), CPD's
fee simple estate or leasehold estate or other interest, as the case
may be, in such Real Property owned or leased by CPD as shall be
designated as such in Part C of Schedule III (each a "CPD Mortgaged
Property" and, collectively, the "CPD Mortgaged Properties"), and (iv)
in the case of the Mortgage executed and delivered in the form of
Exhibit I-3 (as modified, supplemented or amended from time to time,
the "FPD Mortgage"), FPD's fee simple estate or leasehold estate or
other interest, as the case may be, in such Real Property owned or
leased by FPD as shall be designated as such in Part D of Schedule III
(each a "FPD Mortgaged Property" and, collectively, the "FPD Mortgaged
Properties"), and each of which Mortgages shall have been recorded in
Orleans Parish, Louisiana to effectively create a valid and
enforceable mortgage lien (subject only to Permitted Encumbrances) on
each Mortgaged Property in favor of the Collateral Agent for the
benefit of the Secured Creditors;
(b) ALTA leasehold loan policies (or marked commitments to issue
the same or pro forma policies, if available,) with respect to the
Casino Lease and the other Mortgaged Properties (collectively, the
"Mortgage Policies") in an amount satisfactory to the Administrative
Agent and the Required Banks (it being understood and agreed that the
Administrative Agent and the Required Banks shall accept (x) a
Mortgage Policy for the Borrower Mortgaged Properties in an amount no
less than $524,000,000, (y) a Mortgage Policy for the CPD Mortgaged
Property in an amount no less than $13,000,000 and (z) a Mortgage
Policy for the FPD Mortgaged Property in an amount no less than
$4,000,000 for the benefit of the Secured Creditors and other Persons
assuring the Collateral Agent that the Mortgages on the Mortgaged
Properties are valid and enforceable mortgage liens on the Mortgaged
Properties, free and clear of all defects, interests and encumbrances
except Permitted Encumbrances, and such Mortgage Policies (i) shall
otherwise be in form and substance satisfactory to the Administrative
Agent and the Required Banks (including all endorsements thereto), and
(ii) shall be issued and may be reinsured (on a direct access basis
pursuant to facultative reinsurance agreements reasonably satisfactory
to the Administrative Agent) by and with a title insurance company
and reinsurers acceptable to the Administrative Agent and the Required
Banks (it being understood and agreed that First American Title
Insurance Company shall be an acceptable title insurance company
45
and that the reinsurers set forth on Schedule VIII shall be acceptable
reinsurers for the purpose of this subsection, provided that the pro
rata allocations of liability are substantially the same as set forth
on such Schedule VIII);
(c) current surveys of each Mortgaged Property and each other
parcel of land on which the Project is to be built, which surveys and
surveyor's certification shall be in form, substance and scope
satisfactory to the Administrative Agent and the Required Banks, and
shall disclose no easements, rights of way or encumbrances other than
Permitted Encumbrances; and
(d) Estoppel Certificate substantially in the form of Exhibit J
(the "Estoppel Certificate") duly and respectively executed by The
Alabama Great Southern Railroad Company (provided, that with respect
to such Estoppel Certificate, the Borrower shall only be required to
use its best efforts to obtain the same).
5.19 Guaranties. (a) On the Initial Borrowing Date, the
Completion Guarantors shall have duly authorized, executed and delivered a
Completion Guarantee in the form of Exhibit K-1 (as modified, supplemented or
amended from time to time, the "Bank Completion Guarantee"), and the Bank
Completion Guarantee shall be in full force and effect.
(b) On the Initial Borrowing Date, HET and HOC shall have duly
authorized, executed and delivered a Guaranty and Loan Purchase Agreement in the
form of Exhibit K-2 (as modified, supplemented or amended from time to time, the
"HET/HOC Guaranty and Loan Purchase Agreement"), and the HET/HOC Guaranty and
Loan Purchase Agreement shall be in full force and effect.
(c) On the Initial Borrowing Date, each Subsidiary Guarantor
shall have duly authorized, executed and delivered a Guaranty in the form of
Exhibit K-3 (as modified, supplemented or amended from time to time, the
"Subsidiaries Guaranty"), and the Subsidiaries Guaranty shall be in full force
and effect.
5.20 Intercreditor Agreement. On the Initial Borrowing Date,
the Administrative Agent, the Banks, the Collateral Agent, the Trustee, HET and
HOC shall have duly authorized, executed and delivered an Intercreditor
Agreement in the form of Exhibit L (as modified, supplemented or amended from
time to time, the "Intercreditor Agreement"), and the Intercreditor Agreement
shall be in full force and effect.
5.21 Consent Letter. On the Initial Borrowing Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially in
the form of Exhibit M, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 16.08
of this Agreement, Section 17.1 of the Bank Completion Guarantee, Section 25 of
the HET/HOC Guaranty and Loan Purchase Agreement and Section 20 of the
Subsidiaries Guaranty.
5.22 Manager Subordination Agreement. On the Initial Borrowing
Date, the Borrower and Xxxxxx'x Management shall have duly authorized, executed
and delivered a
46
Subordination Agreement in the form of Exhibit N (as modified, supplemented or
amended from time to time, the "Manager Subordination Agreement"), and the
Manager Subordination Agreement shall be in full force and effect.
5.23 Completion Guarantor Loan Documents; etc. (a) On the
Initial Borrowing Date, the Borrower and the Completion Guarantors shall have
duly authorized, executed and delivered a Subordination Agreement in the form of
Exhibit O-1 (as modified, supplemented or amended from time to time, the
"Completion Guarantor Subordination Agreement"), and the Completion Guarantor
Subordination Agreement shall be in full force and effect.
(b) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent true and correct copies, certified as true
and complete by an Authorized Officer of the Borrower, of all other Completion
Guarantor Loan Documents, all of which shall be satisfactory to the
Administrative Agent and the Required Banks.
(c) On the Initial Borrowing Date, the Borrower and HET shall
have duly authorized, executed and delivered a Subordination Agreement in the
form of Exhibit O-2 (as modified, supplemented or amended from time to time, the
"Subordinated Lender Subordination Agreement"), and the Subordinated Lender
Subordination Agreement shall be in full force and effect.
5.24 Adverse Change; Approvals; Permits; etc. (a) On the
Initial Borrowing Date, nothing shall have occurred (and the Administrative
Agent and the Banks shall have become aware of no facts, conditions or other
information not previously known) which the Administrative Agent or the Required
Banks determine is reasonably likely to have a material adverse effect (i) on
the rights or remedies of the Administrative Agent or the Banks, or on the
ability of any Credit Party to perform their respective obligations to the
Administrative Agent and the Banks or (ii) on the business, property, assets,
liabilities, condition (financial or otherwise) or prospects of any Credit Party
from that set forth in the Financial Forecast.
(b) On or prior to the Initial Borrowing Date, all necessary
governmental (domestic and foreign) and third party approvals (including,
without limitation, all approvals of the Bankruptcy Court having jurisdiction
over HJC's bankruptcy case) and Permits (including, without limitation, the
Casino Operating Contract) (other than approvals and Permits as are immaterial
to the construction or operation of the Project) required to be obtained by such
date in connection with the ownership, lease, construction and operation of the
Project or any facilities or services ancillary thereto and the other
transactions contemplated by the Credit Documents and the other Documents and
otherwise referred to herein or therein shall have been obtained and remain in
full force and effect on the Initial Borrowing Date, and no action shall have
been taken by any competent authority which restrains, prevents or imposes
materially adverse conditions upon the completion of the Project or the
consummation of the transactions contemplated by this Agreement and the other
Documents. Additionally, there shall not exist any judgment, order, injunction
or other restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified (other than the Xxxxxx Litigation and any
appeal that may have been filed in the McCalls Litigation) (i) challenging the
legality, validity or enforceability of any such Permit or the legality or
validity of the process pursuant to which such Permit was issued or (ii)
prohibiting
47
or imposing materially adverse conditions upon the completion of the Project or
the consummation of the transactions contemplated by this Agreement and the
other Documents.
(c) On or prior to the Initial Borrowing Date, there shall
have been delivered to the Administrative Agent evidence that the Banks are
qualified under the Louisiana Gaming Regulations as financial sources or
qualifiers, or are exempt or waived from, or are presumed qualified under, the
provisions thereof, and the Administrative Agent and the Required Banks shall be
satisfied that no other Louisiana gaming license, authorization, qualification,
waiver or exemption of the Banks is required on or prior to the Initial
Borrowing Date by reason of this Agreement or the Security Documents. The
Administrative Agent and the Required Banks shall be satisfied with any
conditions or requirements imposed by Louisiana or other relevant Gaming
Authorities upon the Banks, this Agreement, the Security Documents or the
Collateral.
(d) On or prior to the Initial Borrowing Date, the Borrower,
the Completion Guarantors and Xxxxxx'x Management shall have received any
qualifications required on or prior to the Initial Borrowing Date under
applicable Gaming Regulations in connection with this Agreement, the Security
Documents and the Transaction, and the Borrower, the Completion Guarantors and
Xxxxxx'x Management shall have received all other approvals, authorizations or
consents of, or notices to or registrations with any governmental body and
required releases and consents from any other appropriate Persons in connection
with this Agreement, the Security Documents and the Transaction and required on
or prior to the Initial Borrowing Date.
(e) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent true and correct copies, certified as true
and complete by an Authorized Officer of the Borrower, of all such approvals and
Permits referred to in this Section 5.24 and required to be obtained by the
Initial Borrowing Date.
5.25 Litigation. (a) On the Initial Borrowing Date, the
summary judgment decision of February 22, 1994 issued by the Orleans Parish
Civil District Court in respect of the McCalls Litigation shall not have been
reversed or adversely modified.
(b) On the Initial Borrowing Date, no litigation by any entity
(private or governmental) shall be pending or threatened (i) with respect to the
Credit Documents, the other Documents or with respect to the Transaction (other
than (x) the McCalls Litigation, provided that no material adverse developments
in the McCalls Litigation shall have occurred since the date of the Form 10, and
(y) the Xxxxxx Litigation, provided that no material adverse developments in the
Xxxxxx Litigation shall have occurred), or (ii) which the Administrative Agent
or the Required Banks shall reasonably determine could have a material adverse
effect on the business, property, assets, nature of assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or any
Completion Guarantor.
5.26 Environmental Analyses; Evidence of Insurance; Utilities;
Zoning. On the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent (i) environmental site assessments from X.X. Xxxxx Group,
Inc. (A) dated March 26, 1993 with respect to the Rivergate Convention Center in
New Orleans, (B) dated July 14, 1993, with respect to the Norfolk Southern
Corporation, Southern Railway System Building, 1205 Saint Louis Street, New
48
Orleans and (C) with respect to the other parcels of Real Property set forth on
Schedule III, the results of which shall be in form and substance satisfactory
to the Administrative Agent and the Required Banks; (ii) an insurance analysis
and review from consultants acceptable to the Administrative Agent and the
Required Banks and evidence of insurance complying with the requirements of
Section 8.03, in each case for the business and properties of the Borrower, and
in scope, form and substance satisfactory to the Administrative Agent and the
Required Banks, including by naming the Collateral Agent as an additional
insured and/or loss payee, and stating that such insurance shall not be canceled
or revised without 30 days' prior written notice by the insurer to the
Administrative Agent; (iii) letters or other assurances satisfactory to the
Administrative Agent and the Required Banks confirming the availability of
electric power, sanitation and sewage, water and other facilities, utilities and
services to service the Project; (iv) a certificate from the Casino General
Contractor substantially in the form of Exhibit Q-1; (v) a certificate from
Broadmoor, a Louisiana general partnership, as a general contractor,
substantially in the form of Exhibit Q-2; (vi) a certificate of the Rivergate
Architect substantially in the form of Exhibit Q-3; (vii) a certificate of the
Poydras Street Support Facility Architect substantially in the form of Exhibit
Q-4; and (viii) a certificate of an Authorized Officer of the Borrower
substantially in the form of Exhibit Q-5 in respect of the status of the
Project.
5.27 Pro Forma Balance Sheet. On the Initial Borrowing Date,
there shall have been delivered to the Administrative Agent a Pro Forma Balance
Sheet, which Pro Forma Balance Sheet shall be in form and substance satisfactory
to the Administrative Agent and the Required Banks.
5.28 Construction Contracts. On or prior to the Initial
Borrowing Date, each of the Administrative Agent and the Collateral Agent shall
have received evidence, in form and substance satisfactory to it, that a notice
of each Construction Contract (which conforms to the private works law of
Louisiana (La. R.S. 9:4811), with the respective performance bonds attached
thereto) shall have been filed for recordation in the proper records of Orleans
Parish, Louisiana prior to the commencement by the General Contractor under such
Construction Contract of any work in connection with the Project.
5.29 Minimum Payment Guaranty; Etc. (a) On the Initial
Borrowing Date, HET and HOC shall have duly authorized, executed and delivered
the initial Minimum Payment Guaranty in favor of the LGCB as required by Section
25.1 of the Casino Operating Contract and, in connection therewith, HET, HOC and
the Borrower shall have entered into the HET/JCC Agreement.
(b) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent true and correct copies, certified as true
and complete by an Authorized Officer of Borrower, of all of the Minimum Payment
Guaranty Documents, all of which shall be satisfactory to the Administrative
Agent and the Required Banks.
5.30 No Default; Representations and Warranties. At the time
of each Credit Event to occur on the Initial Borrowing Date and also after
giving effect thereto (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
49
effect as though such representations and warranties had been made on the date
of the making of such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
5.31 Notices of Borrowing; Letter of Credit Requests. (a)
Prior to the making of any Loans on the Initial Borrowing Date, the
Administrative Agent shall have received the respective Notices of Borrowing
meeting the requirements of Section 1.03.
(b) If any Letters of Credit are to be issued on the Initial
Borrowing Date, the Administrative Agent and the respective Issuing Bank shall
have received a Letter of Credit Request meeting the requirements of Section
2.03.
SECTION 6. Conditions Precedent to Credit Events Occurring
After the Initial Borrowing Date. The obligations of each Bank to make Tranche
A-2 Term Loans, Tranche B-2 Term Loans (but excluding Tranche B-2 Term Loans
made as a result of conversions pursuant to Section 1.14), Revolving Loans (but
excluding Mandatory Borrowings, which shall be made as provided in Section
1.01(h)) or Swingline Loans after the Initial Borrowing Date, and the obligation
of each Issuing Bank to issue any Letter of Credit is subject, at the time of
each such Credit Event (except as hereinafter indicated), to the satisfaction of
the following conditions:
6.01 Absence of Certain Events of Default; Accuracy of
Representations and Warranties. At the time of the making of each such Credit
Event and also after giving effect thereto (i) there shall exist no Default or
Event of Default pursuant to Section 10.01 or 10.06 or with respect to any
Guaranty pursuant to Section 10.09, and (ii) all representations and warranties
contained in the Bank Completion Guarantee and in the HET/HOC Guaranty and Loan
Purchase Agreement shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on the
date of the making of such Credit Event (it being understood and agreed that any
representation or warranty by which its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date) and no default shall exist pursuant to the Bank Completion
Guarantee or the HET/HOC Guaranty and Loan Purchase Agreement.
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior
to the making of each such Loan (other than a Swingline Loan or a Mandatory
Borrowing), the Administrative Agent shall have received a Notice of Borrowing
meeting the requirements of Section 1.03(a). Prior to the making of any
Swingline Loan, BTCo shall have received the notice required by
Section 1.03(b)(i).
(b) Prior to the issuance of any Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
6.03 Utilization of Other Available Proceeds. (a) Prior to the
incurrence of any Tranche B-2 Term Loans, all proceeds of Tranche A-1 Term
Loans, Tranche A-3 Term Loans and Tranche B-1 Term Loans and any other Available
Funds then available to the Borrower for
50
such purpose shall have been expended on Amounts Required for Casino Completion
as permitted under Sections 7.08.
(b) Prior to the issuance of any Tranche A-2 Term Loans, the
conditions specified in preceding clause (a) shall be satisfied and the Borrower
shall have incurred $121,500,000 aggregate principal amount of Tranche B-2 Term
Loans pursuant to this Agreement.
The acceptance of the proceeds of each Credit Event shall
constitute a representation and warranty by the Borrower to the Administrative
Agent and each of the Banks that all of the conditions specified in Section 5
and Section 6 and applicable to such Credit Event exist as of that time. All of
the Notes, certificates, legal opinions and other documents and papers referred
to in Section 5 or in Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Banks and, except for the Notes, in sufficient counterparts for each of the
Banks and shall be in form and substance reasonably satisfactory to the Banks.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, each of
JCC Holding and the Borrower makes the following representations, warranties and
agreements, all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and issuance of the Letters
of Credit, with the occurrence of each Credit Event on or after the Effective
Date being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct in all material respects (or in
the case of a Credit Event occurring after the Initial Borrowing Date, being
deemed to constitute a representation and warranty that the representations and
warranties referenced in Section 6.01 are true and correct in all material
respects) on and as of the date of each such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
7.01 Status. Each of JCC Holding and its Subsidiaries (i) is a
duly organized and validly existing corporation or limited liability company, as
the case may be, in good standing under the laws of the jurisdiction of its
organization, (ii) has the requisite power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the conduct of its business
requires such qualifications except for failures to be so qualified which,
individually or in the aggregate, could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
7.02 Power and Authority. Each of JCC Holding and its
Subsidiaries has the corporate or limited liability company, as the case may be,
power and authority to execute, deliver and perform the terms and provisions of
each of the Documents to which it is party and has taken all necessary action to
authorize the execution, delivery and performance by it of each of such
Documents. Each of JCC Holding and its Subsidiaries has duly executed and
delivered each of the Documents to which it is party, and each of such Documents
constitutes the legal, valid and
51
binding obligation of such Person enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by JCC Holding or any of its Subsidiaries of the Documents to which
it is a party, nor compliance by it with the terms and provisions thereof, (i)
will contravene any provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Security Documents) upon any of the properties
or assets of JCC Holding or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument to which JCC Holding or any of
its Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
certificate of incorporation or by-laws, or other organizational documents, of
JCC Holding or any of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made on or prior to the Initial Borrowing
Date and excluding any such items which are not required to be obtained or in
effect as of the date the representation contained in this Section 7.04 is being
made or deemed made), or exemption by, any governmental or public body or
authority (including, without limitation, any Gaming Authority), or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Document, (ii) subject
to the exceptions provided in Section 7.16(b), the consummation of the
Transaction or (iii) the legality, validity, binding effect or enforceability of
any such Document, except where the failure to so obtain would not (x) have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
JCC Holding and its Subsidiaries taken as a whole or (y) adversely affect the
Banks, the Administrative Agent, the Collateral Agent or their rights under, or
the legality, validity, binding effect or enforceability of, any Credit
Document.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections; Construction Budgets; Construction Schedule;
Plans and Specifications. (a) On and as of the Initial Borrowing Date, (i) the
Financial Forecast was prepared based upon the assumptions described therein for
the periods presented, (ii) the Financial Forecast was based on good faith
assumptions and estimates, and (iii) although a range of possible different
assumptions and estimates might also be reasonable, neither JCC Holding nor the
Borrower is aware of any facts that would lead it to believe that the
assumptions and estimates on which the Financial Forecast was based are not
reasonable; provided that no assurance can be given that the projected results
will be realized or with respect to the ability of the Borrower to achieve the
projected results, and while the Financial Forecast is necessarily presented
with numerical specificity, the actual results achieved during the periods
presented in all likelihood will differ from the projected results and such
differences may be material.
52
(b) On and as of the date of each Credit Event, after giving
effect to all Indebtedness being incurred or assumed and Liens created by JCC
Holding and its Subsidiaries in connection therewith, (A) each of the Borrower
and JCC Holding and its Subsidiaries taken as a whole has not incurred and does
not intend to incur, and does not believe that it will incur, debts beyond its
ability to pay such debts as such debts mature and (B) each of the Borrower and
JCC Holding and its Subsidiaries taken as a whole will have sufficient capital
with which to conduct its business. For purposes of this Section 7.05(b), "debt"
means any liability on a claim, and "claim" means (i) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(c) Except as fully disclosed in the Financial Forecast, the
Form 10 and the Pro Forma Balance Sheet, there were as of the Initial Borrowing
Date no liabilities or obligations with respect to JCC Holding or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower or JCC Holding and its Subsidiaries taken as a
whole. As of the Initial Borrowing Date, neither JCC Holding nor the Borrower
knows of any basis for the assertion against it of any liability or obligation
of any nature whatsoever that is not fully disclosed in the Form 10, Financial
Forecast and Pro Forma Balance Sheet which, either individually or in the
aggregate, is material to the Borrower or JCC Holding and its Subsidiaries taken
as a whole.
(d) On and as of the Initial Borrowing Date, the Construction
Budget, Initial Construction Schedule, and Plans and Specifications prepared by
or on behalf of the Borrower and delivered to the Banks by the Administrative
Agent on or prior to the Initial Borrowing Date were based on commercially
reasonable assumptions and estimates, and although a range of possible different
assumptions and estimates might exist, neither JCC Holding nor the Borrower is
aware of any facts that would lead it to believe that the assumptions and
estimates on which the Construction Budget, Initial Construction Schedule and
Plans and Specifications were based are not commercially reasonable.
(e) The Construction Budget, Initial Construction Schedule and
Plans and Specifications (which Plans and Specifications have been prepared in
accordance with industry standards by a licensed reputable engineering or
architectural firm) prepared by or on behalf of the Borrower are realistic and
each of JCC Holding and the Borrower reasonably expects that the same can be
adhered to in achieving the Termination of Construction Date on or before the
Completion Date.
(f) The Construction Contracts provide for a guaranteed
maximum or fixed price consistent with the Construction Budget and otherwise are
on arms-length, commercially reasonable terms and conditions with licensed,
reputable construction firms having experience with respect to the work required
to be performed by such firm under the applicable Construction Contract, and are
in full force and effect. Each such Construction Contract contains (x) a waiver
by the General Contractor under such Construction Contract of its lien rights
and a subordination
53
of such lien rights to the liens of the Mortgages to the extent such a waiver of
lien rights is unenforceable under applicable law and (y) requires such General
Contractor to obtain a similar waiver and subordination from its subcontractors.
7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of JCC Holding and the Borrower, threatened
(including the Xxxxxx Litigation) (i) with respect to any Document or (ii)
except for the existence of the McCalls Litigation, as to which there have been
no material adverse developments since the date of the Form 10, that could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or JCC Holding and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of JCC Holding or the Borrower in
writing to the Administrative Agent or any Bank (including, without limitation,
all information contained in the Form 10) for purposes of or in connection with
this Agreement, the other Documents or any transaction contemplated herein or
therein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of JCC Holding or the Borrower in writing to the
Administrative Agent or any Bank, will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light
of the circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
the Term Loans shall be used by the Borrower to provide a portion of the funds
required to pay Amounts Required for Casino Completion, including, without
limitation, any amounts owing pursuant to this Agreement prior to the
Termination of Construction Date.
(b) All proceeds of all Revolving Loans and
all Swingline Loans shall be used to finance the Borrower's working capital
requirements and other short-term obligations (which shall not include amounts
used to pay any Project Costs); provided that prior to the occurrence of the
Termination of Construction Date proceeds of Revolving Loans and Swingline Loans
may be used to pay Project Costs; provided further, that on the Termination of
Construction Date all repayments of Revolving Loans and Swingline Loans shall be
made as required by the provisions of Section 4.02(l).
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor the
use of the proceeds thereof nor the occurrence of any other Credit Event will
violate or be inconsistent with the provisions of Regulation T, Regulation U or
Regulation X.
7.09 Tax Returns and Payments. Each of JCC Holding and its
Subsidiaries has timely filed or caused to be timely filed, on the due dates
thereof or within applicable extension or grace periods, with the appropriate
taxing authority, all material U.S. federal, state, city and other returns,
statements, forms and reports for taxes (the "Returns") required to be filed by
or with
54
respect to the income, properties or operations of JCC Holding and its
Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of JCC Holding and its Subsidiaries for the periods covered
thereby. Each of JCC Holding and its Subsidiaries has paid all material taxes
payable by it other than taxes which are not delinquent, and other than those
contested in good faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles. Except as set forth on
Schedule X, there is no material action, suit, proceeding, investigation, audit,
or claim now pending or, to the best knowledge of JCC Holding and the Borrower,
threatened by any taxing authority regarding any taxes relating to JCC Holding
and its Subsidiaries. As of the Initial Borrowing Date, neither JCC Holding nor
any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of JCC Holding or
such Subsidiary. Neither JCC Holding nor any of its Subsidiaries has provided,
with respect to itself or property held by it, any consent under Section 341 of
the Code.
7.10 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code; all contributions required to be made with respect to a
Plan have been timely made; neither JCC Holding nor any of its Subsidiaries nor
any ERISA Affiliate has incurred any material liability to or on account of a
Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects
to incur any liability (including any indirect, contingent, or secondary
liability) under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted to terminate or appoint a trustee to administer
any Plan; no condition exists which presents a material risk to JCC Holding or
any of its Subsidiaries or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no
lien imposed under the Code or ERISA on the assets of JCC Holding or any of its
Subsidiaries or any ERISA Affiliate exists or is likely to arise on account of
any Plan; and JCC Holding and its Subsidiaries may cease contributions to or
terminate any employee benefit plan maintained by any of them without incurring
any material liability. The representations and warranties in this Section 7.10
shall only apply insofar as the matters referred to in this Section 7.10 present
a risk of material liability to JCC Holding or any of its Subsidiaries or ERISA
Affiliates. With respect to a multi-employer plan as defined in Section
4001(a)(3) of ERISA, it is understood and agreed that the representations and
warranties of this Section 7.10 are based solely on nonreceipt by JCC Holding or
its Subsidiaries or ERISA Affiliates of written notice from the PBGC or a Plan
Administrator referring to material violations or material liabilities affecting
JCC Holding or its Subsidiaries or ERISA Affiliates in respect of the matters
referred to in such representations and warranties.
7.11 The Security Documents. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent for
the benefit of the Secured Creditors (subject to the provisions of the
Intercreditor Agreement) a legal, valid and enforceable security interest in all
right, title and interest of the Credit Parties in the Security Agreement
Collateral described therein, and the Security Agreement, upon the filing of
Form UCC-1 financing statements or the appropriate equivalent (which filings
have been made), creates a fully perfected
55
(except as otherwise expressly provided in Section 3.2(d) of the Pledge
Agreement with respect to Gaming Patron Indebtedness) lien on, and security
interest in, all right, title and interest in all of the Security Agreement
Collateral described therein, subject to no other Liens other than Permitted
Liens. The recordation of the Assignment of Security Interest in U.S. Patents
and Trademarks in the form attached to the Security Agreement in the United
States Patent and Trademark Office together with filings on Form UCC-1 made
pursuant to the Security Agreement will be effective, under applicable law, to
perfect the security interest granted to the Collateral Agent in the trademarks
and patents covered by the Security Agreement and the recordation of the
Assignment of Security Interest in U.S. Copyrights in the form attached to the
Security Agreement with the United States Copyright Office together with filings
on Form UCC-1 made pursuant to the Security Agreement will be effective under
federal law to perfect the security interest granted to the Collateral Agent in
the copyrights covered by the Security Agreement. Each Credit Party has good and
valid title to all Security Agreement Collateral described therein, free and
clear of all Liens except those described above in this clause (a).
(b) The security interests created in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors (subject to the
provisions of the Intercreditor Agreement) under the Pledge Agreement constitute
first priority perfected (except as otherwise expressly provided in Section
3.2(d) of the Pledge Agreement with respect to Gaming Patron Indebtedness)
security interests in the Pledge Agreement Collateral, subject to no security
interests of any other Person. No filings or recordings are required in order to
perfect (or maintain the perfection or priority of) the security interests
created in the Pledged Securities and the proceeds thereof under the Pledge
Agreement.
(c) Upon the establishment of any Pledged Account in
accordance with the Security Agreement, and until the termination of such
Security Agreement in accordance with its respective terms, the security
interests created in favor of the Collateral Agent for the benefit of the
Secured Creditors (subject to the provisions of the Intercreditor Agreement)
under such Security Agreement will constitute perfected security interests in
the Collateral (as defined in such Security Agreement), subject to no
security interests of any other Person (other than Permitted Liens). No
filings or recordings are required (other than those that have been made) in
order to perfect (or maintain the perfection or priority of) the security
interests created in such Collateral.
(d) The Mortgages create, as security for the obligations
purported to be secured thereby, valid and enforceable perfected security
interests in and mortgage liens on all of the Mortgaged Properties in favor of
the Collateral Agent for the benefit of the Secured Creditors (subject to the
provisions of the Intercreditor Agreement), superior to and prior to the rights
of all third Persons (except that the security interest and mortgage lien
created in the Mortgaged Properties may be subject to the Permitted Encumbrances
related thereto) and subject to no other Liens (other than Permitted Liens).
Each of JCC Holding and its Subsidiaries has good and merchantable title to all
fee-owned Mortgaged Properties and valid leasehold title to all leasehold
Mortgaged Properties, in each case free and clear of all leases, occupancy
interests and all Liens except those described in the first sentence of this
subsection (d).
7.12 Representations and Warranties in Documents. (a) On the
Initial Borrowing Date, all representations and warranties set forth in the
Documents were true and correct in all
56
material respects at the time as of which such representations and warranties
were made (or deemed made).
(b) On the date of each Credit Event, all representations and
warranties contained in the other Credit Documents shall be true and correct as
if made on such date in all material respects.
7.13 Properties. Each of JCC Holding and its Subsidiaries has
good and valid title to all material properties owned by it (except as sold or
otherwise disposed of in the ordinary course of business), free and clear of all
Liens, other than Permitted Liens. On the Initial Borrowing Date, Schedule III
sets forth a true and complete description of all Real Property owned or leased
by JCC Holding and its Subsidiaries and sets forth the direct owner or lessee
thereof.
7.14 Capitalization. (a) On the Initial Borrowing Date, the
authorized capital stock of JCC Holding shall consist of 30,000,000 shares of
common stock, $.01 par value per share, of which 10,000,000 shares are issued
and outstanding. All such outstanding shares of common stock have been duly and
validly issued, are fully paid and non-assessable and are free of preemptive
rights. As of the Initial Borrowing Date, JCC Holding does not have outstanding
any securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock, other than as disclosed on Schedule XI.
(b) 100% of the Equity Interests in each of the Borrower, JCC
Development, CPD and FPD are owned by JCC Holding, and all such Equity Interests
are fully paid and nonassessable and are free of preemptive rights. As of the
Initial Borrowing Date, none of the Borrower, JCC Development, CPD or FPD has
outstanding any securities convertible into or exchangeable for its Equity
Interests or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its Equity Interests.
7.15 Subsidiaries. As of the Initial Borrowing Date, JCC
Holding has no Subsidiaries other than the Borrower, JCC Development, CPD and
FPD, each of which is a direct Wholly-Owned Subsidiary of JCC Holding.
7.16 Compliance with Statutes, etc. (a) Each of JCC Holding
and its Subsidiaries is in compliance with all applicable statutes, laws,
ordinances, codes, rules, regulations and orders of, and all applicable
restrictions imposed by and all applicable Permits issued by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business, the
ownership of its property and the construction and operation of the Project
(including applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls) to the extent required as of the Initial
Borrowing Date, except such instances of noncompliance as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or JCC Holding
and its Subsidiaries taken as a whole.
57
(b) All necessary governmental (domestic and foreign) and
third party approvals and Permits (including, without limitation, the Casino
Operating Contract) (other than approvals or permits to relocate the Xxxx of Arc
statute from its present location at Convention Center Boulevard and any other
approvals and Permits as are immaterial to the construction or operation of the
Project) required to be obtained by the date upon which this representation is
being made or deemed made in connection with the ownership, lease, construction
and operation of the Project or any facilities or services ancillary thereto and
the other transactions contemplated by the Credit Documents and the other
Documents and otherwise referred to herein or therein have been obtained and
remain in full force and effect, and all applicable waiting periods shall have
expired without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon the completion
of the Project or the consummation of the transactions contemplated by this
Agreement and the other Documents. Additionally, there does not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified (other than the
Xxxxxx Litigation and any appeal that may have been filed in the McCalls
Litigation) (i) challenging the legality, validity or enforceability of any such
Permit or the legality or validity of the process pursuant to which such Permit
was issued or (ii) prohibiting or imposing materially adverse conditions upon
the completion of the Project or the consummation of the transactions
contemplated by this Agreement and the other Documents.
7.17 Investment Company Act. Neither JCC Holding nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.18 Public Utility Holding Company Act. Neither JCC Holding
nor any of its Subsidiaries 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.
7.19 Environmental Matters. (a) Each of JCC Holding and its
Subsidiaries is in compliance with all applicable Environmental Laws and the
requirements of any Permits issued under such Environmental Laws. There are
no pending or, to the best knowledge of JCC Holding and the Borrower after
due inquiry, past or threatened Environmental Claims against JCC Holding or
any of its Subsidiaries or any Real Property owned or operated by JCC Holding
or any of its Subsidiaries that individually or in the aggregate could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower or JCC Holding and its Subsidiaries taken as a
whole. There are no facts, circumstances, conditions or occurrences with
respect to the business or operations of JCC Holding or any of its
Subsidiaries or any Real Property owned or operated by JCC Holding or any of
its Subsidiaries or, to the best knowledge of JCC Holding and the Borrower
after due inquiry, on any property adjoining or in the vicinity of any such
Real Property that, to the best knowledge of JCC Holding and the Borrower
after due inquiry, could reasonably be expected (i) to form the basis of an
Environmental Claim against JCC Holding or any of its Subsidiaries or any
such Real Property that individually or in the aggregate could reasonably be
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or JCC Holding and its Subsidiaries
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taken as a whole, or (ii) to cause any such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability of such
Real Property by JCC Holding or any of its Subsidiaries under any applicable
Environmental Law.
(b) Except as disclosed in the environmental analyses
delivered pursuant to Section 5.26, Hazardous Materials have not at any time
been generated, used, treated or stored on, or transported to or from, any Real
Property owned or operated by JCC Holding or any of its Subsidiaries where such
generation, use, treatment or storage has violated or could reasonably be
expected to violate any Environmental Law. Hazardous Materials have not at any
time been Released on or from any Real Property owned or operated by JCC Holding
or any of its Subsidiaries where such Release has violated or could reasonably
be expected to violate any applicable Environmental Law. There are no
underground storage tanks located on any Real Property owned or operated by JCC
Holding or any of its Subsidiaries that are not in compliance with all
Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section
7.19, the representations made in this Section 7.19 shall only be untrue if the
aggregate effect of all failures and noncompliances of the types described above
have, or could reasonably be expected to have, a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or JCC Holding and its Subsidiaries
taken as a whole.
7.20 Labor Relations. Neither JCC Holding nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the Borrower or JCC Holding and
its Subsidiaries taken as a whole. There is (i) no unfair labor practice
complaint pending against JCC Holding or any of its Subsidiaries or, to the best
knowledge of JCC Holding and the Borrower, threatened against any of them,
before the National Labor Relations Board, and no material grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against JCC Holding or any of its Subsidiaries or, to
the best knowledge of JCC Holding and the Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against JCC
Holding or any of its Subsidiaries or, to the best knowledge of JCC Holding and
the Borrower, threatened against JCC Holding or any of its Subsidiaries and
(iii) to the best knowledge of JCC Holding and the Borrower, no union
representation proceeding is pending with respect to the employees of JCC
Holding or any of its Subsidiaries except (with respect to any matter specified
in clause (i), (ii) or (iii) above, either individually or in the aggregate)
such as could not reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or JCC Holding and its Subsidiaries
taken as a whole.
7.21 Patents, Licenses, Franchises and Formulas. Each of JCC
Holding and its Subsidiaries owns all patents, trademarks, permits, service
marks, trade names, copyrights, licenses, franchises and formulas, or has rights
with respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, reasonably necessary for the present conduct of
its business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a material adverse
effect on the business,
59
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or JCC Holding and its Subsidiaries taken as a whole.
7.22 Indebtedness. (a) Schedule IV sets forth a true and
complete list of all Indebtedness for borrowed money of JCC Holding or any of
its Subsidiaries as of the Initial Borrowing Date and which is to remain
outstanding after giving effect thereto (excluding the Loans and the Letters of
Credit, the New Bonds, the Junior Subordinated Credit Facility and the
Convertible Junior Subordinated Debentures, the "Existing Indebtedness"), in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
(b) The subordination provisions contained in the Completion
Guarantor Subordination Agreement are enforceable against each Completion
Guarantor, and all Obligations hereunder and under the other Credit Documents
are within the definition of "Senior Indebtedness" included in such
subordination provisions. The subordination provisions contained in the Manager
Subordination Agreement are enforceable against Xxxxxx'x Management, and all
Obligations hereunder and under the other Credit Documents are within the
definition of "Senior Indebtedness" included in such subordination provisions.
The subordination provisions contained in the Junior Subordinated Credit
Facility Documents are enforceable against the respective holders of loans made
thereunder, and all Obligations hereunder and under the other Credit Documents
are within the definition of "Senior Indebtedness" included in such
subordination provisions. The subordination provisions contained in the
Convertible Junior Subordinated Debenture Documents are enforceable against each
of the holders of the Convertible Junior Subordinated Debentures, and all
Obligations hereunder and under the other Credit Documents are within the
definition of "Senior Indebtedness" included in such subordination provisions.
7.23 Access; Utilities. (a) All roads necessary for the
construction of the Project exist and all roads necessary for the operation of
the Project for its intended purposes either exist or will exist prior to the
commencement date of such operations.
(b) All utilities services and facilities necessary for the
construction of the Project (including, without limitation, water supply, storm
and sanitary sewer facilities, gas, electrical and telephone facilities) will be
available without impediment or delay at the boundaries of the Casino when
required and all utility services necessary for the operation of the Project
will be available at or within the boundaries thereof when needed.
(c) The Borrower possesses (or will possess when necessary
with respect to each phase of the Project) all rights and interests in property
(including, without limitation, the Casino and rights of ingress to and egress
from the Casino) and all material rights or contracts necessary for the
construction, installation, completion, operation and maintenance of the Project
as contemplated by this Agreement and the Project Documents.
7.24 Project Documents. As of the Initial Borrowing Date, each
of the Project Documents consists only of the original document (including
exhibits and schedules) and amendments thereto expressly described in the
relevant definitions appearing in Section 11 hereof or
60
delivered to the Administrative Agent on the Initial Borrowing Date pursuant to
Section 5.07 and there are no other amendments or waivers or supplements,
written or oral, with respect thereto.
7.25 Special Purpose Corporation. JCC Holding engages in no
business activities and has no significant assets (other than the Equity
Interests in the Borrower, JCC Development, CPD, FPD and any other Subsidiary of
JCC Holding created or established after the Initial Borrowing Date in
accordance with the requirements of this Agreement) or liabilities (other than
the liabilities expressly permitted by this Agreement).
7.26 Year 2000. (a) Each of JCC Holding and its Subsidiaries
has undertaken to review and analyze the effects of the Year 2000 problem on
their respective businesses and operations. As of the date hereof, to the best
of the collective knowledge of JCC Holding and its Subsidiaries, the reasonably
foreseeable consequences of causing the Information Systems and Equipment to be
utilized by JCC Holding and Subsidiaries to be Year 2000 Compliant will not
result in a Default or Event of Default or a material adverse effect on the
business, property, assets, liabilities, condition (financial otherwise) or
prospects of the Borrower or JCC Holding and its Subsidiaries taken as a whole.
(b) As of the Termination of Construction Date, either (i) the
Information Systems and Equipment then utilized by JCC Holding and its
Subsidiaries will be Year 2000 Compliant, or (ii) the reasonably foreseeable
consequences of JCC Holding and its Subsidiaries not being Year 2000 Compliant
will not result in a Default or Event of Default or a material adverse effect on
the business, property, assets, liabilities, condition (financial or otherwise)
or prospects of Borrower, JCC Holding and its Subsidiaries taken as a whole.
SECTION 8. Affirmative Covenants. JCC Holding and the Borrower
hereby covenant and agree that on and after the Effective Date and until the
Total Commitments and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings, together with interest, Fees and all other obligations
incurred hereunder, are paid in full:
8.01 Information Covenants. JCC Holding and/or the Borrower
will furnish to each Bank:
(a) Monthly Reports. Within 30 days after the end of each fiscal
month of JCC Holding (other than the last such month of any fiscal
quarter of JCC Holding), the consolidated balance sheet of JCC Holding
and its Consolidated Subsidiaries as at the end of such fiscal month
and the related consolidated statements of income and retained
earnings and statement of cash flows for such fiscal month and for the
elapsed portion of the fiscal year ended with the last day of such
fiscal month, in each case setting forth comparative figures for the
corresponding fiscal month in the prior fiscal year and comparable
budgeted figures for such fiscal month, all of which shall be
certified by a financial officer of JCC Holding, subject to normal
year-end audit adjustments.
(b) Quarterly Financial Statements. Within 45 days after the
close of each of the first three quarterly accounting periods in each
fiscal year of JCC Holding and within 90 days after the close of the
fourth quarterly accounting period in each fiscal year of JCC
61
Holding, the consolidated balance sheet of JCC Holding and its
Consolidated Subsidiaries as at the end of such quarterly accounting
period and the related consolidated statements of income and retained
earnings and statement of cash flows, in each case for such quarterly
accounting period and for the elapsed portion of the fiscal year ended
with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding periods in the
prior fiscal year and the budgeted figures for such quarterly
accounting period as set forth in the respective budget delivered
pursuant to Section 8.01(f), all of which shall be certified by a
financial officer of the Borrower, subject to normal year-end audit
adjustments.
(c) Annual Financial Statements. Within 120 days after the close
of each fiscal year of JCC Holding, (i) the consolidated balance sheet
of JCC Holding and its Consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and statement of cash flows for such fiscal year
setting forth comparative figures for the preceding fiscal year and
certified by Deloitte & Touche or such other independent certified
public accountants of recognized national standing reasonably
acceptable to the Required Banks, together with a statement of such
accounting firm as to whether, in conducting their audit, anything
came to their attention to cause them to believe that JCC Holding was
not in compliance with Sections 9.08, 9.09 and 9.10, insofar as such
Sections relate to accounting and auditing matters, on the date of
such statements and (ii) management's discussions and analysis of the
important operational and financial developments during such fiscal
year.
(d) Management Letters. Promptly after the receipt thereof by JCC
Holding or any of its Subsidiaries, a copy of any "management letter"
received by the Borrower or such Subsidiary from its certified public
accountants and the management's responses thereto.
(e) Management Agreement. Promptly after receipt thereof by JCC
Holding, the certified audit, monthly operating statement and annual
plan prepared by Xxxxxx'x Management pursuant to Articles 8.02(a) and
8.02(e) of the Management Agreement, respectively, any revisions to
the annual plan or pre-opening budget referred to in the Management
Agreement as may be agreed to by the Borrower and Xxxxxx'x Management,
any submissions to arbitration in connection with such annual plan and
the results of any such arbitration.
(f) Budgets. No later than 30 days following the commencement of
the first day of each fiscal year of JCC Holding, a budget in form
satisfactory to the Administrative Agent (including budgeted
statements of income and sources and uses of cash and balance sheets)
prepared by JCC Holding for (x) each of the twelve months of such
fiscal year prepared in detail and (y) (i) prior to the Termination of
Construction Date, each of the two years immediately following such
fiscal year and (ii) after the Termination of Construction Date, for
the year immediately following such fiscal year, in each case prepared
in summary form and consolidated for JCC Holding and its Subsidiaries,
and accompanied by the statement of a financial officer of JCC Holding
to the effect that, to the best of such officer's knowledge, the
budget is a reasonable estimate for the period covered thereby.
62
(g) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 8.01(b) and (c), a
certificate of an Authorized Officer of JCC Holding to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall (x) set forth the calculations
required to establish whether JCC Holding was in compliance with the
provisions of Sections 4.02(c), (f), and (g), 9.03(iii) and (iv),
9.04(vi) and 9.06 through 9.10, inclusive, at the end of such fiscal
quarter or year, as the case may be and (y) set forth the amount of
Semi-Annual Free Cash Flow for the respective Semi-Annual Free Cash
Flow Payment Period and showing the calculation (in reasonable detail)
thereof.
(h) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an Authorized Officer of JCC Holding
obtains knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or an Event of Default, (ii) the receipt
by such Person of any information with respect to the cost to JCC
Holding and its Subsidiaries of becoming, or the failure of such
Person to become, Year 2000 Compliant which, in the reasonable
business judgment of management, could reasonably be expected to have
a material adverse effect on the business, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or JCC Holding and its Subsidiaries taken as a whole, (iii)
any material adverse development in the McCalls Litigation or the
Xxxxxx Litigation since the Effective Date and (iv) any other
litigation or governmental investigation or proceeding (including any
investigation by any Gaming Authority) pending (x) against JCC Holding
or any of its Subsidiaries or Affiliates of any thereof (other than
the initial suitability investigations by the LGCB of directors and
officers of the Borrower and JCC Holding, but including notice of any
adverse finding in any such investigation), which could materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or JCC Holding and its Subsidiaries taken as a whole, (y)
with respect to any material Indebtedness of JCC Holding and its
Subsidiaries taken as a whole or (z) with respect to any Document or
the Transaction.
(i) Other Reports, Notices and Filings. Promptly, copies of all
financial information, proxy materials, notices and other information
and reports, if any, which JCC Holding or any of its Subsidiaries
shall (x) file with the Securities and Exchange Commission or any
successor thereto (the "SEC") or (y) deliver to holders of the New
Bonds or any other issue of its Indebtedness if the aggregate
principal amount thereof exceeds (or upon the utilization of any
unused commitment may exceed) $5,000,000, pursuant to the terms of the
documentation governing any such Indebtedness (or any trustee, agent
or other representative therefor) or (z) deliver pursuant to any of
the Minimum Payment Guaranty Documents (including, without limitation,
any notice to the effect that the Minimum Payment Guaranty shall not
be renewed or extended).
(j) Environmental Matters. Promptly upon, and in any event within
ten Business Days after, an Authorized Officer of JCC Holding or any
of its Subsidiaries obtains knowledge thereof, notice of one or more
of the following environmental matters, unless such environmental
matters could not, individually or when aggregated with all other such
63
environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim against
JCC Holding or any of its Subsidiaries or any Real Property owned
or operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by JCC Holding or any of its
Subsidiaries that (a) results in noncompliance by JCC Holding or
any of its Subsidiaries with any applicable Environmental Law or
(b) could reasonably be expected to form the basis of an
Environmental Claim against JCC Holding or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by JCC Holding or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject
to any restrictions on the ownership, occupancy, use or
transferability by JCC Holding or any of its Subsidiaries of such
Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by JCC Holding or
any of its Subsidiaries as required by any Environmental Law or
any governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and JCC Holding's or such Subsidiary's response thereto. In
addition, JCC Holding will provide the Banks with copies of all
material communications with any government or governmental agency
relating to Environmental Laws, all communications with any Person
(other than its attorneys) relating to any Environmental Claim of
which notice is required to be given pursuant to this Section 8.01(j),
and such detailed reports of any such Environmental Claim as may
reasonably be requested by the Banks; provided that in any event JCC
Holding shall deliver to each Bank all notices received by it or any
of its Subsidiaries from any government or governmental agency under,
or pursuant to, CERCLA.
(k) Casino. Promptly, but in no event later than 40 Business
Days, after the completion of the Casino, a current certified survey
of the Casino with all Improvements located thereon, together with a
foundation endorsement to the Mortgage Policy delivered pursuant to
Section 5.18(b) hereof . Such surveys and surveyor's certifications
shall be in form, substance and scope satisfactory to the
Administrative Agent and shall disclose no easements, rights of way or
encumbrances other than Permitted Encumbrances.
(l) Annual Meetings with Banks. At the request of Administrative
Agent, JCC Holding shall within 120 days after the close of each
fiscal year of JCC Holding hold a
64
meeting at a time and place selected by JCC Holding and acceptable to
the Administrative Agent with all of the Banks at which meeting shall
be reviewed the financial results of the previous fiscal year and the
financial condition of JCC Holding and the annual plan and budgets
presented for the current fiscal year of the Borrower and its
Subsidiaries.
(m) Other Information. From time to time, such other information
or documents (financial or otherwise) with respect to the Borrower or
its Subsidiaries as any Bank may reasonably request in writing.
8.02 Books, Records and Inspections. JCC Holding will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities. JCC Holding will,
and will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Bank to visit and inspect,
during regular business hours and under guidance of officers of JCC Holding or
such Subsidiary, any of the properties of JCC Holding or such Subsidiary, and to
examine the books of account of JCC Holding or such Subsidiary and discuss the
affairs, finances and accounts of JCC Holding or such Subsidiary with, and be
advised as to the same by, its and their Authorized Officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule V
sets forth a true and complete listing of all insurance maintained by JCC
Holding and its Subsidiaries as of the Initial Borrowing Date. JCC Holding
will, and will cause each of its Subsidiaries to, (i) keep all property
necessary in its business in good working order and condition (ordinary wear
and tear excepted), (ii) maintain insurance on all its property in at least
such amounts and against at least such risks as is consistent and in
accordance with industry practice and in compliance with the terms of the
Casino Lease and the Casino Operating Contract as in effect on the Initial
Borrowing Date and (iii) furnish to each Bank, upon written request, full
information as to the insurance carried. In addition to the requirements of
the immediately preceding sentence, JCC Holding will at all times cause
insurance of the types described in Schedule V to be maintained (with the
same scope of coverage as that described in Schedule V) at levels which are
at least as great as the respective amount described opposite the respective
type of insurance on Schedule V under the column headed "Minimum Amount
Required to be Maintained."
(b) JCC Holding will, and will cause each of its Subsidiaries
to, at all times maintain in full force and effect the insurance coverages
required by Section 13 of the Casino Lease and, to the extent not otherwise
required thereby, physical damage insurance on all real and personal property on
an all risk basis (including the perils of flood and earthquake), covering the
repair and replacement costs of all such property and consequential loss
coverage for business interruption and extra expense, and all policies
(including Mortgage Policies) or certificates (or certified copies thereof) with
respect to such insurance (and any other insurance maintained by JCC Holding or
any of its Subsidiaries) (i) shall be endorsed to the Administrative Agent's and
the Collateral Agent's satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as loss payee or
as an additional insured), (ii) shall state that
65
such insurance policies shall not be canceled without 30 days' prior written
notice thereof by the respective insurer to the Collateral Agent and the
Administrative Agent, (iii) shall provide that the respective insurers
irrevocably waive any and all rights of subrogation with respect to the
Collateral Agent and the Secured Creditors, (iv) shall contain the standard
non-contributory mortgagee clause endorsement in favor of the Collateral Agent
with respect to hazard insurance coverage, (v) shall, except in the case of
public liability insurance and workers' compensation insurance, provide that any
losses shall be payable notwithstanding (A) any act or neglect of JCC Holding or
any of its Subsidiaries, (B) the occupation or use of the properties for
purposes more hazardous than those permitted by the terms of the respective
policy, (C) any foreclosure or other proceeding relating to the insured
properties or (D) any change in the title to or ownership or possession of the
insured properties and (vi) shall be deposited with the Collateral Agent. JCC
Holding will deliver to the Administrative Agent and any Bank upon the request
of the Administrative Agent or any Bank through the Administrative Agent from
time to time full information as to the insurance carried. The provisions of
this Section 8.03(b) shall be deemed supplemental to, but not duplicative of,
the provisions of the Security Agreement and the Mortgages.
(c) If JCC Holding or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 8.03, or if JCC Holding
or any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance and JCC Holding agrees to reimburse the Administrative
Agent or the Collateral Agent, as the case may be, for all costs and expenses of
procuring such insurance.
8.04 Corporate Franchises. JCC Holding will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets by JCC Holding or any of its
Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by any
Subsidiary of JCC Holding of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
JCC Holding and its Subsidiaries taken as a whole, or (iii) the taking of any
action respecting any right, franchise, license or patent determined by the
management of JCC Holding to be in the best interests of JCC Holding or such
Subsidiary.
8.05 Compliance with Statutes, etc. JCC Holding will, and will
cause each of its Subsidiaries to, (i) comply with all applicable statutes,
laws, ordinances, codes, rules, regulations and orders of, and all applicable
restrictions imposed by and all applicable Permits issued by, and (ii) obtain
all necessary approvals and Permits from, all governmental bodies, domestic or
foreign, in respect of the conduct of its business, the ownership of its
property and the construction and operation of the Project, except such
instances of noncompliance as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or JCC Holding and its Subsidiaries taken as a whole.
66
8.06 Compliance with Environmental Laws. (a) JCC Holding
will comply, and will cause each of its Subsidiaries to comply, in all
material respects with all Environmental Laws applicable to the ownership or
use of its Real Property now or hereafter owned or operated by JCC Holding or
any of its Subsidiaries, will within a reasonable time period pay or cause to
be paid all costs and expenses incurred in connection with such compliance,
and will keep or cause to be kept all such Real Property free and clear of
any Liens imposed pursuant to such Environmental Laws. Neither JCC Holding
nor any of its Subsidiaries will generate, use, treat, store, release or
dispose of, or permit the generation, use, treatment, storage, release or
disposal of Hazardous Materials on any Real Property now or hereafter owned
or operated by JCC Holding or any of its Subsidiaries, or transport or permit
the transportation of Hazardous Materials to or from any such Real Property
except for Hazardous Materials used or stored at any such Real Property in
material compliance with all applicable Environmental Laws and reasonably
required in connection with the operation, use and maintenance of any such
Real Property.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at the
Borrower's sole cost and expense, an environmental site assessment report
concerning any Real Property now or hereafter owned or operated by JCC Holding
or any of its Subsidiaries, prepared by an environmental consulting firm
approved by the Administrative Agent, indicating the presence or absence of
Hazardous Materials and the potential cost of any removal or remedial action in
connection with any Hazardous Materials on such Real Property; provided that
such request may be made only if (i) there has occurred and is continuing an
Event of Default, (ii) the Administrative Agent or the Required Banks reasonably
believe that JCC Holding or any such Subsidiary or any such Real Property is not
in material compliance with any Environmental Law, or (iii) circumstances exist
that reasonably could be expected to form the basis of a material Environmental
Claim against JCC Holding or any such Subsidiary or any such Real Property. If
the Borrower fails to provide the same within 90 days after such request was
made, the Administrative Agent may order the same, and the Borrower shall grant
and hereby grants to the Administrative Agent and the Banks and their agents
access to such Real Property and specifically grants the Administrative Agent
and the Banks an irrevocable non-exclusive license, subject to the rights of
tenants, to undertake such an assessment, all at the Borrower's sole cost and
expense.
8.07 ERISA. As soon as possible and, in any event, within 10
days after JCC Holding, any of its Subsidiaries or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following, JCC Holding will
deliver to each of the Banks a certificate of an Authorized Officer of JCC
Holding setting forth details as to such occurrence and the action, if any, that
JCC Holding, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by JCC Holding, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application may be or has been made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code with respect to a Plan; that a contribution required to be made
to a Plan has not been timely made; that a Plan has been or may be terminated,
reorganized, partitioned or declared insolvent under
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Title IV of ERISA; that a Plan has an Unfunded Current Liability giving rise to
a lien under ERISA or the Code; that proceedings may be or have been instituted
to terminate or appoint a trustee to administer a Plan; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that JCC Holding, any of its Subsidiaries or any ERISA
Affiliate will or may incur any liability (including any indirect, contingent,
or secondary liability) to or on account of the termination of or withdrawal
from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
with respect to a Plan under Section 401(a)(29), 4971 or 4975 of the Code or
Section 409 or 502(i) or 502(l) of ERISA; or that JCC Holding or any of its
Subsidiaries may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2)
of ERISA). JCC Holding will deliver to each of the Banks a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. In addition to any certificates or notices delivered to the
Banks pursuant to the first sentence hereof, copies of annual reports and any
material notices received by JCC Holding, any of its Subsidiaries or any ERISA
Affiliate with respect to any Plan shall be delivered to the Banks no later than
10 days after the date such report has been filed with the Internal Revenue
Service or such notice has been received by JCC Holding, such Subsidiary or such
ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. JCC Holding shall
cause (i) its, and each of its Subsidiaries', fiscal years to end on December
31, except that for purposes of the Casino Operating Contract and the Minimum
Payment Guaranty Documents, the fiscal year of the Borrower shall be deemed to
end on March 31, and (ii) its, and each of its Subsidiaries', fiscal quarters to
end on the last day of each March, June, September and December.
8.09 Performance of Obligations. JCC Holding will, and will
cause each of its Subsidiaries to, perform all of its obligations under the
terms of each Project Document, the Casino Operating Contract, the Management
Agreement, each Construction Contract and each mortgage, indenture, security
agreement, loan agreement, credit agreement or any other material agreement,
contract or instrument (including, without limitation, architectural and
engineering agreements or contracts) by which it is bound, except such
non-performances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or JCC Holding and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. JCC Holding will pay and discharge or
cause to be paid and discharged, and will cause each of its Subsidiaries to pay
and discharge, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any material
properties belonging to it, in each case on a timely basis, and all lawful
claims which, if unpaid, might become a lien or charge upon any properties of
JCC Holding or any of its Subsidiaries; provided that neither JCC Holding nor
any of its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.
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8.11 Additional Mortgages; Further Assurances; Surveys. (a)
JCC Holding will, and will cause each of its Subsidiaries to, grant to the
Collateral Agent security interests, pledge agreements, mortgages and amendments
or supplements thereto (collectively, an "Additional Mortgage") in such Real
Property or other assets (including, without limitation, leasehold interests) of
JCC Holding or any of its Subsidiaries as are not covered by the Security
Documents, to the extent acquired after the Initial Borrowing Date (but in any
event excluding the Specified Real Estate after the release thereof from the
Mortgages in accordance with the terms thereof), and as may be requested from
time to time by the Administrative Agent or the Required Banks (each such Real
Property, an "Additional Mortgaged Property"). All such Additional Mortgages
shall be granted pursuant to documentation substantially in the form of the
applicable Security Document executed on the Initial Borrowing Date or in such
other form as is reasonably satisfactory to the Administrative Agent and shall
constitute valid and enforceable perfected Liens that are, except to the extent
subject to then existing Liens permitted by Section 9.01 at the time of such
perfection, superior to and prior to the rights of all third Persons and subject
to no other Liens. The Additional Mortgages or instruments related thereto shall
have been duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Additional
Mortgages and all taxes, fees and other charges payable in connection therewith
shall have been paid in full.
(b) JCC Holding will, and will cause each of its Subsidiaries
to, at the expense of the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates (including
Estoppel Certificates from the RDC in respect of the Casino Lease and the GDA),
real property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Administrative Agent or the Collateral Agent may reasonably
require pursuant to this Section 8.11. Furthermore, JCC Holding shall cause to
be delivered to the Collateral Agent such opinions of counsel, title insurance
and other related documents as may be reasonably requested by the Administrative
Agent or the Collateral Agent to assure itself that this Section 8.11 has been
complied with.
(c) Each of JCC Holding and the Borrower agrees that each
action required by Section 8.11(a) or (b) shall be completed as soon as
possible, but in no event later than 75 days (or 45 days in the case of the
delivery of Estoppel Certificates) after such action is requested to be taken by
the Administrative Agent, the Collateral Agent or the Required Banks.
8.12 Construction of Improvements; Amendments to Plans and
Specifications, Construction Budget and Construction Schedule. (a) The
Borrower will cause the Termination of Construction Date to occur on or
before the Completion Date and will meet any earlier construction deadlines
contained in the Casino Lease or the GDA or any of the Permits, if any, and,
in connection therewith will cause the construction and equipping of the
Improvements to be prosecuted with diligence and continuity in substantial
accordance with the Construction Budget, Construction Schedule and Plans and
Specifications.
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(b) To design, plan and construct the Improvements, the
Borrower is proceeding with construction simultaneously with completion of such
Plans and Specifications and will submit copies of the Plans and Specifications
to the Administrative Agent concurrently with its submission thereof to the
landlord under the Casino Lease or the LCGB (whichever occurs first). The
Borrower shall have the right to amend from time to time the Plans and
Specifications to the extent such amendment is commercially reasonable and does
not materially affect the design, structure, size or quality of the Improvements
by submitting to the Administrative Agent such amendment in writing and
identifying therein with particularity the proposed amendment to the Plans and
Specifications, together with a certificate of an Authorized Officer of the
Borrower that (i) such amendment is commercially reasonable and does not
materially affect the design, structure, size or quality of the Improvements,
and (ii) immediately following such amendment (x) the Plans and Specifications
will continue to provide for construction of improvements which are
substantially consistent with the Construction Budget and Construction Schedule,
and (y) the Plans and Specifications will continue to call for construction
which will permit the Termination of Construction Date to occur on or prior to
the Completion Date. To the extent any amendment to the Plans and Specifications
is not commercially reasonable or materially affects the design, structure, size
or quality of the Improvements, the Borrower shall obtain the prior written
consent of the Required Banks before proceeding with such amendment.
(c) The Borrower shall have the right to amend from time to
time the Construction Budget to the extent such amendment is commercially
reasonable to increase or decrease the amounts allocated for Line Items or to
add or delete Line Items so long as the Borrower shall submit to the
Administrative Agent a monthly report which describes such amendment and
identifies therein with particularity the Line Item(s) which were increased,
decreased, added or deleted and the amounts of the Line Item(s) as changed,
together with a certification of an Authorized Officer of the Borrower that (i)
the change identified in such amendment is commercially reasonable, and (ii)
immediately following such amendment (x) the Construction Budget continues to
provide for construction of improvements which are substantially consistent with
the Construction Schedule and the Plans and Specifications and which will permit
the Termination of Construction Date to occur on or prior to the Completion
Date, and (y) the remaining costs to achieve the Termination of Construction
Date on or prior to the Completion Date will not exceed the sum of the aggregate
amounts available to be advanced hereunder, Available Funds and funds available
to the Borrower pursuant to the Completion Guarantees and/or the Junior
Subordinated Credit Facility to the extent the Administrative Agent has received
assurances from the Completion Guarantors and/or the respective lender, as the
case may be, as to such availability under the Completion Guarantees and/or the
Junior Subordinated Credit Facility.
(d) The Borrower shall have the right to amend from time to
time the Initial Construction Schedule to the extent such amendment is
commercially reasonable by submitting to the Administrative Agent such amendment
in writing and identifying with particularity therein the dates and times to be
changed, together with a certificate of an Authorized Officer of the Borrower
that (i) the change identified in such amendment is commercially reasonable, and
(ii) immediately following such amendment the Initial Construction Schedule will
continue to provide for a schedule and manner of construction which is
substantially consistent with the Construction Budget and the Plans and
Specifications and which will permit the Termination of Construction Date to
occur on or prior to the Completion Date.
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8.13 Inspection by the Administrative Agent. Each of JCC
Holding and the Borrower shall cooperate (and shall use its best efforts to
cause the General Contractors to cooperate) with the Administrative Agent in
arranging for inspections from time to time by the Administrative Agent or any
representative of the Administrative Agent of the progress of construction. In
the course of such inspections, each of the Administrative Agent and any
representatives of the Administrative Agent shall be entitled to inspect the
Casino, including, without limitation, (i) the Improvements, (ii) all materials
to be used in the construction of the Improvements, (iii) all plans and shop
drawings which are or may be kept at the construction site, (iv) any contracts,
bills of sale, statements, receipts or vouchers in connection with the
Improvements whether or not kept at the construction site, (v) all work done,
labor performed, materials furnished in and about the Casino, (vi) all books,
contracts and records of the Borrower and the Borrower's agents and other
entities as may be contractually bound to the Borrower to provide such records
with respect to the construction of the Improvements whether or not kept at the
construction site, and (vii) any other documents relating to the construction of
the Improvements whether or not kept at the construction site. In addition to
the foregoing, the Borrower shall use reasonable efforts to insure that
representatives of the Administrative Agent shall be entitled to inspect (i) all
books, contracts and records of the General Contractors and the Borrower with
respect to the Project (whether or not related to the construction thereof) and
(ii) any other document of the General Contractors and the Borrower relating to
the Improvements whether or not related to the construction thereof and whether
or not kept at the construction site. The Borrower will cooperate and instruct
the General Contractors and all material subcontractors, in accordance with the
applicable Construction Contracts, to cooperate with the Administrative Agent
and any representatives of the Administrative Agent so that they may perform
their respective responsibilities hereunder and to comply with the
Administrative Agent's requirements.
8.14 Settlement of Claims. If the Borrower shall fail promptly
either to discharge, bond or to contest claims asserted, or having commenced to
contest the same, shall fail to prosecute such contest with diligence, or to
maintain any indemnity or security as may be required by the title insurer, or
upon adverse conclusion of any such contest, to cause any judgment or decree to
be satisfied and lien to be released, then, upon 10 days prior notice to the
Borrower, the Administrative Agent may, at its election (but shall not be
required to), procure the release and discharge of any such claims and any
judgment or decree thereon and, further, may in its sole discretion effect any
settlement or compromise of the same, or may furnish such security or indemnity
to the title insurer and any amounts so expended by the Administrative Agent,
including premiums paid or security furnished in connection with the issuance of
any surety company bonds, and the Borrower agrees to promptly reimburse the
Administrative Agent for any amounts so expended by it (with interest thereon at
the rate applicable to Base Rate Loans hereunder). In settling, compromising or
discharging any claims for lien, the Administrative Agent shall not be required
to inquire into the validity or amount of any such claim.
8.15 Notices. The Borrower shall at all times (i) maintain the
registration of the Collateral Agent as the Registered Leasehold Mortgagee under
(and as defined in) the Casino Operating Contract, (ii) provide the RDC with the
notice address for the Collateral Agent under (and as defined in) the Casino
Lease and (iii) cause a copy or will deliver a copy of any notice provided by
the LGCB or the RDC to the Collateral Agent to be delivered at the same time to
the Administrative Agent.
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8.16 PIK Payments. (a) The Borrower agrees to make all
interest payments owing with respect to the Senior Subordinated Notes by using
the pay-in-kind feature applicable thereto, rather than making such payment in
cash, to the maximum extent permitted under the terms of the Senior Subordinated
Notes Indenture and the Senior Subordinated Notes.
(b) The Borrower agrees to make all interest payments owing
with respect to the Convertible Junior Subordinated Debentures by using the
pay-in-kind feature applicable thereto, rather than making such payments in
cash, to the maximum extent permitted under the terms of the Convertible Junior
Subordinated Debenture Indenture and the Convertible Junior Subordinated
Debenture Documents.
8.17 Project Account; Operating Accounts; Payment of Project
Costs; Etc. (a) On or prior to the Initial Borrowing Date, the Borrower shall
establish a separate bank account for all funds to be used for the payment of
Project Costs (the "Project Account"). The Borrower shall cause all net cash
proceeds received by it from time to time pursuant to the Junior Subordinated
Credit Facility, from its issuance of Convertible Junior Subordinated
Debentures, from its incurrence of Term Loans and Completion Loans under the
Completion Guarantor Loan Agreement, to be immediately deposited into the
Project Account, and maintained therein until spent for the payment of Project
Costs or released and applied as provided in clause (c) below. Furthermore,
prior to the occurrence of the Termination of Construction Date, the proceeds of
Revolving Loans and Swingline Loans may, at the discretion of the Borrower, be
deposited into the Project Account. Prior to the earlier to occur of the Opening
Date or the Termination of Construction Date, any other cash proceeds available
to the Borrower may be deposited into the Project Account. From and after the
earlier to occur of the Opening Date or the Termination of Construction Date, no
cash proceeds, other than net cash proceeds received as described in the second
sentence of this Section 8.17(a), may be deposited into the Project Account.
Furthermore, none of JCC Holding, the Borrower nor any of their Subsidiaries
shall pay any Project Costs with funds other than those from time to time on
deposit in the Project Account. Pending the use of funds on deposit from time to
time in the Project Account for the payment of Project Costs, amounts from time
to time on deposit in the Project Account may be invested in cash and Cash
Equivalents.
(b) The Borrower shall also establish one or more operating
accounts, including the Bank Account (as defined in the Management Agreement)
into which the Minimum Balance (as defined in the Management Agreement) is to be
deposited, for all funds to be used for operations and working capital (the
"Operating Accounts"). After the Termination of Construction Date, the proceeds
of all Revolving Loans and Swingline Loans shall be deposited into one or more
of the Operating Accounts, and shall in no event be deposited into the Project
Account or used for the payment of Project Costs.
(c) After the occurrence of both the Opening Date and the
Termination of Construction Date, and after all Project Costs have been paid in
full (and so long as the Borrower has determined that there remain no unpaid
Project Costs), and so long as no Default or Event of Default is then in
existence, any excess funds which remain in the Project Account may be released
therefrom so long as such funds are immediately used (x) to the extent of
amounts theretofore advanced pursuant to the Completion Guarantees (without
duplication of amounts), to
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return such excess funds to the Completion Guarantors and (y) to the extent in
excess thereof, to apply same to the voluntary prepayment of Term Loans in
accordance with the requirements of Section 4.01.
8.18. Covenants With Respect to Material Leases. Except as
otherwise permitted by this Agreement, with respect to any Material Lease to be
entered into by the Borrower after the date hereof:
(i) The Borrower shall not enter into any Material Lease
without the consent of the Administrative Agent, which consent shall
not be unreasonably withheld;
(ii) each Material Lease shall be on arms-length commercially
reasonable terms and conditions;
(iii) the Borrower shall not sell, convey, assign or otherwise
transfer, whether voluntary or involuntary, or whether direct or
indirect, any interest in or grant any lien upon any such Material
Lease or the rents thereunder;
(iv) each Material Lease shall provide that such Material
Lease is subject and subordinate to all ground or underlying leases,
mortgages or deeds of trust which affect the property leased
thereunder, including the Borrower Mortgage, and all advances made
prior to or on or after the date of such Material Lease and to any
renewals, modifications, consolidations, replacements or extensions
thereof;
(v) no Material Lease shall grant to the tenant thereunder any
right or option to purchase or otherwise acquire the property leased
thereby or any interest therein;
(vi) the Borrower shall duly and punctually pay, perform and
observe in all material respects (subject to Section 8.05 of this
Agreement) all of its material obligations under any Material Lease;
(vii) the Borrower shall do all things necessary or
appropriate to enforce, preserve and keep unimpaired each Material
Lease (and the Borrower's material rights thereunder) and to enforce
the obligations of the tenant thereunder, except following any default
by the tenant thereunder;
(viii) the Borrower shall not enter into any agreement or take
any other action terminating, extending or materially modifying
(including consenting to the assignment or subletting of the tenant's
interest under or waiving any material right of the Borrower or any
material obligation of the tenant under) any Material Lease, except in
the ordinary course of business or as shall not have a material adverse
effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole;
(ix) the Borrower shall notify the Administrative Agent (A)
promptly after receipt by the Borrower, or contemporaneously when given
by the Borrower, as the case may be, of any notice of default under any
Material Lease or any notice of the termination of any
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Material Lease, (B) promptly upon learning of any condition which,
with or without the giving of notice or the passage of time or both,
would constitute a material default or cause a termination under such
Material Lease, and (C) promptly upon learning of any assignment or
subletting of the interest of the tenant under any Material Lease;
(x) the Borrower shall promptly deliver to the Administrative
Agent, upon request, copies of (A) any Material Lease entered into
after the date hereof, (B) any agreement entered into after the date
hereof terminating, extending or otherwise modifying any Material Lease
(or any lease in any material respect which causes a lease to become a
Material Lease), and (C) any notice exercising any material right or
option under any Material Lease not theretofore delivered to the
Administrative Agent pursuant to clause (viii) of this Section 8.18;
(xi) each Material Lease shall provide that such Material
Lease or the interest of the Borrower as landlord thereunder may be
assigned or mortgaged by the Borrower to any mortgagee or holder of a
deed of trust as additional security and, in the event of a foreclosure
sale under any mortgage or deed of trust, such Material Lease shall
continue in full force and effect (to the extent such Material Lease is
not in default) and the tenant thereunder shall attorn to and
acknowledge such foreclosure purchaser as landlord under the Material
Lease, or, at such purchaser's option, shall enter into a new lease for
the balance of the term of such Material Lease upon the identical terms
and provisions contained therein; and
(xii) unless the Administrative Agent otherwise agrees, the
Borrower shall grant contemporaneously with the execution of any
Material Lease, to the Collateral Agent for the benefit of the Secured
Creditors, a mortgage and/or security interest or collateral assignment
of such Material Lease and the interest created therein, together with
any and all other documents required by the Administrative Agent to
reflect or otherwise protect the interests created, with all of the
foregoing to be in form and substance satisfactory to the
Administrative Agent.
8.19 Conditions to Material Alterations or Restorations. If no
Event of Default is continuing, the Borrower may, subject to compliance with
applicable law and the terms of the Casino Lease, construct any new improvement,
or otherwise alter or restore the Borrower Mortgaged Property (but excluding the
premises leased pursuant to the Railroad Lease); provided, however, with respect
to any material Alteration or Restoration:
(i) prior to commencing any Material Alteration or
Restoration, the Borrower shall give notice thereof to the
Administrative Agent, describing in reasonable detail satisfactory to
the Administrative Agent such Material Alteration or Restoration, the
work required therefor and the Borrower's best estimate of the cost
thereof;
(ii) any Material Alteration or Restoration when completed
shall not result in a reduction of the value of the Borrower Mortgaged
Property (as so altered or restored) below the lesser of (A) the value
immediately preceding the commencement of such alteration or
restoration or (B) the value which would cause the calculation of the
ratio of
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the then-outstanding Obligations to such value to equal or exceed the
ratio thereof in effect on the Termination of Construction Date;
(iii) any Material Alteration or Restoration shall be effected
with due diligence, in a good and workmanlike manner, in compliance in
all material respects (subject to Section 8.05 of this Agreement) with
all applicable legal requirements and the insurance requirements set
forth in Section 8.03 of this Agreement;
(iv) prior to commencing any phase of any Material Alteration
or Restoration, the Borrower shall obtain all permits applicable to
such phase and other consents or approvals required therefor and shall
deliver certified copies thereof to the Administrative Agent;
(v) the Borrower shall promptly and fully pay the cost of any
Material Alteration or Restoration;
(vi) if the Borrower has actual knowledge that any Material
Alteration or Restoration will encroach upon any property adjacent to
the Borrower Mortgaged Property or will interfere with any right of way
or easement affecting the Borrower Mortgaged Property, the Borrower
shall, prior to making such Material Alteration or Restoration, obtain
an agreement permitting such encroachment or interference; provided,
however, in the case of any other encroachment or interference as a
result of any Material Alteration or Restoration, the Borrower agrees
to promptly obtain such an agreement;
(vii) upon completion of any Material Alteration or
Restoration, the Borrower shall promptly give notice thereof to the
Administrative Agent accompanied by (A) a certificate of the Borrower
that such Material Alteration or Restoration complies with the
provisions of this Section, and that the Borrower has complied in all
material respects with its obligations under this Agreement relating
thereto, (B) a certified copy of any permanent certificate of occupancy
required to permit the use and occupancy thereof, (C) if reasonably
requested by the Administrative Agent, in the case of any Material
Alteration or Restoration affecting the exterior dimensions of any
improvements on the Borrower Mortgaged Property, an as-built ALTA
survey of the Borrower Mortgaged Property (or the applicable portion
thereof) certified to the Secured Creditors in form and substance
reasonably satisfactory to the Administrative Agent showing the
existing improvements and such Material Alteration or Restoration, and
(D) if reasonably requested by the Administrative Agent, an endorsement
to the existing mortgagee's title policy in form and substance
acceptable to the Administrative Agent; and
(viii) upon request, the Borrower shall promptly furnish to
the Administrative Agent such other information and documents relating
to any Material Alteration or Restoration as the Administrative Agent
shall reasonably request.
8.20 Maintaining the Premises. With respect to the Borrower
Mortgaged Property, the Borrower (i) shall operate and maintain the Borrower
Mortgaged Property (excluding any portion of the premises leased pursuant to the
Railroad Lease not used for Casino operations), or cause the same to be operated
and maintained, in good order, repair and condition;
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(ii) shall, within a commercially reasonable time, make, or cause to be made,
all material repairs, replacements, renewals, restorations, additions and
improvements of and to the Borrower Mortgaged Property (excluding any portion of
the premises leased pursuant to the Railroad Lease not used for Casino
operations), whether interior or exterior, structural or nonstructural or
foreseen or unforeseen, necessary or appropriate to keep the same in good order,
repair and condition; (iii) shall do or cause others to do all shoring of the
Borrower Mortgaged Property or any property adjacent thereto, including the
foundations and walls of either thereof, and to take all other actions necessary
or appropriate for the preservation and safety thereof by reason of or in
connection with any excavation or other construction thereon or any property
adjacent thereto, the failure of which would reasonably be expected to
materially adversely affect the Borrower Mortgaged Property taken as a whole;
(iv) shall not, without the consent of the Administrative Agent, initiate or
affirmatively support any change in the appropriate zoning materially adversely
affecting the Borrower Mortgaged Property taken as a whole, seek any variance
(or any change in any variance) under the zoning materially adversely affecting
the Borrower Mortgaged Property taken as a whole, execute or file any
subdivision or other plat or map materially adversely affecting the Borrower
Mortgaged Property taken as a whole or consent to any of the foregoing; and (v)
shall promptly after receiving notice or obtaining knowledge of any proposed or
threatened change in the zoning materially adversely affecting the Borrower
Mortgaged Property taken as a whole which would result in the current
contemplated use of the Borrower Mortgaged Property taken as a whole being a
nonconforming use, notify the Administrative Agent thereof and diligently
contest the same.
8.21 Releases of Mortgaged Properties. JCC Holding and the
Borrower covenant and agree to take all actions as may from time to time be
required so that no Mortgaged Property is at any time released from the
respective Mortgage (whether in accordance with the express release provisions
of such Mortgage or otherwise) unless JCC Holding and the Borrower have obtained
the prior written consent of the Required Banks (or in the circumstances
required by Section 16.12, all of the Banks) to such release, even if the
respective release would otherwise have been permitted without such consent in
accordance with the release provisions of the respective Mortgage.
9. Negative Covenants. JCC Holding and the Borrower covenant
and agree that on and after the Effective Date and until the Total Commitments
and all Letters of Credit have terminated and the Loans, Notes and Unpaid
Drawings, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
9.01 Liens. JCC Holding will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of JCC Holding or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to JCC Holding
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; provided that the provisions
of this Section 9.01 shall not prevent the creation, incurrence, assumption or
existence of the following (Liens described below are herein referred to as
"Permitted Liens"):
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(i) inchoate Liens for taxes, assessments or governmental
charges, compensation or levies not yet due and payable or Liens for
taxes, assessments or governmental charges or levies being contested
in good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with generally accepted
accounting principles;
(ii) Liens in respect of property or assets of the Permitted
Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money,
such as carriers', warehousemen's, materialmen's and mechanics' liens
and other similar Liens arising in the ordinary course of business,
and (x) which do not in the aggregate materially detract from the
value of the respective Subsidiary's property or assets or materially
impair the use thereof in the operation of the business of the
respective Permitted Subsidiary or (y) which are being contested in
good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule VI,
but only to the respective date, if any, set forth in such Schedule VI
for the removal and termination of any such Liens, without any
renewals or extensions thereof;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) leases or subleases granted by any Permitted Subsidiary to
other Persons in the ordinary course of business not materially
interfering with the conduct of the business of the respective
Permitted Subsidiary or materially detracting from the value of the
assets of the respective Permitted Subsidiary;
(vii) Liens on equipment or machinery subject to Capitalized
Lease Obligations to the extent permitted by Section 9.04, provided
that (x) the amount of such Capitalized Lease Obligations outstanding
at any one time, together with the aggregate principal amount of all
Indebtedness outstanding at such time and secured by Liens permitted
by clause (ix) of this Section 9.01, shall not exceed that aggregate
amount permitted by Section 9.04(vi), (y) such Liens only serve to
secure the payment of Indebtedness arising under such Capitalized
Lease Obligation and (z) the Lien encumbering the equipment or
machinery giving rise to the Capitalized Lease Obligation does not
encumber any other asset;
(viii) Liens (other than any lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security in the ordinary course of business;
(ix) Liens placed upon equipment or machinery used in the
ordinary course of business of any Permitted Subsidiary at the time of
acquisition thereof by such Permitted
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Subsidiary or within 90 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof,
provided that (x) the aggregate outstanding principal amount of all
Indebtedness secured by Liens permitted by this clause (ix) at any
time, together with the amount of all Capitalized Lease Obligations
outstanding at such time, shall not exceed that aggregate amount
permitted by Section 9.04(vi) and (y) in all events, the Lien
encumbering the equipment or machinery so acquired does not encumber
any other asset of JCC Holding or any of its Subsidiaries;
(x) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies,
in each case not securing Indebtedness and not materially interfering
with the conduct of the business of JCC Holding or any Permitted
Subsidiary;
(xi) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Permitted
Subsidiaries in the ordinary course of business;
(xii) Liens arising out of judgments or awards in respect of
which JCC Holding or any Permitted Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review in respect of which
there shall have been secured a subsisting stay of execution pending
such appeal or proceedings, provided that the aggregate amount of all
such judgments or awards (and any cash and the fair market value of
any property subject to such Liens) does not exceed $5,000,000 at any
time outstanding;
(xiii) lessor's privileges under leases to which any Permitted
Subsidiary is a party;
(xiv) restrictions pursuant to legends on stock required by
Gaming Regulations and the Casino Operating Contract to the extent
such restrictions constitute a Lien;
(xv) restrictions pursuant to the Management Agreement, the
Casino Lease and the Casino Operating Contract on the granting of any
security interest in the House Bank and Minimum Balance (each as
defined in the Management Agreement) and the Reserve Fund;
(xvi) Liens securing Indebtedness of (x) CPD and its Subsidiaries
or (y) FPD and its Subsidiaries, in each case so long as such
Indebtedness is incurred pursuant to, and permitted under, Section
9.04(viii) and so long as such Liens are approved by the Required
Banks at the time they permit the incurrence of Indebtedness pursuant
to said Section 9.05(viii) and so long as such Liens only encumber the
assets of CPD and its Subsidiaries or FPD and its Subsidiaries, as the
case may be;
(xvii) the ownership rights of the State of Louisiana in the
Louisiana Gross Revenue Share Payments, including the State of
Louisiana's Interest in Daily Collections, each to the extent granted
to the State of Louisiana under (and as each such term is defined in)
the Casino Operating Contract as originally in effect and as modified
from time to time in compliance with Section 9.11;
(xviii) the Minimum Payment Guaranty Lien shall be permitted; and
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(xix) Liens in favor of HET and HOC in respect of the Project to
the extent required by the Completion Guarantors in the exercise of
their Completion Obligations (as defined in the Bank Completion
Guarantee), provided that such Liens are expressly subject to the
terms of the Completion Guarantor Subordination Agreement.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
JCC Holding will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials,
equipment and intangible assets in the ordinary course of business) of any
Person, except that:
(i) Capital Expenditures by the Permitted Subsidiaries shall be
permitted to the extent not in violation of Section 9.07;
(ii) investments may be made to the extent permitted by Section
9.05;
(iii) each of the Permitted Subsidiaries may make sales of
inventory, materials and equipment (including, but not limited to,
obsolete, uneconomic or worn-out equipment or materials) in the
ordinary course of business;
(iv) CPD and FPD may sell the Specified Real Estate at fair
market value (as determined in good faith by management of JCC
Holding), provided that (x) in no event shall the purchase price for
any such sale be less than the cost to HJC of such Specified Real
Estate, (y) all Net Sale Proceeds from any sale of the Specified Real
Estate (whether or not to an Affiliate of the Borrower, CPD or FPD)
shall be applied as required by Section 4.02 and (z) at least 75% of
such proceeds shall be in cash and any non-cash proceeds shall be
evidenced by a promissory note pledged to the Collateral Agent
pursuant to the Pledge Agreement;
(v) the Borrower may lease (as lessor) portions of the Casino for
retail, restaurant and other ancillary uses so long as all such leases
(i) do not in the aggregate detract from the gaming operations of the
Casino in any material respect, (ii) are permitted by the Casino
Operating Contract, the Casino Lease, the Gaming Regulations and
applicable zoning and conditional uses and (iii) are subordinate and
subject to the Borrower Mortgage;
(vi) each of the Permitted Subsidiaries may lease (as lessee)
real or personal property so long as any such lease does not create a
Capitalized Lease Obligation (other than as permitted under Section
9.04);
(vii) to facilitate the development of the Specified Real Estate,
and with prior consent of the Required Banks (which may be granted or
withheld by them in their sole discretion), CPD or FPD, as the case
may be, may transfer the Specified Real Estate owned by it to a Person
which is not a Wholly-Owned Subsidiary of JCC Holding (so long
79
as equity interests in such Person are not owned by other Affiliates
of JCC Holding and so long as the respective such Person is created in
accordance with the requirements, to the extent applicable, of Section
9.15), free and clear of the Lien of the CPD Mortgage or FPD Mortgage,
as the case may be; provided that all Equity Interests in the
respective such Person owned by JCC Holding and its Wholly-Owned
Subsidiaries shall be pledged to the Collateral Agent pursuant to the
Pledge Agreement;
(viii) the Second Floor Sublease to JCC Development shall be
permitted and JCC Development may pay rent to the Borrower under the
Second Floor Sublease;
(ix) JCC Development may lease (as lessor) the Second Floor so
long as any such lease is permitted by the Casino Operating Contract,
the Casino Lease, the Gaming Regulations and applicable zoning and
conditional uses; and
(x) the Borrower may liquidate and dissolve HJC.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 9.02, such Collateral (unless sold to JCC Holding or a Subsidiary
of JCC Holding other than pursuant to Section 9.02(iv) or (vii)) shall be sold
free and clear of the Liens created by the Security Documents, and the
Administrative Agent and Collateral Agent shall be authorized to take any
actions (and shall take such actions) as they deem appropriate in order to
effect the release of the respective Collateral from the Liens created by the
respective Security Documents.
9.03 Restricted Payments. JCC Holding will not, and will not
permit any of its Subsidiaries to, authorize, declare, pay or make any
Restricted Payments, except:
(i) any Subsidiary of a Permitted Subsidiary may pay
Distributions to such Permitted Subsidiary or any Wholly-Owned
Subsidiary of such Permitted Subsidiary;
(ii) any Permitted Subsidiary other than the Borrower and its
Subsidiaries may pay Distributions to JCC Holding;
(iii) from amounts paid as interest hereunder and as Letter of
Credit Fees, Credit Support Fees may be paid from time to time as
provided in the Credit Enhancement Fee Agreement (Bank Credit
Agreement) and the Credit Enhancement Fee Agreement (JCC);
(iv) the Borrower may pay the Additional Credit Support Fees, the
Management Fees and other costs and expenses pursuant to the
Management Agreement, and Minimum Payment Guaranty Fees, in each case
to the extent permitted by Section 9.06(a)(iii), (iv) and (v) and
Section 9.06(b);
(v) dividends and distributions by the Borrower to JCC Holding in
an amount equal to all Permitted Tax Payments, to the extent all
amounts so dividended or distributed pursuant to this clause (v) are
promptly (and in any event within two Business Days) used by JCC
Holding to make payments in respect of the tax obligations of the type
described in the definition of Permitted Tax Payments; provided
further that any refund
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actually received by JCC Holding shall be promptly (in any event
within two Business Days) returned to the Borrower (and if not so
returned, shall reduce the amount of payments otherwise permitted to
be made in the future by the Borrower pursuant to this clause (v));
(vi) dividends and distributions by the Permitted Subsidiaries to
JCC Holding to the extent necessary to permit JCC Holding to pay, and
so long as JCC Holding promptly (and in any event within five Business
Days) uses such dividends and distributions to pay any administrative,
overhead or holding company operating expenses incurred in the
ordinary course of business, including, without limitation, JCC
Holding's reasonable professional fees and expenses in connection with
complying with its reporting obligations and obligations to prepare
and distribute business records, financial statements or other
documents to any lender or other persons having business dealings with
JCC Holding or as may be required by law, JCC Holding's costs and
related expenses in connection with computation of federal, state,
local or foreign taxes and other governmental charges other than
Permitted Tax Payments, indemnification agreements, insurance
premiums, surety bonds and insurance brokers' fees, and JCC Holding's
expenses for directors', officers' and employees' compensation and
benefits, rent, office furnishings, fixtures and equipment and office
supplies; provided that the portion of dividends and distributions
pursuant to this clause (vi) paid by the Borrower and its Subsidiaries
shall not exceed their ratable share (as determined in good faith by
JCC Holding based upon the costs relating to its various Permitted
Subsidiaries or, to the extent not so allocable, based on allocations
deemed fair and reasonable by JCC Holding) of such amounts;
(vii) payments permitted pursuant to the last sentence of Section
9.11;
(viii) JCC Holding may purchase or redeem outstanding shares of
its common stock if no Default or Event of Default then exists or
would result therefrom to the extent necessary in the good faith
judgment of the Board of Directors of JCC Holding to prevent the
filing of a disciplinary action by the State of Louisiana or the LGCB
or to prevent the loss or secure the reinstatement of the Casino
Operating Contract; provided that the aggregate amount spent in
connection with purchases pursuant to this clause (viii) shall in no
event exceed $5,000,000 and shall only be made from the proceeds of
unsecured Indebtedness permitted to be incurred pursuant to Section
9.04(xiv);
(ix) so long as no Default or Event of Default then exists or
would result therefrom, the Borrower may make cash interest payments
to HET (or an Affiliate of HET) under the Junior Subordinated Credit
Facility in the amounts and at the times that such cash interest
payments are due and payable pursuant to the terms of the Junior
Subordinated Credit Facility;
(x) in the circumstances, and to the extent, expressly provided
in Section 8.17(c), amounts originally incurred as Completion Loans
under the Completion Loan Agreement and/or advanced pursuant to the
Completion Guarantees may be returned, from excess funds on deposit in
the Project Account, to the Completion Guarantors; and
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(xi) JCC Development may pay rents to the Borrower pursuant to
the Second Floor Sublease;
(xii) so long as no Default or Event of Default then exists or
would exist after giving effect thereto, payments may be made pursuant
to the transactions expressly permitted by clauses (vi) and (vii) of
Section 9.06(a), even though such payments would otherwise constitute
Restricted Payments;
(xiii) payments expressly permitted to be made pursuant to the
provisions of Section 8.17(c) may be made in accordance with the terms
thereof; and
(xiv) at any time after any payment is made by any Minimum
Payment Guarantor pursuant to the terms of a Minimum Payment Guaranty,
such payment may be reimbursed to the respective Minimum Payment
Guarantor by the Borrower and the Borrower may pay interest thereon in
accordance with the terms of the relevant Minimum Payment Guaranty
Documents.
9.04 Indebtedness. JCC Holding will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Indebtedness of the Borrower (which may be guaranteed on a
subordinated basis by one or more Guarantors) pursuant to the Senior
Subordinated Notes in an aggregate principal amount not to exceed (x)
$187,500,000 (plus (A) the aggregate amount of any Contingent Interest
accrued but unpaid and (B) the aggregate principal amount of
additional Senior Subordinated Notes issued as interest in lieu of
cash interest, in each case in accordance with the terms of the Senior
Subordinated Note Indenture to the extent the same may be deemed to be
principal), less (y) the aggregate principal amount of all repayments
of principal of Senior Subordinated Notes effected after the Initial
Borrowing Date;
(iii) Existing Indebtedness shall be permitted to the extent the
same is listed on Schedule IV, but no refinancings or renewals
thereof;
(iv) accrued expenses and current trade accounts payable incurred
in the ordinary course, including any Management Fees deferred
pursuant to Article 9.01(c) of the Management Agreement;
(v) Indebtedness under Interest Rate Protection Agreements
relating to Indebtedness otherwise permitted under this Section 9.04;
(vi) Indebtedness subject to Liens permitted under Sections
9.01(vii) and (ix) or evidenced by Capitalized Lease Obligations to
the extent permitted pursuant to Section 9.07, provided that (x) such
Indebtedness shall be incurred after, and shall relate solely to
assets acquired after, the Termination of Construction Date has
occurred, (y) in no event
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shall the aggregate principal amount of such Indebtedness and
Capitalized Lease Obligations exceed $10,000,000 (which amount shall
increase by $5,000,000 on each of the first three anniversaries of the
date of this Agreement, but on a prospective basis only) at any time
outstanding and (z) in no event shall more than $5,000,000 of such
amount be incurred to replace any assets owned or leased on or prior
to the Termination of Construction Date;
(vii) subordinated Indebtedness or obligations of the Borrower to
repay amounts advanced by the Completion Guarantors pursuant to the
Completion Guaranties or Completion Guarantor Loan Documents or by HET
or HOC pursuant to the Construction Lien Indemnity Obligation
Agreement and any interest or other amounts payable pursuant thereto,
which obligations may, subject to compliance by the Completion
Guarantors or HET or HOC, as the case may be, with all requirements of
applicable law and contracts, indentures and loan agreements binding
upon them, constitute subordinated Indebtedness of the Borrower, the
Completion Guarantors or HET or HOC, as the case may be, under the
Completion Guarantor Loan Agreement or the Construction Lien Indemnity
Obligation Agreement, as the case may be, in an aggregate principal
amount not to exceed the amount of any payments made by the Completion
Guarantors or HET or HOC, as the case may be, under the Completion
Guaranties or the Construction Lien Indemnity Obligation Agreement, as
the case may be, plus any increase in the principal amount thereof as
a result of capitalized interest, provided that all such obligations
and Indebtedness shall be subject to the terms of the Completion
Guarantor Subordination Agreement (and all payments with respect
thereto shall be Restricted Payments subject to the requirements of
Section 9.03);
(viii) Indebtedness of CPD, FPD or any Subsidiary of CPD or FPD
incurred in connection with, and to finance, the development of the
Specified Real Estate so long as (i) the aggregate principal amount
thereof at any time outstanding does not exceed the amount determined
in good faith by management of JCC Holding to be necessary to develop
such Specified Real Estate plus, if such Specified Real Estate was
purchased by the respective Subsidiary from CPD or FPD pursuant to
Section 9.02 (iv), the amount of cash paid to CPD or FPD, as the case
may be, by such Subsidiary to effect such purchase, (ii) the only
assets securing such Indebtedness are the respective Specified Real
Estate and the improvements, furniture, fixtures and equipment related
thereto (and any other assets of CPD, FPD or the respective Subsidiary
of CPD or FPD, as the case may be, which incurred such Indebtedness),
(iii) such Indebtedness is expressly made non-recourse to JCC Holding
and each Subsidiary of JCC Holding (other than CPD, FPD or the
respective Subsidiary of CPD or FPD, as the case may be, which
incurred such Indebtedness) and (iv) each incurrence of Indebtedness
pursuant to this clause (viii) is approved in writing by the Required
Banks, which approval may be granted or withheld by the Required Banks
in their sole discretion (it being understood and agreed that, without
limitation, if the Required Banks approve any such Indebtedness, the
Required Banks shall also retain the right to approve the principal
amount thereof and all terms of the respective Indebtedness);
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(ix) unsecured Indebtedness of the Permitted Subsidiaries
consisting of, without duplication, letters of credit (other than
Letters of Credit issued pursuant to this Agreement) and reimbursement
obligations with respect thereto so long as the aggregate amount
thereof at any time outstanding does not exceed $5,000,000;
(x) Indebtedness of Permitted Subsidiaries to JCC Holding or its
Subsidiaries to the extent permitted by Section 9.05(viii);
(xi) Indebtedness of the Borrower (which may be guaranteed on a
subordinated basis by JCC Holding) pursuant to the Convertible Junior
Subordinated Debentures in an aggregate principal amount not to exceed
the sum of (x) $27,500,000 plus (y) the aggregate principal amount of
additional Convertible Junior Subordinated Debentures issued as
interest in lieu of cash interest in accordance with the terms of the
Convertible Junior Subordinated Debenture Indenture (less any
repayments or prepayments of principal thereof);
(xii) Indebtedness of the Borrower pursuant to the Junior
Subordinated Credit Facility in an aggregate principal amount not to
exceed $22,500,000 plus any increase in the principal amount thereof
as a result of capitalized interest (less any repayments or
prepayments of principal thereof);
(xiii) Indebtedness of the Borrower (which may be guaranteed on a
subordinated basis by one or more Guarantors) pursuant to the Senior
Subordinated Contingent Notes issued in accordance with the Plan of
Reorganization (and any replacement Senior Subordinated Contingent
Notes issued in accordance with the Senior Subordinated Contingent
Note Indenture), with all payments in respect of the Senior
Subordinated Contingent Notes to be contingent payments limited to 75%
of EBITDA (as defined in the Senior Subordinated Contingent Note
Indenture) over $85 million and under $109,425,380, calculated on an
annual basis in accordance with, and as more fully provided in, the
Senior Subordinated Contingent Note Indenture, as reduced by any
repayments actually made in respect of said Senior Subordinated
Contingent Notes;
(xiv) unsecured Indebtedness of the Borrower incurred for the
sole purpose of making any payments permitted pursuant to Section
9.03(viii); provided that (x) no scheduled repayment of such
indebtedness shall be due prior to the Tranche B-2 Term Loan Maturity
Date, (y) the interest rate applicable to such Indebtedness shall not
exceed (a) if such Indebtedness is floating rate debt, the rate of
interest payable with respect to Tranche B-1 Term Loans hereunder and
(b) if the Indebtedness is fixed rate debt, the Base Rate as in effect
on the date of the incurrence of such Indebtedness plus 1.5% per
annum, and (z) the aggregate principal amount of such Indebtedness
incurred hereunder after the Effective Date shall not exceed
$5,000,000;
(xv) Indebtedness of the Borrower pursuant to the Performance
Bond in an aggregate principal amount which is the same as the
Performance Bond provided to the City pursuant to the GDA (less any
repayments or prepayments of principal thereof);
84
(xvi) Indebtedness of the Borrower representing reimbursement
obligations under the Minimum Payment Guaranty Documents, so long as
the aggregate principal amount of reimbursement obligations thereunder
(excluding contingent reimbursement obligations for payments which
have not been made thereunder) at no time exceeds $5,000,000; and
(xvii) Indebtedness of JCC Holding and/or the Borrower pursuant
to guarantees delivered by them in accordance with the requirements of
Section 9.05(iv).
Notwithstanding anything to the contrary contained above, in no event may any
Indebtedness be incurred (other than pursuant to this Agreement) which would
constitute Tranche A Obligations or Tranche B-1 Obligations, in each case unless
the Required Banks specifically consent thereto (and to its treatment as Tranche
A Obligations or Tranche B-1 Obligations, as the case may be) prior to the time
of the incurrence thereof, and provided further, that any consents specifically
required by the definitions of Tranche A Obligations and Tranche B-1 Obligations
contained herein are obtained prior to the incurrence thereof.
9.05 Advances, Investments and Loans. JCC Holding will not,
and will not permit any of its Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents, except that the following shall be permitted:
(i) the Permitted Subsidiaries may acquire and hold cash and Cash
Equivalents;
(ii) the Permitted Subsidiaries may acquire and hold accounts
receivable owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms;
(iii) non-cash consideration received by the Permitted
Subsidiaries in connection with any sale of equipment or machinery
permitted by Section 9.02(iii), provided that the aggregate amount of
all such non-cash consideration shall not exceed $500,000 at any time
outstanding (determined without regard to any write-downs or
write-offs thereof);
(iv) JCC Holding and the Borrower may make loans and advances in
the ordinary course of business to the employees of JCC Holding and
the Borrower, and may in the ordinary course of business guarantee
mortgage loans extended to such employees, so long as (x) the
aggregate principal amount of such loans and advances at any time
outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $1,000,000 and
(y) the aggregate amount of such guarantees at any time outstanding
shall not exceed $1,000,000 less the aggregate amount of payments
theretofore made by JCC Holding and the Borrower pursuant to any such
guarantees to the extent same have not been reimbursed in cash to JCC
Holding or the Borrower, as the case may be;
85
(v) the Borrower may enter into Interest Rate Protection
Agreements to the extent permitted in Section 9.04(v);
(vi) the Borrower may make cash investments in, and loans to, the
BDC to fund the BDC's operations and any other funding requirements
pursuant to the Open Access Program, provided that the aggregate
amount of cash investments and loans for the BDC's ongoing operations
shall not exceed $750,000 in any fiscal year of the Borrower;
(vii) transfers of Specified Real Estate may be made in
accordance with the provisions of Section 9.02(vii); and
(viii) JCC Holding and its Permitted Subsidiaries which are
parties to the Pledge Agreement may make additional loans, advances
and investments in Permitted Subsidiaries so long as (i) the aggregate
amount thereof outstanding at any one time does not exceed $1,000,000
(determined without regard to any write-downs or write-offs thereof)
and (ii) all such investments that are structured as loans shall be
evidenced by a promissory note which shall be duly pledged and
delivered to the Collateral Agent pursuant to the Pledge Agreement.
9.06 Transactions with Affiliates. (a) JCC Holding will not,
and will not permit any of its Subsidiaries to, enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of JCC Holding or any of its Subsidiaries, other
than in the ordinary course of business and on terms and conditions
substantially as favorable to JCC Holding or such Subsidiary as would reasonably
be obtained by JCC Holding or such Subsidiary at that time in a comparable
arm's-length transaction with a Person other than an Affiliate, except that:
(i) Restricted Payments may be paid to the extent provided in
Section 9.03;
(ii) loans may be made and other transactions may be entered into
by the Borrower and its Subsidiaries to the extent permitted by
Sections 9.04 and 9.05;
(iii) the Credit Enhancement Fee Agreement (Bank Credit
Agreement) and the Credit Enhancement Fee Agreement (JCC) may be
entered into and payments may be made by the respective parties to
such agreements of Credit Support Fees and Additional Credit Support
Fees, as the case may be, in accordance with the terms of such
agreements;
(iv) the Borrower may enter into the Management Agreement and,
subject to the provisions of Section 9.06(b), may pay the Management
Fees and other costs and expenses pursuant thereto, provided that (a)
except as otherwise provided below, the Base Fee shall be paid monthly
in arrears with respect to each calendar month, but not earlier than
10 days after the last day of the respective calendar month and not
later than 20 days after the last day of the respective calendar
month, (b) except as provided below, the Incentive Fee (which shall
only be payable for periods beginning after the Termination of
Construction Date) shall be paid at six month intervals on the next
Business Day following actual cash payment of all accrued fixed
interest and Contingent Payments, if any, on the
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New Bonds (and if such amounts are not paid in cash, the Incentive
Fees described herein shall be deferred and shall thereafter only be
payable as provided in following Section 9.06(b)), (c) the Base Fee
shall not be paid and the Incentive Fee shall not accrue or be paid at
any time when a Specified Event of Default shall have occurred and be
continuing, provided that if any such Base Fee is not paid during the
period in which it is first permitted to be paid because of a
Specified Event of Default exists or would exist after giving effect
to the payment thereof, then the amount thereof shall accrue (without
interest) and shall only be paid thereafter if no Specified Event of
Default then exists and in accordance with the provisions of Section
9.06(b), (d) no payment may be made by the Borrower or any of its
Subsidiaries of the Termination Fee unless and until the Total
Commitments and all Letters of Credit have terminated and all Loans,
Notes and Unpaid Drawings, together with all interest, Fees and other
Obligations incurred hereunder (as well as any refinancing of any of
the foregoing unless it is specifically otherwise agreed in the
relevant refinancing documentation) have been paid in full; provided
that the Termination Fee may be paid directly to Xxxxxx'x Management
(or its successor pursuant to Section 9.16) by a successor manager
permitted to act as such pursuant to Section 9.16 so long as neither
JCC Holding nor any of its Subsidiaries incurs any obligation to
reimburse such successor manager for all or any portion of the
Termination Fee so paid, and (e) all such Management Fees shall be
subject to the terms of the Manager Subordination Agreement.
Notwithstanding anything to the contrary contained above, and in
addition to the foregoing requirements, prior to payment of any
Management Fee permitted by this clause (iv), HET and HOC shall have
entered into a binding agreement to reimburse the Borrower promptly
for any positive difference between the amount of such payment and the
amount ultimately determined to be permitted to be paid to Xxxxxx'x
Management pursuant to this clause (iv), provided, however, that if
neither HET nor HOC promptly reimburses the Borrower for any such
positive difference, the amount of such positive difference shall be
deducted from subsequent payments permitted to be made to Xxxxxx'x
Management pursuant to this clause (iv) until the unreimbursed amount
has been fully offset by reductions to permitted payments to Xxxxxx'x
Management under this clause (iv);
(v) the Borrower may enter into the Minimum Payment Guaranty
Documents and, subject to the provisions of Section 9.06(b), may pay
the Minimum Payment Guaranty Fees and other costs and expenses
pursuant thereto, provided that (a) the Minimum Payment Guaranty Fees
payable thereunder shall not exceed $6 million per annum for the
fiscal years ending March 31, 2000 and 2001 (HET and HOC shall receive
a pro rata fee based on an annual fee of $6 million for any partial
fiscal year ending March 31, 1999 or for the fiscal year ending March
31, 2000, if it is a partial fiscal year) and $5 million per annum for
the fiscal years ending March 31, 2002, 2003 and 2004, all of which
fees shall be payable quarterly in advance;
(vi) CPD, FPD, JCC Development and the Borrower may enter into
the Development Services Agreement and pay fees and expenses owing
thereunder, so long as all fees and expenses paid thereunder are in
respect of services provided to the respective payor and are no less
favorable to the respective payor as could have been obtained for such
services from an unrelated party; and
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(vii)the Borrower at any time may lease slot machines, pursuant
to arm's length operating leases from time to time entered into with
HET, an Affiliate of HET or a third party, so long as the Borrower at
no time leases more than 1,100 such slot machines from HET, an
Affiliate of HET or a third party.
(b) Notwithstanding anything to the contrary contained in
Section 9.06(a), on and prior to October 31, 2001, no amounts may be paid
pursuant to clauses (iv) and/or (v) of Section 9.06(a) unless there has been,
and will be, no deferral of principal pursuant to Section 4.02(b)(iv)(A) for any
periods or dates occurring on or prior to October 31, 2001. Furthermore, if at
any time any amounts are deferred pursuant to Section 4.02(b)(iv)(B), then
during each six month period which begins on the respective Senior Subordinated
Notes Semi-Annual Interest Payment Date occurring immediately prior to the date
upon which the Scheduled Repayments would otherwise be made but for the
provisions of said Section 4.02(b)(iv)(B), no amounts may be paid pursuant to
clauses (iv) or (v) of preceding Section 9.06(a). In addition to the foregoing
deferrals, amounts otherwise payable from time to time pursuant to clauses (iv)
and (v) of Section 9.06(a) may be deferred pursuant to this Section 9.06(b) with
the agreement of the Borrower and Xxxxxx'x Management (or its successors as
Casino manager). To the extent any amounts otherwise payable pursuant to Section
9.06(a)(iv) or (v) are deferred (x) as contemplated by Section 4.02(b)(iv) or
this clause (b), or (y) in the case of payments pursuant to Section 9.06(a)(iv),
for the reasons described in the proviso to subclause (c) thereof, such amounts
shall be deferred and may thereafter be repaid only in accordance with the
provisions contained below in this Section 9.06(b). To the extent Consolidated
EBITDA for any Semi-Annual Free Cash Flow Payment Period exceeds $32.5 million,
and so long as no Specified Event of Default then exists or would exist after
giving effect to the respective payments described in this sentence, an amount
equal to the lesser of (x) the amount by which Consolidated EBITDA for said
Semi-Annual Free Cash Flow Payment Period exceeds $32.5 million and (y) the
Retained Percentage of Semi-Annual Free Cash Flow for such Semi-Annual Free Cash
Flow Payment Period, may be applied to pay deferred Base Fees under the
Management Agreement and any deferred Minimum Payment Guaranty Fees. To the
extent the amount available to be applied pursuant to the immediately preceding
sentence for any Semi-Annual Excess Cash Flow Payment Period exceeds the amount
of deferred and unpaid Base Fees and Minimum Payment Guaranty Fees at such time,
an amount equal to the lesser of (x) such excess and (y) the amount, if any, by
which Consolidated EBITDA for such Semi-Annual Excess Cash Flow Payment Period
exceeds $32.5 million, shall be available to repay any deferred Incentive Fees.
(c) Notwithstanding anything to the contrary contained in this
Section 9.06, neither JCC Holding nor any of its Subsidiaries shall enter into
any management or similar contract or arrangement other than the Management
Agreement.
9.07 Capital Expenditures. JCC Holding will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except:
(a) the Borrower may make Capital Expenditures required to
complete the Project;
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(b) the Borrower may make additional Capital Expenditures with
funds deposited in the Reserve Fund from time to time (so long as, and
to the extent that, the amounts required to be deposited by the
Borrower from time to time in the Reserve Fund are not increased above
the requirements as same apply on the Plan Effective Date, unless and
to the extent such increased requirements are consented to by the
Required Banks);
(c) after all A Term Loans have been repaid in full, the Borrower
may make additional Capital Expenditures at any time in an amount not
to exceed the Cumulative Retained Free Cash Flow Amount as then in
effect; and
(d) JCC Development, CPD, FPD and their Subsidiaries may make
additional Capital Expenditures with the prior written consent of the
Required Banks.
9.08 Consolidated Interest Coverage Ratio. The Borrower will
not permit the Consolidated Interest Coverage Ratio for any Test Period ended on
the last day of a Fiscal Test Quarter described below to be less than the ratio
set forth opposite such fiscal quarter below:
Test Periods Ended Ratio
The last day of the fifth and sixth 1.00:1.00
Fiscal Test Quarters
Thereafter and on or prior to the last day of 1.10:1.00
the tenth Fiscal Test Quarter
Thereafter and on or prior to the last day of 1.12:1.00
the twelfth Fiscal Test Quarter
Thereafter and on or prior to the last day of 1.15:1.00
the thirteenth Fiscal Test Quarter
Thereafter and on or prior to the last day of 1.25:1.00
the fourteenth Fiscal Test Quarter
Thereafter and on or prior to the last day of 1.30:1.00
the sixteenth Fiscal Test Quarter
Thereafter and on or prior to the last day of 1.35:1.00
the eighteenth Fiscal Test Quarter
The last day of each Fiscal Test Quarter thereafter 1.40:1.00
9.09 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ended on the last day of a Fiscal Test
Quarter described below to be less than the amount set forth opposite such
fiscal quarter below:
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Test Period Ended Amount
The last day of the first $2.0 million
Fiscal Test Quarter
The last day of the second $3.0 million
Fiscal Test Quarter
The last day of the third $5.0 million
Fiscal Test Quarter
The last day of the fourth $20 million
Fiscal Test Quarter
The last day of the fifth $30.0 million
Fiscal Test Quarter
The last day of the sixth $35.0 million
Fiscal Test Quarter
The last day of the seventh $37.5 million
Fiscal Test Quarter
The last day of the eighth $41.25 million
Fiscal Test Quarter
The last day of the ninth $47.0 million
Fiscal Test Quarter
The last day of the tenth $52.0 million
Fiscal Test Quarter
The last day of the eleventh $57.0 million
Fiscal Test Quarter
The last day of the twelfth $62.5 million
Fiscal Test Quarter
The last day of each Fiscal Test Quarter thereafter $65.0 million
9.10 Consolidated Debt to Consolidated EBITDA. The Borrower
will not permit the ratio of (i) Consolidated Debt (as determined at any
time) to (ii) Consolidated EBITDA (with Consolidated EBITDA to be determined
for the Test Period last ended on or prior to the date of determination), to
be greater than, during any period set forth below, the ratio set forth below
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opposite such period, provided that the ratio shall not be tested until the
last day of the fifth Fiscal Test Quarter:
Period Ratio
The last day of the fifth Fiscal Test Quarter 7.00:1.00
through and including the day before
the last day of the sixth Fiscal Test Quarter
The last day of the sixth Fiscal Test Quarter 6.00:1.00
through and including the day before
the last day of the seventh Fiscal Test Quarter
The last day of the seventh Fiscal Test Quarter 5.50:1.00
through and including the day before
the last day of the eighth Fiscal Test Quarter
The last day of the eighth Fiscal Test Quarter 5.00:1.00
through and including the day before
the last day of the ninth Fiscal Test Quarter
The last day of the ninth Fiscal Test Quarter 4.50:1.00
through and including the day before
the last day of the tenth Fiscal Test Quarter
The last day of the tenth Fiscal Test 4.0:1.00
Quarter through and including the day
before the last day of the eleventh Fiscal Test Quarter
At all times thereafter 3.75:1.00
9.11 Limitation on Payments of Certain Indebtedness;
Modifications of Certain Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc. JCC Holding will not,
and will not permit any of its Subsidiaries to, without the prior written
consent of the Required Banks, (i) make (or give any notice in respect of) any
voluntary or optional payment or prepayment on or redemption or acquisition for
value of, or any prepayment or redemption as a result of any change of control
or similar event of (including in each case, without limitation, by way of
depositing with the trustee with respect thereto or any other Person money or
securities before due for the purpose of paying when due), any New Bonds, any
Convertible Junior Subordinated Debentures or the Junior Subordinated Credit
Facility, (ii) amend or modify, or permit the amendment or modification of, any
provision of the Completion Guarantor Loan Documents, the Junior Subordinated
Credit Facility Documents, the Convertible Junior Subordinated Debenture
Documents, the Minimum Payment Guaranty Documents, the Plan of Reorganization or
the Construction Lien Indemnity Obligation Agreement, except (x)
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such amendments, modifications or changes which could not be adverse in any
respect to the interests of the Borrower or the Banks and (y) in the case of the
Minimum Payment Guaranty Documents, any substitute or successor Minimum Payment
Guaranty Documents executed and delivered by a substitute or successor Minimum
Payment Guarantor without causing a Default or Event of Default pursuant to
clause (ii) of Section 10.17, in each case so long as such substitute or
successor Minimum Payment Guaranty Documents are not adverse in any respect to
the interests of the Borrower or the Banks (including without limitation, so
long as the nature and amount of obligations guaranteed thereunder is not
adversely changed or increased, and so long as the financial terms thereof are
not made worse from the perspective of the Borrower) from the terms as applied
in the original Minimum Payment Guaranty Documents, (iii) amend or modify, or
permit the amendment or modification of, any provision of the New Bond Documents
other than Permitted Amendments, (iv) amend, modify or change its certificate of
incorporation (including, without limitation, by the filing or modification of
any certificate of designation), by-laws or other applicable organizational
documents, except such modifications as could not be adverse to the interests of
the Banks in any respect, (v) amend, modify or change any provision of the
Casino Lease, any other Project Document or the Casino Operating Contract except
to the extent that any such amendment, modification or change could not be
adverse to the interests of the Banks in any respect, (vi) amend, modify or
change any provision of the Management Agreement, any Subordination Agreement or
any Security Document (except such amendments, modifications or changes to the
Management Agreement which are solely for the benefit of the Borrower and could
not be adverse in any respect to the interests of the Borrower or the Banks) or
(vii) terminate or agree to terminate any Construction Contract, unless such
termination is (x) for cause and (y) the Borrower has entered into, before or
contemporaneously with such termination, a replacement contract for the work to
be performed under such Construction Contract and such replacement contract is
for a guaranteed maximum or fixed price consistent with the Construction Budget
and on commercially reasonable terms with a licensed reputable construction
firm; and such replacement contract provides for (together with all other
applicable Construction Contracts) the Termination of Construction Date to be
achieved on or before the Completion Date. JCC Holding will not, and will not
permit any of its Subsidiaries to, enter into any settlement or compromise of
any lawsuit or dispute affecting the Project that (x) adversely affects the
Casino Lease or the title of the City or the Borrower to any Real Property or is
adverse (except in the case of payments subject to clause (y) below) to the
interests of the Borrower or the Banks or (y) involves the payment by the
Borrower of any amount (not paid or fully covered by a reputable and solvent
insurance company which has agreed in writing to pay the same) in excess of
$5,000,000 in the aggregate with respect thereto, without the prior written
consent of the Required Banks. Notwithstanding anything to the contrary
contained in clauses (i) and (ii) of this Section 9.11, the Borrower may prepay,
repurchase, redeem, defease or otherwise retire New Bonds and/or Convertible
Junior Subordinated Debentures if no Default or Event of Default then exists or
would result therefrom (excluding the provisions of clauses (i) and (ii) of this
Section 9.11) to the extent necessary in the good faith judgment of management
of the Borrower to prevent the filing of a disciplinary action by any Gaming
Authority or to prevent the loss or secure the reinstatement of any license or
franchise from any governmental agency (including any Gaming Authority) held by
the Borrower or any of its Affiliates which license or franchise is conditioned
upon some or all of the holders of the New Bonds possessing prescribed
qualifications, if such loss or failure to reinstate would have a material
adverse effect upon the business, operations,
92
property, assets, liabilities, conditions (financial or otherwise) or prospects
of the Borrower or JCC Holding and its Subsidiaries taken as a whole; provided
that the aggregate amount spent in connection with purchases pursuant to this
sentence shall in no event exceed $5,000,000.
9.12 Limitation on Certain Restrictions on Subsidiaries. JCC
Holding will not, and will not permit any of its Subsidiaries (other than CPD,
FPD and their respective Subsidiaries) to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (a) pay dividends or make
any other distributions on its capital stock or any other interest or
participation in its profits owned by JCC Holding or any Subsidiary of JCC
Holding, or pay any Indebtedness owed to JCC Holding or a Subsidiary of JCC
Holding, (b) make loans or advances to JCC Holding or any of JCC Holding'
Subsidiaries or (c) transfer any of its properties or assets to JCC Holding,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of JCC Holding or a Subsidiary of JCC Holding and (iv)
customary provisions restricting assignment of any licensing agreement entered
into by JCC Holding or a Subsidiary of JCC Holding in the ordinary course of
business.
9.13 Limitation on Issuance of Capital Stock. a)" \*
MERGEFORMAT (a) JCC Holding shall not issue (i) any class of preferred stock or
(ii) any class of redeemable (except at the sole option of JCC Holding) common
stock.
(b) JCC Holding will not permit any of its Subsidiaries to
issue any Equity Interests (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, Equity
Interests, except (i) for transfers and replacements of then outstanding shares
of capital stock, (ii) for stock splits, stock dividends and additional
issuances which do not decrease the percentage ownership of JCC Holding in any
class of the capital stock or partnership interest of such Subsidiary and (iii)
to qualify directors to the extent required by applicable law.
9.14 Business. (a) JCC Holding will engage in no business
other than its ownership of the Equity Interests in the Borrower, JCC
Development, CPD and FPD (except activities associated therewith and with its
rights and obligations otherwise permitted pursuant to this Agreement and not
prohibited by the Casino Operating Contract, the Casino Lease, the Gaming
Regulations or applicable zoning and conditional uses).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
operation of the Casino and the sublease and development of the Second Floor and
the businesses ancillary thereto.
(c) JCC Development will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
leasing (and subleasing) and development of the Second Floor and the businesses
ancillary thereto.
(d) JCC Holding shall not permit CPD or any of its
Subsidiaries to engage (directly or indirectly) in any business other than the
ownership and development of the Specified
93
Real Estate owned by CPD on the Effective Date, the ownership of Equity
Interests in any Person to whom such Specified Real Estate has been contributed
and businesses ancillary thereto.
(e) JCC Holding shall not permit FPD or any of its
Subsidiaries to engage (directly or indirectly) in any business other than the
ownership and development of the Specified Real Estate owned by FPD on the
Effective Date, the ownership of Equity Interests in any Person to whom such
Specified Real Estate has been contributed and businesses ancillary thereto.
9.15 Limitation on Creation of Subsidiaries. JCC Holding will
not establish, create or acquire any Subsidiaries (other than the Borrower, JCC
Development, CPD, FPD and any Subsidiary of the Borrower, JCC Development, CPD
and/or FPD formed in accordance with the following requirements of this Section
9.15) without the prior written consent of the Required Banks and no Subsidiary
of JCC Holding will establish, create, or acquire any Subsidiaries (except that
(i) the Borrower may form one or more Wholly-Owned Subsidiaries to operate
certain ancillary and support functions in connection with the Casino, (ii) JCC
Development may form one or more Subsidiaries in connection with the development
and leasing of the Real Property subject to the Second Floor Sublease, (iii) CPD
may form one or more Subsidiaries in connection with the 3CP parcel of the
Specified Real Estate (listed as Item 1 on Schedule VII) and (iv) FPD may form
one or more Subsidiaries in connection with its development of the Xxxxxx Street
Properties (listed as Item 2 on Schedule VII)) without the prior written consent
of the Required Banks. Furthermore, unless specifically consented to in writing
by the Required Banks, no Subsidiary of JCC Holding shall directly or indirectly
guarantee any Indebtedness of JCC Holding or any of its other Subsidiaries
(including, without limitation, the New Bonds). At the time of the establishment
or creation of any Wholly-Owned Subsidiary of JCC Holding (whether directly or
indirectly owned by JCC Holding) pursuant to this Section 9.15, such newly
formed or created Wholly-Owned Subsidiary of JCC Holding shall be required to
become a Subsidiary Guarantor by executing and delivering to the Administrative
Agent a counterpart of the Subsidiaries Guaranty, and to become party to the
Pledge Agreement and Security Agreement by executing and delivering counterparts
thereof, and if requested by the Administrative Agent or the Required Banks, by
entering into such other security documentation, and covering such assets of
such Wholly-Owned Subsidiary, as may be required by the Administrative Agent or
the Required Banks, and in connection therewith shall deliver such opinions of
counsel and take such other action as would have been required of such
Wholly-Owned Subsidiary had it been a Credit Party on the Initial Borrowing
Date. Furthermore, in connection with any consent to the creation of a
Subsidiary which is not otherwise permitted pursuant to this Section 9.15, it is
understood that the Required Banks may require that any such Subsidiary take the
actions specified in the immediately preceding sentence for Wholly-Owned
Subsidiaries of JCC Holding established or created after the Effective Date.
9.16 Casino Manager. Neither JCC Holding nor the Borrower will
permit any Person, other than Xxxxxx'x Management, to act as the "manager" or in
a similar capacity with respect to the Casino, provided that, any other
Wholly-Owned Subsidiary of HET reasonably satisfactory to the Administrative
Agent and the Required Banks may be substituted for Xxxxxx'x Management as the
casino manager so long as (i) at least 30 days prior written notice thereof has
been given to the Administrative Agent and the Banks and, during the 30 days
after the giving of such notice, neither the Administrative Agent nor the
Required Banks have objected in writing to
94
the substitution, (ii) no Default or Event of Default exists at the time of such
substitution, (iii) all necessary regulatory and other approvals (including,
without limitation, all approvals required of any relevant Gaming Authorities)
are obtained in connection with such substitution, (iv) after giving effect to
the substitution, there is no conflict with any applicable law, rule, regulation
or contract applicable to JCC Holding or its Subsidiaries, the Casino or the new
manager, (v) any successor to Xxxxxx'x Management shall have assumed all of its
obligations pursuant to all relevant contracts (including, without limitation,
the Management Agreement and the Manager Subordination Agreement) pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
(vi) the Administrative Agent shall have received such opinions of counsel with
respect to the foregoing and otherwise relating to the substitution as shall
have been reasonably requested by the Administrative Agent.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more days, in the payment when
due of any Unpaid Drawings or interest on any Loan or Note, or any Fees or any
other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made by or on behalf of JCC Holding or any of its Subsidiaries herein
or in any other Credit Document or in any certificate delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
10.03 Covenants. JCC Holding or the Borrower shall (i) default
in the due performance or observance by it of any term, covenant or agreement
contained in Section 8.01(h)(i), 8.08, 8.16, 8.17 or 8.21 or Section 9 or (ii)
default in the due performance or observance by it of any other term, covenant
or agreement contained in this Agreement and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by the
Administrative Agent or any Bank; or
10.04 Default Under Other Indebtedness. (i) JCC Holding or any
of its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (ii) any Indebtedness (other than
the Obligations) of JCC Holding or any of its Subsidiaries shall be declared to
be due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof, provided
that it shall not be a Default or an Event of Default under this Section 10.04
95
unless the aggregate principal amount of all Indebtedness as described in
preceding clauses (i) and (ii) is at least $5,000,000; or
10.05 Project Documents. There shall occur and be continuing
(i) a Termination Event under any Project Document or the Casino Operating
Contract, or (ii) a default or an event of default by the Borrower or any of its
Subsidiaries as described and defined in any of the Project Documents or the
Casino Operating Contract, or (iii) any event or condition which could, either
immediately or with the giving of notice or lapse of time or both, enable any
party to any Project Document or the Casino Operating Contract other than the
Borrower or any of its Subsidiaries to terminate or suspend its obligations
under such Project Document or the Casino Operating Contract, or (iv) a breach
by the Borrower or any of its Subsidiaries of any term, covenant or agreement
contained in any Project Document or the Casino Operating Contract, or if, in
the case of this clause (iv), in the determination of the Required Banks, such
breach could reasonably be expected to have a material adverse effect on either
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
on the completion of the Project, and if such Termination Event or other event
or condition described in the preceding clause (i), (ii), (iii) or (iv) (each, a
"Project Default") remains uncured for 30 days after the occurrence thereof;
provided that (I) except as provided in the following clause (II), if (A) such
Project Default cannot be cured within such 30-day period, (B) such Project
Default is susceptible of cure by the Borrower, (C) the Borrower is proceeding
with diligence and in good faith to cure such Project Default, (D) the existence
of such Project Default does not impair the Liens on the Collateral or any
leasehold interest in Collateral and (E) the Administrative Agent shall have
received a certificate of the Borrower stating what action the Borrower is
taking to cure such Project Default, then, the time within which such Project
Default may be cured shall be extended to such date, not to exceed a total of
120 days after the occurrence of such Project Default, as shall be necessary for
the Borrower diligently to cure such Project Default and, (II) notwithstanding
anything to the contrary contained above, there shall be no grace period, and it
shall be an immediate Event of Default, if any of the Casino Leases or Casino
Operating Contracts are the subject of a Termination Event of the type described
in clause (b) of the definition thereof; or
10.06 Bankruptcy, etc. JCC Holding or any of its Subsidiaries
(excluding Insignificant Subsidiaries) shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced against JCC Holding or
any of its Subsidiaries (excluding Insignificant Subsidiaries) and the petition
is not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
JCC Holding or any of its Subsidiaries (excluding Insignificant Subsidiaries),
or JCC Holding or any of its Subsidiaries (excluding Insignificant Subsidiaries)
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to JCC
Holding or any of its Subsidiaries (excluding Insignificant Subsidiaries), or
there is commenced against JCC Holding or any of its Subsidiaries (excluding
Insignificant Subsidiaries) any such proceeding which remains undismissed for a
period of 60 days, or JCC Holding or any of its Subsidiaries (excluding
Insignificant Subsidiaries) is adjudicated insolvent or bankrupt; or
96
any order of relief or other order approving any such case or proceeding is
entered; or JCC Holding or any of its Subsidiaries (excluding Insignificant
Subsidiaries) suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or JCC Holding or any of its Subsidiaries (excluding
Insignificant Subsidiaries) makes a general assignment for the benefit of
creditors; or any corporate action is taken by JCC Holding or any of its
Subsidiaries (excluding Insignificant Subsidiaries) for the purpose of effecting
any of the foregoing; or
10.07 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan is, shall have been or is likely to
be terminated or to be the subject of termination proceedings under ERISA, any
Plan shall have an Unfunded Current Liability, a contribution required to be
made to a Plan has not been timely made, JCC Holding or any of its Subsidiaries
or any ERISA Affiliate has incurred or is likely to incur a liability to or on
account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code, or JCC Holding or any of its Subsidiaries has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA); (b) there
shall result from any such event or events the imposition of a lien, the
granting of a security interest, or a liability or a material risk of incurring
a liability; (c) which lien, security interest or liability, in the opinion of
the Required Banks, will have a material adverse effect upon the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
JCC Holding and its Subsidiaries taken as a whole; or
10.08 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease in to give the Collateral Agent for the benefit of
the Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected (except as otherwise
expressly provided in Section 3.2(d) of the Pledge Agreement with respect to
Gaming Patron Indebtedness) security interest in, and Lien on, all of the
Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as permitted by Section 9.01), and subject
to no other Liens (except as permitted by Section 9.01), or any Credit Party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any of the
Security Documents and such default shall continue beyond any cure or grace
period specifically applicable thereto pursuant to the terms of such Security
Document; or
10.09 Guaranties; etc. Any Guaranty or any provision thereof
shall cease to be a legal, valid and binding obligation enforceable against the
obligor thereof, or any Guarantor or any Person acting for or on behalf of any
Guarantor shall deny or disaffirm such Guarantor's obligations under its
Guaranty, or any Guarantor shall default in its due performance of any term,
covenant or agreement on its part to be performed or observed pursuant to its
Guaranty, or any default or event of default under, and as defined in, a
Guaranty shall be in existence; or
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10.10 Subordination Agreements. (a) Any Subordination
Agreement or any provision thereof shall cease to be a legal, valid and
binding obligation enforceable against any party to such Subordination
Agreement who has agreed to subordinate any obligations pursuant thereto, or
any such party to a Subordination Agreement or any Person acting by or on
behalf of any such party shall deny or disaffirm such party's obligations
under any such Subordination Agreement, or any such party shall default in
the due performance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Subordination Agreement, or (b) at
any time there shall be any manager of the Casino which has not executed and
delivered to the Administrative Agent a counterpart to the Manager
Subordination Agreement or an assumption of the obligations of Xxxxxx'x
Management thereunder in accordance with the requirements of Section 9.16; or
10.11 Judgments. One or more judgments or decrees shall be
entered against JCC Holding or any of its Subsidiaries (excluding Insignificant
Subsidiaries) involving in the aggregate for JCC Holding and its Subsidiaries
(excluding Insignificant Subsidiaries) a liability (not paid or fully covered by
a reputable and solvent insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments exceeds $5,000,000; or
10.12 Change of Control. A Change of Control shall occur;
provided that a Change of Control shall not constitute an Event of Default at
any time when all Loans and Commitments pursuant to this Agreement are at such
time held by HET, HOC and/or one or more Affiliates thereof and if such Loans
and Commitments have been purchased pursuant to the HET/HOC Guaranty and Loan
Purchase Agreement; or
10.13 Gaming Authority. Any Gaming Authority having
jurisdiction over the Casino shall determine that JCC Holding, Xxxxxx'x
Management, any Completion Guarantor or any of their respective Subsidiaries, to
the extent that any of the foregoing Persons are required to be found suitable
under the Gaming Regulations, does not qualify, or that a required suitability
finding or license (including, without limitation, the Casino Operating
Contract) of any of them with respect to the Casino should be revoked, not
renewed or suspended for more than 10 days, or any such Gaming Authority shall
have appointed a conservator, supervisor or trustee to oversee any of the
operations of the Borrower (except, with respect to the foregoing, if (i) any
such failure to be found suitable timely shall have been appealed by JCC
Holding, Xxxxxx'x Management, any Completion Guarantor or any of their
respective Subsidiaries, as the case may be, and any such determination is
stayed or otherwise does not prevent continued gaming operations at the Casino
or (ii) such failure to be found suitable is cured within any applicable cure
periods, and does not prevent continued gaming operations at the Casino); or
10.14 Management Agreement. The Management Agreement or any
material provision thereof shall cease to be in full force and effect or any
party thereto shall deny or disaffirm its obligations thereunder or shall
default in the due performance or observance of any material term, covenant or
agreement on its part to be performed or observed pursuant thereto; or
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10.15 Trademark Permission. At any time the Casino (i) shall
be operated under a name other than "Xxxxxx'x Casino New Orleans" or "Xxxxxx'x
Jazz Casino" or (ii) shall for any reason not be entitled to utilize the
Xxxxxx'x Marks in connection with the gaming business conducted in the Casino or
in any advertising incident thereto; or
10.16 Completion of Casinos. The Termination of Construction
Date shall not have occurred on or prior to the Completion Date; or
10.17 Minimum Payment Guaranty; Etc. At any time (i) the
Minimum Payment Guarantor at such time shall give notice to the Borrower or the
LGCB that the Minimum Payment Guaranty shall not be extended, or at any time the
Minimum Payment Guaranty shall expire in accordance with its terms, or any other
event shall occur with respect to the Minimum Payment Guaranty, in each case
which occurrence permits (or requires) the termination of the Casino Operating
Contract or (ii) any Person other than HET or HOC becomes a substitute or
successor guarantor providing a Minimum Payment Guaranty, unless at least 30
days' prior written notice thereof is furnished to the Administrative Agent and
the Banks and such substitute or successor guarantor meets all requirements
contained in Section 25.1 of the Casino Operating Contract, assumes all
obligations of HET and HOC under the HET/JCC Agreement or obligations under any
substitute or successor document and executes documentation in favor of the
Administrative Agent and the Banks which is substantially the same as the
documentation (including, without limitation, the Intercreditor Agreement)
entered into by the Minimum Payment Guarantor on or prior to the Initial
Borrowing Date hereunder;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent, any Bank or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 10.06
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Commitments terminated,
whereupon all Commitments of each Bank shall forthwith terminate immediately and
any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit,
which may be terminated, in accordance with its terms; (iv) direct the Borrower
to pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.06 with respect to the
Borrower, it will pay) to the Administrative Agent at the Payment Office such
additional amount of cash, to be held as security by the Administrative Agent,
as is equal to the aggregate Stated Amount of all Letters of Credit issued for
the account of the Borrower and then outstanding; (v) direct the respective
Collateral Agent to enforce all of the Liens and security interests created
pursuant to the respective Security Documents subject to the terms of the
Intercreditor Agreement to the extent applicable to such Security Document; and
(vi) apply any cash collateral as provided in Section 4.02.
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SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Additional Credit Support Fees" shall have the meaning
provided in the Credit Enhancement Fee Agreement (JCC).
"Additional Mortgage" shall have the meaning provided in
Section 8.11(a).
"Additional Mortgaged Property" shall have the meaning
provided in Section 8.11(a).
"Additional Security Documents" shall mean any security
documents executed and delivered after the Effective Date in accordance with the
relevant requirements of Section 9.15 and/or 8.11.
"Adjusted Certificate of Deposit Rate" shall mean, on any day,
the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by
dividing (x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the Administrative Agent for determining
the current annual assessment payable by the Administrative Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's Percentage and (y) at a time when a
Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii)
for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
provided that (A) no Bank's Adjusted Percentage shall
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change upon the occurrence of a Bank Default from that in effect immediately
prior to such Bank Default if after giving effect to such Bank Default, and any
repayment of Revolving Loans and Swingline Loans at such time pursuant to
Section 4.02(a) or otherwise, the sum of (i) the aggregate outstanding principal
amount of Revolving Loans of all Non-Defaulting Banks plus (ii) the aggregate
outstanding principal amount of Swingline Loans plus (iii) the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted Percentage that would have become effective upon the
occurrence of a Bank Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Bank Default on which the sum of (i) the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting Banks
plus (ii) the aggregate outstanding principal amount of Swingline Loans plus
(iii) the Letter of Credit Outstandings is equal to or less than the Adjusted
Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted
Percentage is changed pursuant to the preceding clause (B) and (ii) any
repayment of such Bank's Revolving Loans or of Unpaid Drawings with respect to
Letters of Credit or of Swingline Loans, that were made during the period
commencing after the date of the relevant Bank Default and ending on the date of
such change to its Adjusted Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted Percentage if (x) such
repayments had not been made and (y) the maximum change to its Adjusted
Percentage would have resulted in the sum of the outstanding principal of
Revolving Loans made by such Bank plus such Bank's new Adjusted Percentage of
the outstanding principal amount of Swingline Loans and of Letter of Credit
Outstandings equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall mean Bankers Trust Company, in
its capacity as Administrative Agent for the Banks hereunder, and shall include
any successor to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling (including, but not limited to,
all directors, officers and partners of such Person), controlled by, or under
direct or indirect common control with, such Person or (ii) except for purposes
of determining Affiliates of HET, that directly or indirectly owns more than 5%
of any class of the voting securities or capital stock of or equity interests in
such Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
thereof), extended, renewed, refinanced or replaced from time to time.
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"Amounts Required for Casino Completion" shall mean all
amounts required to pay and perform all Completion Obligations, Carry
Obligations and Preservation Obligations (as each such term is defined in the
Bank Completion Guarantee).
"Applicable ECF Percentage" shall mean (x) until such time as
all principal of outstanding Tranche A-1 Term Loans and Tranche A-2 Term Loans
has been repaid in full, 100% and (y) at such times as (and to the extent that)
preceding clause (x) is not applicable, 50%; provided that from and after the
first date upon which any Scheduled Repayment is deferred pursuant to Section
4.02(b)(iv), the Applicable ECF Percentage specified in preceding clause (y)
shall be increased to 75% and shall at all times thereafter remain at 75% except
that, at any time when the aggregate amount of mandatory repayments of Tranche
A-3 Term Loans and Tranche B Term Loans actually applied pursuant to Section
4.02(h) (which shall include mandatory repayments of such Term Loans made, and
so applied, pursuant to Sections 4.02(c) through (g), inclusive), equals or
exceeds the Deferred A-3 and B Amortization Amount as then in effect, the
Applicable ECF Percentage specified in preceding clause (y) shall be reduced to
50% for so long as such conditions continue in existence.
"Applicable Margin" at any time shall mean a percentage per
annum equal to (i) in the case of (A) Tranche A-1 and A-3 Term Loans maintained
as Eurodollar Loans, 1.00%, (B) Tranche B-1 Term Loans maintained as Eurodollar
Loans, 2.50%, (C) Tranche A-2 and B-2 Term Loans (subject to the provisions of
the immediately succeeding sentence) maintained as Eurodollar Loans, 2.50% plus
that percentage (not to exceed 1.00%), if any, by which the HET Applicable
Margin as then in effect exceeds .50%, and (D) Revolving Loans maintained as
Eurodollar Loans, (x) at all times prior to the Carry Obligation Termination
Date, the HET Applicable Margin as then in effect, and (y) at all times on and
after the Carry Obligation Termination Date, the sum of 2.50%, plus that
percentage (not to exceed 1.00%), if any, by which the HET Applicable Margin as
then in effect exceeds .50% and (ii) in the case of Loans of any Tranche
maintained as Base Rate Loans, that percentage (not below 0%) which, at such
time, is 1.00% less than the Applicable Margin for Loans of such Tranche (or in
the case of Swingline Loans, Revolving Loans) at such time maintained as
Eurodollar Loans. Notwithstanding anything to the contrary contained above,
Tranche B-2 Term Loans at any time outstanding in an aggregate principal amount
equal to the lesser of (x) the aggregate principal amount of Tranche B-2 Term
Loans then outstanding or (y) $10,000,000, shall instead have an Applicable
Margin which shall be a percentage per annum equal to (i) in the case of such
Tranche B-2 Term Loans maintained as Eurodollar Loans, the HET Applicable Margin
as then in effect or (ii) in the case of Tranche B-2 Term Loans maintained as
Base Rate Loans, that percentage (not below 0%) which, at such time, is 1.00%
less than the Applicable Margin for Tranche B-2 Term Loans maintained as
Eurodollar Loans; provided that, at any time when the aggregate principal amount
of Tranche B-2 Term Loans exceeds $10,000,000, the Borrower shall designate the
Tranche B-2 Term Loans from time to time bearing interest as provided in this
sentence (as opposed to the immediately preceding sentence) and, in the absence
of any such designation, the Administrative Agent shall make such designation in
its sole discretion; provided further, that (x) at no time shall the designation
apply with respect to more than $10,000,000 of outstanding Tranche B-2 Term
Loans and (y) the designation of Tranche B-2 Term Loans must be made on such
basis so that all Banks with outstanding Tranche B-2 Term Loans share on a
proportionate basis (based upon their relative
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outstanding principal amount of Tranche B-2 Term Loans) in the Tranche B-2 Term
Loans which bear interest as provided in this sentence (as opposed to the
immediately preceding sentence).
"Architects" shall mean the Rivergate Architect and the
Poydras Street Support Facility Architect.
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit R
(appropriately completed).
"Authorized Officer" of any Credit Party shall mean any of the
Chairman of the Board, the President, the Chief Financial Officer, any Vice
President, the Treasurer, the Secretary, any Assistant Secretary or any
Assistant Treasurer of such Credit Party or any other officer of such Credit
Party which is designated in writing to the Administrative Agent, BTCo and the
Issuing Bank by any of the foregoing officers of such Credit Party as being
authorized to give such notices under this Agreement.
"Available Funds" shall mean the amount of funds actually
available to pay Amounts Required for Casino Completion representing proceeds
available to the Borrower from the Junior Subordinated Credit Facility, the
Convertible Junior Subordinated Debentures, the Xxxxxx'x Investor Equity
Investment and any other available funds of the Borrower (other than proceeds of
Loans and other than the Minimum Balance as defined in the Management Agreement,
as in effect on the date hereof).
"Bank" shall mean each financial institution listed on
Schedule I, as well as (x) any Person which becomes a "Bank" hereunder pursuant
to Section 1.13 and/or 16.04(b), (y) HET or HOC and their successors or assigns
pursuant to Section 1.13 and/or 16.04(b) following an acquisition of any Loans
by HET or HOC, as the case may be, pursuant to the HET/HOC Guaranty and Loan
Purchase Agreement.
"Bank Completion Guarantee" shall have the meaning provided in
Section 5.19(a).
"Bank Completion Guarantee Termination of Construction Date"
shall mean the Termination of Construction Date under, and as defined in, the
Bank Completion Guarantee.
"Bank Debt" shall mean all Obligations under this Agreement
and under the related Credit Documents.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.04(c) or (ii) a Bank having notified in writing the Borrower
and/or the Administrative Agent that it does not intend to comply with its
obligations under Section 1.01(b), (e), (f) or (h) or Section 2, in the case of
either clause (i) or (ii) as a result of any takeover of such Bank by any
regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
10.06.
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"Bankruptcy Court" shall mean the United States Bankruptcy
Court for the Eastern District of Louisiana having jurisdiction over the
bankruptcy case of HJC.
"Bankruptcy Law" means the Bankruptcy Code or any similar
Federal, state or foreign law relating to bankruptcy, insolvency or the relief
of debtors.
"Base Fee" shall have the meaning provided in the Management
Agreement as in effect on the Initial Borrowing Date.
"Base Rate" at any time shall mean the higher of (i) 1% in
excess of the Adjusted Certificate of Deposit Rate as then in effect and (ii)
1/2 of 1% in excess of the Prime Lending Rate as then in effect.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii)
each other Loan designated or deemed designated as such by the Borrower at the
time of the incurrence thereof or conversion thereto.
"BDC" shall mean the small business development corporation
established (or to be established) in accordance with the terms of the Open
Access Program and Plans established pursuant to the Casino Lease and the GDA.
"Bondholders" shall mean the holders and beneficial owners of
the Old Bonds.
"Borrower" shall have the meaning provided in the first
paragraph.
"Borrower Mortgage" shall have the meaning provided in Section
5.18(a).
"Borrower Mortgaged Property" shall have the meaning provided
in Section 5.18(a).
"Borrowing" shall mean the borrowing by the Borrower of one
Type of Loan of a single Tranche from all the Banks having Commitments of the
respective Tranche (or from BTCo in the case of Swingline Loans) on a given date
(or resulting from a conversion or conversions on such date) having in the case
of Eurodollar Loans the same Interest Period, provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
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"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
"Carry Obligation Termination Date" shall mean that date, if
any, upon which the "Carry Obligations" under, and as defined in, the Bank
Completion Guarantee no longer remain guaranteed pursuant to the terms of the
Bank Completion Guarantee in accordance with the terms thereof.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed, or secured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) and in each case
maturing within one year after the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof, the District of Columbia or any foreign
jurisdiction having capital and surplus in excess of $250 million and commercial
paper issued by others rated at least A-2 or the equivalent thereof by Standard
& Poor's Corporation or at least P-2 or the equivalent thereof by Xxxxx'x
Investors Services, Inc. and in each case maturing within one year after the
date of acquisition, (iii) repurchase obligations with a term of not more than
90 days collateralized by securities issued or directly and fully guaranteed, or
secured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof) entered into with any bank or other Person meeting
the qualifications specified in clause (ii) above, and (iv) investments in money
market funds substantially all of whose assets are comprised of securities of
the types described in clauses (i) through (iii).
"Casino" means the casino to be located at the site of the
former Rivergate Convention Center in New Orleans, Louisiana, together with all
support facilities and improvements appurtenant and related thereto (including,
without limitation, the Poydras Street Support Facility and the Tunnel and shell
construction of the Second Floor), as described in the Disclosure Statement, but
excluding tenant improvements and non-gaming development of the Second Floor.
"Casino Construction Contract" shall mean the agreement, dated
October 10, 1994, between the Borrower and the Casino General Contractor, as
amended by the Settlement Agreement by and among HJC and the General Contractor,
dated November 25, 1996, and as such Settlement Agreement was amended on October
29, 1998, for the construction and equipping of the Casino (less and except the
Poydras Street Support Facility and the Tunnel).
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"Casino General Contractor" shall mean Centex Xxxxxx
Construction Co., Inc., a Louisiana corporation, the general contractor for the
construction and equipping of the Casino (less and except the Poydras Street
Support Facility and the Tunnel).
"Casino Lease" shall mean the Amended and Restated Lease
Agreement among the RDC, as landlord, the Borrower, as tenant, and the City, as
intervenor, dated as of October 29, 1998, as amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.
"Casino Operating Contract" means the Amended and Renegotiated
Casino Operating Contract among the Borrower, HJC and the State of Louisiana, by
and through the LGCB, dated as of October 29, 1998, as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) HET shall have ceased to
manage, directly or indirectly through a Wholly-Owned Subsidiary, the Casino,
(ii) JCC Holding shall at any time cease to own 100% of the Equity Interests of
the Borrower, (iii) HET shall at any time cease to own directly or through one
or more Wholly-Owned Subsidiaries at least (x) prior to the occurrence of the
Transition Date, 51% of the outstanding shares of New Class B Common Stock (or
of any other class of capital stock into which the New Class B Common Stock is
converted or exchanged) of JCC Holding, or (y) at any time after the occurrence
of the Transition Date, 20% of the common stock (treating all classes of common
stock of JCC Holding as a single class for this purpose) of JCC Holding, (iv)
the Board of Directors of HET shall not consist of a majority of Continuing
Directors, or (v) a New Bond Change of Control shall occur or any "change of
control" or similar event shall occur under any other issue of Indebtedness of
the Borrower in an aggregate principal amount which exceeds (or upon the
utilization of any unused commitments may exceed) $25,000,000.
"City" means the City of New Orleans, Louisiana.
"Class A Directors" shall have the meaning set forth in the
Restated Articles of Incorporation of JCC Holding.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in effect
at the date of this Agreement, and to any subsequent provision of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security
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Agreement Collateral, all Mortgaged Properties and all cash and Cash Equivalents
delivered as collateral pursuant to Section 4.02 or 10 or pursuant to any
Security Document.
"Collateral Agent" shall mean The Bank of New York, or any
successor Collateral Agent, acting as collateral agent for the Secured Creditors
pursuant to the Security Documents and any sub-agents or sub-trustees appointed
pursuant to the Bank/Bondholder Intercreditor Agreement and permitted under
applicable Gaming Regulations.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.06.
"Commitment" shall mean any of the commitments of any Bank
under this Agreement, i.e., whether the Tranche A-1 Term Loan Commitment, the
Tranche A-2 Term Loan Commitment, the Tranche A-3 Term Loan Commitment, the
Tranche B-1 Term Loan Commitment, the Tranche B-2 Term Loan Commitment or the
Revolving Loan Commitment.
"Commitment Commission" shall mean the Tranche A-2 Term Loan
Commitment Commission, the Tranche B-2 Term Loan Commitment Commission and the
Revolving Loan Commitment Commission.
"Completion Date" shall mean (x) the date which is twelve
months after the Plan Effective Date, which date may be extended, but not by
more than twelve months, in the event of the occurrence of, and by the duration
of, Force Majeure (as defined in the GDA) events which actually occur, or (y)
such earlier date as may be required for the Completion Date for the Casino
under and as defined in the GDA.
"Completion Guarantee" shall mean and include the Bank
Completion Guarantee and any completion guarantee delivered by any Completion
Guarantor to the holders of the New Bonds or to the City, the RDC or the LGCB.
"Completion Guarantor" shall mean each of HET and HOC.
"Completion Guarantor Loan Agreement" shall mean the Amended
and Restated Completion Loan Agreement, dated as of October 29, 1998, by and
among the Borrower, HET and HOC as amended, modified or supplemented from time
to time in accordance with the terms hereof and thereof.
"Completion Guarantor Loan Documents" shall mean the
Completion Guarantor Loan Agreement, and all other documents, notes and
instruments executed and delivered in accordance with the terms of the
Completion Guarantor Loan Agreement.
"Completion Guarantor Subordination Agreement" shall have the
meaning provided in Section 5.23(a).
"Consent" shall mean a Consent and Continuation Agreement
substantially in the form of Exhibit Q-6.
107
"Consolidated Cash Interest Expense" shall mean, for any
period, the total consolidated interest expense (but excluding any amounts
attributable to, Contingent Payments which would otherwise be included in such
consolidated interest expense during such period) of the Borrower and its
Consolidated Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof) plus, without duplication, that portion of
Capitalized Lease Obligations of the Borrower and its Consolidated Subsidiaries
representing the interest factor for such period, but excluding, however, (w)
amortization of deferred financing costs incurred in connection with the
Transaction, and amortization of any premium or discount and other similar
non-cash items that are part of such consolidated interest expense, (x) any
interest expense on loans and any other advances (not made pursuant to the
Junior Subordinated Credit Facility made to the Borrower or any of its
Subsidiaries from any Completion Guarantor as a result of support required to be
provided pursuant to one or more Completion Guaranties so long as (i) any
payments of interest with respect to such loans or advances would constitute
Restricted Payments subject to Section 9.03 and (ii) the respective obligee of
such loan or advance has entered into a Subordination Agreement with respect
thereto, (y) any interest payment made through the issuance of additional Senior
Subordinated Notes and/or Senior Subordinated Contingent Notes, as the case may
be, in lieu of cash, in each case in accordance with the terms of the respective
New Bond Indenture, and (z) any interest payment made through the issuance of
additional Convertible Junior Subordinated Debentures in lieu of cash in
accordance with the terms of the Convertible Junior Subordinated Debenture
Indenture or any similar occurrence with respect to any outstanding Indebtedness
which results in the capitalization of interest with respect thereto. Without
duplication of amounts already included above, Consolidated Cash Interest
Expense shall include (x) amounts payable during the respective period as
described in Section 9.06(a)(iv) and (y) all Minimum Payment Guaranty Fees which
accrue during the respective period, except to the extent that payment of such
amounts is actually deferred pursuant to Section 9.06(b). Notwithstanding
anything to the contrary contained above, Consolidated Cash Interest Expense for
any period shall not include amounts deferred pursuant to the provisions of
Section 9.06(b) for one or more prior periods, even though such amounts are paid
during the respective period, so long as the payment of such deferred amounts is
made in accordance with the express terms of Section 9.06(b).
"Consolidated Debt" shall mean, at any time, all Indebtedness
of the Borrower and its Subsidiaries, determined on a consolidated basis, with
respect to borrowed money or other obligations of such Persons which would
appear on a consolidated balance sheet of the Borrower as indebtedness
(including, without limitation, the principal component of Capitalized Lease
Obligations and consideration for discounts and premiums in accordance with
GAAP), excluding, however, (1) all Senior Subordinated Notes and Senior
Subordinated Contingent Notes, (2) all Convertible Junior Subordinated
Debentures and (3) any loans or other advances made pursuant to the Junior
Subordinated Credit Facility or made to the Borrower or any of its Subsidiaries
from any Completion Guarantor as a result of support required to be provided
pursuant to one or more Completion Guaranties so long as (i) any payments of
principal or interest with respect to such loans or advances would constitute
Restricted Payments subject to Section 9.03 and (ii) the respective obligee of
such loan or advance has entered into a Subordination Agreement with respect
thereto.
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"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income plus (without duplication) the amount of consolidated
interest expense (to the extent same was deducted in determining Consolidated
Net Income for such period), the amount of fees described in Sections
9.06(a)(iv) and (v) which accrued during such period (to the extent same reduced
Consolidated Net Income for such period) and provision for taxes (to the extent
deducted in determining Consolidated Net Income for such period) and without
giving effect to any extraordinary gains or losses or gains or losses from sales
of assets, other than sales pursuant to Section 9.02(iii).
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by (x) adding thereto the amount of all amortization of
intangibles and depreciation that were deducted in arriving at Consolidated EBIT
for such period and (y) subtracting therefrom the amount of all Contingent
Payments made during such period and all amounts applied during such period to
pay deferred Base Fees and Minimum Payment Guaranty Fees in accordance with the
provisions of Section 9.06(b); provided that for purposes of Sections
4.02(b)(iv)(B) and 9.06(b) (and only for purposes of said Sections)
"Consolidated EBITDA" shall have the meaning assigned that term in the Senior
Subordinated Note Indenture as originally in effect (and without giving effect
to any subsequent amendments, modifications or supplements thereto).
"Consolidated Interest Coverage Ratio" for any period shall
mean the ratio of Consolidated EBITDA to Consolidated Cash Interest Expense for
such period.
"Consolidated Net Income" shall mean, for any period, the net
income of the Borrower and its Consolidated Subsidiaries for such period
determined in accordance with GAAP; provided that (without duplication of
exclusions) (i) the net income (to the extent positive) of any Person that is
not a Subsidiary of the Borrower or that is accounted for by the equity method
of accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the Borrower or a Wholly-Owned Subsidiary thereof,
(ii) to the extent Consolidated Net Income reflects amounts attributable to
minority interests in Subsidiaries that are not Wholly-Owned Subsidiaries of the
Borrower, Consolidated Net Income shall be reduced by the amounts attributable
to such minority interests, (iii) the net income of any Subsidiary (other than
the Borrower) shall be excluded to the extent that the declaration or payment of
dividends and distributions by that Subsidiary of net income is not at the date
of determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its stockholders and
(iv) the net income of any Person acquired in a pooling of interests transaction
for any period prior to the date of such acquisition shall be excluded.
Notwithstanding anything to the contrary contained above, Consolidated Net
Income for any period shall not be reduced by amounts described in Section
9.06(b) which represent deferrals of amounts from prior periods, so long as any
payments of such deferred amounts are made expressly in accordance with the
terms of said Section 9.06(b).
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
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"Construction Budget" shall have the meaning provided in
Section 5.07(c).
"Construction Contracts" shall mean the Casino Construction
Contract, Poydras Street Support Facility and Tunnel Construction Contract and
any Other General Contractor Construction Contract.
"Construction Lien Indemnity Obligation Agreement" shall mean
the Construction Lien Indemnity Obligation Agreement, dated as of October 29,
1998, by and among the Borrower and HOC.
"Contingent Obligation" shall mean, as to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing (including, without limitation, as a result of such Person being a
general partner of the other Person, unless the underlying obligation is
expressly made non-recourse as to such general partner) any Indebtedness or
other obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keepwell, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect the obligee against loss in respect thereof (in whole or
in part), provided that the term Contingent Obligation shall not include
endorsements for collection or deposit in the ordinary course of business.
"Contingent Payments" shall mean all contingent payments at
any time owed with respect to the New Bonds in accordance with the terms of the
New Bond Indenture as in effect on the Plan Effective Date.
"Continuing Directors" shall mean the directors of HET on the
Effective Date and each other director, if such other director's nomination for
election to the Board of Directors of HET is recommended by a majority of the
then Continuing Directors.
"Convertible Junior Subordinated Debenture Documents" shall
mean the Convertible Junior Subordinated Debentures and all agreements, notes,
mortgages, indentures and other documents executed and delivered in connection
with the Convertible Junior Subordinated Debentures.
"Convertible Junior Subordinated Debenture Indenture" shall
mean the Indenture, dated as of October 30, 1998, between the Borrower and
Norwest Bank, Minnesota N.A., as trustee, as amended, modified or supplemented
from time to time in accordance with the terms thereof and hereof.
"Convertible Junior Subordinated Debentures" shall mean the
Borrower's 8% Convertible Junior Subordinated Debentures due 2010 in an
aggregate principal amount equal to $27,500,000.
110
"CPD" shall mean CP Development, L.L.C., a Louisiana limited
liability company which, on the Initial Borrowing Date, is a direct Wholly-Owned
Subsidiary of JCC Holding.
"CPD Mortgage" shall have the meaning provided in Section
5.18(a).
"CPD Mortgaged Property" shall have the meaning provided in
Section 5.18(a).
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the HET/HOC Guaranty and Loan Purchase Agreement, each Guaranty, the
Intercreditor Agreement, each Security Document, the Credit Enhancement Fee
Agreement (Bank Credit Agreement) and each Subordination Agreement.
"Credit Enhancement Fee Agreement (Bank Credit Agreement)"
shall mean that Credit Enhancement Fee Agreement (Bank Credit Agreement), dated
October 29, 1998, entered into by the Administrative Agent, each Bank party
hereto as of the Effective Date (other than any Bank which has no Tranche A-2
Term Loans, Tranche B-2 Term Loans or Revolving Loan Commitment) and HOC and
acknowledged and agreed by HET and in the form attached hereto as Exhibit P.
"Credit Enhancement Fee Agreement (JCC)" shall mean that
Credit Enhancement Fee Agreement (JCC), dated October 29, 1998, entered into by
the Borrower and HOC.
"Credit Event" shall mean the making of any Loan (other than
in respect of a Mandatory Borrowing) or the issuance of any Letter of Credit.
"Credit Party" shall mean JCC Holding, the Borrower, each
Completion Guarantor, each Subsidiary Guarantor and each party (other than the
Collateral Agent, the Administrative Agent and the Banks) to any Guaranty or
Subordination Agreement.
"Credit Support Fees" shall mean the Credit Support Fees
under, and as defined in, each of the Credit Enhancement Fee Agreement (Bank
Credit Agreement) and the Credit Enhancement Fee Agreement (JCC).
"Cumulative Retained Free Cash Flow Amount" shall mean, on any
date of determination, an amount determined on a cumulative basis equal to (i)
the Retained Percentage of Semi-Annual Free Cash Flow for all Semi-Annual Free
Cash Flow Periods ending after the Initial Borrowing Date and prior to such date
of determination, less (ii) the aggregate amount of payments theretofore made
pursuant to Section 9.06(b), less (iii) the amount of all Capital Expenditures
previously made pursuant to Section 9.07(c).
"Debt Agreements" shall have the meaning provided in Section
5.06.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
111
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Deferred A-3 and B Amortization Amount" at any time shall
mean the aggregate amount of all Tranche A-3 Scheduled Repayments and Tranche B
Scheduled Repayments theretofore deferred pursuant to section 4.02(b)(iv)
(determined without regard to any subsequent repayments of such deferred
amounts).
"Deferred Amortization Amount" at any time shall mean the
aggregate amount of all principal payments theretofore deferred pursuant to the
provisions of Section 4.02(b)(iv) (determined without reduction for any
subsequent repayments of such deferred amounts).
"Development Services Agreement" shall mean that certain
Development Services Agreement entered into by HET, HOC, the Borrower, JCC
Development, CPD and FPD pursuant to the Plan of Reorganization.
"DIP Indebtedness" shall mean, at the time of determination,
all principal, interest and other amounts then outstanding in respect of the
debtor-in-possession loans (other than loans made pursuant to the Junior
Subordinated Credit Facility) made by HOC or any of its Affiliates to HJC
pursuant to orders of the Bankruptcy Court entered at any time on or before the
Effective Date.
"Disclosure Statement" means the Sixth Amended Joint
Disclosure Statement dated October 13, 1998 pursuant to Section 1125 of the
Bankruptcy Code relating to the Plan of Reorganization, as approved by the
Bankruptcy Court.
"Disposition" shall mean the sale, assignment, transfer,
lease, conveyance or other disposition by the Borrower or any of its
Subsidiaries of any Collateral, including, without limitation, an involuntary
disposition as a result of a casualty or condemnation.
"Distribution" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to any
holder or holders of its Equity Interests or authorized or made any other
distribution, payment or delivery of property (other than common stock of such
Person) or cash to any holder or holders of its Equity Interests as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
a consideration any shares of any class of its capital stock or any partnership
interests or any other Equity Interests outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its
capital stock or any partnership interests or any other Equity Interests), or
set aside any funds for any of the foregoing purposes, or shall have permitted
any of its Subsidiaries to purchase or otherwise acquire for a consideration any
shares of any class of the capital stock or any partnership interests or any
other Equity Interests of such Person outstanding on or after the Effective Date
(or any options or warrants issued by such Person with respect to its capital
stock or any other Equity Interests). Without limiting the foregoing,
"Distributions" with respect to any Person shall also include all payments made
or required to be made by such Person with respect to any stock appreciation
rights, plans, equity incentive or achievement plans or any similar plans or
setting aside of any funds for the foregoing purposes.
112
"Documents" shall mean the Credit Documents, the Project
Documents, the Casino Operating Contract, the Management Agreement, the
Completion Guarantor Loan Documents, the Construction Lien Indemnity Obligation
Agreement, the Construction Contracts, the Junior Subordinated Credit Facility
Documents, the Convertible Junior Subordinated Debenture Documents, the Xxxxxx'x
Investor Equity Investment Documents, the New Class A Common Stock Documents,
the New Bond Documents and the Minimum Payment Guaranty Documents.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section
16.10.
"Employee and Bus Parking Support Facility Premises" shall
have the meaning provided in the Casino Lease.
"Employee Benefit Plans" shall have the meaning provided in
Section 5.06.
"Encroachment Areas" shall have the meaning provided in the
Casino Lease.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" means any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, guideline,
written policy and rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
to the extent binding on the Borrower or any of its Subsidiaries, relating to
the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251 et seq.; the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 3803 et
seq.; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C.
Section 11001 et seq., the Hazardous Material Transportation Act, 49 U.S.C.
Section 1801 et seq. and the Occupational Safety and Health Act, 29 U.S.C.
Section 651 et seq. (to the extent it regulates occupational exposure to
113
Hazardous Materials); and any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.
"Equity Interests" of any Person shall mean all equity
interests therein, including without limitation any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any common
stock, preferred stock, any limited or general partnership interest and any
limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or any Subsidiary of the
Borrower would be deemed to be a "single employer" within the meaning of Section
414(b), (c), (m) or (o) of the Code.
"Estoppel Certificate" shall have the meaning provided in
Section 5.18(d).
"Eurodollar Loan" shall mean each Loan (excluding Swingline
Loans) designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by BTCo for Dollar
deposits of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of BTCo with maturities comparable to
the Interest Period applicable to such Eurodollar Loan commencing two Business
Days thereafter as of 10:00 A.M. (New York time) on the date which is two
Business Days prior to the commencement of such Interest Period, divided (and
rounded off to the nearest 1/16 of 1%) by (b) a percentage equal to 100% minus
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section
10.
"Existing Indebtedness" shall have the meaning provided in
Section 7.22.
"Facing Fee" shall have the meaning provided in Section
3.01(d).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received
114
by the Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Financial Forecast" shall mean the Financial Forecast
attached as Exhibit B to the Disclosure Statement, without giving effect to any
subsequent modifications or amendments thereto.
"Fiscal Test Quarter" shall mean each fiscal quarter of the
Borrower, beginning with the first Fiscal Test Quarter (as defined in the
immediately succeeding sentence). As used herein, the first Fiscal Test Quarter
shall mean the first full fiscal quarter beginning on or after, and ended after,
the Start Date. The number of each subsequent Fiscal Test Quarter (e.g., the
second Fiscal Test Quarter, third Fiscal Test Quarter, etc.) shall be the
respective subsequent fiscal quarter of the Borrower counted consecutively from
the first Fiscal Test Quarter.
"Force Majeure" shall have the meaning provided in the Bank
Completion Guarantee.
"Form 10" shall mean that certain Form 10, General Form for
Registration of Securities pursuant to Section 12(b) or 12(g) of the Securities
Exchange Act, as filed with the SEC on September 25, 1998, by JCC Holding as
registrant to register the New Class A Common Stock.
"Former Bank" shall have the meaning provided in Section
16.04(c).
"FPD" shall mean FP Development, L.L.C., a Louisiana limited
liability company which, on the Initial Borrowing Date, is a direct Wholly-Owned
Subsidiary of JCC Holding.
"FPD Mortgage" shall have the meaning provided in Section
5.18(a).
"FPD Mortgaged Property" shall have the meaning provided in
Section 5.18(a).
"GAAP" shall have the meaning provided in Section 16.07.
"Gaming Authority" shall mean the governmental authorities
charged with the administration and the enforcement of the Gaming Regulations.
"Gaming Patron Indebtedness" shall have the meaning provided
such term in the Pledge Agreement.
"Gaming Regulations" shall mean the laws, rules,
regulations and orders applicable to the gaming business of the Borrower or
any of its Subsidiaries, or any other Credit Party, as in effect from time to
time, including the Louisiana Economic Development and Gaming Corporation Act
(La. R.S. Section 27:201, et seq.) and the policies, interpretations and
administration thereof by the Gaming Authorities, including the LGCB.
115
"GDA" shall mean the Amended and Restated General Development
Agreement among the RDC, JCC and the City, as intervenor, dated as of October
29, 1998.
"General Contractors" shall mean the Casino General
Contractor, Poydras Street Support Facility and Tunnel General Contractor and
any Other General Contractor.
"Ground Lease" shall mean the Amended and Restated Lease
Agreement for the site of the Casino between the RDC and the City, dated as of
March 15, 1994 and as amended on October 29, 1998, by that certain First
Amendment to Amended and Restated Lease Agreement.
"Guaranteed Obligations" shall mean all obligations of the
Borrower (i) to each Bank for the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of the principal and interest
on each Note issued by the Borrower to such Bank, and Loans made, under this
Agreement and all reimbursement obligations and Unpaid Drawings with respect to
Letters of Credit, together with all the other obligations and liabilities
(including, without limitation, indemnities, Fees and interest thereon) of the
Borrower to such Bank now existing or hereafter incurred under, arising out of
or in connection with this Agreement or any other Credit Document and the due
performance and compliance with all the terms, conditions and agreements
contained in the Credit Documents by the Borrower and (ii) to each Bank and each
Affiliate of a Bank (even if such Bank subsequently ceases to be a Bank under
this Agreement for any reason) so long as such Bank or Affiliate participates in
such Interest Rate Protection Agreement, and their subsequent assigns, if any,
which enters into an Interest Rate Protection Agreement with the Borrower, the
full and prompt payment when due (whether by acceleration or otherwise) of all
obligations of the Borrower owing under any such Interest Rate Protection
Agreement whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein.
"Guaranteed Tranche A Obligations" shall have the meaning
provided in Section 17.09(a).
"Guaranteed Tranche B and Revolving Obligations" shall have
the meaning provided in Section 17.09(a).
"Guaranteed Tranche B-1 Obligations" shall have the meaning
provided in Section 17.10(a).
"Guaranteed Tranche B-2 Obligations" shall have the meaning
provided in Section 17.10(a).
"Guaranties" shall mean the Bank Completion Guarantee, the JCC
Holding Guaranty, the HET/HOC Guaranty and Loan Purchase Agreement and the
Subsidiaries Guaranty, and the term "Guaranty" shall mean any of the foregoing.
"Guarantor" shall mean each of HET, HOC, each Completion
Guarantor, JCC Holding and each Subsidiary Guarantor.
116
"Xxxxxx'x Investor" shall mean Xxxxxx'x Crescent City
Investment Company, a Nevada corporation, and/or any of its Affiliates.
"Xxxxxx'x Investor Cash Investment" shall have the meaning
provided in Section 5.11.
"Xxxxxx'x Investor Equity Investment Documents" shall mean the
agreements, instruments and other documents executed and delivered in connection
with the Xxxxxx'x Investor Cash Investment.
"Xxxxxx'x Management" shall mean Xxxxxx'x New Orleans
Management Company, a Nevada corporation; provided that after any successor
becomes the manager with respect to the Casino in accordance with the proviso to
Section 9.16, such successor entity shall thereafter be deemed to be Xxxxxx'x
Management (although the predecessor of such entity shall not be relieved of any
of its obligations under the Manager Subordination Agreement theretofore
received by it).
"Xxxxxx'x Marks" shall mean (i) the trademark, Xxxxxx'x
(Block), U.S. Trademark Registration number 1,067,887, (ii) the trademark,
Xxxxxx'x and Design, U.S. Trademark Registration number 1,237,716, (iii) the
trademark, Xxxxxx'x and Design, U.S. Trademark Registration number 1,295,055,
(iv) the trademark, Xxxxxx'x (Block), U.S. Trademark Registration number
1,297,101 and any other registered trademark consistently used throughout the
Xxxxxx'x casino system that is material to the advertising and marketing plan
for the Casino.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"HET" shall mean Xxxxxx'x Entertainment, Inc., a Delaware
corporation.
"HET Applicable Commitment Commission Percentage" at any time
shall mean the "Applicable Commitment Commission Percentage" under, and as
defined in, the HET Credit Agreement. It is understood that, for purposes of
this Agreement, the HET Applicable Commitment Commission Percentage shall be
calculated without giving effect to any revisions thereto or to the HET Credit
Agreement made after the Effective Date, and shall be determined as provided
above regardless of whether the HET Credit Agreement is terminated or there are
no unutilized commitments thereunder.
"HET Applicable Margin" at any time shall mean the "Applicable
Margin" under, and as defined in, the HET Credit Agreement. It is understood
that, for purposes of this Agreement, the HET Applicable Margin shall be
calculated without giving effect to any revisions
117
thereto or to the HET Credit Agreement made after the Effective Date, and shall
be determined as provided above regardless of whether the HET Credit Agreement
is terminated or there are no outstandings thereunder.
"HET Credit Agreement" shall mean the Credit Agreement, dated
as of July 22, 1993, and amended and restated as of June 9, 1995, and as further
amended and restated as of April 1, 1998, among HET, HOC, certain Subsidiaries
of HOC, the lenders from time to time party thereto, BTCo, The Bank of New York,
CIBC Inc., Credit Lyonnais, Atlanta Agency, First Interstate Bank of California,
The Long-Term Credit Bank of Japan, Limited, New York Branch, NationsBank of
Georgia, N.A., Societe Generale and The Sumitomo Bank, Limited, New York Branch,
as agents, and BTCo, as administrative agent, as in effect on the Effective
Date, but without giving effect to any amendments or modifications thereto, or
terminations thereof, made after the Effective Date.
"HET/HOC Guaranty and Loan Purchase Agreement" shall have the
meaning provided in Section 5.19(b).
"HET/JCC Agreement" shall mean that certain HET/JCC Agreement
by and among the Borrower, HET and HOC, dated as of even date herewith.
"HET/JCC Agreement Documents" shall mean and include any
Minimum Payment Guaranty to which HET and HOC (or any of their Subsidiaries) is
a party, the HET/JCC Agreement and any other documents entered into in
connection with (and to the extent directly relating to) the foregoing.
"HET Warrant" means that certain Warrant Agreement between
Xxxxxx'x Investor and JCC Holding, of even date herewith shall have the meaning
provided in the Plan of Reorganization.
"HJC" shall mean Xxxxxx'x Jazz Company, a Louisiana general
partnership.
"HOC" shall mean Xxxxxx'x Operating Company, Inc., a Delaware
corporation.
"Improvements" shall mean the Casino, the Borrower Mortgaged
Property and parking spaces to be constructed in connection therewith, in each
case in substantial accordance with the Plans and Specifications, with all
landscaping and other off and on site work related thereto.
"Incentive Fee" shall have the meaning provided in the
Management Agreement as in effect on the Initial Borrowing Date.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (iv) all obligations of such person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (v) all obligations of such Person to
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reimburse or repay any bank or other Person in respect of amounts paid or
available to be drawn under a letter of credit, banker's acceptance, surety,
performance or appeal bond or any similar instrument (each such obligation to be
valued at the face amount of such instrument), including without limitation all
obligations of JCC Holding and its Subsidiaries pursuant to the Minimum Payment
Guaranty Documents, (vi) all Indebtedness of others secured by a Lien on any
asset of such Person, (vii) all Contingent Obligations of such Person and (viii)
all obligations under any Interest Rate Protection Agreement or under any
similar type of agreement.
"Information Systems and Equipment" means all computer
hardware, firmware and software, as well as other information processing
systems, or any equipment continuing embedded microchips, whether directly
owned, licensed, leased, operated or otherwise controlled by the JCC Holding or
any of its Subsidiaries, including through third-party service providers, and
which, in whole or in part, are used, operated, relied upon, or integral to, JCC
Holding or any of its Subsidiaries' conduct of their respective businesses.
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Loans occurs
hereunder.
"Initial Construction Schedule" shall have the meaning
provided in Section 5.07(c).
"Insignificant Subsidiaries" at any time shall mean one or
more Subsidiaries of JCC Holding (in each case, excluding the Borrower), subject
to events of the type described in Section 10.06 and/or 10.11, so long as such
Subsidiaries when taken together on a combined basis, would have (x) had
combined consolidated net income before interest and provision for taxes
(excluding non-recurring gains or losses) and adjusted by adding thereto the
amount of all amortization of intangibles and depreciation deducted in arriving
at consolidated net income for such period for the four consecutive fiscal
quarters last ended (taken as one accounting period) prior to the date of any
determination pursuant to this definition and for which financial information is
then available of less than $500,000 and (y) combined consolidated assets
(valued at the higher of fair market value or on a book basis) of less than
$1,000,000.
"Intercreditor Agreement" shall have the meaning provided in
Section 5.20.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement, interest rate floor agreement or other similar
agreement or arrangement.
"Issuing Bank" shall mean BTCo and any Bank which at the
request of the Borrower and with the consent of the Administrative Agent agrees,
in such Bank's sole discretion,
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to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant
to Section 2. The sole Issuing Bank on the Initial Borrowing Date is BTCo.
"JCC Development" shall mean JCC Development Company, L.L.C.,
a Louisiana limited liability company which is a direct Wholly-Owned Subsidiary
of JCC Holding.
"JCC Development Mortgage" shall have the meaning provided in
Section 5.18(a).
"JCC Development Mortgaged Property" shall have the meaning
provided in Section 5.18(a).
"JCC Holding" shall have the meaning provided in the first
paragraph.
"JCC Holding Guaranty" shall mean the guaranty of JCC Holding
as provided in Section 17.
"Junior Subordinated Credit Facility" shall mean the junior
subordinated credit facility, dated as of October 29, 1998, between HET and the
Borrower as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time pursuant to the terms
thereof and hereof.
"Junior Subordinated Credit Facility Documents" shall mean the
Junior Subordinated Credit Facility and all other agreements, notes, instruments
and documents executed and delivered in accordance with the terms of the Junior
Subordinated Credit Facility.
"Lafayette Subsurface Area" shall have the meaning provided in
the Casino Lease.
"L/C Supportable Indebtedness" shall mean (i) obligations of
the Borrower or its Subsidiaries incurred in the ordinary course of business
with respect to insurance obligations and workers' compensation, surety bonds
and other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries (other than Indebtedness for borrowed money)
as are reasonably acceptable to the respective Issuing Bank and otherwise
permitted to exist pursuant to the terms of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under any lease.
"Leases" shall mean the Ground Lease, the Casino Lease and the
Railroad Lease.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(c).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
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"LGCB" means, collectively, the Louisiana Gaming Control
Board, and its successors and assigns.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Line Items" shall mean the line items in the Construction
Budget.
"Loan" shall mean each Term Loan, each Revolving Loan and each
Swingline Loan.
"Majority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement (determined without giving effect to the proviso to
the first sentence of the definition of Required Banks contained herein) if all
outstanding Obligations of the other Tranches under this Agreement were repaid
in full and all Commitments with respect thereto were terminated.
"Majority Tranche A Banks" shall mean those Non-Defaulting
Banks holding Tranche A Term Loans which would constitute the Required Banks
under, and as defined in, this Agreement (determined without giving effect to
the proviso to the first sentence of the definition of Required Banks contained
herein) if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Majority Tranche A-1 and A-3 Banks" shall mean those
Non-Defaulting Banks holding Tranche A-1 Term Loans and Tranche A-3 Term Loans
(or the related Commitments) which would constitute the Required Banks under,
and is defined in, this Agreement (determined without giving effect to the
proviso to the first sentence of the definition of Required Banks contained
herein) if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Majority Xxxxxxx X-0, X-0 and B-1 Banks" shall mean those
Non-Defaulting Banks holding Tranche A-1 Term Loans, Tranche A-3 Term Loans,
Tranche B-1 Term Loans (or the related Commitments) which would constitute the
Required Banks under, and as defined in, this Agreement (determined without
giving effect to the proviso to the first sentence of the definition of Required
Banks contained herein) were repaid in full.
"Majority Tranche B-1 Banks" shall mean those Non-Defaulting
Banks holding Tranche B-1 Term Loans and/or Tranche B-1 Term Loan Commitments
which would constitute the Required Banks under, and as defined in, this
Agreement (determined without giving effect to the proviso to the first sentence
of the definition of Required Banks contained herein) if all outstanding
Obligations of the other Tranches under this Agreement were repaid in full and
all Commitments with respect thereto were terminated.
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"Majority Tranche X-0, X-0 and Revolving Banks" shall mean
those Non-Defaulting Banks holding Tranche B-2 Term Loans, Tranche B-2 Term Loan
Commitments, Revolving Loan Commitments, Tranche A-2 Term Loans, Tranche A-2
Term Loan Commitments, or outstandings related to Revolving Loan Commitments
which would constitute the Required Banks under, and as defined in, this
Agreement (determined without giving effect to the proviso to the first sentence
of the definition of Required Banks contained herein) if all Obligations
relating to Tranche A-1 Term Loans, Tranche A-2 Term Loans and Tranche B-1 Term
Loans were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreement" shall mean the Second Amended and
Restated Management Agreement by and between Xxxxxx'x Management and the
Borrower, dated October 29, 1998 as amended, modified or supplemented from time
to time in accordance with the terms hereof and thereof.
"Management Fees" shall mean the Base Fee, the Incentive Fee
and the Termination Fee.
"Management Fee Repayment Guarantee" shall mean the Guarantee
of Repayment of certain Management Fees entered into by HET and HOC pursuant to
Article 9.01(c) of the Management Agreement.
"Manager Subordination Agreement" shall have the meaning
provided in Section 5.22.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(h).
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Alteration or Restoration" shall mean, any
alteration or restoration with respect to the Borrower Mortgaged Property which
(i) materially affects the exterior dimensions or the structural components of
any building on the Borrower Mortgaged Property, (ii) involves the construction
of a new building on the Borrower Mortgaged Property, or (iii) except if from
funds deposited from time to time by the Borrower in the Reserve Fund, costs
$10,000,000 or more (with respect to any item of work or series of, or related,
items of work constituting a single project) or $15,000,000 or more in the
aggregate over a twelve (12) month period.
"Material Lease" shall mean a lease, sublease or other
occupancy agreement by the Borrower to any Person of any part of the Borrower
Mortgaged Property (excluding any lease or sublease with respect to the Second
Floor) of (either individually or when aggregated with any other lease, sublease
or other occupancy agreement by the Borrower to such Person) greater than ten
thousand (10,000) net rentable square feet or for an projected annual rent of
One Million Dollars ($1,000,000) or greater.
"Maturity Date" shall mean, with respect to any Tranche of
Loans, the Tranche A-1 and A-2 Term Loan Maturity Date, Tranche A-3 Term Loan
Maturity Date, the Tranche B Term Loan Maturity Date, the Revolving Loan
Maturity Date or the Swingline Expiry Date, as the case may be.
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"Maximum Swingline Amount" shall mean $10,000,000.
"McCalls Litigation" shall mean the lawsuit captioned Xxxxx
Xxxxxx XxXxxx v. Xxxxx XxXxxx, Xx., City of New Orleans, Board of Commissioners
of the Port of New Orleans, and Rivergate Development Corporation, No. 93-6683,
filed in the Civil District Court for the Parish of Orleans, State of Louisiana.
"Minimum Payment Guarantor" shall mean HET and HOC as joint
and several obligors, or any successor or substitute guarantor providing a
Minimum Payment Guaranty in accordance with the requirements of the Casino
Operating Contract and without giving rise to an Event of Default pursuant to
Section 10.17.
"Minimum Payment Guaranty" shall have the meaning set forth in
Section 25.1 of the Casino Operating Contract.
"Minimum Payment Guaranty Documents" shall mean and include
each Minimum Payment Guaranty and all agreements or documents (including without
limitation the HET/JCC Agreement Documents) executed and delivered in connection
therewith (in each case to the extent directly relating thereto) or any
successor documents approved in accordance with Section 10.17.
"Minimum Payment Guaranty Fees" shall mean the fees paid by
the Borrower pursuant to Section 2 of the HET/JCC Agreement or pursuant to the
terms of any successor Minimum Payment Guaranty Documents.
"Minimum Payment Guaranty Lien" shall mean the Lien, in each
case created under the Security Documents, securing the Borrower's obligations
pursuant to the HET/JCC Agreement or pursuant to any successor Minimum Payment
Guaranty Documents.
"Mortgage" shall have the meaning provided in Section 5.18(a).
"Mortgage Policies" shall have the meaning provided in Section
5.18(b).
"Mortgaged Property" shall mean and be a collective reference
to the Borrower Mortgaged Properties, the JCC Development Mortgaged Properties,
the CPD Mortgaged Properties and the FPD Mortgaged Properties, as well as any
Additional Mortgaged Properties.
"Net Sale Proceeds" shall mean for any sale of assets, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any sale of assets, net of reasonable transaction costs
and payments of unassumed liabilities relating to the assets sold at the time
of, or within 60 days after, the date of such sale and the amount of such gross
cash proceeds required to be used to repay any Indebtedness (other than Senior
Debt or Indebtedness owed to Affiliates of the Borrower) which is secured by the
respective assets which were sold and the estimated marginal increase in income
taxes which will be paid by JCC Holding's consolidated group with respect to the
fiscal year in which the sale occurs as a result of such sale. Notwithstanding
anything to contrary contained above, in the case of any mandatory repayments
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required pursuant to Section 4.02(f), to the extent that the Senior Subordinated
Note Indenture does not permit 100% of the Net Sale Proceeds as determined
pursuant to the immediately preceding sentence to be applied to the repayment of
Bank Debt (but instead requires that a portion of said proceeds be applied to
repayments of, or offers to repurchase, New Bonds), then the amount of Net Sale
Proceeds shall be deemed reduced by the amount so required to be applied to the
repayment, or offers to repurchase, New Bonds; provided further that (x) no
effect shall be given to any amendments or modifications to the Senior
Subordinated Note Indenture which have the effect of placing greater
restrictions on repayments of Bank Debt from asset sales or required increased
payments, or offers to purchase, New Bonds and (y) if any offers to repurchase
New Bonds are made and if the full amount of cash proceeds reserved for such
repurchases are not in fact used to repurchase New Bonds, on the first date upon
which such funds are available to the Borrower or any other Credit Party, the
amount thereof shall be deemed to constitute Net Sale Proceeds which shall be
required in accordance with the provisions of Section 4.02(f).
"New Bond Change of Control" shall mean a "change of control"
under, and as defined in, either New Bond Indenture.
"New Bond Documents" shall mean the New Bond Indenture, the
Senior Subordinated Notes, the Senior Subordinated Contingent Notes and all
other documents executed and delivered in connection therewith.
"New Bond Indenture" shall mean, collectively, the Senior
Subordinated Note Indenture and the Senior Subordinated Contingent Note
Indenture.
"New Bonds" shall mean, collectively, the Senior Subordinated
Notes and the Senior Subordinated Contingent Notes.
"New Class A Common Stock" shall mean the Class A common stock
of JCC Holding, $.01 par value per share.
"New Class A Common Stock Documents" shall mean the
agreements, instruments and other documents executed and delivered in connection
with the issuance of the New Class A Common Stock.
"New Class B Common Stock" shall mean the Class B Common Stock
of JCC Holding, $.01 par value per share.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall mean each Tranche A-1 Term Note, each Tranche A-2
Term Note, each Tranche A-3 Term Note, each Tranche B-1 Term Note, each Tranche
B-2 Term Note, each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
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"Notice of Confirmation" shall mean the notice from the
Bankruptcy Court confirming the Plan of Reorganization pursuant to Sections 1128
and 1129 of the Bankruptcy Code entered on February 2, 1997, as incorporated by
reference and supplemented by subsequent orders entered on April 16, 1998, and
October 13, 1998.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxx Xxxxx, or such other person as the Administrative
Agent may hereafter designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Bank
pursuant to the terms of this Agreement or any other Credit Document.
"Old Bonds" shall mean the 14 1/4% First Mortgage Notes due
2001 in an aggregate principal amount equal to $435,000,000 issued by HJC and
Xxxxxx'x Jazz Finance Corp.
"Open Access Program" shall mean the Open Access Program
attached as Exhibit C to the Casino Lease.
"Opening Date" shall have the meaning provided in the
Management Agreement.
"Operating Accounts" shall have the meaning provided in
Section 8.17.
"Other General Contractor" shall mean a general contractor,
other than the Casino General Contractor and the Poydras Street Support Facility
and Tunnel General Contractor, which is a party to a general construction
contract with the Borrower in excess of $5,000,000 and which is reputable,
possesses all applicable Permits and has experience of a kind similar to the
work called for in such general construction contract.
"Other General Contractor Construction Contract" shall mean an
agreement for the construction and equipping of the Project, other than the
Casino Construction Contract and the Poydras Street Support Facility and Tunnel
Construction Contract, equal to or in excess of $5,000,000 between the Borrower
and any Other General Contractor.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean the office of the Administrative
Agent located at One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other office as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Pedestrian Bridge Areas" shall have the meaning provided in
the Casino Lease.
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"Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that, if the Percentage of any
Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"Performance Bond" shall mean that certain Performance Bond
among the Borrower, Reliance Insurance Company and United States Fidelity and
Guaranty Company in favor of the City of New Orleans, the RDC, the LGCB, Norwest
Bank Minnesota, National Association as trustee for the holders of the New Bonds
and the Administrative Agent, as in effect on the Initial Borrowing Date.
"Permits" shall mean any and all actions, approvals,
certificates, consents, waivers, exemptions, variances, franchises, orders,
permits, authorizations, rights or licenses of or from any governmental
authority or agency (including any Gaming Authority), including, without
limitation, the Casino Operating Contract.
"Permitted Amendment" shall mean any waiver, amendment or
consent to either New Bond Indenture which is entered into (i) to cure any
ambiguity, defect or inconsistency therein so long as any such amendment or
consent is not adverse to the interests of the Banks in any respect, (ii) to
evidence or provide for a replacement trustee thereunder or (iii) to modify any
covenant, obligation or event of default thereunder so long as the respective
waiver, amendment or consent does not impose any obligations or restrictions on
the Borrower greater than those set forth in the respective New Bond Indenture
as in effect at the time of such amendment or consent before giving effect
thereto. In no event will a Permitted Amendment increase the rate of interest,
fees or other amounts payable in connection with the New Bonds or under the New
Bond Indenture, or alter the provisions with respect to the deferral of any
payments thereunder (except to the extent the respective amendment further
extends such deferral).
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered on or prior to the Initial
Borrowing Date with respect thereto, all of which exceptions must be acceptable
to the Administrative Agent in its reasonable discretion.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Permitted Subsidiary" shall mean and include each of the
Borrower, JCC Development, CPD, FPD and any other Subsidiary of JCC Holding
formed after the Effective Date in accordance with the requirements of Section
9.15.
"Permitted Tax Payment" means (for any taxable year of the
Borrower in which it joins in filing a consolidated federal income tax return
with JCC Holding) a payment (including any estimated tax payment based on any
estimated tax liability for such year) by the Borrower to JCC Holding in an
amount not in excess of the lesser of (i) the separate return federal income tax
liability (if any) of the affiliated group (within the meaning of Section 1504
of which the Borrower
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would be the parent (the "JCC Group") if it were not a member of another
affiliated group for that or any other taxable year, and (ii) the actual tax
liability (if any) of the affiliated group of which the Borrower is actually a
member (the "Guarantor Group") for such year allocable to the JCC Group;
provided, that such payment can be made by the Borrower no earlier than the date
on which the Guarantor Group is required to make federal income tax payments for
such year to the Internal Revenue Service; and provided, further, that for
purposes of clause (ii) the actual tax liability of the Guarantor Group shall be
computed without regard to any income, gain, loss, deduction or credit generated
by a corporation other than JCC Holding, the Borrower or a Subsidiary of the
Borrower. In the event that JCC Holding and any member of the JCC Group join in
filing any combined or consolidated (or similar) state or local income or
franchise tax returns, then Permitted Tax Payment shall include payments with
respect to such state or local income or franchise taxes determined in a manner
as similar as possible to that provided in the preceding sentence for federal
income taxes.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), the Borrower or a
Subsidiary of the Borrower or an ERISA Affiliate, and each such plan for the
five year period immediately following the latest date on which the Borrower, a
Subsidiary of the Borrower or an ERISA Affiliate maintained, contributed or had
an obligation to contribute to such plan.
"Plan Effective Date" shall mean the "Effective Date" as
defined in the Plan of Reorganization.
"Plan of Reorganization" shall mean the Third Amended Joint
Plan of Reorganization of HJC and Xxxxxx'x Jazz Finance Company, a Louisiana
corporation, as modified through October 13, 1998, under Chapter 11 of the
Bankruptcy Code (including all exhibits and schedules thereto), as in effect on
the Effective Date, but without giving effect to any subsequent modifications
thereto unless in form and substance satisfactory to the Required Banks.
"Plans and Specifications" shall mean the plans and
specifications prepared in accordance with industry standards by or on behalf of
the Borrower by a licensed reputable engineering or architectural firm, as
applicable, for the renovation, construction and/or equipping, as the case may
be, of the Project in a first class manner consistent with the description of
the Project set forth in the Disclosure Statement, as the same may be amended in
accordance with the terms hereof. The Plans and Specifications shall include,
but not be limited to, architectural, structural, mechanical and electrical
plans and specifications, together with all plan revisions and addenda to the
specifications which continue to be prepared and completed as initial
construction progresses.
"Pledge Agreement" shall have the meaning provided in Section
5.16.
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"Pledge Agreement Collateral" shall mean all Collateral under,
and as defined in, the Pledge Agreement.
"Pledged Securities" shall mean "Collateral" as defined in the
Pledge Agreement.
"Poydras Street Support Facility" shall mean the support
facilities and improvements appurtenant to the Casino to be constructed on the
Poydras Street Support Facility Premises, as described in the Plans and
Specifications.
"Poydras Street Support Facility Architect" shall mean
Broadmoor, a Louisiana general partnership.
"Poydras Street Support Facility and Tunnel Construction
Contract" shall mean the agreement, dated October 10, 1994, between the Borrower
and the Poydras Street Support Facility and Tunnel General Contractor, as
amended by the Settlement Agreement by and between HJC and the Poydras Street
Support Facility and Tunnel General Contractor, dated October 15, 1996, for the
construction and equipping of the Poydras Street Support Facility.
"Poydras Street Support Facility and Tunnel General
Contractor" shall mean Broadmoor, a Louisiana general partnership, the general
contractor for the construction and equipping of the Poydras Street Support
Facility.
"Poydras Street Support Facility Premises" shall have the
meaning provided in the Casino Lease.
"Poydras Tunnel Area" shall have the meaning provided in the
Casino Lease.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Pro Forma Balance Sheet" shall mean an unaudited pro forma
consolidated balance sheet of the Borrower and related funds flow statement
prepared in accordance with generally accepted accounting principles except as
specifically set forth in the notes thereto, immediately after giving effect to
the Transaction, which pro forma consolidated balance sheet and related funds
flow statement shall be in form and substance satisfactory to the Administrative
Agent and the Required Banks and a copy of which is attached as Exhibit B to the
Disclosure Statement.
"Project" shall mean the lease, renovation, construction,
equipping and operation of the Casino, and all related facilities at the
Borrower Mortgaged Property, including, without limitation, the Poydras Street
Support Facility Premises, the Servitude Areas, the Pedestrian Bridge Areas, the
Poydras Tunnel Area, the Encroachment Areas and the Lafayette Subsurface Area,
but excluding the Second Floor (other than the shell construction thereof).
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"Project Account" shall have the meaning provided in Section
8.17.
"Project Costs" shall mean all Completion Obligations, Carry
Obligations and Preservation Obligations under, and as defined in, the Bank
Completion Guarantee.
"Project Default" shall have the meaning provided in Section
10.05.
"Project Documents" shall mean the Leases, the GDA, the Open
Access Program and the Management Fee Repayment Guarantee.
"Qualified Person" shall mean, with respect to any Bank party
to this Agreement on the date hereof or that becomes a Bank pursuant to Section
1.13, 16.04(b) or 16.04(c), a commercial bank, financial institution or other
"accredited investor" (as defined in Regulation D of the Securities Act), which
shall not have been found unsuitable under, and, to the extent necessary, shall
have qualified or be presumed suitable under, the Louisiana Gaming Regulations
applicable to lenders and the Casino Operating Contract.
"Quarterly Payment Date" shall mean each March 31, June 30,
September 30 and December 31 occurring after the Effective Date.
"Railroad Lease" shall mean that certain Amended and Restated
Lease, dated as of November 19, 1993, between The Alabama Great Southern
Railroad Company (successor by merger to New Orleans Terminal Company) and Grand
Palais Casino, Inc., a Delaware corporation, as assigned by that certain
Assignment and Assumption of Lease, dated as of March 15, 1994, to the Borrower,
as same may be amended, supplemented or modified from time to time.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C.Section 6901 et seq.
"RDC" shall mean the Rivergate Development Corporation, a
Louisiana public benefit corporation established by the City.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any
of its Subsidiaries of any cash insurance proceeds or condemnation award payable
(i) by reason of theft, loss, physical destruction or damage or any other
similar event with respect to any property or assets of the Borrower or any of
its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"Register" shall have the meaning provided in Section 16.17.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13. "Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Term Loans (and, (x) if prior to the Tranche A-2 Term Loan
Termination Date, Tranche A-2 Term Loan Commitments and (y) if prior to the
Tranche B-2 Term Loan Commitment Termination Date, Tranche B-2 Term Loan
Commitments) and Revolving Loan Commitments (or, if after the Total Revolving
Loan Commitment has been terminated, outstanding Revolving Loans and Adjusted
Percentage of outstanding Swingline Loans and Letter of Credit Outstandings)
represent an amount greater than fifty percent of the sum of all outstanding
Term Loans (and, (x) if prior to the Tranche A-2 Term Loan Termination Date,
Tranche A-2 Term Loan Commitments and (y) if prior to the Tranche B-2 Term Loan
Commitment Termination Date, Tranche B-2 Term Loan Commitments) of
Non-Defaulting Banks and the Adjusted Total Revolving Loan Commitment (or after
the termination thereof, the sum of the then total outstanding Revolving Loans
of Non-Defaulting Banks and the aggregate Adjusted Percentages of all
Non-Defaulting Banks of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time); provided that (x) except for purposes of
taking actions pursuant to the last paragraph of Section 10, at all times when
any Tranche A-1 Term Loans, Tranche A-3 Term Loans, Tranche B-1 Term Loans or
related Commitments remain in effect or outstanding, the Required Banks shall in
each case be required to also include Non-Defaulting Banks which would, at such
time, constitute the Majority Xxxxxxx X-0, X-0 and B-1 Banks and (y) for
purposes of taking actions pursuant to the last paragraph of Section 10, the
Required Banks shall mean either (i) the Required Banks as determined pursuant
to this definition without giving effect to the proviso to this sentence or the
Majority Xxxxxxx X-0, X-0 and B-1 Banks. Notwithstanding anything to the
contrary contained above or elsewhere in this Agreement, in making
determinations pursuant to the immediately preceding sentence, all outstanding
Term Loans and Revolving Loan Commitments (and/or related outstandings or
commitments, as the case may be) held by any of HET, HOC or any Affiliate
thereof shall be treated as if same were not outstanding and, accordingly, the
Required Banks shall be determined as if such extensions of credit did not
exist; provided that this
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sentence shall not be applicable at any time when 100% of the outstanding
Obligations and Commitments are so held by HET, HOC and Affiliates thereof.
"Required Secured Creditors" shall have the meaning assigned
that term in the Bank/Bondholder Intercreditor Agreement.
"Reserve Fund" shall mean the Capital Replacement Fund as
defined in the Management Agreement, as in effect on the date hereof.
"Restricted Payments" shall mean (a) any authorization,
declaration or payment of any Distributions with respect to JCC Holding or any
of its Subsidiaries or any other payment to any of their Affiliates (excluding
the Borrower), (b) the making (or the giving of any notice in respect thereof)
by JCC Holding or any of its Subsidiaries of any voluntary or mandatory payment,
purchase, acquisition or redemption, whether by the making of any payments of
the principal, interest or otherwise, in respect of any loan, advance or
extension of credit made to JCC Holding or any of its Subsidiaries by, or in
respect of any guarantee or Contingent Obligation made for the benefit of JCC
Holding or any of its Subsidiaries by, or in respect of any other obligation of
JCC Holding or any of its Subsidiaries owed to, HET, HOC or any Affiliate of HET
or HOC (excluding the Borrower and its Wholly-Owned Subsidiaries), whether
pursuant to any Document or otherwise, (c) the making (or the giving of any
notice in respect thereof) by JCC Holding or any of its Subsidiaries of any
payment whatsoever in respect of, or pursuant to, any of the Junior Subordinated
Credit Facility Documents, any Completion Guaranty, the Completion Guarantor
Loan Documents, the HET/JCC Agreement Documents or the Construction Lien
Indemnity Obligation Agreement and (d) the payment of any Management Fees or any
other fees or expenses (including the reimbursement thereof by JCC Holding or
any of its Subsidiaries) pursuant to the Management Agreement or any other
agreement with an Affiliate of JCC Holding or its Subsidiaries. Notwithstanding
anything to the contrary contained above, payments made in respect of the
Obligations in accordance with the terms of this Agreement shall not constitute
Restricted Payments, even if the respective Obligations are held by HET, HOC or
an Affiliate thereof.
"Retained Percentage" shall mean, with respect to any
Semi-Annual Free Cash Flow Payment Period, a percentage equal to 100% minus the
Applicable ECF Percentage which shall apply on the Semi-Annual Free Cash Flow
Payment Date for such Semi-Annual Free Cash Flow Payment Period.
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(f).
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time
to time as a result of assignments to or from such Bank pursuant to Section 1.13
or 16.04(b).
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"Revolving Loan Commitment Commission" shall have the meaning
provided in Section 3.01(b).
"Revolving Loan Maturity Date" shall mean January 31, 2006.
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"Revolving Obligations" shall mean and include (i) all
principal of, and interest (including any interest payable on such interest) on,
all Revolving Loans and Swingline Loans, (ii) all Unpaid Drawings and all
interest (including interest payable on interest) thereon and (iii) all
regularly accruing fees payable with respect to the foregoing outstandings or
related Commitments (which includes the Fees payable pursuant to Sections
3.01(b) and (c), but shall not include any Fees payable pursuant to Sections
3.01(a), (d), (e) and (f)). The interest included as Revolving Obligations shall
include any amounts required to be paid as Credit Support Fees in respect of
Revolving Obligations as described above pursuant to the Credit Enhancement Fee
Agreement (Bank Credit Agreement).
"Rivergate Architect" shall mean Xxxxx Xxxxx Xxxxxx/Modus,
Inc.
"Scheduled Repayment" shall mean any Tranche A-1 and A-2
Scheduled Repayment, Tranche A-3 Scheduled Repayment or Tranche B Scheduled
Repayment.
"Scheduled Repayment Date" shall mean any Tranche A-1 and A-2
Scheduled Repayment Date, Tranche A-3 Scheduled Repayment Date or Tranche B
Scheduled Repayment Date.
"SEC" shall have the meaning provided in Section 8.01(i).
"Second Floor" shall mean the non-gaming areas of the second
floor of the Casino which are subject to the Second Floor Sublease.
"Second Floor Sublease" shall mean that certain Second Floor
Non-Gaming Sublease between the Borrower as sublessor and JCC Development as
sublessee attached as Exhibit M to the Casino Lease.
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Section 13 Payment Default" shall have the meaning provided
in Section 13.05(b).
"Section 15 Payment Default" shall have the meaning provided
in Section 15.05(b).
"Secured Creditors" shall have the meaning provided in the
respective Security Documents and the Intercreditor Agreement.
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"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in
Section 5.17.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the
Security Agreement, each Mortgage, and, after the execution and delivery
thereof, each Additional Mortgage and each Additional Security Document.
"Semi-Annual Free Cash Flow" shall mean, for any Semi-Annual
Free Cash Flow Payment Period, the remainder of (i) the sum of (A) Consolidated
EBITDA for such Semi-Annual Free Cash Flow Payment Period and (B) the aggregate
amount of cash released from the Reserve Fund (except to the extent released for
the purpose of making Capital Expenditures which are not deducted pursuant to
following clause (ii)(A)) during the respective Semi-Annual Free Cash Flow
Payment Period, less (without duplication) (ii) the sum of (A) the amount of
Capital Expenditures (but excluding Capital Expenditures (w) made in connection
with the construction, development or completion of the Casino (except for
development Capital Expenditures made with respect to the Casino after the
Termination of Construction Date, which Capital Expenditures were not part of
the original plans with respect to the development of the Casino), (x) financed
with Indebtedness, (y) made with equity issuances or capital contributions and
(z) made with insurance proceeds to the extent the receipt of such insurance
proceeds has not, and will not, increase Consolidated Net Income) made by the
Borrower and its Subsidiaries on a consolidated basis during the respective
Semi-Annual Free Cash Flow Payment Period in accordance with Section 9.07(a),
(B) the aggregate amount of cash deposited in the Reserve Fund during the
respective Semi-Annual Free Cash Flow Payment Period, (C) that portion, if any,
of EBITDA (as defined in the New Bond Indenture) generated during the respective
Semi-Annual Free Cash Flow Payment Period which the Borrower will be required to
be used to make Contingent Payments with respect to the New Bonds in accordance
with the requirements of the New Bond Indenture as originally in effect, (D) the
aggregate amount of investments made during the respective Semi-Annual Free Cash
Flow Payment Period pursuant to Section 9.05(vi) to the extent same have not
reduced Consolidated Net Income for such period, (E) the amount of taxes
actually paid in cash during the respective Semi-Annual Free Cash Flow Payment
Period, (F) all cash payments of fees, costs and expenses made during the
respective Semi-Annual Free Cash Flow Payment Period pursuant to Section
9.06(a)(iv) (except to the extent the same reduced Consolidated Net Income
during the respective Semi-Annual Free Cash Flow Payment Period), and (G)
Consolidated Cash Interest Expense for such Semi-Annual Free Cash Flow Payment
Period less all amounts included therein representing, or in respect of,
Contingent Payments (which are dealt with in preceding clause (C)).
Notwithstanding anything to the contrary contained in clause (ii) of the
immediately preceding sentence, amounts paid during the respective period
pursuant to Section 9.06(b) shall in no event be deducted in determining
Semi-Annual Free Cash Flow.
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"Semi-Annual Free Cash Flow Payment Date" shall mean each
November 15 and May 15 occurring after the Termination of Construction Date.
"Semi-Annual Free Cash Flow Payment Period" shall mean with
respect to the repayment required on each Semi-Annual Free Cash Flow Payment
Date, the immediately preceding six month period ending March 31or September 30,
as the case may be, of JCC Holding or, in the case of the first Semi-Annual Free
Cash Flow Payment Period, the period beginning on the first day of the first
month after the Termination of Construction Date and ending on the first
Semi-Annual Free Cash Flow Payment Date.
"Semiannual Period" shall have the meaning assigned that term
in the Senior Subordinated Note Indenture as originally in effect.
"Senior Debt" shall mean the Bank Debt and the New Bonds.
"Senior Subordinated Contingent Note Indenture" shall mean the
Indenture, dated as of October 30, 1998, between the Borrower and the Senior
Subordinated Contingent Notes Trustee, as amended, modified or supplemented from
time to time in accordance with the terms thereof or hereof.
"Senior Subordinated Contingent Notes" shall mean the
Borrower's Senior Subordinated Contingent Notes due 2009 issued pursuant to the
Senior Subordinated Contingent Note Indenture.
"Senior Subordinated Contingent Notes Trustee" shall mean
Norwest Bank Minnesota, N.A. and any successor thereto as trustee pursuant to
the Senior Subordinated Contingent Note Indenture.
"Senior Subordinated Note Indenture" shall mean the Indenture,
dated as of October 30, 1998, between the Borrower and the Senior Subordinated
Notes Trustee, as amended, modified or supplemented from time to time in
accordance with the terms thereof and hereof.
"Senior Subordinated Notes" shall mean the Borrower's
$187,500,000 Senior Subordinated Notes due 2009 with Contingent Payments issued
pursuant to the Senior Subordinated Note Indenture.
"Senior Subordinated Notes Semi-Annual Interest Payment Date"
shall mean November 15 and May 15 of each year, beginning with the first April
occurring after the Effective Date.
"Senior Subordinated Notes Trustee" shall mean Norwest Bank
Minnesota, N.A. and any successor thereto as trustee pursuant to the Senior
Subordinated Note Indenture.
"Servitude Areas" shall mean the Employee Bus and Parking
Facility Servitude Area, the Employee and Bus Parking Facility Access Servitude
Area, and the Observation Tower Servitude Area (each as defined in the Casino
Lease).
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"Specified Event of Default" shall mean (i) any Default or
Event of Default under Section 10.01, 10.04(ii), 10.05(i) or (iii), 10.06, 10.08
(so long as the respective Default or Event of Default under Section 10.08
materially adversely affects (x) the Collateral, (y) the priority or perfection
of the security interests purported to be created with respect to any material
portion of the Collateral or (z) the rights or remedies of the Collateral Agent
or the Secured Creditors in respect of any material portion of the Collateral),
10.09, 10.11, 10.12, 10.13, 10.14 or 10.16 or (ii) any Event of Default under
Section 10.03 as a result of a breach of any of Sections 9.01 through 9.11 and
Section 9.14.
"Specified Real Estate" shall mean those parcels of Real
Property identified on Schedule VII.
"Start Date" shall mean the first date on which the Casino is
open for business as a casino to the general public.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Subordination Agreements" shall mean and include each of the
Manager Subordination Agreement, the Subordinated Lender Subordination Agreement
and the Completion Guarantor Subordination Agreement.
"Subordinated Lender Subordination Agreement" shall have the
meaning provided in Section 5.23(c).
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture, limited liability company or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Subsidiary Guarantor" shall mean and include each of JCC
Development, CPD, FPD and each Subsidiary of JCC Holding, which, after the
Effective Date, becomes a party to the Subsidiaries Guaranty in accordance with
the requirements of Section 9.15.
"Subsidiaries Guaranty" shall have the meaning provided in
Section 9.15.
"Substitute Bank" shall have the meaning provided in Section
16.04(c).
"Supermajority A-1 and A-2 Banks" shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement (determined without regard to the proviso to the
first sentence of the definition thereof) if (x) all outstanding Obligations of
the other Tranches under this Agreement were repaid in full and all Commitments
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with respect thereto were terminated and (y) the percentage "50%" contained
therein were changed to "66-2/3%."
"Supermajority A-3 Banks" shall mean the Supermajority Banks
holding Tranche A-3 Term Loans.
"Supermajority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement (determined without regard to the proviso to the
first sentence of the definition thereof) if (x) all outstanding Obligations of
the other Tranches under this Agreement were repaid in full and all Commitments
with respect thereto were terminated and (y) the percentage "50%" contained
therein were changed to "66-2/3%."
"Supermajority B Banks" shall mean, in connection with any
modification to any Tranche B Scheduled Repayment, (x) if such modification will
change the amount or timing of any payment to be received pursuant to Section
4.02(b)(iii) by any Bank holding Tranche B-1 Term Loans, the Supermajority Banks
holding Tranche B-1 Term Loans and (y) if any such amendment or modification
shall alter the amount or timing of any payment to be received pursuant to
Section 4.02(b)(iii) by any Bank holding Tranche B-2 Term Loans, the
Supermajority Banks holding Tranche B-2 Term Loans.
"Swingline Expiry Date" shall mean the date which is two
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(g).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan Commitment" shall mean, for each Bank, the sum of
such Bank's Tranche A-1 Term Loan Commitment, Tranche A-2 Term Loan Commitment,
Tranche A-3 Term Loan Commitment, Tranche B-1 Term Loan Commitment and Tranche
B-2 Term Loan Commitment.
"Term Loans" shall mean, collectively, Tranche A-1 Term Loans,
Tranche A-2 Term Loans, Tranche A-3 Term Loans, Tranche B-1 Term Loans and
Tranche B-2 Term Loans.
"Termination Date" shall mean the first date upon which all
Commitments have been terminated hereunder, all Letters of Credit have expired
in accordance with their terms, and all principal, interest, unpaid drawings and
other amounts owing pursuant to this Agreement have been repaid in full
(excluding continuing indemnity obligations where no amounts are due and payable
thereunder).
"Termination Event," when used with respect to a Project
Document or the Casino Operating Contract, shall mean (a) any material provision
of such Project Document or the Casino Operating Contract at any time for any
reason ceases to be valid and binding on any of the parties
136
thereto or is declared to be null and void or any of the parties thereto shall
deny in writing that it has any further liability or obligation thereunder, or
(b) the termination of such Project Document or the Casino Operating Contract,
provided that the term "Termination Event" does not include the scheduled
expiration in the ordinary course of any Project Document or the Casino
Operating Contract in accordance with its terms.
"Termination Fee" shall have the meaning provided in the
Management Agreement as in effect on the Initial Borrowing Date.
"Termination of Construction Date" mean the Bank Completion
Guarantee Termination of Construction Date; provided that for purposes of
Sections 9.04(vi) and 10.16 of this Agreement, the Termination of Construction
Date shall not have occurred unless the Termination of Construction Date as
defined in the Bank Completion Guarantee shall have occurred and, concurrently
with meeting such requirements, the following additional requirements shall be
satisfied:
(i) the Casino shall have opened for business to the general
public as a casino gaming operation, with at least 2,800 new slot
machines and 100 gaming tables (in each case owned by the Borrower and
not financed, except that no more than 1100 of such slot machines may
be leased pursuant to arm's-length operating leases entered into with
HET) therein, with all necessary regulatory approvals; and
(ii) all payments required to be made pursuant to Section 4.02(l)
of this Agreement shall have been made on the Termination of
Construction Date (as defined in the Bank Completion Guarantee).
"Test Period" shall mean (i) for any determination made on or
prior to the last day of the fourth full fiscal quarter ended after the Start
Date, the period from the first day of the first full fiscal quarter ended after
the Start Date to the last day of the fiscal quarter of the Borrower then last
ended (in each case taken as one accounting period) and (ii) for any
determination made thereafter, the four consecutive fiscal quarters of the
Borrower then last ended (taken as one accounting period).
"Threshold Amount" shall mean a maximum permitted prepayment
amount for Tranche B-2 Term Loans in any fiscal year of the Borrower as set
forth on Schedule IX.
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean the sum of the Total
Tranche A-1 Term Loan Commitment, the Total A-2 Term Loan Commitment, the Total
A-3 Term Loan Commitment, the Total Tranche B-1 Term Loan Commitment and the
Total Tranche B-2 Term Loan Commitment.
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"Total Tranche A Term Loan Commitment" shall mean, at any
time, the sum of the Total Tranche A-1 Term Loan Commitment, the Total Tranche
A-2 Term Loan Commitment and the Total Tranche A-3 Term Loan Commitment.
"Total Tranche A-1 Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A-1 Term Loan Commitments of each of the Banks.
"Total Tranche A-2 Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A-2 Term Loan Commitments of each of the Banks.
"Total Tranche A-3 Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A-3 Term Loan Commitments of each of the Banks.
"Total Tranche B Term Loan Commitment" shall mean the sum of
the Total Tranche B-1 Term Loan Commitment and the Total Tranche B-2 Term Loan
Commitment.
"Total Tranche B-1 Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B-1 Term Loan Commitments of each of the Banks.
"Total Tranche B-2 Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B-2 Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment less (y) the sum of the aggregate principal amount of Revolving Loans
and Swingline Loans outstanding plus the then aggregate amount of Letter of
Credit Outstandings.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being seven separate Tranches,
i.e., Tranche A-1 Term Loans, Tranche A-2 Term Loans, Tranche A-3 Term Loans,
Tranche B-1 Term Loans, Tranche B-2 Term Loans, Revolving Loans and Swingline
Loans.
"Tranche A Obligations" shall mean and include (i) all
principal of, and interest (including interest payable on interest) on, all
Tranche A Term Loans and (ii) all regularly accruing fees payable with respect
to the foregoing outstandings or related Commitments (which includes the Tranche
A-2 Term Loan Commitment Commission). The interest included as Tranche A
Obligations shall include any amounts required to be paid as Credit Support Fees
in respect of Tranche A-2 Term Loans pursuant to the Credit Enhancement Fee
Agreement (Bank Credit Agreement). The Tranche A Obligations shall include, to
the same extent as if same constituted Tranche A Term Loans, any refinancing, in
whole or in part, of the outstanding Tranche A Term Loans (or any previous
refinancing thereof) so long as the respective refinancing does not increase the
principal amount of Tranche A Obligations outstanding (except to the extent (i)
accrued and unpaid interest and/or other amounts owing with respect to the
refinancing Indebtedness is refinanced and/or (ii) of the fees and expenses
incurred in connection with the refinancing Indebtedness) or decrease the
weighted-average maturity thereof; provided that (x) in no event shall Revolving
Loans or Tranche B Term Loans incurred hereunder be treated as refinancing
Indebtedness as described above and (y) refinancing Indebtedness shall only be
treated
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as described above in this sentence if the Majority Tranche A Banks (unless all
Tranche A Obligations outstanding pursuant to this Agreement have been repaid in
full), the Majority Tranche A-1 and A-3 Banks (unless all Tranche A-1 and A-3
Obligations outstanding pursuant to this Agreement have been repaid in full) and
the Majority Tranche B-1 Banks (unless all Tranche B-1 Term Loans and
Obligations with respect thereto have been repaid in full) specifically consent
thereto in writing prior to the incurrence thereof and so long as, at the time
of the incurrence of such refinancing Indebtedness, written notice thereof (and
stating that such Indebtedness shall constitute Tranche A Obligations) is
furnished by the Borrower to the Administrative Agent and the Banks.
"Tranche A Term Loan" shall mean and include each Tranche X-0
Xxxx Xxxx, Xxxxxxx X-0 Xxxx Loan and Tranche A-3 Term Loan.
"Tranche A-1 Term Loan" shall have the meaning provided in
Section 1.01(a).
"Tranche A-1 Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche A-1 Term Loan Commitment" as same may be (x)
reduced from time to time pursuant to Section 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 16.04.
"Tranche A-1 Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche A-1 and A-2 Scheduled Repayment" shall have the
meaning provided in Section 4.02 (b)(i).
"Tranche A-1 and A-2 Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(b)(i).
"Tranche A-1 and A-2 Term Loan Maturity Date" shall mean
April 30, 2006.
"Tranche A-1 and A-3 Obligations" shall mean all Tranche A
Obligations, other than those Tranche A Obligations relating to Tranche A-2 Term
Loans and the Tranche A-2 Term Loan Commitments.
"Tranche A-2 Term Loan" shall have the meaning provided in
Section 1.01(b).
"Tranche A-2 Term Loan Borrowing Date" shall mean each date
occurring on or after the Initial Borrowing Date on which Tranche A-2 Term Loans
are incurred hereunder.
"Tranche A-2 Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche A-2 Term Loan Commitment" as same may be (x)
reduced from time to time pursuant to Section 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 16.04.
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"Tranche A-2 Term Loan Commitment Commission" shall have the
meaning provided in Section 3.01(a)(i).
"Tranche A-2 Term Loan Termination Date" shall mean the
Completion Date or such earlier date as the Total Tranche A-2 Term Loan
Commitment has terminated in accordance with the provisions of this Agreement.
"Tranche A-2 Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche A-3 Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche A-3 Scheduled Repayment Date" shall have the meaning
provided in Section 4.02 (b)(ii).
"Tranche A-3 Term Loan" shall have the meaning provided in
Section 1.01(c).
"Tranche A-3 Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche A-3 Term Loan Commitment" as same may be (x)
reduced from time to time pursuant to Section 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 16.04.
"Tranche A-3 Term Loan Maturity Date" shall mean January 6,
2006.
"Tranche A-3 Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche B and Revolving Obligations" shall mean and include
all Tranche B Obligations and all Revolving Obligations.
"Tranche B Obligations" shall mean and include all Tranche B-1
Obligations and all Tranche B-2 Obligations.
"Tranche B Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iii).
"Tranche B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(iii).
"Tranche B Term Loan Maturity Date" shall mean January 31,
2006.
"Tranche B Term Loans" shall mean, collectively, the Tranche
B-1 Term Loans and the Tranche B-2 Term Loans.
"Tranche B-1 Obligations" shall mean all principal of, and
interest (including interest payable on interest) on, all Tranche B-1 Term
Loans. The Tranche B-1 Obligations shall include, to the same extent as if same
constituted Tranche B-1 Term Loans, any refinancing, in whole or in part, of the
outstanding Tranche B-1 Term Loans (or any previous refinancing
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thereof) so long as the respective refinancing does not increase the principal
amount of Tranche B-1 Obligations outstanding (except to the extent (i) accrued
and unpaid interest and/or other amounts owing with respect to the refinancing
Indebtedness is refinanced and/or (ii) of the fees and expenses incurred in
connection with the refinancing Indebtedness) or decrease the weighted-average
maturity thereof; provided that (x) in no event shall Revolving Loans or Tranche
B-2 Term loans incurred hereunder be treated as refinancing Indebtedness as
described above and (y) refinancing Indebtedness shall only be treated as
described above in this sentence if the Majority Tranche B-1 Banks (unless all
Tranche B-1 Term Loans and Obligations with respect thereto have been repaid in
full) specifically consent thereto in writing prior to the incurrence thereof
and so long as, at the time of the incurrence of such refinancing Indebtedness,
written notice thereof (and stating that such Indebtedness shall constitute
Tranche B-1 Obligations) is furnished by the Borrower to the Administrative
Agent and the Banks.
"Tranche B-1 Term Loan" shall have the meaning provided in
Section 1.01(d).
"Tranche B-1 Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche B-1 Term Loan Commitment," as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 16.04.
"Tranche B-1 Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche B-2 Obligations" shall mean and include (i) all
principal of, and interest (including any interest payable on such interest) on,
all Tranche B-2 Term Loans and (ii) all regularly accruing fees payable with
respect to the foregoing outstandings or related Commitments (which includes the
Tranche B-2 Term Loan Commitment Commission). The interest included as Tranche
B-2 Obligations shall include any amounts required to be paid as Credit Support
Fees in respect of Tranche B-2 Obligations as described above pursuant to the
Credit Enhancement Fee Agreement (Bank Credit Agreement).
"Tranche B-2 Term Loan" shall have the meaning provided in
Section 1.01(e).
"Tranche B-2 Term Loan Borrowing Date" shall mean each date
occurring on or after the Initial Borrowing Date on which Tranche B-2 Term Loans
are incurred hereunder.
"Tranche B-2 Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche B-2 Term Loan Commitment," as the same may be
(x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 16.04.
"Tranche B-2 Term Loan Commitment Commission" shall have the
meaning provided in Section 3.01(a)(ii).
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"Tranche B-2 Term Loan Commitment Termination Date" shall mean
the Completion Date or such earlier date as the Total Tranche B-2 Term Loan
Commitment has terminated in accordance with the provisions of this Agreement.
"Tranche B-2 Term Note" shall have the meaning provided in
Section 1.05(a).
"Transaction" shall mean the completion of the Project and the
financing therefor.
"Transition Date" shall have the meaning assigned that term in
the Restated Certificate of Incorporation of JCC Holding, as in effect on the
Initial Borrowing Date.
"Xxxxxx Litigation" shall mean the lawsuit captioned Xxxxxx
Xxxxxx Xxxxxx v. City of New Orleans, No. 94-15484, filed in the Civil District
Court for the Parish of Orleans, State of Louisiana.
"Tunnel" shall mean the support facilities and improvements
appurtenant to the Casino to be constructed on and/or in the Poydras Tunnel
Area, as described in the Plans and Specifications.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.05(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Bank and (ii) such Bank's Adjusted Percentage of the Letter
of Credit Outstandings at such time in respect of Letters of Credit issued under
this Agreement.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/ or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
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"Withdrawal Period" shall have the meaning provided in Section
16.04(d).
"Year 2000 Compliant" means that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Banks hereby designate Bankers Trust
Company as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" shall include Bankers Trust Company in its capacity as
collateral agent pursuant to any of the Security Documents where it at any time
acts as such) to act as specified herein and in the other Credit Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
12.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Administrative Agent nor
any of its respective officers, directors, agents, employees or affiliates shall
be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Bank or the holder of
any Note; and nothing in this Agreement or any other Credit Document, expressed
or implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent. (a)
Independently and without reliance upon the Administrative Agent, each Bank and
the holder of each Note, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the making and
the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Credit Parties and, except as
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expressly provided in this Agreement, the Administrative Agent shall not have
any duty or responsibility, either initially or on a continuing basis, to
provide any Bank or the holder of any Note with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. The Administrative Agent shall not
be responsible to any Bank or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Credit Parties, or be required to
make any inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Credit Document,
or the financial condition of the Credit Parties or the existence or possible
existence of any Default or Event of Default.
(b) The Administrative Agent does not represent, warrant or
guaranty to the Banks the performance of the Borrower, any other Credit Party,
any architect, any project managers, any contractor, subcontractor or provider
of materials or services in connection with the construction of the Project and
the Borrower and the Completion Guarantors shall remain solely responsible for
all aspects of the Project, including but not limited to the quality and
suitability of the Plans and Specifications, the supervision of the work of
construction, the qualifications, financial condition and performance of all
architects, engineers, contractors, subcontractors, suppliers, consultants and
property managers, the accuracy of all applications for payment, and the proper
application of all Loans.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Banks.
12.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent (which may be
counsel for the Credit Parties).
12.06 Indemnification. To the extent the Administrative Agent
is not reimbursed and indemnified by the Borrower, the Banks will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Banks, for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
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judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
12.07 The Administrative Agent in its Individual Capacity.
With respect to its obligation to make Loans or issue or participate in Letters
of Credit under this Agreement, the Administrative Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Banks," "Required Banks," "holders of Notes" or any similar terms shall,
unless the context clearly otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Credit Party or any Affiliate of any Credit Party as if they
were not performing the duties specified herein, and may accept fees and other
consideration from the Borrower or any other Credit Party for services in
connection with this Agreement and otherwise without having to account for the
same to the Banks.
12.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by
giving 15 Business Days' prior written notice to the Borrower and the Banks.
Such resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation by the Administrative
Agent, the Borrower shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Required Banks (it being understood and agreed that any Bank is deemed to
be acceptable to the Required Banks), provided that, if a Default or Event of
Default exists at the time of such resignation, the Required Banks shall appoint
such successor Administrative Agent.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower, shall then appoint a successor Administrative Agent who
is a Qualified Person and who shall serve as Administrative Agent hereunder or
thereunder until such time, if any, as the Borrower or Required Banks, as the
case may be, appoint a successor Administrative Agent as provided above.
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(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Banks shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Banks
appoint a successor Administrative Agent as provided above.
SECTION 13. Subordination of Tranche B and Revolving
Obligations to Tranche A Obligations.
13.01 Tranche B and Revolving Obligations Subordinated to
Tranche A Obligations. The Borrower, for itself, its successors and assigns,
covenants and agrees, and each Bank, for itself, its successors, participants
and assigns, likewise covenants and agrees, that the Tranche B and Revolving
Obligations (and any renewals or extensions thereof), including the principal of
and interest thereon and any interest payable on such interest, and requirements
that the Borrower make repayments and prepayments thereof, shall be subordinate
and subject in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full in cash or Cash Equivalents of all Tranche A
Obligations, and that each holder of Tranche A Obligations whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Tranche A Obligations in reliance upon the covenants and
provisions contained in this Section 13.
13.02 Tranche B and Revolving Obligations Subordinated to
Prior Payment of All Tranche A Obligations on Dissolution, Liquidation,
Reorganization, etc. of the Borrower. Upon any payment or distribution of the
assets of the Borrower of any kind or character, whether in cash, property or
securities (including any collateral at any time securing the Tranche B and
Revolving Obligations) to creditors upon any dissolution, winding-up, total or
partial liquidation, reorganization, or recapitalization or readjustment of the
Borrower or its property or securities (whether voluntary or involuntary, or in
bankruptcy, insolvency, reorganization, liquidation, or receivership
proceedings, or upon an assignment for the benefit of creditors, or any other
marshaling of the assets and liabilities of the Borrower or otherwise), then in
such event,
(i) all holders of Tranche A Obligations shall first be entitled
to receive payment in full in cash or Cash Equivalents, before any
payment is made on account of Tranche B and Revolving Obligations;
(ii) any payment or distribution of assets of the Borrower, of
any kind or character, whether in cash, property or securities (other
than, to the extent issued in exchange for Tranche B and Revolving
Obligations, capital stock of the Borrower and debt securities that
are subordinated to the Tranche A Obligations (and any securities or
obligations issued in exchange for Tranche A Obligations) to the same
extent the Tranche B and Revolving Obligations are subordinated to the
Tranche A Obligations (and any securities or obligations issued in
exchange for Tranche A Obligations)), to which the holders of Tranche
B and Revolving Obligations would be entitled except for the
provisions of this Section 13, shall be paid or delivered by any
debtor or other Person making such payment or distribution, directly
to the holders of the Tranche A Obligations or their
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representative or representatives, or to the agent or trustee under
any agreement pursuant to which any instruments evidencing any of such
Tranche A Obligations may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Tranche A
Obligations held or represented by each, for application to payment of
all Tranche A Obligations remaining unpaid, to the extent necessary to
pay all Tranche A Obligations in full after giving effect to any
concurrent payment or distribution to the holders of such Tranche A
Obligations; and
(iii) in the event that, notwithstanding the foregoing provisions
of this Section 13.02, any payment or distribution of assets of the
Borrower, whether in cash, property or securities (other than, to the
extent issued in exchange for Tranche B and Revolving Obligations,
capital stock of the Borrower and debt securities of the Borrower that
are subordinated to the Tranche A Obligations (and any securities or
obligations issued in exchange for Tranche A Obligations) to the same
extent the Tranche B and Revolving Obligations are subordinated to the
Tranche A Obligations (and any securities or obligations issued in
exchange for Tranche A Obligations)), shall be received by the holders
of Tranche B and Revolving Obligations (or their agent, representative
or trustee) before all Tranche A Obligations are paid in full in cash
or Cash Equivalents, such payment or distribution (subject to the
provisions of Section 13.06 and 13.07) shall be held in trust for the
benefit of, and shall be immediately paid or delivered by such holders
of Tranche B and Revolving Obligations (or their agent, representative
or trustee), as the case may be, to the holders of Tranche A
Obligations remaining unpaid or unprovided for, or their
representative or representatives, or to the agent or trustee under
any agreement pursuant to which any instruments evidencing any of such
Tranche A Obligations may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Tranche A
Obligations held or represented by each, for application to the
payment of all Tranche A Obligations remaining unpaid, to the extent
necessary to pay all Tranche A Obligations in full after giving effect
to any concurrent payment or distribution to the holders of such
Tranche A Obligations.
The Borrower shall give prompt written notice to the
Administrative Agent of any action or plan of dissolution, winding-up,
liquidation or reorganization of the Borrower or any other facts known to it
which would cause a payment to violate this Section 13.
Upon any payment or distribution of assets of the Borrower
referred to in this Section 13, the Administrative Agent and the holders of
Tranche B and Revolving Obligations shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceeding is pending, or a
certificate of the liquidating trustee or agent or other person making any
distribution to the Administrative Agent or to the holders of Tranche B and
Revolving Obligations, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Tranche A Obligations and
other Indebtedness of the Borrower, the amount thereof payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section 13.
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13.03 Holders of Tranche B and Revolving Obligations to be
Subrogated to Rights of Holders of Tranche A Obligations. Subject to the payment
in full of all Tranche A Obligations in cash or Cash Equivalents, the holders of
the Tranche B and Revolving Obligations shall be subrogated (equally and ratably
with the holders of all Indebtedness of the Borrower that, by its terms, is
subordinated to the Tranche A Obligations and ranks pari passu with the Tranche
B and Revolving Obligations) to the rights of the holders of Tranche A
Obligations to receive payments or distributions of assets of the Borrower
applicable to the Tranche A Obligations until all Tranche B and Revolving
Obligations shall be paid in full, and for purposes of such subrogation, no
payments or distributions to the holders of Tranche A Obligations of assets,
whether in cash, property or securities, distributable to the holders of Tranche
A Obligations under the provisions hereof to which the holders of Tranche B and
Revolving Obligations would be entitled except for the provisions of this
Section 13, and no payment over pursuant to the provisions of this Section 13 to
the holders of Tranche A Obligations by the holders of Tranche B and Revolving
Obligations shall, as between the Borrower, its creditors (other than the
holders of Tranche A Obligations) and the holders of Tranche B and Revolving
Obligations, be deemed to be a payment by the Borrower to or on account of
Tranche A Obligations, it being understood that the provisions of this Section
13 are, and are intended, solely for the purpose of defining the relative rights
of the holders of Tranche B and Revolving Obligations, on the one hand, and the
holders of Tranche A Obligations, on the other hand.
13.04 Obligations of the Borrower Unconditional. Nothing
contained in this Section 13 or elsewhere in this Agreement or in any Credit
Document is intended to or shall impair or affect, as between the Borrower, its
creditors (other than the holders of Tranche A Obligations) and the holders of
Tranche B and Revolving Obligations, the obligation of the Borrower, which is
absolute and unconditional, to pay to the holders of Tranche B and Revolving
Obligations the full amount thereof, as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of the
holders of Tranche B and Revolving Obligations and creditors of the Borrower
other than the holders of Tranche A Obligations, nor shall anything herein or
therein prevent or limit the Administrative Agent or any holder of Tranche B and
Revolving Obligations from exercising all remedies otherwise permitted by
applicable law upon the happening of an Event of Default hereunder, in
accordance with the provisions of Section 10 hereof and to the rights, if any,
under this Section 13 of the holders of Tranche A Obligations in respect of
assets, whether in cash, property or securities, of the Borrower received upon
the exercise of any such remedy. Nothing contained in this Section 13 or
elsewhere in this Agreement or any other Credit Document shall, except during
the pendency of any dissolution, winding-up, total or partial liquidation,
reorganization, recapitalization or readjustment of the Borrower or its
securities (whether voluntary or involuntary, or in bankruptcy, insolvency,
reorganization, liquidation or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshaling of assets and liabilities
of the Borrower or otherwise), affect the obligation of the Borrower to make, or
prevent the Borrower from making, at any time (except under the circumstances
described in Section 13.05 hereof), payment of Tranche B and Revolving
Obligations.
13.05 Borrower Not to Make Payments With Respect to Tranche B
and Revolving Obligations in Certain Circumstances. (a) Upon the maturity of any
Tranche A Obligation by lapse of time, acceleration or otherwise, all principal
thereof and interest thereon
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and all other obligations in respect thereof shall first be paid in full in cash
or Cash Equivalents, or such payment duly provided for, before any payment is
made on account of Tranche B and Revolving Obligations in cash or property or to
acquire or repurchase same.
(b) Upon the happening of any default or event of default (as
such terms are used in related documentation) in respect of the payment of any
Tranche A Obligation (a "Section 13 Payment Default"), then, unless and until
such default or event of default shall have been cured or waived by the holders
of such Tranche A Obligation or shall have ceased to exist, no payment shall be
made by the Borrower with respect to any Tranche B and Revolving Obligations in
cash or property or to acquire or repurchase same. For purposes of the
immediately preceding sentence, if on any date payments are due with respect to
any Tranche A Obligations and with respect to any Tranche B and Revolving
Obligations, there shall be deemed to exist on such date a Section 13 Payment
Default unless and until all payments of Tranche A Obligations required to be
made on such date have been paid in full in cash or Cash Equivalents and,
accordingly, until said Tranche A Obligations have been so paid, the provisions
of the immediately preceding sentence shall prevent the payment of Tranche B and
Revolving Obligations in accordance with the terms thereof.
In the event that, notwithstanding the foregoing provisions of
this Section 13.05, any payment or distribution of assets of the Borrower,
whether in cash, property or securities, shall be received by the Administrative
Agent or the holders of Tranche B and Revolving Obligations at a time when such
payment or distribution should not have been made because of this Section 13.05,
such payment or distribution (subject to the provisions of Sections 13.06 and
13.07) shall be held in trust for the benefit of the holders of, and shall be
paid or delivered by the Administrative Agent or such holders of Tranche B and
Revolving Obligations, as the case may be, to the holders of the Tranche A
Obligations remaining unpaid or unprovided for or their representative or
representatives, or to the agent or trustee under any agreement pursuant to
which any instruments evidencing any of such Tranche A Obligations may have been
issued, ratably according to the aggregate amounts remaining unpaid on account
of the Tranche A Obligations held or represented by each, for application to the
payment of all Tranche A Obligations remaining unpaid, to the extent necessary
to pay all Tranche A Obligations in full in cash or Cash Equivalents after
giving effect to any concurrent payment or distribution to the holders of such
Tranche A Obligations.
13.06 Administrative Agent Entitled to Assume Payments Not
Prohibited in Absence of Notice. The Administrative Agent shall not at any time
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Administrative Agent, unless and until the
Administrative Agent shall have received written notice thereof at its Notice
Office from the Borrower or any holder of Tranche A Obligations or from any
representative thereof or agent or trustee therefor, and, prior to the receipt
of any such written notice, the Administrative Agent shall be entitled to assume
conclusively that no such facts exist, and shall be fully protected in making
any such payment in any such event.
The Administrative Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of Tranche A Obligations (or an agent or a trustee on behalf of such
holder) to establish that such notice has been given by a
149
holder of Tranche A Obligations or an agent or a trustee on behalf of any such
holder. In the event that the Administrative Agent determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Tranche A Obligations to participate in any payment or distribution pursuant
to this Section 13, the Administrative Agent may request such Person to furnish
evidence to the reasonable satisfaction of the Administrative Agent as to the
amount of Tranche A Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any of the
facts pertinent to the rights of such Person under this Section 13, and, if such
evidence is not furnished, the Administrative Agent may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
13.07 Application by Administrative Agent of Monies Deposited
With It. Any deposit of monies by the Borrower with the Administrative Agent
(whether or not in trust) for the payment of Tranche B and Revolving Obligations
shall be subject to the provisions of Sections 13.01, 13.02, 13.03 and 13.05
hereof, except that, if prior to the opening of business on the second Business
Day next prior to the date on which, by the terms of this Agreement, any such
monies may become payable for any purpose the Administrative Agent shall not
have received with respect to such monies the notice provided for in Section
13.06, then the Administrative Agent shall have the full power and authority to
receive such monies and to apply such monies to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date; without, however, limiting any rights that
holders of Tranche A Obligations may have to recover any such payments from the
holders of Tranche B and Revolving Obligations in accordance with the provisions
of this Section 13.
13.08 Subordination Rights Not Impaired by Acts or Omissions
of Borrower or Holders of Tranche A Obligations. No right of any present or
future holder of any Tranche A Obligations to enforce subordination, as herein
provided, shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Borrower or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Borrower with
the terms, provisions and covenants of this Agreement, any Credit Document, or
any other agreement or instrument regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Each holder of any Tranche B and Revolving Obligations, by his
acceptance thereof, undertakes and agrees for the benefit of each holder of
Tranche A Obligations to execute, verify, deliver and file any proofs of claim,
consents, assignments or other instruments that any holder of Tranche A
Obligations may at any time require in order to prove and realize upon any
rights or claims pertaining to the Tranche B and Revolving Obligations and to
effectuate the full benefit of the subordination contained in this Section 13,
and upon failure of any holder of any Tranche B and Revolving Obligations so to
do, any such holder of Tranche A Obligations (or a trustee or representative on
its behalf) shall be deemed to be irrevocably appointed the agent and
attorney-in-fact of the holder of such Tranche B and Revolving Obligations to
execute, verify, deliver and file any such proofs of claim, consents,
assignments or other instrument.
Without limiting the effect of the first paragraph of this
Section 13.08, any holder of Tranche A Obligations may at any time and from time
to time without the consent of or notice
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to any holder of Tranche B and Revolving Obligations, without impairing or
releasing any of the rights of any such holder of Tranche A Obligations
hereunder, upon or without any terms or conditions and in whole or in part:
(1) change the manner, place or terms of payment, or change or
extend the time of payment of or increase the amount of, renew or
alter, any Tranche A Obligations or any other liability of the Borrower
to such holder, any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the provisions hereof
shall apply to the Tranche A Obligations of such holder as so changed,
extended, renewed or altered;
(2) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or however
securing, any Tranche A Obligations or any other liability of the
Borrower to such holder or any other liabilities incurred directly or
indirectly in respect thereof or hereof, or any offset against it;
(3) exercise or refrain from exercising any rights or remedies
against the Borrower or others or otherwise act or refrain from acting
or for any reason fail to file, record or otherwise perfect any
security interest in or lien on any property of the Borrower or any
other Person;
(4) settle or compromise any Tranche A Obligations or any
other liability of the Borrower to such holder or any security
therefor, or any liability incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of the
Borrower to creditors of the Borrower other than such holder; and
(5) apply any sums by whomsoever paid and however realized to
any liability or liabilities of the Borrower to such holder (other than
in respect of the Tranche B and Revolving Obligations or any liability
or liabilities which rank pari passu or junior in right of payment to
the Tranche B and Revolving Obligations) regardless of what liability
or liabilities of the Borrower to such holder remain unpaid.
13.09 Holders of Tranche B and Revolving Obligations Authorize
Administrative Agent to Effectuate Subordination of Tranche B and Revolving
Obligations. Without purporting to limit the authority of the Administrative
Agent as may be appropriate in other circumstances, each holder of Tranche B and
Revolving Obligations by his or its acceptance thereof irrevocably authorizes
and expressly directs the Administrative Agent on his behalf of take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Section 13 and appoints the Administrative Agent his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding-up or
liquidation or reorganization under Bankruptcy Law of the Borrower (whether in
bankruptcy, insolvency or receivership proceedings or otherwise), the timely
filing of a claim for the unpaid balance of its or his Tranche B and Revolving
Obligations in the form required in such proceedings and the causing of such
claim to be approved. If the Administrative Agent does not file a claim or proof
of debt substantially in the form required in such proceeding at least one day
before the expiration of the time to file such claims or proofs,
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then any of the holders of Tranche A Obligations have the right to file such
proof of claim or debt on behalf of the holders of Tranche B and Revolving
Obligations, and to take any action with respect to such proof of claim or debt
permitted to be taken by the holders of Tranche A Obligations pursuant to this
Agreement, the other Credit Documents or by law; provided, however, that no such
action by holders of Tranche A Obligations shall in any way limit or affect the
rights of the holders of Tranche B and Revolving Obligations or the
Administrative Agent hereunder or under the other Credit Documents or applicable
law.
13.10 Right of Administrative Agent to Hold Tranche A
Obligations; Preservation of Administrative Agent's Rights. The Administrative
Agent, in its individual capacity, shall be entitled to all of the rights set
forth in this Section 13 in respect of any Tranche A Obligations at any time
held by it to the same extent as any other holder of Tranche A Obligations, and
nothing in this Agreement or any other Credit Document shall be construed to
deprive the Administrative Agent of any of its rights as such holder. Nothing in
this Section 13 shall apply to claims of, or payment to, the Administrative
Agent or Collateral Agent in their capacities as such.
13.11 Section 13 Not to Prevent Events of Default. The failure
to make a payment on account of, or in respect of, any Tranche B and Revolving
Obligation by reason of any provision in this Section 13 shall not be construed
as preventing the occurrence of a Default or an Event of Default under Section
10.01 hereof.
13.12 Administrative Agent Not Fiduciary for Holders of
Tranche A Obligations. The provisions of this Section 13 are not intended to
create, nor shall they create, any trust or fiduciary relationship between the
Administrative Agent and the holders of Tranche A Obligations, nor shall any
implied covenants or obligations with respect to holders of Tranche A
Obligations (other than those expressly set forth herein) be read into this
Agreement against the Administrative Agent.
Accordingly, notwithstanding any provision of this Section 13
to the contrary, the Administrative Agent shall not be liable to any such
holders if it shall, in good faith, inadvertently pay over or distribute to
holders of Tranche B and Revolving Obligations or the Borrower or any other
Person monies or assets to which any holders of Tranche A Obligations shall be
entitled by virtue of this Section 13 or otherwise.
13.13 Certain Payments Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments made pursuant to the HET/HOC
Guaranty and Loan Purchase Agreement shall not be subordinated to the prior
payment of any Tranche A Obligations or subject to the restrictions set forth in
this Section 13 and none of the holders of Tranche B and Revolving Obligations
shall be obligated to pay over any such payment to the Borrower or any holder of
Tranche A Obligations or any other creditor of the Borrower. Notwithstanding the
foregoing, any Tranche B and Revolving Obligations purchased by HET and/or HOC
(or any other Person) pursuant to the HET/HOC Guaranty and Loan Purchase
Agreement or otherwise shall continue to be subject to the provisions of this
Section 13 (although, as provided above in this Section 13.13, the payments made
pursuant to the HET/HOC Guaranty and Loan Purchase Agreement are not subject to
the subordination provisions contained in this Section 13).
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SECTION 14. Lien Priorities.
14.01 Priorities of Various Tranches. As more fully provided
in (and subject to the express provisions of) the various Security Documents and
the Intercreditor Agreement, it is acknowledged and agreed that all proceeds
applied in accordance with the various Security Documents are required to be
applied, as between the various Tranches: (i) first, to certain Obligations (as
used in this Section 14, the term "Obligations" shall have the meaning provided
in the Intercreditor Agreement) owing to the Collateral Agent, (ii) second, to
all reimbursement obligations pursuant to the Minimum Payment Guaranty Documents
in respect of amounts actually paid pursuant to one or more Minimum Payment
Guaranties, and any interest thereon or other amounts secured thereby in
accordance with the terms of the relevant Minimum Payment Guaranty Documents,
(iii) third, to all unpaid Tranche A Obligations; (iv) fourth, to all unpaid
Revolving Obligations; and (v) fifth, subject to the provisions of following
Section 15, to all unpaid Tranche B Obligations and to certain obligations owing
in respect of the New Bonds, as provided in the Security Documents and the
Intercreditor Agreement. Proceeds distributed pursuant to the Security Documents
and/or Intercreditor Agreement shall be subject to the subordination provisions
contained in this Agreement.
14.02 Acknowledgment of Prior Security Interest. It is
acknowledged and agreed that the security interests granted pursuant to various
of the Security Documents shall also secure the Minimum Payment Obligations (as
defined in the Intercreditor Agreement) owed to HET and HOC as Minimum Payment
Guarantors and the Minimum Payment Obligations owing to any other Minimum
Payment Guarantor which becomes a party to the Intercreditor Agreement in
accordance with the terms and provisions thereof, with the Minimum Payment
Obligations so secured to be entitled to the priority in terms of distributions
described in preceding Section 14.01.
SECTION 15. Subordination of Tranche B-2 Obligations to
Tranche B-1 Obligations.
15.01 Tranche B-2 Obligations Subordinated to Tranche B-1
Obligations. The Borrower, for itself, its successors and assigns, covenants and
agrees, and each Bank, for itself, its successors, participants and assigns,
likewise covenants and agrees, that the Tranche B-2 Obligations (and any
renewals or extensions thereof), including the principal of and interest thereon
and any interest payable on such interest, and requirements that the Borrower
make repayments and prepayments thereof, shall be subordinate and subject in
right of payment, to the extent and in the manner hereinafter set forth, to the
prior payment in full in cash or Cash Equivalents of all Tranche B-1
Obligations, and that each holder of Tranche B-1 Obligations whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Tranche B-1 Obligations in reliance upon the covenants
and provisions contained in this Section 15.
15.02 Tranche B-2 Obligations Subordinated to Prior Payment of
All Tranche B-1 Obligations on Dissolution, Liquidation, Reorganization, etc. of
the Borrower. Upon any payment or distribution of the assets of the Borrower of
any kind or character, whether in cash, property or securities (including any
collateral at any time securing the Tranche B-2 Obligations)
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to creditors upon any dissolution, winding-up, total or partial liquidation,
reorganization, or recapitalization or readjustment of the Borrower or its
property or securities (whether voluntary or involuntary, or in bankruptcy,
insolvency, reorganization, liquidation, or receivership proceedings, or upon an
assignment for the benefit of creditors, or any other marshaling of the assets
and liabilities of the Borrower or otherwise), then in such event,
(i) all holders of Tranche B-1 Obligations shall first be
entitled to receive payment in full in cash or Cash Equivalents,
before any payment is made on account of Tranche B-2 Obligations;
(ii) any payment or distribution of assets of the Borrower, of
any kind or character, whether in cash, property or securities (other
than, to the extent issued in exchange for Tranche B-2 Obligations,
capital stock of the Borrower and debt securities that are
subordinated to the Tranche B-2 Obligations (and any securities or
obligations issued in exchange for Tranche B-1 Obligations) to the
same extent the Tranche B-2 Obligations are subordinated to the
Tranche B-1 Obligations (and any securities or obligations issued in
exchange for Tranche B-1 Obligations)), to which the holders of
Tranche B-2 Obligations would be entitled except for the provisions of
this Section 15, shall be paid or delivered by any debtor or other
Person making such payment or distribution, directly to the holders of
the Tranche B-1 Obligations or their representative or
representatives, or to the agent or trustee under any agreement
pursuant to which any instruments evidencing any of such Tranche B-1
Obligations may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Tranche B-1 Obligations
held or represented by each, for application to payment of all Tranche
B-1 Obligations remaining unpaid, to the extent necessary to pay all
Tranche B-1 Obligations in full after giving effect to any concurrent
payment or distribution to the holders of such Tranche B-1
Obligations; and
(iii) in the event that, notwithstanding the foregoing provisions
of this Section 15.02, any payment or distribution of assets of the
Borrower, whether in cash, property or securities (other than, to the
extent issued in exchange for Tranche B-2 Obligations, capital stock
of the Borrower and debt securities of the Borrower that are
subordinated to the Tranche B-1 Obligations (and any securities or
obligations issued in exchange for Tranche B-1 Obligations) to the
same extent the Tranche B-2 Obligations are subordinated to the
Tranche B-1 Obligations (and any securities or obligations issued in
exchange for Tranche B-1 Obligations)), shall be received by the
holders of Tranche B-2 Obligations (or their agent, representative or
trustee) before all Tranche B-1 Obligations are paid in full in cash
or Cash Equivalents, such payment or distribution (subject to the
provisions of Section 15.06 and 15.07) shall be held in trust for the
benefit of, and shall be immediately paid or delivered by such holders
of Tranche B-2 Obligations (or their agent, representative or
trustee), as the case may be, to the holders of Tranche B-1
Obligations remaining unpaid or unprovided for, or their
representative or representatives, or to the agent or trustee under
any agreement pursuant to which any instruments evidencing any of such
Tranche B-1 Obligations may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Tranche B-1
Obligations held or represented by each, for application to the
payment of all Tranche B-1 Obligations remaining unpaid,
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to the extent necessary to pay all Tranche B-1 Obligations in full
after giving effect to any concurrent payment or distribution to the
holders of such Tranche B-1 Obligations.
The Borrower shall give prompt written notice to the
Administrative Agent of any action or plan of dissolution, winding-up,
liquidation or reorganization of the Borrower or any other facts known to it
which would cause a payment to violate this Section 15.
Upon any payment or distribution of assets of the Borrower
referred to in this Section 15, the Administrative Agent and the holders of
Tranche B-2 Obligations shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceeding is pending, or a certificate of the
liquidating trustee or agent or other person making any distribution to the
Administrative Agent or to the holders of Tranche B-2 Obligations, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Tranche B-1 Obligations and other Indebtedness
of the Borrower, the amount thereof payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Section
15.
15.03 Holders of Tranche B-2 Obligations to be Subrogated to
Rights of Holders of Tranche B-1 Obligations. Subject to the payment in full of
all Tranche B-1 Obligations in cash or Cash Equivalents, the holders of the
Tranche B-2 Obligations shall be subrogated (equally and ratably with the
holders of all Indebtedness of the Borrower that, by its terms, is subordinated
to the Tranche B-1 Obligations and ranks pari passu with the Tranche B-2
Obligations) to the rights of the holders of Tranche B-1 Obligations to receive
payments or distributions of assets of the Borrower applicable to the Tranche
B-1 Obligations until all Tranche B-2 Obligations shall be paid in full, and for
purposes of such subrogation, no payments or distributions to the holders of
Tranche B-1 Obligations of assets, whether in cash, property or securities,
distributable to the holders of Tranche B-1 Obligations under the provisions
hereof to which the holders of Tranche B-2 Obligations would be entitled except
for the provisions of this Section 15, and no payment over pursuant to the
provisions of this Section 15 to the holders of Tranche B-1 Obligations by the
holders of Tranche B-2 Obligations shall, as between the Borrower, its creditors
(other than the holders of Tranche B-1 Obligations) and the holders of Tranche
B-2 Obligations, be deemed to be a payment by the Borrower to or on account of
Tranche B-1 Obligations, it being understood that the provisions of this Section
15 are, and are intended, solely for the purpose of defining the relative rights
of the holders of Tranche B-2 Obligations, on the one hand, and the holders of
Tranche B-1 Obligations, on the other hand.
15.04 Obligations of the Borrower Unconditional. Nothing
contained in this Section 15 or elsewhere in this Agreement or in any Credit
Document is intended to or shall impair or affect, as between the Borrower, its
creditors (other than the holders of Tranche B-1 Obligations) and the holders of
Tranche B-2 Obligations, the obligation of the Borrower, which is absolute and
unconditional, to pay to the holders of Tranche B-2 Obligations the full amount
thereof, as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the holders of Tranche B-2
Obligations and creditors of the Borrower other than the holders of Tranche B-1
Obligations, nor shall anything herein or therein prevent or limit the
Administrative Agent or any holder of Tranche B-2 Obligations from exercising
all remedies otherwise permitted by applicable law upon the happening of an
Event of Default
155
hereunder, in accordance with the provisions of Section 10 hereof and to the
rights, if any, under this Section 15 of the holders of Tranche B-1 Obligations
in respect of assets, whether in cash, property or securities, of the Borrower
received upon the exercise of any such remedy. Nothing contained in this Section
15 or elsewhere in this Agreement or any other Credit Document shall, except
during the pendency of any dissolution, winding-up, total or partial
liquidation, reorganization, recapitalization or readjustment of the Borrower or
its securities (whether voluntary or involuntary, or in bankruptcy, insolvency,
reorganization, liquidation or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshaling of assets and liabilities
of the Borrower or otherwise), affect the obligation of the Borrower to make, or
prevent the Borrower from making, at any time (except under the circumstances
described in Section 15.05 hereof), payment of Tranche B-2 Obligations.
15.05 Borrower Not to Make Payments With Respect to Tranche
B-2 Obligations in Certain Circumstances. (a) Upon the maturity of any Tranche
B-1 Obligation by lapse of time, acceleration or otherwise, all principal
thereof and interest thereon and all other obligations in respect thereof shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for, before any payment is made on account of Tranche B-2 Obligations in cash or
property or to acquire or repurchase same.
(b) Upon the happening of any default or event of default (as
such terms are used in related documentation) in respect of the payment of any
Tranche B-1 Obligation (a "Section 15 Payment Default"), then, unless and until
such default or event of default shall have been cured or waived by the holders
of such Tranche B-1 Obligation or shall have ceased to exist, no payment shall
be made by the Borrower with respect to any Tranche B-2 Obligations in cash or
property or to acquire or repurchase same. For purposes of the immediately
preceding sentence, if on any date payments are due with respect to any Tranche
B-1 Obligations and with respect to any Tranche B-2 Obligations, there shall be
deemed to exist on such date a Section 15 Payment Default unless and until all
payments of Tranche B-1 Obligations required to be made on such date have been
paid in full in cash or Cash Equivalents and, accordingly, until said Tranche
B-1 Obligations have been so paid, the provisions of the immediately preceding
sentence shall prevent the payment of Tranche B-2 Obligations in accordance with
the terms thereof.
In the event that, notwithstanding the foregoing provisions of
this Section 15.05, any payment or distribution of assets of the Borrower,
whether in cash, property or securities, shall be received by the Administrative
Agent or the holders of Tranche B-2 Obligations at a time when such payment or
distribution should not have been made because of this Section 15.05, such
payment or distribution (subject to the provisions of Sections 15.06 and 15.07)
shall be held in trust for the benefit of the holders of, and shall be paid or
delivered by the Administrative Agent or such holders of Tranche B-2
Obligations, as the case may be, to the holders of the Tranche B-1 Obligations
remaining unpaid or unprovided for or their representative or representatives,
or to the agent or trustee under any agreement pursuant to which any instruments
evidencing any of such Tranche B-1 Obligations may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Tranche
B-1 Obligations held or represented by each, for application to the payment of
all Tranche B-1 Obligations remaining unpaid, to the extent necessary to pay all
Tranche B-1 Obligations in full in cash or Cash Equivalents after giving effect
to any concurrent payment or distribution to the holders of such Tranche B-1
Obligations.
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15.06 Administrative Agent Entitled to Assume Payments Not
Prohibited in Absence of Notice. The Administrative Agent shall not at any time
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Administrative Agent, unless and until the
Administrative Agent shall have received written notice thereof at its Notice
Office from the Borrower or any holder of Tranche B-1 Obligations or from any
representative thereof or agent or trustee therefor, and, prior to the receipt
of any such written notice, the Administrative Agent shall be entitled to assume
conclusively that no such facts exist, and shall be fully protected in making
any such payment in any such event.
The Administrative Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of Tranche B-1 Obligations (or an agent or a trustee on behalf of
such holder) to establish that such notice has been given by a holder of Tranche
B-1 Obligations or an agent or a trustee on behalf of any such holder. In the
event that the Administrative Agent determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Tranche B-1 Obligation to participate in any payment or distribution pursuant to
this Section 15, the Administrative Agent may request such Person to furnish
evidence to the reasonable satisfaction of the Administrative Agent as to the
amount of Tranche B-1 Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any of the
facts pertinent to the rights of such Person under this Section 15, and, if such
evidence is not furnished, the Administrative Agent may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
15.07 Application by Administrative Agent of Monies Deposited
With It. Any deposit of monies by the Borrower with the Administrative Agent
(whether or not in trust) for the payment of Tranche B-2 Obligations shall be
subject to the provisions of Sections 15.01, 15.02, 15.03 and 15.05 hereof,
except that, if prior to the opening of business on the second Business Day next
prior to the date on which, by the terms of this Agreement, any such monies may
become payable for any purpose the Administrative Agent shall not have received
with respect to such monies the notice provided for in Section 15.06, then the
Administrative Agent shall have the full power and authority to receive such
monies and to apply such monies to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date; without, however, limiting any rights that holders of
Tranche B-1 Obligations may have to recover any such payments from the holders
of Tranche B-2 Obligations in accordance with the provisions of this Section 15.
15.08 Subordination Rights Not Impaired by Acts or Omissions
of Borrower or Holders of Tranche B-1 Obligations. No right of any present or
future holder of any Tranche B-1 Obligations to enforce subordination, as herein
provided, shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Borrower or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Borrower with
the terms, provisions and covenants of this Agreement, any Credit Document, or
any other agreement or instrument regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
157
Each holder of any Tranche B-2 Obligations, by his acceptance
thereof, undertakes and agrees for the benefit of each holder of Tranche B-1
Obligations to execute, verify, deliver and file any proofs of claim, consents,
assignments or other instruments that any holder of Tranche B-1 Obligations may
at any time require in order to prove and realize upon any rights or claims
pertaining to the Tranche B-2 Obligations and to effectuate the full benefit of
the subordination contained in this Section 15, and upon failure of any holder
of any Tranche B-2 Obligations so to do, any such holder of Tranche B-1
Obligations (or a trustee or representative on its behalf) shall be deemed to be
irrevocably appointed the agent and attorney-in-fact of the holder of such
Tranche B-2 Obligations to execute, verify, deliver and file any such proofs of
claim, consents, assignments or other instrument.
Without limiting the effect of the first paragraph of this
Section 15.08, any holder of Tranche B-1 Obligations may at any time and from
time to time without the consent of or notice to any holder of Tranche B-2
Obligations, without impairing or releasing any of the rights of any such holder
of Tranche B-1 Obligations hereunder, upon or without any terms or conditions
and in whole or in part:
(1) change the manner, place or terms of payment, or change or
extend the time of payment of or increase the amount of, renew or
alter, any Tranche B-1 Obligations or any other liability of the
Borrower to such holder, any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the provisions
hereof shall apply to the Tranche B-1 Obligations of such holder as so
changed, extended, renewed or altered;
(2) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or however
securing, any Tranche B-1 Obligations or any other liability of the
Borrower to such holder or any other liabilities incurred directly or
indirectly in respect thereof or hereof, or any offset against it;
(3) exercise or refrain from exercising any rights or remedies
against the Borrower or others or otherwise act or refrain from acting
or for any reason fail to file, record or otherwise perfect any
security interest in or lien on any property of the Borrower or any
other Person;
(4) settle or compromise any Tranche B-1 Obligations or any
other liability of the Borrower to such holder or any security
therefor, or any liability incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of the
Borrower to creditors of the Borrower other than such holder; and
(5) apply any sums by whomsoever paid and however realized to
any liability or liabilities of the Borrower to such holder (other than
in respect of the Tranche B-2 Obligations or any liability or
liabilities which rank pari passu or junior in right of payment to the
Tranche B-2 Obligations) regardless of what liability or liabilities of
the Borrower to such holder remain unpaid.
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15.09 Holders of Tranche B-2 Obligations Authorize
Administrative Agent to Effectuate Subordination of Tranche B-2 Obligations.
Without purporting to limit the authority of the Administrative Agent as may be
appropriate in other circumstances, each holder of Tranche B-2 Obligations by
his or its acceptance thereof irrevocably authorizes and expressly directs the
Administrative Agent on his behalf of take such action as may be necessary or
appropriate to effectuate the subordination provided in this Section 15 and
appoints the Administrative Agent his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding-up or liquidation or
reorganization under Bankruptcy Law of the Borrower (whether in bankruptcy,
insolvency or receivership proceedings or otherwise), the timely filing of a
claim for the unpaid balance of its or his Tranche B-2 Obligations in the form
required in such proceedings and the causing of such claim to be approved. If
the Administrative Agent does not file a claim or proof of debt substantially in
the form required in such proceeding at least one day before the expiration of
the time to file such claims or proofs, then any of the holders of Tranche B-1
Obligations have the right to file such proof of claim or debt on behalf of the
holders of Tranche B-2 Obligations, and to take any action with respect to such
proof of claim or debt permitted to be taken by the holders of Tranche B-1
Obligations pursuant to this Agreement, the other Credit Documents or by law;
provided, however, that no such action by holders of Tranche B-1 Obligations
shall in any way limit or affect the rights of the holders of Tranche B-2
Obligations or the Administrative Agent hereunder or under the other Credit
Documents or applicable law.
15.10 Right of Administrative Agent to Hold Tranche B-1
Obligations; Preservation of Administrative Agent's Rights. The Administrative
Agent, in its individual capacity, shall be entitled to all of the rights set
forth in this Section 15 in respect of any Tranche B-1 Obligations at any time
held by it to the same extent as any other holder of Tranche B-1 Obligations,
and nothing in this Agreement or any other Credit Document shall be construed to
deprive the Administrative Agent of any of its rights as such holder. Nothing in
this Section 15 shall apply to claims of, or payment to, the Administrative
Agent or Collateral Agent in their capacities as such.
15.11 Section 15 Not to Prevent Events of Default. The failure
to make a payment on account of, or in respect of, any Tranche B-2 Obligation by
reason of any provision in this Section 15 shall not be construed as preventing
the occurrence of a Default or an Event of Default under Section 10.01 hereof.
15.12 Administrative Agent Not Fiduciary for Holders of
Tranche B-1 Obligations. The provisions of this Section 15 are not intended to
create, nor shall they create, any trust or fiduciary relationship between the
Administrative Agent and the holders of Tranche B-1 Obligations, nor shall any
implied covenants or obligations with respect to holders of Tranche B-1
Obligations (other than those expressly set forth herein) be read into this
Agreement against the Administrative Agent.
Accordingly, notwithstanding any provision of this Section 15
to the contrary, the Administrative Agent shall not be liable to any such
holders if it shall, in good faith, inadvertently pay over or distribute to
holders of Tranche B-2 Obligations or the Borrower or any other Person monies or
assets to which any holders of Tranche B-1 Obligations shall be entitled by
virtue of this Section 15 or otherwise.
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15.13 Certain Payments Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments made pursuant to the HET/HOC
Guaranty and Loan Purchase Agreement shall not be subordinated to the prior
payment of any Tranche B-1 Obligations or subject to the restrictions set forth
in this Section 15 and none of the holders of Tranche B-2 Obligations shall be
obligated to pay over any such payment to the Borrower or any holder of Tranche
B-1 Obligations or any other creditor of the Borrower. Notwithstanding the
foregoing, any Tranche B-2 Obligations purchased by HET and/or HOC (or any other
Person) pursuant to the HET/HOC Guaranty and Loan Purchase Agreement or
otherwise shall continue to be subject to the provisions of this Section 15
(although, as provided above in this Section 15.13, the payments made pursuant
to the HET/HOC Guaranty and Loan Purchase Agreement are not subject to the
subordination provisions contained in this Section 15).
15.14 Conflicting Subordination Provisions. So long as any
Tranche A Obligations remain outstanding (and until same are paid in full in
cash or Cash Equivalents), to the extent the provisions of Section 13 require
that payments be made to the holders of Tranche A Obligations, rather than to
holders of the Tranche B-1 Obligations as provided in this Section 15, then the
provisions of said Section 13 shall govern (although any excess funds remaining
after the repayment in full in cash or Cash Equivalents of the Tranche A
Obligations shall remain subject to this Section 15 in accordance with the terms
hereof).
SECTION 16. Miscellaneous.
16.01 Payment of Expenses, etc. (a) The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case (which shall, for the period ending on the Initial Borrowing Date, be
limited to fees of $750,000 and costs and disbursements of White & Case as
billed in accordance with its customary practice) and local counsel and all
appraisal fees, trustee's fees, documentary and recording taxes, title insurance
and recording, filing and other expenses) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein and any amendment,
waiver or consent relating hereto or thereto, and of the Administrative Agent
and each of the Banks in connection with the enforcement of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein (including, without limitation, the reasonable fees and
disbursements of counsel (including allocated costs of in-house counsel) for the
Administrative Agent and for each of the Banks); (ii) pay and hold each of the
Banks harmless from and against any and all present and future stamp, excise and
other similar taxes with respect to the foregoing matters and save each of the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Bank) to pay such taxes; and (iii) indemnify the Administrative Agent, each
Issuing Bank and each Bank, and each of their respective officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' (including allocated
costs of in-house counsel) and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, (a) any
160
investigation, litigation or other proceeding (whether or not the Administrative
Agent, any Issuing Bank or any Bank is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document or the
use of any Letter of Credit or the proceeds of any Loans or the consummation of
any transactions contemplated herein (including, without limitation, the
Transaction or in any other Credit Document or the exercise of any of their
rights or remedies provided herein or in the other Credit Documents), or (b) the
actual or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property owned, leased
or at any time operated by any Credit Party or any of their Subsidiaries, the
Release, generation, storage, transportation, handling or disposal of Hazardous
Materials at any location, whether or not owned or operated by any Credit Party
or any of their Subsidiaries, the non-compliance of any Real Property with
foreign, federal, state and local laws, regulations, and ordinances (including
applicable permits thereunder) applicable to any Real Property, or any
Environmental Claim relating in any way to any Credit Party or any of their
Subsidiaries, their operations, or any Real Property owned, leased or at any
time operated by any Credit Party or any of their Subsidiaries, including, in
each case, without limitation, the reasonable fees and disbursements of counsel
and other consultants incurred in connection with any such investigation,
litigation or other proceeding (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified). To the extent that the
undertaking to indemnify, pay or hold harmless the Administrative Agent, any
Issuing Bank or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
(b) The Borrower further agrees to pay the reasonable legal
fees of gaming counsel for the Administrative Agent in Louisiana and any other
relevant state and all reasonable costs (including costs of investigation)
associated with any qualification (or exemption or waiver therefrom) of any
Issuing Bank or any Bank under, or compliance in connection with the Gaming
Regulations in connection with the syndication under this Agreement, provided
that in the event that any assignee Bank or potential assignee Bank is not
already a Qualified Person (before giving effect to any actions taken to become
such in connection with this Agreement), then all costs associated with such
Person becoming a Qualified Person shall be borne by the respective assignee
Bank or potential assignee Bank. Notwithstanding the foregoing, after a Bank has
been replaced pursuant to Section 1.13, the Borrower shall not be required to
reimburse such Bank for any such costs incurred by it after the date of such
replacement.
16.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default and
with the concurrence of the Required Banks, each Bank is hereby authorized at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to JCC Holding or any of its Subsidiaries or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of JCC Holding or any of its Subsidiaries against and
on account of the Obligations and liabilities of JCC Holding or such Subsidiary
to such Bank under this Agreement
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or under any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Bank pursuant to Section 16.06(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not
such Bank shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
16.03 Notices. (a) Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to any Credit
Party at the address specified opposite its signature below or in the other
relevant Credit Documents; if to any Bank, at its address specified opposite its
name on Schedule II below; and if to the Administrative Agent, at its Notice
Office; or, as to any Credit Party or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties hereto and, as to each Bank, at such other address as shall be
designated by such Bank in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Administrative Agent,
any Issuing Bank and the Borrower shall not be effective until received by the
Administrative Agent, such Issuing Bank or the Borrower, as the case may be.
(b) In addition to any other notices required or permitted to
be given pursuant to this Agreement, the Administrative Agent shall, promptly
after its delivery of any written notice to the Borrower (x) which specifically
states that an Event of Default pursuant to this Agreement is in existence or
(y) pursuant to the last paragraph of Section 10, send to the LGCB (at the
address provided in the following sentence) a copy of such written notice;
provided that any failure or delay in giving any such notice shall not affect or
impair the validity of said notice or any action taken pursuant thereto (or
otherwise pursuant to this Agreement or any other Credit Document) and shall
give rise to no liability (monetary or otherwise) on the part of the
Administrative Agent or any Bank to any Credit Party, the LGCB or any other
Person. All notices to the LGCB pursuant to this sentence shall be mailed (or
sent by reputable courier) to the LGCB at the following address (or such other
address as the LGCB furnishes to the Administrative Agent from time to time for
its receipt of notices pursuant to this Section):
Louisiana Gaming Control Board
0000 Xxxxxxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Chairman
16.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, the Borrower
may not assign or transfer any of its rights, obligations or interest hereunder
without the prior written consent of the Banks and, provided further, that,
although any Bank may transfer, assign or grant participations in its rights
hereunder, such Bank
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shall remain a "Bank" for all purposes hereunder (and may not transfer or assign
all or any portion of its Commitments hereunder except as provided in Section
16.04(b)) and the transferee, assignee or participant, as the case may be, shall
not constitute a "Bank" hereunder and, provided further, that no Bank shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation
therein is not increased as a result thereof), (ii) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement, (iii) release all or substantially all of the Collateral under all of
the Security Documents (except as expressly provided in the Credit Documents)
supporting the Obligations hereunder in which such participant is participating,
(iv) prior to the Termination of Construction Date, release either Completion
Guarantor from its obligations pursuant to the Bank Completion Guarantee or (v)
if such participant is participating in Tranche A-2 Term Loans, Tranche B-2 Term
Loans, Revolving Loans, Letters of Credit or Revolving Loan Commitments, release
HET or HOC from its obligations pursuant to the HET/HOC Guaranty and Loan
Purchase Agreement. In the case of any such participation, the participant shall
not have any rights under this Agreement or any of the other Credit Documents
(the participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitments and related outstanding Obligations hereunder to its parent company
and/or any affiliate of such Bank which is at least 50% owned by such Bank or
its parent company or to one or more Banks or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the assigning
Bank or assigning Banks, of such Commitments and related outstanding Obligations
hereunder to one or more Qualified Persons, each of which assignees shall become
a party to this Agreement as a Bank by execution of an Assignment and Assumption
Agreement, provided that (i) at the time of each assignment pursuant to this
Section 16.04(b) Schedule I shall be deemed modified to reflect the Commitments
(and/or outstanding Term Loans of any Tranche, as the case may be) of such new
Bank and of the existing Banks, (ii) upon surrender of the old Notes, new Notes
will be issued, at the Borrower's expense, to such new Bank and to the assigning
Bank, such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Term Loans of any Tranche, as the case may be),
(iii) the consent of the Administrative Agent and (except in the case of an
assignment to an Assignee which is already a Bank) each Issuing Bank shall be
required in
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connection with any assignment of Revolving Loan Commitments; and (iv) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Bank, the payment of a non-refundable assignment fee of
$1,500 or, in the case of an Assignment to an Assignee which is not a Bank,
$3,500 and, provided further, that such transfer or assignment will not be
effective until recorded by the Administrative Agent on the Register pursuant to
Section 16.17. To the extent of any assignment pursuant to this Section
16.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Commitments. At the time of each assignment pursuant to
this Section 16.04(b) to a Person which is not already a Bank hereunder and
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Bank shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable a Section
4.04(b)(ii) Certificate) as required pursuant to Section 4.04(b). To the extent
that an assignment of all or any portion of a Bank's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 16.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
1.11 or 4.04 from those being charged by the respective assigning Bank (or in
the case of Section 4.04, otherwise being incurred by the Borrower) prior to
such assignment, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of the
respective assignment).
(c) If any Bank is required to qualify or be found suitable
under any applicable Louisiana Gaming Regulation and does not so qualify or
otherwise not meet the suitability standards pursuant to any such Louisiana
Gaming Regulations (in such case, a "Former Bank"), such Former Bank shall and
hereby agrees to sell its rights and obligations under this Agreement to another
Qualified Person (the "Substitute Bank") acceptable to the Administrative Agent
and each Issuing Bank. The Substitute Bank shall assume the rights and
obligations of the Former Bank under this Agreement pursuant to an Assignment
and Assumption Agreement, which assumption shall be required to comply with, and
shall become effective in accordance with, the provisions of Section 16.04(b),
provided that the purchase price to be paid by the Substitute Bank to the
Administrative Agent for the account of the Former Bank for such assumption
shall equal the sum of (i) the unpaid principal amount of any Loans held by the
Former Bank plus accrued interest thereon plus (ii) the Former Bank's pro rata
share of the aggregate amount of Drawings under all Letters of Credit that have
not been reimbursed by the Borrower, plus accrued interest thereon, plus (iii)
such Former Bank's pro rata share of accrued Fees to the date of the assumption,
and, provided further, that the Borrower shall pay all obligations owing to the
Former Bank under the Credit Documents (including all obligations, if any, owing
pursuant to Section 1.11, but excluding those amounts in respect of which the
purchase price is being paid as provided above). Each Bank agrees that if it
becomes a Former Bank, upon payment to it by the Borrower of all such amounts,
if any, owing to it under the Credit Documents, it will execute and deliver an
Assignment and Assumption Agreement, upon payment of such purchase price.
(d) Notwithstanding the provisions of subsection (c) of
this Section 16.04, if any Bank becomes a Former Bank and fails to find a
Substitute Bank pursuant to subsection (c) of this Section within 30 days of
being determined unsuitable or unqualified, or such lesser period of time as
specified by the Gaming Authorities for the withdrawal of a Former Bank (the
"Withdrawal Period"), the Borrower shall have an additional 30 day period, or
such lesser period
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of time as specified by the Gaming Authorities, to find a Substitute Bank
acceptable to the Administrative Agent and each Issuing Bank, which
Substitute Bank shall assume the rights and obligations of the Former Bank as
provided in subsection (c) of this Subsection 16.04. In the event that the
Borrower shall not have found a Substitute Bank within such period of time,
it shall immediately (i) prepay in full the outstanding principal amount of
each Loan held by such Former Bank, together with accrued interest thereon to
the earlier of (x) the date of payment or (y) the last day of any Withdrawal
Period, and (ii) at the option of the Borrower either (A) place an amount
equal to such Former Bank's Adjusted Percentage in each Letter of Credit in a
separate cash collateral account with the Administrative Agent for each
outstanding Letter of Credit which amount will be applied by the
Administrative Agent to satisfy the Borrower's reimbursement obligations to
the respective Issuing Bank in respect of Unpaid Drawings under the
applicable Letter of Credit or (B) if no Default or Event of Default then
exists, terminate the Revolving Loan Commitment of such Former Bank at which
time the other Banks' Percentages and Adjusted Percentages will be
automatically adjusted as a result thereof, provided that the option
specified in this clause (B) may only be exercised if, immediately after
giving effect thereto, no Bank's outstanding Revolving Loans, when added to
the product of (a) such Bank's Adjusted Percentage and (b) the sum of (I) the
aggregate amount of all Letter of Credit Outstandings at such time and (II)
the aggregate amount of all Swingline Loans then outstanding, would exceed
such Bank's Revolving Loan Commitment at such time. Each Bank agrees that, to
the extent and for so long as required by any applicable Louisiana Gaming
Regulation, such Bank's rights and obligations under this Agreement are
subject to the provisions of subsections (c) and (d) of this Section 16.04
and to all restrictions of any applicable Louisiana Gaming Regulation.
(e) Subject to the last sentence of this Section 16.04(e),
each Bank agrees that all assignments and participations made hereunder shall be
subject to, and made in compliance with, all Gaming Regulations applicable to
lenders. The Borrower hereby acknowledges that unless it has provided the Banks
with a written opinion of counsel as to the suitability standards applicable to
lenders of any relevant Gaming Authority with jurisdiction over the Gaming
Business of the Borrower and its Subsidiaries, no Bank shall have the
responsibility of determining whether or not a potential assignee or participant
of such Bank would be a Qualified Person under the Gaming Regulations of any
such jurisdiction.
(f) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank.
16.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Administrative Agent or any Bank or the holder of any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights, powers and remedies herein or in
any other Credit Document expressly provided are cumulative and not exclusive of
any rights, powers or remedies which the Administrative Agent or any Bank or the
holder of any Note would otherwise have. No notice to or demand on any Credit
165
Party in any case shall entitle such Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent or any Bank or the holder of any Note to any other
or further action in any circumstances without notice or demand.
16.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of any Credit Party in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other than
any Bank that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder or under any other Credit Document (whether by voluntary
payment, by realization upon security, by the exercise of the right of setoff or
banker's lien, by counterclaim or cross action, by the enforcement of any right
under the Credit Documents, or otherwise), which is applicable to the payment of
the principal of, or interest on, the Loans, Unpaid Drawings, Commitment
Commission or Letter of Credit Fees, of a sum which with respect to the related
sum or sums received by other Banks is in a greater proportion than the total of
such Obligation then owed and due to such Bank bears to the total of such
Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the Borrower to such Banks in such amount as shall result in a proportional
participation by all the Banks in such amount; provided that, if all or any
portion of such excess amount is thereafter recovered from such Bank, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 16.06(a) and (b) shall be subject to
(i) the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks, (ii)
the provisions of Sections 3.03(f) and 4.02(j) which provide, in certain
circumstances, for differing treatments of Loans and Commitments held by HET,
HOC and their Affiliates from the treatment provided to other Banks (in which
case, payments received by such other Banks shall in no event be shared with
HET, HOC or their respective Affiliates), (iii) the provisions of Section
1.08(f), to the extent applicable to the respective payments received, (iv) the
provisions of Sections 13, 14 and 15 of this Agreement, to the extent applicable
in accordance with their terms and (v) the provisions of the Intercreditor
Agreements, to the extent applicable in accordance with their terms.
16.07 Calculations; Computations. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Banks); provided that, except as otherwise specifically provided herein, all
computations of Semi-Annual Free Cash Flow and all computations determining
compliance with Section 9 shall utilize accounting principles and policies in
conformity with those used to prepare the Financial
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Forecast; provided further, that, at any time after the creation or
establishment thereof, the Specified Subsidiary shall be accounted for as an
equity investment and not as a Consolidated Subsidiary (with the foregoing
generally accepted accounting principles, subject to the preceding provisos,
herein called "GAAP").
(b) All computations of interest, Commitment Commission and
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest, Commitment Commission or Fees are payable.
16.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL,
EXCEPT AS OTHERWISE PROVIDED IN THE MORTGAGES OR CERTAIN OTHER SECURITY
DOCUMENTS, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF JCC
HOLDING AND THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS
CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX
XXXX, XXX XXXX 00000 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT
AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY,
SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH
MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH
DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH,
EACH OF JCC HOLDING AND THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE,
APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF
THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT.
EACH OF JCC HOLDING AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO JCC HOLDING OR THE BORROWER, AS THE CASE MAY BE, AT
ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
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(b) EACH OF JCC HOLDING AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
16.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
16.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which JCC Holding, the Borrower, the
Administrative Agent and each of the Banks shall have signed a counterpart
hereof (whether the same or different counterpart) and shall have delivered the
same to the Administrative Agent at its Notice Office or, in the case of the
Banks, shall have given to the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) at such office that the
same has been signed and mailed to it. The Administrative Agent will give the
Borrower and each Bank prompt written notice of the occurrence of the Effective
Date.
16.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
16.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks (or the Required Secured Creditors in the case of a
change, waiver, discharge or termination with respect to a Security Document),
provided that no such change, waiver, discharge or termination shall, without
the consent of each Bank (other than a Defaulting Bank) (with Obligations being
directly affected in the case of following clause (i)), (i) extend the final
scheduled maturity of any Loan or any Note, or extend the stated maturity of any
Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon, or increase the portion
of interest or Fees payable as Credit Support Fees pursuant to the Credit
Enhancement
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Fee Agreement (Bank Credit Agreement), or reduce the principal amount thereof
(except to the extent repaid in cash), (ii) release all or substantially all of
the Collateral (except as expressly provided in the Credit Documents) under all
the Security Documents, (iii) release the Bank Completion Guarantee or any
Completion Guarantor from its obligations thereunder (unless the Bank Completion
Guarantee Termination of Construction Date has occurred), (iv) amend, modify or
waive any provision of this Section 16.12, (v) reduce the percentage specified
in the definition of Required Banks (it being understood that, with the consent
of the Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Banks on
substantially the same basis as the Term Loan Commitments and Revolving Loan
Commitments (and related extensions of credit) are included on the Effective
Date) (vi) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement, (vii) amend, modify or waive any
provision of Section 13, 14 or 15 of this Agreement or any defined terms as used
therein or (viii) amend, modify or waive any other provision of this Agreement
to the extent same increases the aggregate principal amount of Term Loans
outstanding (other than through a utilization of the Term Loan Commitments in
the amount originally provided in this Agreement) or increases the Total
Revolving Loan Commitment (except if, in the case of any increase in outstanding
Tranche A-2 Term Loans, Tranche B-2 Term Loans or the Total Revolving Loan
Commitment only, if HET and HOC agree in writing that said increased extensions
of credit shall be entitled to the benefits of the HET/HOC Guaranty and Loan
Purchase Agreement to the same extent as the original extension of credit
pursuant to the Tranche A-2 Term Loan Commitments, the Tranche B-2 Term Loan
Commitments and Revolving Loan Commitments); provided further, that no such
change, waiver, discharge or termination shall (o) at any time while the HET/HOC
Guaranty and Loan Purchase Agreement remains in effect or following any purchase
of Loans pursuant to Section 15 thereof, without the prior written consent of
HET, (i) extend the final scheduled maturity of any Tranche A-2 Term Loans,
Revolving Loans, Swingline Loans or Tranche B-2 Term Loans, (ii) increase the
aggregate principal amount of Tranche A-2 Term Loans, Revolving Loans, Swingline
Loans and/or Tranche B-2 Term Loans from the amounts permitted to be incurred
pursuant to this Agreement as originally in effect (it being understood and
agreed that waivers, amendments and modifications to this Agreement which have
the effect of making available extensions of credit in the amounts originally
provided pursuant to this Agreement shall not be deemed to constitute an
increase in the principal amount of such extensions of credit), (iii) extend the
date of any Scheduled Repayments with respect to the foregoing Loans unless
substantially similar adjustments are then being made to the Scheduled
Repayments relating to the other Tranches of outstanding Term Loans, (iv) waive
or extend the time for the payment of any interest or fees owing with respect to
the Tranche A-2 Term Loans, Tranche B-2 Term Loans, Swingline Loans, Revolving
Loans or outstanding Letters of Credit unless substantially similar adjustments
are then being made with respect to the other Tranches of outstanding Term
Loans, (v) change the rate of interest or Letter of Credit Fees applicable to
Tranche A-2 Term Loans, Tranche B-2 Term Loans, Swingline Loans, Revolving Loans
or outstanding Letters of Credit or (vi) alter the required application of any
prepayments or repayments (or commitment reductions) pursuant to Sections 4.01
or 4.02 (excluding Section 4.02(b)) which has the effect of allocating a lesser
prepayment, repayment or commitment reduction to the Tranche A-2 Term Loans, the
Revolving Loans (or related commitments) and/or Tranche B-2 Term Loans (although
the consent of HET shall not be required for any waiver, in whole or in part, of
any such prepayment, repayment or commitment
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reduction, so long as the application, as amongst various Tranches, of any such
prepayment, repayment or commitment which is still required to be made is not
altered), (p) without the consent of each Bank (other than Banks holding solely
Tranche A-1 Term Loans, Tranche A-3 Term Loans and Tranche B-1 Term Loans)
release HET or HOC from its obligations under the HET/HOC Guaranty and Loan
Purchase Agreement, (q) without the consent of the Majority Tranche X-0, X-0 and
Revolving Banks, amend, modify or waive any provision of the HET/HOC Guaranty
and Loan Purchase Agreement, (r) without the consent of the Majority Tranche A
Banks (if any Tranche A Obligations are then outstanding pursuant to this
Agreement), the Majority Tranche A-1 and A-3 Banks (unless all Tranche A-1 and
A-3 Obligations outstanding pursuant to this Agreement have been repaid in full)
and the Majority Tranche B-1 Banks (if any Tranche B-1 Obligations are then
outstanding pursuant to this Agreement), amend, modify or waive the requirements
of the proviso to the definition of "Tranche A Obligations" contained herein,
(s) without the consent of the Majority Tranche B-1 Banks (if any Tranche B-1
Term Loans or Obligations relating thereto are then outstanding pursuant to this
Agreement), amend, modify or waive the requirements of the proviso to the
definition of "Tranche B-1 Obligations" contained herein, (t) increase the
Commitments of any Bank over the amount thereof then in effect without the
consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitment shall not constitute an increase of the
Commitment of any Bank, and that an increase in the available portion of any
Commitment of any Bank shall not constitute an increase in the Commitment of
such Bank), (v) without the consent of each Issuing Bank, amend, modify or waive
any provision of Section 2 or alter its rights or obligations with respect to
Letters of Credit issued by it, or without the consent BTCo, amend, modify or
waive any provision relating to the rights or obligations of BTCo or with
respect to Swingline Loans, (w) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 12 as same applies to the
Administrative Agent or any other provision as same relates to the rights or
obligations of the Administrative Agent, (x) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent, (y) without the consent of the Majority
Banks of each Tranche which is being allocated a lesser prepayment, repayment or
commitment reduction as a result of the actions described below (or without the
consent of the Majority Banks of each Tranche in the case of an amendment to the
definition of Majority Banks), amend the definition of Majority Banks or alter
the required application of any prepayments or repayments (or commitment
reduction), as between the various Tranches, pursuant to Section 4.01 or 4.02
(excluding Section 4.02(b)) (although the Required Banks may waive, in whole or
in part, any such prepayment, repayment or commitment reduction, so long as the
application, as amongst the various Tranches, of any such prepayment, repayment
or commitment reduction which is still required to be made is not altered), or
(z) without the consent of the Supermajority A-1 and A-2 Banks, the
Supermajority A-3 Banks or the Supermajority B Banks, as the case may be, amend,
modify or waive any Tranche A-1 and A-2 Scheduled Repayment, Tranche A-3
Scheduled Repayment or Tranche B Scheduled Repayment, as the case may be.
(b) If, in connection with any proposed change, waiver,
discharge or termination with respect to any of the provisions of this Agreement
as contemplated by clauses (i) through (viii), inclusive, of the first proviso
to Section 16.12(a), the consent of the Required Banks is obtained but the
consent of one or more of such other Banks whose consent is required is not
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obtained, then the Borrower shall have the right, so long as all non-consenting
Banks whose individual consent is required are treated as described in either
clause (A) or (B) below, to either (A) replace each such non-consenting Bank or
Banks (or, at the option of the Borrower if the respective Bank's consent is
required with respect to less than all Tranches of Loans (or related
Commitments), to replace only the respective Tranche or Tranches of Commitments
and/or Loans of the respective non-consenting Bank which gave rise to the need
to obtain such Bank's individual consent) with one or more Replacement Banks
pursuant to Section 1.13 so long as at the time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Bank's Revolving Loan
Commitment (if such Bank's consent is required as a result of its Revolving Loan
Commitment), terminate such non-consenting Bank's Tranche A-2 Term Loan
Commitment (if not theretofore terminated and such Bank's consent is required as
a result of its Tranche A-2 Term Loan Commitment) and/or Tranche B-2 Term Loan
Commitment (if not theretofore terminated and such Bank's consent is required as
a result of its Tranche B-2 Term Loan Commitment) and/or repay in full each
Tranche of outstanding Loans of such non-consenting Bank which gave rise to the
need to obtain such Bank's consent, in accordance with Sections 3.02(b) and/or
4.01(a)(iv), provided that, unless the Commitments terminated, and Loans repaid,
pursuant to preceding clause (B) are immediately replaced in full at such time
through the addition of new Banks or the increase of the Commitments and/or
outstanding Loans of existing Banks (who in each case must specifically consent
thereto), then in the case of any action pursuant to preceding clause (B) the
Required Banks (determined before giving effect to the proposed action) shall
specifically consent thereto, provided further, that in any event the Borrower
shall not have the right to replace a Bank, terminate any of its Commitments or
repay its Loans solely as a result of the exercise of such Bank's rights (and
the withholding of any required consent by such Bank) pursuant to the second
proviso to Section 16.12(a).
16.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 16.01, shall
survive the execution, delivery and termination of this Agreement, the Notes and
any Letters of Credit, and the making and repayment of the Loans.
16.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Bank. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 16.14 would, at the time of
such transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04
from those being charged by the respective Bank (or in the case of Section 4.04,
otherwise being incurred by the Borrower) prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
16.15 Application of Gaming Regulations. (a) JCC Holding, the
Borrower and each Bank acknowledge that (i) the consummation of the transactions
contemplated by the Credit Documents is subject to the Gaming Regulations (and
JCC Holding and the Borrower represent and warrant that all requisite approvals
thereunder have been duly obtained except approvals which are not required to be
obtained or in effect as of the date the representation contained in this
Section 16.15(a) is being made or deemed made), (ii) the exercise of remedies
under the
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Security Documents with respect to the Collateral will be subject to the Gaming
Regulations and (iii) the LGCB may rely upon these acknowledgments.
(b) Notwithstanding any provision of any Credit Documents to
the contrary, the Credit Documents shall grant no security or other interest or
right in or to (i) the Casino Operating Contract, (ii) the House Bank (as
defined in the Management Agreement, as in effect on the Effective Date), or
(iii) the Louisiana Gross Gaming Revenue Share Payments (including the State of
Louisiana's Interest in Daily Collections) (as such terms are defined in the
Casino Operating Contract, as in effect on the Effective Date).
16.16 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 16.16, each Bank agrees that it will use its best efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information, provided such Persons shall be
subject to the provisions of this Section 16.16 to the same extent as such Bank)
any information with respect to the Credit Parties or any of their Subsidiaries
which is now or in the future furnished pursuant to this Agreement or any other
Credit Document and which is designated by the Borrower to the Banks in writing
as confidential, provided that any Bank may disclose any such information (a) as
has become generally available to the public, (b) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have jurisdiction over
such Bank or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (c) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (d) in order to comply
with any law, order, regulation or ruling applicable to such Bank, (e) to the
Administrative Agent or the Collateral Agent and (f) to any prospective or
actual transferee or participant in connection with any contemplated transfer or
participation of any of the Notes or Commitments or any interest therein by such
Bank, provided that such prospective transferee agrees with such Bank to be
bound by the provisions of this Section 16.16.
(b) Each of JCC Holding and the Borrower hereby acknowledges
and agrees that each Bank may share with any of its affiliates any information
related to JCC Holding or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
the Credit Parties and their Subsidiaries, provided such Persons shall be
subject to the provisions of this Section 16.16 to the same extent as such
Bank).
16.17 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 16.17, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Banks, the Loans made by
each of the Banks and each repayment in respect of the principal amount of the
Loans of each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such
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Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
16.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Agent in performing
its duties under this Section 16.17.
16.18 Execution of Documents by the Administrative Agent and
Collateral Agent. By their execution and delivery of this Agreement, each of the
Banks hereby authorize the Administrative Agent and the Collateral Agent to
execute each of the Credit Documents to which such Person is to be a party.
Without limiting the foregoing, each Bank hereby authorizes the Administrative
Agent to enter into the Intercreditor Agreement and the Credit Enhancement Fee
Agreement (Bank Credit Agreement) on behalf of the Banks and each Bank hereby
irrevocably agrees that, upon such execution by the Administrative Agent, each
Bank (whether such Bank is a Bank on the Effective Date or subsequently becomes
a Bank) shall be bound by the terms of the Intercreditor Agreement and the
Credit Enhancement Fee Agreement (Bank Credit Agreement) as fully as if it were
a direct signatory thereto.
16.19 Certain Waivers and Releases.
(a) No Assurances
(i) As a condition to the effectiveness of the confirmation of
the Plan of Reorganization, HET and HOC have entered into the HET/JCC
Agreement. The HET/JCC Agreement provides that the HET and HOC will
provide the Minimum Payment Guaranty required under the Casino
Operating Contract for the Fiscal Years (as defined in the Casino
Operating Contract) ending March 31, 1999 and March 31, 2000,
renewable for the four Fiscal Years thereafter through March 31, 2004,
subject to termination or non-renewal in accordance with the terms of
the HET/JCC Agreement. As a prerequisite to maintaining the
effectiveness of the Casino Operating Contract, the Casino Operating
Contract requires that the Borrower annually cause to be provided the
Minimum Payment Guaranty. In entering into the HET/JCC Agreement, HET
and HOC have no obligation to provide a Minimum Payment Guaranty for
the entire term of the Casino Operating Contract, but rather have
agreed only to provide a Minimum Payment Guaranty for the period and
on terms and conditions specified therein. HET and HOC have expressly
informed the Administrative Agent on behalf of the Banks that HET and
HOC have not agreed to renew the Minimum Payment Guaranty beyond March
31, 2004 or in any prior year where HET's and HOC's obligation to
furnish a Minimum Payment Guaranty does not renew by the express terms
of Section 1(b) of the HET/JCC Agreement. HET and
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HOC have informed the Administrative Agent on behalf of the Banks that
any decision HET and HOC make concerning whether to renew any Minimum
Payment Guaranty or the HET/JCC Agreement will be made in HET's and
HOC's sole discretion, acting only in their best interests. The
Administrative Agent and each Bank hereby acknowledge that (A) HET and
HOC are not obligated to, and have not given any assurances to the
Administrative Agent or the Banks that HET and HOC will, renew the
Minimum Payment Guaranty beyond March 31, 2004, or renew the Minimum
Payment Guaranty for any earlier Fiscal Year in which the obligation
of HET and HOC to furnish a Minimum Payment Guaranty does not renew
under the express terms of Section 1(b) of the HET/JCC Agreement, (B)
HET and HOC have the right to make any such renewal decision by
considering only their best interests, and (C) HET and HOC need not
consider the interests of any other parties in making any such renewal
decision, notwithstanding that HET and HOC are involved in a number of
capacities in respect of the Borrower.
(ii) The Administrative Agent and each Bank hereby agree that HET
and HOC, by entering into the HET/JCC Agreement or providing a Minimum
Payment Guaranty or otherwise, are not now, and in the past have not,
made any assurances or guarantees concerning the financial results of
the Casino, nor are or have HET or HOC made any assurances or
guarantees that the Casino will be financially successful or will
perform as projected in the projections and/or feasibility studies
included in the Disclosure Statement distributed in connection with
the Plan of Reorganization confirmation process.
(iii) The Administrative Agent and each Bank hereby agree and
acknowledge that any future representation, warranty, assurance or
other guaranty by HET or HOC or any of their subsidiaries or other
affiliates to the Administrative Agent or the Banks concerning the
renewal of any Minimum Payment Guaranty or the HET/JCC Agreement, the
operation of the Casino, the financial results of the Casino, or any
other matter concerning the Casino or the Plan of Reorganization shall
only be effective if set forth in writing and properly executed by the
party to be charged.
(b) Releases
(i) The Administrative Agent and each Bank hereby release and
waive and agree not to bring any Claims against the Identified
Parties, whether a known Claim or an Unknown Claim, to the extent same
arise out of (A) HET's and/or HOC's decision either to renew or not
renew any Minimum Payment Guaranty or the HET/JCC Agreement, (B) HET's
and/or HOC's acting in their own best interests in connection with the
execution, renewal or failure to renew any Minimum Payment Guaranty or
the HET/JCC Agreement, and/or (C) any alleged assurance or guarantee
by HET and/or HOC concerning the operation of the Casino, the
financial results of the Casino or any other matter concerning the
Casino or the Plan of Reorganization, unless such Claim is based on a
writing (but in any event cannot be based on HET/JCC Agreement or any
Minimum Payment Guaranty) properly executed by the party against whom
such a claim is being made.
(ii) The Administrative Agent and the Bank also hereby
specifically waive any rights each might have under Louisiana Civil
Code Article 3083 and all other applicable or
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similar laws to this same or similar effect as the matters described
in Section 16.19(b)(i) hereof, including but not limited to, any
purported right to challenge the validity or seek rescission of, or to
vitiate, the releases set forth above in Section 16.19(b)(i) hereof on
the ground that any information was kept concealed from it and agrees
that no remedy shall be available for any such alleged non-disclosure,
and that the right to rescind the above release on any such ground is
hereby expressly waived.
(c) Definitions. For the purposes of Sections 16.19(b)(i) and
(ii) hereof:
(i) "Claim" or "Claims" shall mean any action or actions, cause
or causes of action, in law or equity, suits, debts, liens,
liabilities, claims, demands, damages, punitive damages, losses, costs
or expenses, and/or reasonable attorneys' fees of any nature
whatsoever.
(ii) "Identified Parties" shall include HET, HOC, Xxxxxx'x New
Orleans Investment Company, Xxxxxx'x Crescent City Investment Company,
Xxxxxx'x New Orleans Management Company, their successors and assigns,
and all direct or indirect subsidiaries, and each of their parents,
subsidiaries, officers, directors, corporate representatives,
employees, agents, lawyers and accountants and all persons acting or
claiming through, under or in concert with any of them ; provided that
the term "Identified Parties" shall not include JCC Holding, the
Borrower or any of their Subsidiaries.
(iii) "Unknown Claim" or "Unknown Claims" means any and all
Claims, including without limitation, any Claim which any of the
parties hereto does not know or even suspect to exist in his, her, or
its favor at the time of the giving of the releases and waivers set
forth in Section 16.19 hereof which, if known by him, her or it might
have affected his, her or its decision regarding the releases and
waivers. Each of the parties acknowledges that he, she or it might
hereafter discover facts in addition to or different from those which
he, she or it now knows or believes to be true with respect to the
matters herein released and waived, but each shall be deemed to have
fully, finally and forever released any and all Claims to the extent
expressly provided in Section 16.19(b).
(d) No Third Party Beneficiaries. The Administrative Agent and
the Banks hereby acknowledge that each Minimum Payment Guaranty and the HET/JCC
Agreement provide that there shall be no third party beneficiaries thereof. The
Administrative Agent and each Bank also hereby agrees that it shall not claim or
assert it is a third party beneficiary or possesses any derivative claims under
any Minimum Payment Guaranty or the HET/JCC Agreement.
(e) Disclosure. The Administrative Agent and the Banks hereby
acknowledge that HET and HOC have informed it (i) not to infer or assume that
HET and HOC will renew any Minimum Payment Guaranty or the HET/JCC Agreement;
(ii) that HET and HOC will consider only their own best interests in determining
whether to renew any Minimum Payment Guaranty or the HET/JCC Agreement; (iii)
that HET and HOC are involved in a number of different capacities in connection
with the reorganization of HJC, the governance of the Borrower and JCC Holding,
and the operation of the Casino; and (iv) that there can be no assurance that
the Casino will
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perform as set forth in the projections and/or feasibility study set forth in
the Disclosure Statement circulated in connection with the Plan of
Reorganization.
(f) Amendment of Obligations. Each Minimum Payment Guaranty
provided under the HET/JCC Agreement is provided on the express condition that
the Borrower shall not amend or modify the Casino Operating Contract in any way
to increase the obligations under any Minimum Payment Guaranty or adversely
affect HET or HOC without the prior written agreement of HET and HOC, and any
such amendment or modification shall have no force or effect in respect of the
HET or HOC or any Minimum Payment Guaranty provided thereby.
16.20 No Third Party Beneficiaries. This Agreement is entered
into solely for the benefit of the parties hereto and their respective
successors and assigns (including all Banks from time to time) and there shall
be no third party beneficiaries hereof, nor shall any Person other than the
parties hereto and their respective successors and assigns be entitled to
enforce the provisions hereof or have any claims against any party hereto or
their successors of assigns arising from, or under, this Agreement.
SECTION 17. JCC Holding Guaranty.
17.01 The JCC Holding Guaranty. In order to induce the Banks
to enter into this Agreement and to extend credit hereunder and in recognition
of the direct benefits to be received by JCC Holding from the proceeds of the
Loans and the issuance of the Letters of Credit and to induce the Banks or any
of their respective Affiliates to enter into Interest Rate Protection
Agreements, JCC Holding hereby agrees with the Banks as follows: JCC Holding
hereby unconditionally and irrevocably guarantees as primary obligor and not
merely as surety the full and prompt payment when due, whether upon maturity, by
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrower to the Secured Creditors. If any or all of the Guaranteed Obligations
of the Borrower to the Secured Creditors becomes due and payable hereunder, JCC
Holding unconditionally promises to pay such indebtedness to the Secured
Creditors, on order, or demand, together with any and all reasonable expenses
which may be incurred by the Administrative Agent or the Secured Creditors in
collecting any of the Guaranteed Obligations.
17.02 Bankruptcy. Additionally, JCC Holding unconditionally
and irrevocably guarantees the payment of any and all of the Guaranteed
Obligations of the Borrower to the Secured Creditors whether or not then due or
payable by the Borrower upon the occurrence in respect of the Borrower of any of
the events specified in Section 10.06, and unconditionally and irrevocably
promises to pay such Guaranteed Obligations to the Secured Creditors, on order,
or demand, in lawful money of the United States.
17.03 Nature of Liability. (a) The liability of JCC Holding
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations of the Borrower whether executed by JCC Holding, any
other Guarantor or by any other party, and the liability of JCC Holding
hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations of the Borrower, or (c) any
payment on or in reduction of any such other
176
guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent or the Secured Creditors on the indebtedness which the
Administrative Agent or such Secured Creditors repay the Borrower pursuant to
court order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, and JCC Holding waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
(b) If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the Borrower), then and in such event
JCC Holding agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon JCC Holding, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and JCC
Holding shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
(c) It is the desire and intent of JCC Holding and the Secured
Creditors that this JCC Holding Guaranty shall be enforced against JCC Holding
to the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of JCC Holding under this JCC Holding Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of JCC Holding shall be deemed to be reduced and JCC Holding shall
pay the maximum amount of the Guaranteed Obligations which would be permissible
under applicable law.
17.04 Independent Obligation. The obligations of JCC Holding
hereunder are independent of the obligations of any other guarantor or the
Borrower, and a separate action or actions may be brought and prosecuted against
JCC Holding whether or not action is brought against any other guarantor or the
Borrower and whether or not any other guarantor or the Borrower be joined in any
such action or actions. JCC Holding waives, to the fullest extent permitted by
law, the benefit of any statute of limitations affecting its liability hereunder
or the enforcement thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower shall
operate to toll the statute of limitations as to JCC Holding. This Guaranty is a
continuing one and all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been created in reliance
hereon.
17.05 Authorization. JCC Holding authorizes the Administrative
Agent and the Secured Creditors without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate
or alter, any of the Guaranteed
177
Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the JCC Holding
Guaranty herein made shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors,
the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of
any liability (whether due or not) of the Borrower to its creditors
other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Secured Creditors
regardless of what liability or liabilities of JCC Holding or the
Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this
Agreement or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge
of JCC Holding from its liabilities under this Section 17.
17.06 Reliance. It is not necessary for the Administrative
Agent or the Secured Creditors to inquire into the capacity or powers of the
Borrower or the officers, directors, partners or agents acting or purporting to
act on its behalf, and any Guaranteed Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.
17.07 Subordination. Any of the indebtedness of the Borrower
now or hereafter owing to JCC Holding is hereby subordinated to the Guaranteed
Obligations of the Borrower owing to the Administrative Agent and the Secured
Creditors; and if the Administrative Agent so requests at a time when an Event
of Default exists, all such indebtedness of the Borrower to JCC Holding shall be
collected, enforced and received by JCC Holding for the benefit of the Secured
178
Creditors and be paid over to the Administrative Agent on behalf of the Secured
Creditors on account of the Guaranteed Obligations of the Borrower to the
Secured Creditors, but without affecting or impairing in any manner the
liability of JCC Holding under the other provisions of this JCC Holding
Guaranty. Prior to the transfer by JCC Holding of any note or negotiable
instrument evidencing any of the indebtedness of the Borrower to JCC Holding,
JCC Holding shall xxxx such note or negotiable instrument with a legend that the
same is subject to this subordination. Without limiting the generality of the
foregoing, JCC Holding hereby agrees with the Secured Creditors that it will not
exercise any right of subrogation which it may at any time otherwise have as a
result of this JCC Holding Guaranty (whether contractual, under Section 509 of
the Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
17.08 Waiver. (a) JCC Holding waives any right (except as
shall be required by applicable statute and cannot be waived) to require the
Administrative Agent or the Secured Creditors to (i) proceed against the
Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from the Borrower, any other guarantor or any other
party or (iii) pursue any other remedy in the Administrative Agent's or the
Secured Creditors' power whatsoever. JCC Holding waives any defense based on or
arising out of any defense of the Borrower, any other guarantor or any other
party, other than payment in full of the Guaranteed Obligations, based on or
arising out of the disability of the Borrower, any other guarantor or any other
party, or the unenforceability of the Guaranteed Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower
other than payment in full of the Guaranteed Obligations. The Administrative
Agent and the Secured Creditors may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or the Secured
Creditors by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Administrative Agent and the Secured Creditors may have against the Borrower or
any other party, or any security, without affecting or impairing in any way the
liability of JCC Holding hereunder except to the extent the Guaranteed
Obligations have been paid. JCC Holding waives any defense arising out of any
such election by the Administrative Agent and the Secured Creditors, even though
such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of JCC Holding against any Borrower or any
other party or any security.
(b) JCC Holding waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this JCC Holding Guaranty, and notices of the existence, creation or
incurring of new or additional Guaranteed Obligations. JCC Holding assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which JCC Holding assumes and incurs hereunder, and agrees that the
Administrative Agent and the Secured Creditors shall have no duty to advise JCC
Holding of information known to them regarding such circumstances or risks.
17.09 Subordination of Guaranteed Tranche B and Revolving
Obligations to Guaranteed Tranche A Obligations. (a) JCC Holding, for itself,
its successors and assigns,
179
covenants and agrees, and each Bank, for itself, its successors, participants
and assigns, likewise covenants and agrees, that Guaranteed Obligations
constituting Tranche B and Revolving Obligations (and any renewals or extensions
thereof) (the "Guaranteed Tranche B and Revolving Obligations") shall be
subordinate and subject in right of payment, to the extent and in the manner
hereinafter set forth, to the prior payment in full in cash or Cash Equivalents
of all Guaranteed Obligations constituting Tranche A Obligations (the
"Guaranteed Tranche A Obligations"), and that each holder of Guaranteed Tranche
A Obligations whether now outstanding or hereafter created, incurred, assumed or
guaranteed shall be deemed to have acquired Guaranteed Tranche A Obligations in
reliance upon the covenants and provisions contained in this Section 17.09.
(b) JCC Holding and the Banks hereby agree that the
Guaranteed Tranche B and Revolving Obligations shall be subordinate and
subject in right of payment to the prior payment in full in cash or Cash
Equivalents of all Guaranteed Tranche A Obligations on the same basis as the
Tranche B and Revolving Obligations are subordinate and subject in right of
payment to the prior payment in full in cash or Cash Equivalents of all
Tranche A Obligations as provided in Sections 13.01 through 13.13, inclusive,
which Sections, together with all definitions applicable to such Sections,
are hereby incorporated by reference as if set forth herein in their
entirety, provided that:
(i) all references to "the Borrower" therein shall mean and be a
reference to "JCC Holding" herein;
(ii) all references to "Tranche B and Revolving Obligations"
therein shall mean and be a reference to "Guaranteed Tranche B and
Revolving Obligations" herein;
(iii) all references to "Tranche A Obligations" therein shall
mean and be a reference to "Guaranteed Tranche A Obligations" herein;
and
(iv) all references to "Section 13 Payment Default" therein shall
mean and be a reference to "Section 17.09 Payment Default" herein.
17.10 Subordination of Guaranteed Tranche B-2 Obligations to
Guaranteed Tranche B-1 Obligations. (a) JCC Holding, for itself, its
successors and assigns, covenants and agrees, and each Bank, for itself, its
successors, participants and assigns, likewise covenants and agrees, that
Guaranteed Obligations constituting Tranche B-2 Obligations (and any renewals
or extensions thereof) (the "Guaranteed Tranche B-2 Obligations") shall be
subordinate and subject in right of payment, to the extent and in the manner
hereinafter set forth, to the prior payment in full in cash or Cash
Equivalents of all Guaranteed Obligations constituting Tranche B-1
Obligations (the "Guaranteed Tranche B-1 Obligations"), and that each holder
of Guaranteed Tranche B-1 Obligations whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have acquired
Guaranteed Tranche B-1 Obligations in reliance upon the covenants and
provisions contained in this Section 17.10.
(b) JCC Holding and the Banks hereby agree that the Guaranteed
Tranche B-2 Obligations shall be subordinate and subject in right of payment
to the prior payment in full in cash or Cash Equivalents of all Guaranteed
Tranche B-1 Obligations on the same basis as
180
the Tranche B-2 Obligations are subordinate and subject in right of payment
to the prior payment in full in cash or Cash Equivalents of the Tranche B-1
Obligations as provided in Sections 15.01 through 15.14, inclusive, which
Sections, together with all definitions applicable to such Sections, are
hereby incorporated by reference as if set forth herein in their entirety,
provided that:
(i) all references to "the Borrower" therein shall mean and be a
reference to "JCC Holding" herein;
(ii) all references to "Tranche B-2 Obligations" therein
shall mean and be a reference to "Guaranteed Tranche B-2 Obligations"
herein;
(iii) all references to "Tranche B-1 Obligations"
therein shall mean and be a reference to "Guaranteed Tranche B-1
Obligations" herein; and
(iv) all references to "Section 15 Payment Default"
therein shall mean and be a reference to "Section 17.10 Payment
Default" herein.
181
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address: JCC HOLDING COMPANY, as Guarantor
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
By /s/ L. Xxxxxxx Xxxxxx
--------------------------------
Title: Vice President & Secretary
512 South Xxxxxx JAZZ CASINO COMPANY, L.L.C.,
Xxx Xxxxxxx, XX 00000 as Borrower
By /s/ L. Xxxxxxx Xxxxxx
--------------------------------
Title: Vice President & Secretary
BANKERS TRUST COMPANY
Individually and as Administrative Agent
By /s/ Xxxx Xxx Xxxxx
--------------------------------
Title: Managing Director
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
Schedule I
COMMITMENTS
Tranche A-1 Tranche X-0 Xxxxxxx X-0 Xxxxxxx X-0 Tranche B-2 Revolving
Term Loan Term Loan Term Loan Term Loan Term Loan Loan
Bank Commitment Commitment Commitment Commitment Commitment Commitment
Bankers Trust $10,000,000 $20,000,000 20,000,000. $30,000,000 $121,500,000 $25,000,000
Company
Xxxxxx Xxxxxxx $5,000,000
Xxxx Xxxxxx
Xxx Xxxxxx $5,000,000
American Capital
---------- ---------- ---------- ---------- ----------- ----------
$10,000,000 $20,000,000 $30,000,000 $30,000,000 $121,500,000 $25,000,000
Schedule II
BANK ADDRESSES
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxx Xxxxx
Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Xxx Xxxxxx American Capital Prime Rate Department
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Schedule III
(Section 5.18(a) and 7.13)
REAL PROPERTY
Entity Description of Real Property
A. Jazz Casino Company, L.L.C. See Exhibits "1", "2" and "3" to
Jazz Casino Company, L.L.C. Act of
Mortgage and Collateral Assignment
B. JCC Development Company, L.L.C. See Definition of "Second Floor" in
JCC Development Company, L.L.C. Act
of Mortgage and Collateral
Assignment
C. CP Development, L.L.C. See Exhibit 1 to CP Development,
L.L.C. Act of Mortgage and
Collateral Assignment
D. FP Development, L.L.C. See Exhibit 1 to FP Development,
L.L.C. Act of Mortgage and
Collateral Assignment
Schedule IV
(Sections 7.22 and 9.04 (iii))
INDEBTEDNESS
None.
Schedule V
(Section 8.03)
INSURANCE
Schedule VI
(Section 9.01(iii))
EXISTING LIENS
None.
Schedule VII
(Section 11.01 (Definition of "Specified Real Estate"))
SPECIFIED REAL ESTATE
1. 3CP Property See Exhibit "1" to CP Development,
L.L.C. Act of Mortgage and
Collateral Assignment
2. Xxxxxx Street Properties See Exhibit "1" to FP Development,
L.L.C. Act of Mortgage and
Collateral Assignment
SCHEDULE VIII
(Section 5.18(b))
TITLE REINSURERS
Schedule IX
(Sections 4.02 and 11.01 (Definition of "Threshold Amount"))
THRESHOLD AMOUNTS
For the one year period beginning on the first Semi-Annual Free Cash
Flow Payment Date to but excluding the third Semi-Annual Free Cash Flow Payment
Date, $0.
For the one year period beginning on the third Semi-Annual Free Cash
Flow Payment Date to but excluding the fifth Semi-Annual Free Cash Flow Payment
Date, $7,600,000.
For the one year period beginning on the fifth Semi-Annual Free Cash
Flow Payment Date to but excluding the seventh Semi-Annual Free Cash Flow
Payment Date, $6,800,000.
For the one year period beginning on the seventh Semi-Annual Free Cash
Flow Payment Date to but excluding the ninth Semi-Annual Free Cash Flow Payment
Date, $7,200,000.
For the one year period beginning on the ninth Semi-Annual Free Cash
Flow Payment Date to but excluding the eleventh Semi-Annual Free Cash Flow
Payment Date, $7,000,000.
Each one year period thereafter, $12,900,000.
Schedule X
(Section 7.09)
TAX MATTERS
1. Franchise Tax. Proposed assessment against Xxxxxx'x Jazz Finance Corp.,
a Delaware corporation ("HJFC"), of Louisiana Corporate Franchise
Taxes, interest and penalties pursuant to a Notice of Proposed
Assessment dated March 17, 1997 and Proofs of Claim in the HJFC
bankruptcy case.
2. Property Tax. Ad Valorem Property Tax for 1996-1998 and interest due
to the City of New Orleans by Xxxxxx'x Jazz Company, a Louisiana
general partnership.
Schedule XI
(Section 7.14)
OPTIONS
1. NOLDC/FNBC Options
- Shareholders of New Orleans/Louisiana Development Company
("NOLDC") to receive options to acquire from HET shares of
Class B stock of JCC Holding Company equal to 3% of the equity
of JCC Holding outstanding as of the Plan Consummation Date.
The Option Price shall be $1 for each Shareholder and the
Options may be exercised any time after one year from the Plan
Consummation Date until 62 months following the Plan
Consummation Date.
- Shareholders of NOLDC shall receive the right to put to HET
any stock acquired pursuant to their options at a put price
equal to $1 million per 1/3% of JCC Holding Stock. Such put
may be exercised during a 60 day period commencing 60 months
after the Plan Consummation Date and ending 62 months
following the Plan Consummation Date.
- First National Bank of Commerce ("FNBC") shall receive the
option to acquire from HET shares of Class B stock of JCC
Holding equal to 1.5% of the equity of JCC Holding outstanding
as of the Plan Consummation Date. The FNBC Option Price shall
be $1 and the FNBC Option shall may be exercised any time
after the Plan Consummation Date until 62 months following the
Plan Consummation Date. FNBC shall receive the right to put to
HET any stock acquired by FNBC pursuant to its option for $4.5
million per 1.5% of JCC Holding Stock. Such put may be
exercised during a 60 day period commencing 60 months after
the Plan Consummation Date and ending 62 months following the
Plan Consummation Date.
2. HET Warrant
- Xxxxxx'x Crescent City Investment Company ("Xxxxxx'x
Investor") to receive HET Warrant entitling it to purchase
additional shares of common stock of JCC Holding Company (the
"New Common Stock") such that, upon exercise of the HET
Warrant in its entirety, Xxxxxx'x Investor would own 50.0% of
the New Common Stock.
- The number of shares issuable upon exercise of the HET Warrant
to be set and/or adjusted as necessary to account for the
transfer of shares pursuant to exercise of options by NOLDC
and conversion of the Convertible Junior Subordinated
Debentures prior to the exercise of the HET Warrant.
- Exercisable at any time after the Transition Date (which will
occur no later than the third anniversary of the opening of
the Casino) until the sixth anniversary of the opening of the
Casino, in whole or in part, at a price of $15.00 per share of
New Common Stock.
- If at any time after the Transition Date the closing bid price
of the New Common
Stock has exceeded $20 per share for sixty consecutive trading
days, JCC Holding Company's board of directors may elect to
give written notice to Xxxxxx'x Investor of an election to
redeem 75% of the warrants at $0.05 per warrant unless
Xxxxxx'x Investor exercises the warrants within forty-five
days after the date of such notice.
3. Convertible Junior Subordinated Debt
- Convertible Junior Subordinated Debentures are convertible at
the Conversion Price (as defined below) in whole or in part,
at any time after October 1, 2002 at the option of the holder
into Class A Common Stock of JCC. Conversion Price is $25.00
per share of Class A Common Stock, subject to certain
adjustments.
4. Employee Stock Option Plan
- Employee stock purchase plan to be established to purchase
JCC Holding Company stock.