AMENDED AND RESTATED CREDIT AGREEMENT
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THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Credit Agreement") is made and
entered into as of the 21st day of April, 2000, by and among WMCK VENTURE CORP,
a Delaware corporation ("WMCKVC"), CENTURY CASINOS CRIPPLE CREEK, INC., a
Colorado corporation ("CCCC"), and WMCK ACQUISITION CORP., a Delaware
corporation ("WMCKAC" and together with WMCKVC and CCCC, collectively the
"Borrowers"), CENTURY CASINOS, INC., a Delaware corporation (the "Guarantor"),
XXXXX FARGO BANK, National Association, as the issuer of letters of credit
(herein in such capacity, together with its successors and assigns, the "L/C
Issuer"), each financial institution whose name is set forth on the signature
pages of this Credit Agreement and each lender which may hereafter become a
party to this Credit Agreement pursuant to Section 10.10(b) (each individually a
"Lender" and collectively the "Lenders"), and XXXXX FARGO BANK, National
Association, as administrative and collateral agent for the Lenders and L/C
Issuer (herein, in such capacity, called the "Agent Bank" and, together with the
Lenders and L/C Issuer collectively referred to as the "Banks").
R E C I T A L S:
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WHEREAS:
A. In this Credit Agreement all capitalized words and terms shall have the
respective meanings and be construed herein as hereinafter provided in Section
1.01 of this Credit Agreement and shall be deemed to incorporate such words and
terms as a part hereof in the same manner and with the same effect as if the
same were fully set forth.
B. WMCKVC is a wholly owned Subsidiary of Guarantor. WMCKAC and CCCC are
each wholly owned Subsidiaries of WMCKVC. Borrowers desire to fully amend and
restate the Existing Credit Agreement for the purpose of: (i) increasing the
Aggregate Commitment to Twenty-Six Million Dollars ($26,000,000.00), (ii)
establishing the Maturity Date as four (4) years from the Closing Date, and
(iii) modifying other terms and covenants regarding the Credit Facility.
X. Xxxxx are willing to fully amend and restate the Existing Credit
Agreement, for the uses and purposes hereinafter set forth in Section 2.02, on
the terms and subject to the conditions, covenants and understandings
hereinafter set forth and contained in each of the Loan Documents.
NOW, THEREFORE, in consideration of the foregoing, and other valuable
considerations as hereinafter described, the parties hereto do promise, covenant
and agree as follows:
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ARTICLE I
DEFINITIONS
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Section 1.01. Definitions. For the purposes of this Credit Agreement, each
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of the following terms shall have the meaning specified with respect thereto,
unless a different meaning clearly appears from the context:
"Access Laws" shall have the meaning ascribed to such term in Section
5.22(a).
"Additional Real Property Acquisition(s)" shall mean reference to the
parcel or parcels of real property located in the State of Colorado title to
which is acquired or to be acquired, as the case may be, by any of the Borrowers
subsequent to the Closing Date.
"Affiliate(s)" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power to:
(a) vote ten percent (10%) or more of the equity securities (on a
fully diluted basis) having ordinary voting power for the election of directors
or managing general partners; or
(b) direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agent Bank" shall mean WFB in its capacity as administrative and
collateral agent for Lenders and L/C Issuer.
"Aggregate Commitment" shall mean reference to the aggregate amount
committed by Lenders for advance to or on behalf of Borrowers as Borrowings
under the Credit Facility in the initial principal amount of Twenty-Six Million
Dollars ($26,000,000.00), as reduced on each Reduction Date by the Scheduled
Reductions to the Maximum Scheduled Balance, and further subject to the
additional reductions and/or limitations for advance as set forth or
incorporated in the definition of Maximum Permitted Balance.
"Aggregate Commitment Reduction Schedule" shall mean the Aggregate
Commitment Reduction Schedule marked Schedule 2.01(c) affixed hereto and by this
reference incorporated herein and made a part hereof, setting forth the
Scheduled Reductions and Maximum Scheduled Balance as of each Reduction Date
under the Credit Facility.
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"Aggregate Outstandings" shall mean collective reference to the sum of the
Funded Outstandings and L/C Exposure as of any given date of determination.
"Applicable Margin" means for any Base Rate Loan or LIBOR Loan the
applicable per annum percentage amount to be added to the Base Rate or the LIBO
Rate, as the case may be, as follows: (i) commencing on the Closing Date and
continuing until the Rate Adjustment Date, zero percent (0.00%) to be added to
the Base Rate and two and three-tenths percent (2.30%) to be added to the
applicable LIBO Rate; (ii) commencing on the Rate Adjustment Date and continuing
until the Maturity Date, the margin rates set forth in Table One below based on
the Leverage Ratio of the Borrower Consolidation as of each Fiscal Quarter end,
commencing with the end of the Fiscal Quarter ending June 30, 2000, together
with the immediately preceding three (3) Fiscal Quarters on a four (4) Fiscal
Quarter basis, any change in the applicable percentage amount by reason thereof
to be effective as of the 1st day of the third month immediately following each
such Fiscal Quarter end:
PRICING LEVERAGE
LEVEL RATIO TABLE ONE TABLE TWO
BASE RATE LIBO RATE NONUSAGE
MARGIN MARGIN PERCENTAGE
I Less than 1.50 to 1.00 0.00% 2.30% 0.375%
II Greater than or equal to 0.00% 2.70% 0.375
1.50 to 1.00 but less than
2.00 to 1.00
III Greater than or equal to 0.25% 2.95% 0.50%
2.00 to 1.00 but less than
2.50 to 1.00
IV Greater than or equal to 0.50% 3.20% 0.50%
2.50 to 1.0 but less than
3.00 to 1.0
V Greater than or equal 0.75% 3.45% 0.50%
to 3.00 to 1.0
"Assignment and Assumption Agreement" shall mean the document evidencing an
assignment of a Syndication Interest by any Lender to an Eligible Assignee in
the form of the Assignment, Assumption and Consent Agreement marked "Exhibit L",
affixed hereto and by this reference incorporated herein and made a part hereof.
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"Assignment of Entitlements, Contracts, Rents and Revenues" shall mean the
assignment to be executed by Borrowers on or before the Closing Date, whereby
Borrowers presently assign to Agent Bank on behalf of Lenders, in consideration
of the Bank Facilities (reserving a revocable license to retain use and enjoy):
(a) all of their right, title and interest under all Spaceleases and Equipment
Leases and Contracts relating to the Casino Facilities, (b) all of their right,
title and interest in and to all permits, licenses and contracts relating to the
Casino Facilities, except Gaming Permits and those permits, licenses and
contracts which are unassignable, and (c) all rents, issues, profits, revenues
and income from the Real Property and the operation of the Casino Facilities and
any other business activity conducted on the Real Property, together with any
and all future expansions thereof, related thereto or used in connection
therewith, as such assignment may be amended, modified, extended, renewed or
restated from time to time.
"Assignment of Golden Horseshoe Lease" shall mean the Assignment to be
executed by WMCKAC on or before the Closing Date, pursuant to which WMCKAC
presently assigns to Agent Bank in consideration of the Bank Facilities
(reserving a revocable license to retain, use and enjoy), all of its right,
title and interest under the Golden Horseshoe Lease (including, without
limitation, the right to exercise the option to purchase the Golden Horseshoe
Property thereunder) as such assignment may be amended, modified, extended,
renewed or restated from time to time.
"Authorized Officer Certificate" shall have the meaning set forth in
Section 3.05(iv).
"Authorized Officer(s)" shall mean, relative to the Borrowers, those of the
respective officers whose signatures and incumbency shall have been certified to
Agent Bank and the Banks as required in Section 3.05(iv) of the Credit Agreement
with the authority and responsibility to deliver Notices of Borrowing,
Compliance Certificates, Pricing Certificates and all other requests, notices,
reports, consents, certifications and authorizations on behalf of Borrowers.
"Available Borrowings" shall mean, at any time, and from time to time, the
aggregate amount available to Borrowers for a Borrowing or issuance of a Letter
of Credit not exceeding the amount of the Maximum Availability, as of each date
of determination.
"BGP Note" shall mean that certain Promissory Note dated May 30, 1996, in
the principal amount of Five Hundred Thousand Dollars ($500,000.00) made by
WMCKVC, payable to the order of Banque de Gestion Privee, a company incorporated
in Switzerland.
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"Bank Facilities" shall mean collective reference to the Credit Facility and L/C
Facility.
"Bank Facility Termination" shall mean indefeasible payment in full of all
sums owing under the Bank Facilities and each of the other Loan Documents, the
occurrence of the Stated Expiry Date or other termination of all outstanding
Letters of Credit, and the irrevocable termination of: (i) the obligation of
Lenders to advance Borrowings under the Credit Facility and (ii) the obligation
of L/C Issuer to issue Letters of Credit under the L/C Facility.
"Banking Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the States of California and/or
Nevada, or is a day on which banking institutions located in California and/or
Nevada are required or authorized by law or other governmental action to close.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, as amended,
11 U.S.C. Section 101, et seq.
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"Banks" shall have the meaning set forth in the Preamble to this Credit
Agreement.
"Base Rate" shall mean, as of any date of determination, the rate per annum
equal to the higher of (a) the Prime Rate in effect on such date and (b) the
Federal Funds Rate in effect on such date plus one-half of one percent (1/2 of
1%) (fifty basis points).
"Base Rate Loan" shall mean reference to that portion of the unpaid
principal balance of the Credit Facility bearing interest with reference to the
Base Rate plus the Applicable Margin.
"Borrower Consolidation" means reference to the Borrowers on a consolidated
basis, without regard to the Guarantor or any other Subsidiary or Affiliate of
Guarantor.
"Borrowers" shall have the meaning ascribed to such term in the Preamble to
this Credit Agreement.
"Borrowing(s)" shall mean such amounts as Borrowers may request from Agent
Bank from time to time to be advanced under the Credit Facility by Notice of
Borrowing in the manner provided in Section 2.03 or at the request of Agent Bank
pursuant to Section 2.08.
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"Breakage Charges" shall have the meaning set forth in Section 2.07(c) of the
Credit Agreement.
"CCCC" shall have the meaning set forth in the Preamble to this Credit
Agreement.
"Caledon Investment" shall mean the investment, directly by Guarantor or
through a Subsidiary which is owned or controlled by Guarantor, in a hotel,
casino and spa facility located in Caledon, Western Cape Providence of South
Africa.
"Capital Expenditures" shall mean, for any period, without duplication, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
during that period and including Capitalized Lease Liabilities) by the Borrowers
during such period that, in conformity with GAAP, are required to be included in
or reflected by the property, plant or equipment or similar fixed or capital
asset accounts reflected in the balance sheet of the Borrowers (including
equipment which is purchased simultaneously with the trade-in of existing
equipment owned by Borrowers to the extent of (a) the gross amount of such
purchase price less (b) the cash proceeds of trade-in credit of the equipment
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being traded in at such time), but excluding capital expenditures made in
connection with the replacement or restoration of assets, to the extent
reimbursed or refinanced from insurance proceeds paid on account of the loss of
or damage to the assets being replaced or restored, or from awards of
compensation arising from the taking by condemnation of or the exercise of the
power of eminent domain with respect to such assets being replaced or restored.
"Capital Proceeds" shall mean the net proceeds (after deducting all
reasonable expenses incurred in connection therewith) available to Borrowers
from: (i) partial or total condemnation or destruction of any part of the
Collateral, (ii) sales of easements, rights of way or similar interests in any
portion of the Real Property, (iii) insurance proceeds (other than rent
insurance and business interruption insurance) received in connection with
damage to or destruction of any part of the Collateral, (iv) the sale or other
disposition of any portion of the Collateral in accordance with the provisions
of this Credit Agreement (not including, however, any proceeds received by
Borrowers from a sale of FF&E if such FF&E is replaced by items of equivalent
value and utility, in each case such exclusion to apply only during any period
in which no Event of Default has occurred and is continuing), and (v) any other
extraordinary receipt of proceeds not in the ordinary course of business and
treated, for accounting purposes, as capital in nature.
"Capitalized Lease Liabilities" means all monetary obligations of Borrowers
under any leasing or similar arrangement which, in accordance with GAAP, would
be classified as capitalized leases, and, for purposes of this Credit Agreement,
the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with
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GAAP, and the stated maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Cash" shall mean, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP.
"Cash Collateral Account" shall mean the restricted depository savings
account to be established by Borrowers or Agent Bank on behalf of Borrowers with
L/C Issuer at its offices located at 3800 Xxxxxx Xxxxxx Parkway, Las Vegas,
Nevada, or at such other office located in the United States as may be
designated from time to time by L/C Issuer, for the purpose of depositing Cash
collateral for the aggregate L/C Exposure upon the occurrence of any Event of
Default.
"Cash Collateral Pledge Agreement" shall mean the Pledge and Assignment of
Savings Account Agreement to be executed by Borrowers in favor of L/C Issuer as
of the Closing Date as the same may be amended or modified from time to time
under the terms of which all sums held from time to time in the Cash Collateral
Account are pledged in favor of L/C Issuer to secure repayment of any funding
required under any outstanding Letters of Credit, a copy of the form of which
Cash Collateral Pledge Agreement is marked "Exhibit J", affixed to the Credit
Agreement and by this reference incorporated herein and made a part hereof.
"Casino Facilities" shall mean collective reference to the Real Property,
the casino businesses and related activities conducted by Borrowers in and on
the Real Property including, without limitation, activities conducted under the
name and style of "Legends", "Diamond Lil's", the "Golden Horseshoe" and
Xxxxxx'x" and all improvements now or hereafter situate thereon, together with
any other real property, personal property or interests therein which are used
by Borrowers as a part of the operation of the casino businesses conducted by
Borrowers on the Real Property.
"Closing Certificate" shall have the meaning ascribed to such term in
Section 3.05(v).
"Closing Date" shall mean the date upon which: (i) each condition precedent
required under Article IIIA of this Credit Agreement has been satisfied or
waived and (ii) the Security Documentation has been filed and/or recorded in
accordance with and in the manner required by the Depository Closing
Instructions, or such other date as to which Agent Bank and Borrowers agree in
writing.
"Closing Disbursements" shall have the meaning set forth in Section
2.02(a).
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"Collateral" shall mean collective reference to all of Borrowers' right, title
and interest in and to: (i) all of the Real Property and the personal property,
FF&E, contract rights, leases, stock, intangibles and other interests of the
Borrowers which are subject to the liens, pledges and security interests created
by the Security Documentation; (ii) all rights of the Borrowers assigned and/or
pledged as additional security pursuant to the terms of the Loan Documents and
Security Documentation; and (iii) any and all other property and/or intangible
rights, interest or benefits inuring to or in favor of the Borrowers which are
in any manner assigned, pledged, encumbered or otherwise hypothecated in favor
of Banks or Agent Bank on behalf of Lenders to secure payment of the Credit
Facility.
"Commercial Letter(s) of Credit" shall mean a letter or letters of credit
issued by L/C Issuer pursuant to Section 2.08 of the Credit Agreement for the
purpose of assuring payment for goods, equipment or materials supplied to
Borrower.
"Compliance Certificate" shall mean the compliance certificates referred to
in Section 5.08(f), substantially in the form set forth on "Exhibit F", affixed
hereto and by this reference incorporated herein and made a part hereof.
"Contingent Liability(ies)" shall mean, as to any Person, any obligation of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness, leases or dividends ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, (d) to make payment in respect of any net
liability arising in connection with any Interest Rate Xxxxxx, foreign currency
exchange agreement, commodity hedging agreement or any similar agreement or
arrangement in any such case if the purpose or intent of such agreement is to
provide assurance that such primary obligation will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders
of such primary obligation will be protected (in whole or in part) against loss
in respect thereof or (e) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof; provided, however, that
the term Contingent Liability shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Liability shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
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Contingent Liability is made or, if not stated or determinable, the reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Continuation/Conversion Notice" shall mean a notice of continuation of or
conversion to a LIBOR Loan and certificate duly executed by an Authorized
Officer, substantially in the form of that certain exhibit marked "Exhibit H,
affixed hereto and by this reference incorporated herein and made a part hereof.
"Contractual Obligation" means, as to any Person, any provision of any
outstanding securities issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its assets is bound.
"Convert, Conversion and Converted" shall refer to a Borrowing at or
continuation of a particular interest rate basis or conversion of one interest
rate basis to another pursuant to Section 2.05(c).
"Credit Agreement" shall mean this Amended and Restated Credit Agreement,
together with all Schedules and Exhibits attached thereto, executed by and among
Borrowers, Guarantor and Banks setting forth the terms and conditions of the
Bank Facilities as it may be amended, modified, extended, renewed or restated
from time to time.
"Credit Facility" shall mean the agreement of Lenders to fund the Closing
Disbursements on the Closing Date and other Borrowings during the Revolving
Credit Period, subject to the terms and conditions set forth in this Credit
Agreement and the Revolving Credit Note, up to the Maximum Permitted Balance as
reduced from time to time in accordance with the terms of this Credit Agreement
and the Revolving Credit Note.
"Czech Republic Investment" shall mean an investment, directly by
Guarantor, or through a Subsidiary which is owned or controlled by Guarantor,
for the purpose of: (i) acquiring an ownership interest in Casino Millenium,
a.s., a Czech company which owns a casino business in the City of Prague that is
currently operated by Guarantor pursuant to a management agreement; or (ii)
acquiring an ownership interest in the assets of Casino Millenium, a.s.
"Deed of Trust" shall mean the Leasehold and Fee Deed of Trust, Fixture
Filing and Security Agreement with Assignment of Rents to be executed, as of the
Closing Date, by Borrowers, as trustor and debtor, to the Public Trustee of
Teller County, Colorado, as trustee, in favor of Agent Bank on behalf of
Lenders, as beneficiary, for the purposes of providing a security for the Credit
Facility encumbering the Collateral more
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particularly therein described as a first mortgage lien, as the same may be
amended, modified, supplemented, replaced, renewed or restated from time to
time.
"Default" shall mean the occurrence or non-occurrence, as the case may be,
of any event that with the giving of notice or passage of time, or both, would
become an Event of Default, pursuant to Article VII.
"Default Notice Recording" shall mean either:
(i) the filing with the Public Trustee of Teller County, Colorado,
of a Notice of Election and Demand for Sale pursuant to Colorado Revised
Statutes, Section 00-00-000, or any applicable successor statute, by Agent Bank
as beneficiary under the Deed of Trust, or
(ii) the commencement of a judicial foreclosure action in an
appropriate court in and for the County of Teller, Colorado, pursuant to which
Lenders or Agent Bank on behalf of Lenders seek judicial foreclosure of the Deed
of Trust.
"Default Rate" shall have the meaning set forth in Section 2.10(b).
"Defaulting Lender" means any Lender which fails or refuses to perform its
obligations under this Credit Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Banking Business Days
after notice from Agent Bank.
"Depository Closing Instructions" shall mean the Depository Closing
Instructions to be given by Agent Bank to Title Insurance Company at or prior to
the Closing Date setting forth the requirements for the issuance of the Title
Insurance Policy and other conditions for the closing of the Credit Facility, as
it may be amended or modified prior to the Closing Date to the reasonable
satisfaction of Agent Bank, Requisite Lenders and the Borrowers.
"Designated Deposit Account" shall mean a deposit account to be maintained
by Borrowers, as from time to time designated in writing to Agent Bank by an
Authorized Officer.
"Dispute" shall have the meaning set forth in Section 10.14(a).
"Distributions" shall mean and collectively refer to any and all cash
dividends, loans, payments (including principal payments made on Subordinated
Debt), advances or other distributions, fees or compensation of any kind or
character whatsoever
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made by Borrowers to any Person which is not a member of the Borrower
Consolidation, but shall not include consideration paid for tangible and
intangible assets in an arms length exchange for fair market value, trade
payments made and other payments for liabilities incurred in the ordinary course
of business or compensation and fees to officers, directors, members, managers
and employees of Borrowers, all in the ordinary course of business.
"Documents" shall have the meaning set forth in Section 10.14(a).
"Dollars" and "$" means the lawful money of the United States of America.
"Double Eagle Hotel & Casino" shall mean the hotel and casino facility
located at 000 Xxxx Xxxxxxx xxxxxx in Cripple Creek, Colorado, including
forty-five thousand (45,000) square feet of gaming space, one hundred
fifty-eight (158) hotel rooms, four hundred (400) parking spaces and an
eighty-five (85) seat restaurant.
"EBITDA" shall mean with reference to any Person, for any Fiscal Period
under review, the sum of (i) Net Income for that period, plus (ii) Interest
Expense (expensed and capitalized) for that period, plus (iii) the aggregate
amount of federal and state taxes on or measured by income for that period
(whether or not payable during that period), plus (iv) depreciation,
amortization and all other non-cash expenses for that period, in each case
determined in accordance with GAAP and, in the case of items (ii), (iii) and
(iv), only to the extent deducted in the determination of Net Income for that
period.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eligible Assignee" means (a) another Lender, (b) with respect to any
Lender, any Affiliate of that Lender, (c) any commercial bank, savings and loan
association or savings bank that is organized under the Laws of the United
States of America, any State thereof or the District of Columbia, or (d) any
commercial bank that is organized under the Laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, provided that (A) such bank is acting
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through a branch or agency located in the United States of America and (B) such
bank is otherwise exempt from withholding of tax on interest and delivers Form
1001 or Form 4224 at the time of any assignment, and (e) with respect to such
commercial bank or financial institution as described in (a) through (d) above,
no finding of unsuitability has been made or determined by any Gaming Authority.
"Eligible Subparticipant" shall mean any Person which is a bank, savings
and loan association or other financial or lending institution which has not
been found unsuitable as a lender by the Gaming Authorities.
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"Environmental Certificate" shall mean the Certificate and Indemnification
Regarding Hazardous Substances to be executed by Borrowers and Guarantor on or
before the Closing Date and delivered to Agent Bank as a further inducement to
the Banks to establish the Credit Facility, as may be amended, modified,
extended, renewed or restated from time to time.
"Environmental Site Assessment(s)" shall mean a Phase 1 Environmental Site
Assessment or Assessments of the applicable land under review prepared in
conformance with the scope and limitations of ASTM Standard Designation
E1527-93.
"Equipment Leases and Contracts" shall mean the executed leases and
purchase contracts pertaining to FF&E wherein Borrowers are the lessee or
vendee, as the case may be, as set forth on that certain Schedule of Equipment
Leases and Contracts designated as Schedule 4.17, affixed hereto and by this
reference incorporated herein and made a part hereof.
"Event of Default" shall mean any event of default as defined in Section
7.01 hereof.
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
March 31, 1997, as amended by First Amendment to Credit Agreement dated as of
November 11, 1997, by Second Amendment to Credit Agreement dated as of January
28, 1998, by Third Amendment to Credit Agreement dated November 4, 1998 and by
Fourth Amendment to Credit Agreement dated as of November 15, 1999.
"Existing RLC Note" shall mean the Revolving Credit Note (Second Restated)
dated November 4, 1998, in the principal sum of Twenty Million Dollars
($20,000,000.00), executed by Borrowers, payable to the order of Agent Bank.
"FF&E" shall mean collective reference to any and all furnishings, fixtures
and equipment, including, without limitation, all Gaming Devices and associated
equipment, which have been installed or are to be installed and used in
connection with the operation of the Casino Facilities and in connection with
any other business operation conducted on the Real Property and those items of
furniture, fixtures and equipment which have been purchased or leased or are
hereafter purchased or leased by Borrowers in connection with the Casino
Facilities and in connection with any other business operation conducted on the
Real Property.
"FIRREA" shall mean the Financial Institutions Reform, Recovery and
Enforcement Act of 1989.
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"Federal Funds Rate" means, as of any date of determination, the rate set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such date opposite the caption "Federal Funds
(Effective)". If for any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any successor, the "Composite 3:30 p.m.
Quotation") for such date under the caption "Federal Funds Effective Rate". If
on any relevant date the appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such date
will be the arithmetic mean of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that date by
each of three leading brokers of Federal funds transactions in New York City
selected by the Agent Bank. For purposes of the Credit Agreement, any change in
the Base Rate due to a change in the Federal Funds Rate shall be effective as of
the opening of business on the effective date of such change.
"Financial Covenant" shall mean individual reference and "Financial
Covenants" shall mean collective reference to the Financial Covenants set forth
in Article VI of the Credit Agreement.
"Financing Statements" shall mean the Uniform Commercial Code Financing
Statements required to be filed with (i) the Office of the Secretary of State of
Colorado, (ii) the Office of the Recorder of Teller County, Colorado, and (iii)
with the Secretary of State of the State in which Borrowers' chief executive
office is located, in order to perfect the security interest granted to Agent
Bank under the Deed of Trust and other Security Documentation in accordance with
the requirements of the Uniform Commercial Code.
"Fiscal Quarter" shall mean the consecutive three (3) month periods during
each Fiscal Year beginning on January 1, April 1, July 1 and October 1, and
ending on March 31, June 30, September 30 and December 31, respectively.
"Fiscal Year" shall mean the fiscal year period beginning January 1 of each
calendar year and ending on the following December 31.
"Fiscal Year End" shall mean December 31 of each calendar year.
"Funded Debt" shall mean for any period the daily average during the last
month of such period of both the long-term and current portions (without
duplication) of all interest bearing Indebtedness and Capitalized Lease
Liabilities, plus the amount of all Contingent Liabilities (other than the
Guaranty) as of the last day of such period.
13
"Funded Outstandings" shall mean the unpaid principal amount outstanding on the
Credit Facility as of any given date of determination for Borrowings made
thereunder, not including the amount of any L/C Exposure.
"Funding Date" shall mean each date upon which Lenders fund Borrowings
requested by Borrowers in accordance with the provisions of Section 2.03 or at
the request of Agent Bank pursuant to Section 2.08.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Gaming Authorities" means collective reference to the Division of Gaming
of the Colorado Department of Revenue, the Colorado Limited Gaming Control
Commission and each other agency or other political subdivision which has
jurisdiction over the gaming activities of Borrowers at the Casino Facilities.
"Gaming Devices" shall mean slot machines and other devices which
constitute gaming devices and related equipment as defined by the Gaming
Authorities and Gaming Laws.
"Gaming Laws" shall mean the Colorado Limited Gaming Act and the
regulations relating thereto and all other rules, regulations, statutes and
ordinances having authority or with which compliance is required for the conduct
of gambling, gaming and casino activities at the Casino Facilities.
"Gaming Permits" shall mean collective reference to every license, permit
or other authorization required to own, operate and otherwise conduct gambling,
gaming and casino activities at the Casino Facilities, including, without
limitation, all licenses granted by the Gaming Authorities and all other
applicable Governmental Authorities.
"Golden Horseshoe Lease" shall mean collective reference to the following:
(i) that certain "Agreement" which is executed by Xxxxxx Xxxxxxx Xxxxx
("Large"), and by Teller Realty, Inc., a Colorado corporation ("Teller") under
date of August 31, 1994 pursuant to which, among other things, Large leased the
Horseshoe Property to Teller and granted Teller an option to purchase the
Horseshoe Property (the "Master Lease"); (ii) that certain "Agreement" as
amended by that certain "Addendum to Agreement" and by that certain "Second
Addendum", all of which are executed by Teller and by Gold Creek Associates,
L.P. ("Gold Creek") under date of May 1, 1995 pursuant to which, among
14
other things, Teller subleased the Horseshoe Property to Gold Creek and granted
Gold Creek a suboption to purchase the Horseshoe Property record notice of which
is recorded in the office of the Clerk and Recorder of Teller County, Colorado
on December 1, 1995 at Reception No. 440946 (collectively, the "Sublease"); and
(iii) that certain "Four Party Agreement, Assignment and Assumption of Lease,
Consent to Assignment of Lease, Confirmation of Option Agreement and Estoppel
Statements" executed by Large, Teller, Gold Creek and WMCKAC under date of July
1, 1996 and recorded in the office of the Clerk and Recorder of Teller County,
Colorado on July 3, 1996 at Reception No. 449555 pursuant to which, among other
things: (aa) Gold Creek assigned all of its right, title and interest in the
Sublease to WMCKAC; (bb) Large and Teller consented to such Assignment; and (cc)
Large and Teller granted certain assurances to WMCKAC regarding the continued
effectiveness of the Lease and Sublease; all as such agreements may hereafter be
extended, renewed, amended, restated or otherwise modified.
"Golden Horseshoe Lease Estoppel Certificate" shall mean an estoppel
certificate duly executed by Teller Realty, Inc., as sublessor under the Golden
Horseshoe Lease, and WMCKAC, as sublessee under the Golden Horseshoe Lease
wherein Teller Realty, Inc. certifies and represents to Agent Bank on behalf of
Lenders that: (a) the Golden Horseshoe Lease represents the entire agreement
between the parties thereto with respect to the Golden Horseshoe Property; (b)
the Golden Horseshoe Lease has not been modified, supplemented or amended except
as described herein; (c) to the best knowledge of such party, there are no
defaults presently existing or continuing under any of the provisions of the
Golden Horseshoe Lease; (d) other provisions regarding Agent Bank's entitlement
to notice of, and right to cure, such defaults under the Golden Horseshoe Lease,
as Agent Bank shall require; and (e) such other provisions as may be required by
Agent Bank.
"Golden Horseshoe Property" shall mean that certain real property described
as parcel 2 on the Title Report.
"Government Securities" means readily marketable (a) direct full faith and
credit obligations of the United States of America or obligations guaranteed by
the full faith and credit of the United States of America and (b) obligations of
an agency or instrumentality of, or corporation owned, controlled or sponsored
by, the United States of America that are generally considered in the securities
industry to be implicit obligations of the United States of America.
"Governmental Authority" or "Governmental Authorities" shall mean any
federal, state, regional, county or municipal governmental agency, board,
commission, officer or official whose consent or approval is required or whose
regulations must be followed as a prerequisite to (i) the continued operation
and occupancy of the Real
15
Property and the Casino Facilities or (ii) the performance of any act or
obligation or the observance of any agreement, provision or condition of
whatever nature herein contained.
"Guarantor" shall mean Century Casinos, Inc., a Delaware corporation.
"Guaranty" shall mean the General Continuing Guaranty to be executed by
Guarantor in favor of Agent Bank on behalf of the Banks, under the terms of
which Guarantor irrevocably and unconditionally guaranties the prompt payment
and performance of Borrowers' promises, covenants and agreements under this
Credit Agreement, the Revolving Credit Note and each of the Loan Documents, a
copy of the form of which is marked "Exhibit B", affixed hereto and by this
reference incorporated herein and made a part hereof, as the same may be
amended, modified, supplemented, replaced, renewed or restated from time to
time.
"Hazardous Materials Claims" shall have the meaning set forth in Section
5.20.
"Hazardous Materials Laws" shall have the meaning set forth in Section
5.20.
"Indebtedness" shall mean, as to any Person, without duplication, (a) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money, (b) the deferred purchase price of property or services
(other than accrued expenses, tax liability, deferred taxes, and trade accounts
payable less than ninety (90) days past due and other accrued or deferred
liabilities incurred in the ordinary course of business) which in accordance
with GAAP would be shown on the liability side of the balance sheet of such
Person, (c) the face amount of all letters of credit issued for the account of
such Person and all drafts drawn thereunder, (d) all obligations under
conditional sale or other title retention agreements relating to property
purchased by such Person, (e) all liabilities of the type described in clauses
(a) through (d) or (f) of this definition secured by (or for which the holder of
any such liability has an existing right, contingent or otherwise, to be secured
by) any lien or encumbrance on any property owned by such Person, whether or not
such liabilities have been assumed by such Person, (f) all Capitalized Lease
Liabilities of such Person, and (g) all Contingent Liabilities of such Person in
respect of any indebtedness, obligations or liabilities of any other Person of
the type referred to in clauses (a)-(f) of this definition.
"Indemnified Party" and "Indemnified Parties" shall have the meaning
ascribed to such terms in Section 5.14.
"Interest Expense" shall mean with respect to any Person, as of the last
day of any fiscal period under review, the sum of (i) all interest, fees,
charges and related
16
expenses paid or payable (without duplication) for that fiscal period by such
Person to a lender in connection with borrowed money (including any obligations
for fees, charges and related expenses payable to the issuer of any letter of
credit) or the deferred purchase price of assets that are considered "interest
expense" under GAAP, plus (ii) the portion of the up front costs and expenses
for Interest Rate Xxxxxx (to the extent not included in (i)) fairly allocated to
such interest rate xxxxxx as expenses for such period, plus (iii) the portions
of Capital Lease Liabilities that should be treated as interest in accordance
with GAAP.
"Interest Expense Coverage Ratio" shall be defined as follows:
EBITDA, minus Distributions (exclusive of the Permitted Distribution
Carve-Outs), minus Non-Financed Capital Expenditures incurred during the period
under review
Divided by ()
Interest Expense paid with respect to the Fiscal Quarter under review and the
most recently ended three immediately preceding Fiscal Quarters on a four fiscal
quarter basis on all Indebtedness (accrued and capitalized).
"Interest Period(s)" shall have the meaning set forth in Section 2.05(d) of
the Credit Agreement.
"Interest Rate Hedge" shall mean collective reference to any one or more
interest rate swap agreements, interest rate cap agreements, basis swaps,
forward rate agreements and interest collar or floor agreements and all other
interest rate protection products or arrangements designed to protect against
fluctuations in interest rates or currency exchange rates for the purpose of
hedging the interest rates on the Credit Facility.
"Interest Rate Option" shall have the meaning ascribed to such term in
Section 2.05(b) of the Credit Agreement.
"Investment" shall mean, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of a
loan, advance creating a debt, capital contribution, guaranty or other debt or
equity participation or interest in any other Person, including any partnership
---------
and joint venture interests of such Person. The amount of any Investment shall
be the amount actually invested without adjustment for subsequent increases or
decreases in the value of such Investment.
17
"Johannesburg Investment" shall mean the investment, directly by Guarantor or
through a Subsidiary which is owned or controlled by Guarantor, in a partnership
or other joint venture arrangement with an entity known as "Silverstar" for a
casino operation to be located in the greater Johannesburg, South Africa area.
"L/C Agreement(s)" shall mean collective reference to the Application and
Agreement for Standby Letter of Credit and Application for Commercial Letter of
Credit and addendum(s) thereto executed by an Authorized Officer of Borrowers in
favor of L/C Issuer in L/C Issuer's standard form, setting forth the terms and
conditions upon which L/C Issuer shall issue a Letter(s) of Credit, as the same
may be amended or modified from time to time.
"L/C Exposure" shall mean the aggregate amount which L/C Issuer may be
required to fund or is contingently liable for disbursement under all issued and
outstanding Letter(s) of Credit, which amount shall be determined by subtracting
from the aggregate of the Stated Amount of each such Letter(s) of Credit, the
principal amount of all L/C Reimbursement Obligations which have accrued and
have been fully satisfied as of each date of determination.
"L/C Facility" shall mean the agreement of L/C Issuer to issue Letters of
Credit subject to the terms and conditions and up to the maximum amounts and
duration as set forth in Section 2.08 of the Credit Agreement.
"L/C Fee" shall have the meaning set forth in Section 2.09(c) of the Credit
Agreement.
"L/C Issuer" shall mean WFB in its capacity as the issuer of Letters of
Credit under the L/C Facility.
"L/C Reimbursement Obligation(s)" shall mean the obligation of Borrowers to
reimburse L/C Issuer for amounts funded or disbursed under a Letter(s) of
Credit, together with accrued interest thereon.
"LIBO Rate" means, relative to any LIBOR Loan Interest Period for any LIBOR
Loan included in any Borrowing, the per annum rate (reserve adjusted as
hereinbelow provided) of interest quoted by Agent Bank, rounded upwards, if
necessary, to the nearest one-sixteenth of one percent (0.0625%) at which Dollar
deposits in immediately available funds are offered by Agent Bank to leading
banks in the London interbank market at approximately 11:00 a.m. London, England
time two (2) Banking Business Days prior to the beginning of such Interest
Period, for delivery on the first day of such Interest Period for a period
approximately equal to such Interest Period and in an amount equal or comparable
to the LIBOR Loan to which such Interest Period relates.
18
The foregoing rate of interest shall be reserve adjusted by dividing the
applicable LIBO Rate by a one (1.00) minus the LIBOR Reserve Percentage, with
such quotient to be rounded upward to the nearest whole multiple of
one-hundredth of one percent (0.01%). All references in this Credit Agreement
or other Loan Documents to a LIBO Rate include the aforesaid reserve adjustment.
"LIBOR Loan" shall mean each portion of the total unpaid principal under
the Credit Facility which bears interest at a rate determined by reference to
the LIBO Rate plus the Applicable Margin.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBOR
Loans made by any Lender, the reserve percentage (expressed as a decimal) equal
to the actual aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transactional adjustments or other scheduled changes in reserve requirements)
announced within Agent Bank as the reserve percentage applicable to Agent Bank
as specified under regulations issued from time to time by the Federal Reserve
Board. The LIBOR Reserve Percentage shall be based on Regulation D of the
Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though Agent Bank were in a net borrowing position.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, maritime laws, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
"Lender Reply Period" shall have the meaning set forth in Section 9.10(d).
"Lenders" means WFB and any other bank, finance company, insurance or other
financial institution which is or becomes a party to this Credit Agreement by
execution of a counterpart signature page hereto or by execution of an
Assignment and Assumption Agreement, as assignee. At all times that there are
no Lenders other than WFB, the terms "Lender" and "Lenders" means WFB in its
individual capacity. With respect to matters requiring the consent to or
approval of all Lenders at any given time, all then existing Defaulting Lenders
will be disregarded and excluded, and, for voting purposes only, "all Lenders"
shall be deemed to mean "all Lenders other than Defaulting Lenders".
"Letter(s) of Credit" shall mean collective reference to the Standby
Letter(s) of Credit and/or Commercial Letter(s) of Credit, as the case may be,
issued by L/C Issuer on behalf of Borrowers, as the same may be extended,
renewed or reissued from time to time.
19
"Leverage Ratio" as of the end of any Fiscal Quarter shall mean the ratio
resulting by dividing (a) Funded Debt for the Fiscal Quarter under review by (b)
the sum of EBITDA for the Fiscal Quarter under review plus EBITDA for each of
the most recently ended three (3) preceding Fiscal Quarters.
"Lien" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"Liabilities and Costs" means all claims, judgments, liabilities,
obligations, responsibilities, losses, damages (including lost profits),
punitive or treble damages, costs, disbursements and expenses (including,
without limitation, reasonable attorneys', experts' and consulting fees and
costs of investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"Loan Documents" shall mean the collective reference to this Credit
Agreement, the Revolving Credit Note, the Security Documentation, Cash
Collateral Pledge Agreement, Guaranty, Environmental Certificate and all other
instruments and agreements required to be executed by or on behalf of Borrowers,
Guarantor, or any other Person in connection with the Credit Facility for the
benefit of Banks or Agent Bank on behalf of the Lenders and/or the L/C Issuer,
as the same may be amended, modified, supplemented, replaced, renewed or
restated from time to time.
"Margin Stock" shall have the meaning provided in Regulation U of the Board
of Governors of the Federal Reserve System.
"Material Adverse Change" shall mean: (i) any set of circumstances or
events which is material and adverse to the Collateral or the condition
(financial or otherwise), business operations or prospects of (a) the Borrower
Consolidation or the Guarantor taken as a whole, or (b) the ability of Borrowers
or the Guarantor to perform their respective Obligations under the Loan
Documents, or (c) the ability of any of the Lenders to enforce any of their
material rights or remedies under any of the Loan Documents, or (ii) any event
or change which has or results in a material adverse effect upon (a) the
validity or priority of any of the Loan Documents, or (b) the use, occupancy or
operation of the Casino Facilities.
"Maturity Date" shall mean April 26, 2004.
20
"Maximum Availability" shall mean the Maximum Permitted Balance less the
Aggregate Outstandings.
"Maximum Permitted Balance" shall mean the maximum amount of principal
which may be outstanding on the Credit Facility from time to time which shall be
the lesser of: (a) the Maximum Scheduled Balance, or (b) the amount to which the
Maximum Scheduled Balance is voluntarily reduced by Borrower pursuant to Section
2.01(c) or is otherwise reduced or limited pursuant to Sections 5.01, 5.12 or
8.02 or by Scheduled Reductions.
"Maximum Scheduled Balance" shall mean the maximum amount of scheduled
principal which may be outstanding on the Credit Facility from time to time in
the amount of the Aggregate Commitment as of the Closing Date, as reduced from
time to time by the Scheduled Reductions as set forth on the Aggregate
Commitment Reduction Schedule.
"Net Income" shall mean with respect to any Person for any fiscal period,
the net income of such Person during such fiscal period determined in accordance
with GAAP, consistently applied.
"Non-Financed Capital Expenditures" shall mean Capital Expenditures which
are paid by any member of the Borrower Consolidation from assets of the Borrower
Consolidation and not from the Credit Facility or through any other loan, credit
agreement, lease or financing from any source.
"Non-Pro Rata Borrowing" means a Borrowing with respect to which fewer than
all Lenders have funded their respective Pro Rata Shares of such Borrowing and
the failure of the non-funding Lender or Lenders to fund its or their respective
Pro Rata Shares of such Borrowing constitutes a breach of this Credit Agreement.
"Nonusage Fee" shall have the meaning ascribed to such term in Section
2.09(b) of this Credit Agreement.
"Notice of Borrowing" shall have the meaning set forth in Section 2.03.
"Obligations" means, from time to time, all Indebtedness of Borrowers owing
to Agent Bank, any Lender or any Person entitled to indemnification pursuant to
Section 5.14, or any of their respective successors, transferees or assigns, of
every type and description, whether or not evidenced by any note, guaranty or
other instrument, arising under or in connection with this Credit Agreement or
any other Loan Document, whether or not for the payment of money, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or
21
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable fees and disbursements of expert witnesses and other
consultants, and any other sum now or hereinafter chargeable to Borrowers under
or in connection with Credit Agreement or any other Loan Document.
Notwithstanding the foregoing definition of "Obligations", Borrowers'
obligations under any environmental indemnity agreement constituting a Loan
Document, or any environmental representation, warranty, covenant, indemnity or
similar provision in this Credit Agreement or any other Loan Document, shall be
secured by the Collateral only to the extent, if any, specifically provided in
the Security Documentation.
"Office Building Parcel" shall mean the real property described on that
certain exhibit marked "Exhibit N," affixed hereto and by this reference
incorporated herein and made a part hereof, together with all buildings and
other improvements now or hereafter constructed thereon.
"Payment Subordination Agreement" shall mean the Payment Subordination
Agreement to be executed by Guarantor in favor of Agent Bank on behalf of the
Lenders on or before the Closing Date in the form of the Payment Subordination
Agreement marked "Exhibit I", affixed hereto and by this reference incorporated
herein and made a part hereof.
"Pension Plan" means any "employee pension benefit plan" that is subject to
Title IV of ERISA and which is maintained for employees of Borrower or any of
its ERISA Affiliates.
"Permitted Distribution Carve-Outs" shall mean collective reference to the
Distributions specifically described in subparagraphs (a) through (e) below made
during the period commencing on November 30, 1999 and continuing until Bank
Facility Termination, and which may be made subsequent to the Closing Date so
long as: (i) no Default or Event of Default has occurred and remains continuing
at the time of such Distributions, (ii) December 31, 2001 shall not have
occurred; and (iii) such Permitted Distribution Carve-Outs do not exceed Ten
Million Five Hundred Thousand Dollars ($10,500,000.00) in the aggregate:
a. Distribution of the Johannesburg Investment up to a maximum
aggregate amount of Two Million Dollars ($2,000,000.00);
b. Distribution of the Caledon Investment up to a maximum
aggregate amount of Four Million Three Hundred Dollars ($4,300,000.00);
22
c. Distribution to be applied toward a pre-payment or repayment of principal
on the Subordinated Debt up to the maximum aggregate amount of One Million
Dollars ($1,000,000.00);
d. Distributions to be used to repurchase the stock of Guarantor
up to a maximum aggregate amount of Three Million Dollars ($3,000,000.00); and
e. Distribution of the Czech Republic Investment up to a maximum
aggregate amount of Seven Hundred Twenty-Five Thousand Dollars ($725,000.00).
"Permitted Encumbrances" shall mean, at any particular time, (i) liens for
taxes, assessments or governmental charges not then due, payable and delinquent
or being contested in good faith, (ii) liens for taxes, assessments or
governmental charges not then required to be paid pursuant to Section 5.10 or
being contested in good faith, (iii) liens in favor of Agent Bank or any Lender
created or contemplated by the Security Documentation, or securing Secured
Interest Rate Xxxxxx, (iv) the liens, encumbrances and restrictions on the Real
Property and existing improvements which are allowed by Banks to appear in
Schedule B, Part I and II of the Title Insurance Policy relating to such Real
Property at the Closing Date, (v) liens in favor of Agent Bank on behalf of the
Lenders or consented to in writing by Agent Bank, (vi) easements, licenses or
rights-of-way, hereafter granted to any Governmental Authority or public utility
providing services to the Casino Facilities which are first approved in writing
by the Agent Bank, (vii) judgment liens on property other than the Collateral
which do not constitute an Event of Default, (viii) statutory liens of
landlords, revenue authorities and materialmen and other similar liens imposed
by law incurred in the ordinary course of business which could not reasonably be
expected to result in a Material Adverse Change and which are discharged in
accordance with Section 5.04, (ix) liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations; (x) leases, concessions or subleases
granted to others not interfering in any material respect with the ordinary
conduct of the business of Borrowers; and (xi) liens or other minor defects,
encroachments or irregularities in title that do not result in a Material
Adverse Change.
"Person" means an individual, firm, corporation, trust, association,
partnership, joint venture, tribunal or other entity.
23
"Policies of Insurance" shall mean the insurance to be obtained and maintained
by Borrower throughout the term of this Credit Agreement as provided by Section
5.09 herein.
"Post Foreclosure Plan" shall have the meaning set forth in Section
9.11(e).
"Potential L/C Exposure" shall mean the amount of L/C Exposure that would
result from the issuance of each Letter of Credit that is requested by
Borrowers, or any of them, pursuant to Section 2.08 herein, which amount shall
be measured during the period commencing on the date of such request for
issuance and continuing until the requested Letter of Credit is either issued by
the L/C Issuer or the request for issuance is rejected, withdrawn, rescinded or
otherwise terminated.
"Pricing Certificate" shall have the meaning set forth in Section 5.08(b).
"Prime Rate" shall mean the rate of interest per annum which WFB from time
to time identifies and publicly announces at its principal office in San
Francisco, California, as its "prime rate" or "reference rate" and is not
necessarily, for example, the lowest rate of interest which WFB collects from
any borrower or group of borrowers.
"Principal Prepayments" shall have the meaning set forth in Section 2.07(a)
of this Credit Agreement.
"Pro Rata Share" means, with respect to any Lender, a percentage equal to
such Lender's Syndication Interest in the Credit Facility as set forth on
Schedule of Lenders' Proportions in Credit Facility.
"Protective Advance" means all sums expended as determined by Agent Bank to
be necessary to: (a) protect the priority, validity and enforceability of the
Security Documentation on, and security interests in, any Collateral and the
instruments evidencing or securing the Obligations, or (b) prevent the value of
any Collateral from being materially diminished (assuming the lack of such a
payment within the necessary time frame could potentially cause such Collateral
to lose value), or (c) protect any of the Collateral from being materially
damaged, impaired, mismanaged or taken, including, without limitation, any
amounts expended in accordance with Section 10.20 or post-foreclosure ownership,
maintenance, operation or marketing of any Collateral.
"Rate Adjustment Date" shall mean September 1, 2000.
"Real Property" shall mean: (i) the land which is the subject of and
particularly described in the Title Report, together with all improvements now
or hereafter situate thereon; (ii) upon acquisition of a fee interest in the
T-Shirt Shop by Borrowers, or
24
any of them, the T-Shirt Shop, (iii) upon acceptance of the Office Building
Parcel by Agent Bank as additional Collateral pursuant to Section 5.24, the
Office Building Parcel, and (iv) upon acceptance of each respective Additional
Real Property Acquisition by Agent Bank as additional Collateral pursuant to
Section 5.25, the Additional Real Property Acquisitions so accepted by Agent
Bank.
"Reduction Date(s)" shall mean reference to each Reduction Date, as the
context may require as set forth on the Aggregate Commitment Reduction Schedule.
"Reportable Event" shall mean a reportable event as defined in Title IV of
ERISA, except actions of general applicability by the Secretary of Labor under
Section 110 of ERISA.
"Requisite Lenders" mean, collectively, Lenders whose Pro Rata Shares, in
the aggregate, are at least sixty-six and two-thirds percent (66-2/3%), provided
that, (i) in determining such percentage at any given time, all then existing
Defaulting Lenders will be disregarded and excluded and the Pro Rata Shares of
Lenders shall be redetermined, for voting purposes only, to exclude the Pro Rata
Shares of such Defaulting Lenders, and (ii) notwithstanding the foregoing, at
all times when two or more Lenders are party to this Credit Agreement, the term
Requisite Lenders shall in no event mean less than two (2) Lenders.
"Revolving Credit Note" shall mean the Revolving Credit Note, a copy of
which is marked "Exhibit A", affixed hereto and by this reference incorporated
herein and made a part hereof, to be executed by Borrowers on the Closing Date,
payable to the order of Agent Bank on behalf of the Lenders, evidencing the
Credit Facility, as the same may be amended, modified, supplemented, replaced,
renewed or restated from time to time.
"Revolving Credit Period" shall mean the period commencing on the Closing
Date and terminating on the Maturity Date.
"Schedule of Lenders' Proportions in Credit Facility" shall mean the
Schedule of Lenders' Proportions in Credit Facility, a copy of which is set
forth as Schedule 2.01(a), affixed hereto and by this reference incorporated
herein and made a part hereof, setting forth the respective Syndication Interest
and maximum amount to be funded under the Credit Facility by each Lender, as the
same may be amended or restated from time to time in connection with an
Assignment and Assumption Agreement.
"Schedule of Significant Litigation" shall mean the Schedule of Significant
Litigation, a copy of which is set forth as Schedule 3.16, affixed hereto and by
this
25
reference incorporated herein and made a part hereof, setting forth the
information described in Section 3.16 with respect to each Significant
Litigation.
"Scheduled Reductions" shall mean the amount by which the Aggregate
Commitment is reduced on each Reduction Date as set forth on the Aggregate
Commitment Reduction Schedule.
"Secured Interest Rate Hedge(s)" shall mean any Interest Rate Hedge entered
into between Borrowers and any Lender, or Affiliate of any Lender, which is
secured by the Deed of Trust.
"Security Documentation" shall mean collective reference to the Deed of
Trust, Financing Statements, Assignment of Entitlements, Contracts, Rents and
Revenues, Assignment of Golden Horseshoe Lease and all other instruments and
agreements to be executed by or on behalf of Borrowers or other applicable
Persons, in favor of Agent Bank on behalf of the Lenders securing repayment of
the Credit Facility.
"Significant Litigation" shall mean each action, suit, proceeding,
litigation and controversy involving any Borrower involving claims in excess of
One Million Dollars ($1,000,000.00) or which if determined adversely to the
interests of such Borrower, could result in a Material Adverse Change.
"Spaceleases" shall mean the executed leases and concession agreements
pertaining to the Casino Facilities, or any portion thereof, wherein Borrower is
the lessor, as set forth on that certain Schedule of Spaceleases designated as
Schedule 4.16, affixed hereto and by this reference incorporated herein and made
a part hereof.
"Standby Letter(s) of Credit" shall mean a letter or letters of credit
issued by L/C Issuer pursuant to Section 2.08 of the Credit Agreement for the
purpose of securing payment or performance of a financial obligation of
Borrowers, other than in connection with the payment for goods, equipment or
materials.
"Stated Amount" shall mean the maximum amount which L/C Issuer may be
required to disburse to the beneficiary(ies) of a Letter(s) of Credit under the
terms thereof.
"Stated Expiry Date(s)" shall mean the date set forth on the face of a
Letter(s) of Credit as the date when all obligations of L/C Issuer to advance
funds thereunder will terminate, as the same may be extended from time to time.
"Subordinated Debt" shall mean collective reference to: (i) the unsecured
intercompany Indebtedness, owing by WMCKAC and assumed by WMCKVC, payable to the
order of Guarantor in the approximate amount of Five Million Six Hundred
Ninety-One
26
Thousand Dollars ($5,691,000.00) evidenced by a Promissory Note dated June 27,
1996, as amended by an Assignment, Assumption and Amendment Agreement dated as
of March 31, 1997, which Subordinated Debt shall be structurally and
contractually subordinated to the Credit Facility by execution of the Payment
Subordination Agreement by Borrowers and Guarantor in favor of Agent Bank, and
(ii) any other unsecured intercompany Indebtedness owing by any Borrower to
Guarantor which is permitted and incurred in accordance with Section 6.05(f).
"Subsidiary" shall mean, on the date in question, any Person of which an
aggregate of 50% or more of the stock of any class or classes (or equivalent
interests) is owned of record or beneficially, directly or indirectly, by
another Person and/or any of its Subsidiaries, if the holders of the stock of
such class or classes (or equivalent interests) (a) are ordinarily, in the
absence of contin-gencies, entitled to vote for the election of a majority of
the directors (or individuals performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of such a
contingency, or (b) are entitled, as such holders, to vote for the election of a
majority of the directors (or individuals performing similar functions) of such
Person, whether or not the right so to vote exists by reason of the happening of
a contingency.
"Syndication Interest" shall mean the proportionate interest of each Lender
in the Credit Facility as set forth on the Schedule of Lenders' Proportions in
Credit Facility, as the same may be amended or restated from time to time.
"TFCC Permitted Distribution Carve-Outs" shall mean the first Five Million
Dollars ($5,000,000.00) of Distributions which constitute Permitted Distribution
Carve-Outs.
"TFCC Ratio" shall be defined as follows:
EBITDA, minus Distributions (exclusive of TFCC Permitted Distribution
Carve-Outs), minus Non-Financed Capital Expenditures incurred during the period
under review
Divided by ()
Interest Expense actually paid (excluding Subordinated Debt), plus current
portion of Scheduled Reductions actually paid where required during the
preceding four quarters to bring the Aggregate Outstandings down to the required
Maximum Scheduled Balance and Capitalized Lease Liabilities required during the
preceding four quarters, plus actual Interest Expense and principal paid
(without duplication) on Subordinated Debt.
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"Taxes" shall have the meaning set forth in Section 2.11.
"Title Insurance Company" shall mean Commonwealth Land Title Insurance
Company and its issuing agent, Pikes Peak Title Service, Inc., with offices
located at 000 X. Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, together with such
reinsurers with direct access as are requested by Agent Bank or other title
insurance company or companies as may be acceptable to Agent Bank.
"Title Insurance Policy" shall mean the ALTA Extended Coverage Lenders
Policy of Title Insurance, and the endorsements thereto, which are to be issued
by Title Insurance Company, as of the Closing Date, in the amount of Twenty-Six
Million Dollars ($26,000,000.00), in favor of Agent Bank, insuring the Deed of
Trust as a first priority mortgage lien (a first priority lien on the
subleasehold and suboption interests of Borrowers as to the Golden Horseshoe
Property) encumbering the Real Property therein described subject only to the
exceptions shown therein in Schedule B, Part I, all in accordance with the
Depository Closing Instructions.
"Title Report" shall refer to the Title Insurance Commitment issued by
Title Insurance Company, under its Order No. L800698, a copy of which is marked
"Exhibit M", affixed hereto and by this reference incorporated herein and made a
part hereof.
"T-Shirt Shop" shall mean a two (2) story building located at 000 Xxxx
Xxxxxxx Xxxxxx, in Cripple Creek, Colorado, with approximately five thousand
(5,000) square feet of floor space, which is the subject of the T-Shirt Shop
Option.
"T-Shirt Shop Option" shall mean that certain Option Agreement pursuant to
which WMCKVC is granted an option to purchase the T-Shirt Shop.
"Upfront Fee" shall have the meaning ascribed to such term in Section
2.09(a).
"Upfront Fee Side Letter" shall mean the confidential letter dated
concurrently herewith, executed by and between Borrower and Agent Bank
concerning payment of the Upfront Fee.
"Voluntary Permanent Reduction" shall have the meaning set forth in Section
2.01(c).
"WFB" shall mean Xxxxx Fargo Bank, National Association.
"WMCKAC" shall have the meaning set forth in the Preamble to this Credit
Agreement.
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"WMCKVC" shall have the meaning set forth in the Preamble to this Credit
Agreement.
Section 1.01. Interpretation and Construction. In this Credit Agreement,
---------------------------------
unless the context otherwise requires:
a. Articles and Sections mentioned by number only are the respective
Articles and Sections of this Credit Agreement as so numbered;
b. Words importing a particular gender mean and include every other gender,
and words importing the singular number mean and include the plural number and
vice versa;
----------
c. All times specified herein, unless otherwise specifically referred, shall
be the time in San Francisco, California;
d. Any headings preceding the texts of the several Articles and Sections of
this Credit Agreement, and any table of contents or marginal notes appended to
copies hereof, shall be solely for con-venience of reference and shall not
constitute a part of this Credit Agreement, nor shall they affect its meaning,
construction or effect;
e. If any clause, definition, provision or Section of this Credit Agreement
shall be determined to be apparently contrary to or conflicting with any other
clause, definition, provision or Section of this Credit Agreement then the
clause, definition, provision or Section containing the more specific provisions
shall control and govern with respect to such apparent conflict. The parties
hereto do agree that each has con-tributed to the drafting of this Credit
Agreement and all Loan Documents and that the provisions herein contained shall
not be construed against either Borrowers or Lenders as having been the person
or persons responsible for the preparation thereof;
f. The terms "herein", "hereunder", "hereby", "hereto", "hereof" and any
similar terms as used in the Credit Agreement refer to this Credit Agreement;
the term "heretofore" means before the date of execution of this Credit
Agreement; and the term "hereafter" means after the date of the execution of
this Credit Agreement;
g. All accounting terms used herein which are not otherwise specifically
defined shall be used in accordance with GAAP;
h. If any clause, provision or Section of this Credit Agreement shall
be ruled invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any of the
remaining provisions hereof;
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i. Each reference to this Credit Agreement or any other Loan Document or any
of them, as used in this Credit Agreement or in any other Loan Document, shall
be deemed a reference to this Credit Agreement or such Loan Document, as
applicable, as the same may be amended, modified, supplemented, replaced,
renewed or restated from time to time; and
j. Every affirmative duty, covenant and obligation of Borrowers hereunder
shall be equally applicable to each of the Borrowers individually and where the
context would result in the best interests or rights of Banks shall be construed
to mean "Borrowers or any of them" or "Borrowers and each of them", as
applicable.
Section 1.03. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Credit
Agreement shall have such meanings when used in the Revolving Credit Note and in
each Loan Document and other communication delivered from time to time in
connection with this Credit Agreement or any other Loan Document.
Section 1.04. Cross-References. Unless otherwise specified, references in
this Credit Agreement and in each other Loan Document to any Article or Section
are references to such Article or Section of this Credit Agreement or such other
Loan Document, as the case may be, and, unless otherwise specified, references
in any Article, Section or definition to any clause are references to such
clause of such Article, Section or definition.
Section 1.05. Exhibits and Schedules. All Exhibits and Schedules to this
Credit Agreement, either as originally existing or as the same may from time to
time be supplemented, modified or amended, are incorporated herein by this
reference.
ARTICLE II
AMOUNT, TERMS AND SECURITY OF THE FACILITIES
--------------------------------------------
Section 2.01. The Credit Facility.
---------------------
Subject to the conditions and upon the terms hereinafter set forth and in
accordance with the terms and provisions of the Revolving Credit Note, on and
after the Closing Date Lenders severally agree in the proportions set forth on
the Schedule of Lenders' Proportions in Credit Facility to lend and advance
Borrowings to Borrowers, up to the Maximum Permitted Balance, consisting of the
Closing Disbursements on the Closing Date and such amounts as Borrowers may
request during the Revolving Credit Period by Notice of Borrowing duly executed
by an Authorized Officer and delivered to Agent Bank from time to time for
Borrowings under
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the Credit Facility as provided in Section 2.03, subject to the uses and
purposes set forth in Section 2.02.
b. Subject to the uses and purposes set forth in Section 2.02, on and after
the Closing Date Borrowers may borrow, repay and reborrow the Available
Borrowings up to the Maximum Permitted Balance from time to time. Provided,
however, amounts of Funded Outstandings bearing interest with reference to a
LIBO Rate shall be subject to Breakage Charges incident to prepayment. The
Credit Facility shall be for a term commencing on the Closing Date and
terminating on the Maturity Date, on which date the entire outstanding balance
of the Credit Facility shall be fully paid and Bank Facility Termination shall
occur. In no event shall any Lender be liable to fund any amounts under the
Credit Facility in excess of its respective Syndication Interest in any
Borrowing.
c. Notwithstanding the Scheduled Reductions to the Maximum Permitted Balance
as set forth on the Aggregate Commitment Reduction Schedule, Borrowers may
voluntarily further permanently reduce the Maximum Permitted Balance from time
to time (a "Voluntary Permanent Reduction") on the following conditions:
(i) that each such Voluntary Permanent Reduction be in the
minimum amount of One Million Dollars ($1,000,000.00) and in increments of One
Hundred Thousand Dollars ($100,000.00) and is made in writing by an Authorized
Officer, effective on the fifth (5th) Banking Business Day following receipt by
Agent Bank; and
(ii) that each such Voluntary Permanent Reduction shall be
irrevocable and a permanent reduction to the Maximum Permitted Balance.
d. In the event any Scheduled Reduction or Voluntary Permanent
Reduction reduces the Maximum Permitted Balance to less than the sum of the
Aggregate Outstandings, the Borrowers shall immediately cause the Aggregate
Outstandings to be reduced by such amount as may be necessary to cause the
Aggregate Outstandings to be equal to or less than the Maximum Permitted
Balance.
Section 2.02. Use of Proceeds of the Credit Facility. Available Borrowings
shall be used for the purposes of:
a. On the Closing Date (collectively the "Closing Disbursements"):
(i) continuing the outstanding principal balance under the
Existing Credit Agreement and Existing RLC Note as Funded Outstandings under the
Credit Facility and continuing all outstanding letters of credit under the
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Existing Credit Agreement as Letters of Credit under the L/C Facility hereunder;
(ii) payment in full of the Upfront Fee; and
(iii) paying in full the costs, fees and expenses of Title
Insurance Company incurred in connection with the issuance of the Title
Insurance Policy, the costs, fees and expenses of the attorneys for Borrowers
and the costs, fees and expenses of Xxxxxxxxx & Xxxxxx, LLC, attorneys for Agent
Bank, and associate counsel and insurance consultants retained by them incurred
to the Closing Date.
b. During the Revolving Credit Period:
(i) funding the repayment of L/C Reimbursement Obligations as
provided in Section 2.08;
(ii) funding working capital needs of the Borrower Consolidation
relating to the Casino Facilities;
(iii) funding ongoing Capital Expenditure requirements of the
Borrower Consolidation relating to the Casino Facilities; and
(iv) funding Investments and Distributions to the extent permitted
in the Credit Agreement.
Section 2.03. Notice of Borrowings.
----------------------
Borrowings shall be made through Agent Bank's credit sweep product. Provided,
however, for each Borrowing in excess of Five Hundred Thousand Dollars
($500,000.00) an Authorized Officer shall give Agent Bank, no later than 9:00
a.m. on any Banking Business Day at Agent Bank's office specified in Section
2.07, two (2) full Banking Business Days prior notice by telephone and
thereafter immediately confirmed in writing by delivery to the Agent Bank of a
written notice in the form of the Notice of Borrowing ("Notice of Borrowing"), a
copy of which is marked "Exhibit C", affixed hereto and by this reference
incorporated herein and made a part hereof, for each proposed Borrowing to be
made with reference to a LIBO Rate and at least one (1) full Banking Business
Day prior notice by telephone and thereafter immediately confirmed in writing by
delivery to the Agent Bank of a written notice for all other Borrowings,
specifying the date and amount of each proposed Borrowing. Agent Bank shall
give prompt notice of each Notice of Borrowing to Lenders of the amount to be
funded and specifying the Funding Date. Not later than 11:00 a.m. on the
Funding Date specified, each Lender shall disburse to Agent Bank its Pro Rata
Share of the amount to
32
be advanced by each such Lender in lawful money of the United States of
America and in immediately available funds. Agent Bank shall make the proceeds
of such fundings received by it on or before 11:00 a.m. from the Lenders
available to Borrowers by depositing, prior to 1:00 p.m. on the day so received
(but not prior to the Funding Date) in the Designated Deposit Account maintained
with Agent Bank, the amounts received from the Lenders. No Borrowing may
exceed the Available Borrowings.
b. The failure of any Lender to fund its Pro Rata Share of any Borrowing on
any Funding Date shall neither relieve any other Lender of any obligation
hereunder to fund its Pro Rata Share of such Borrowing on such Funding Date nor
relieve such Lender which has failed to fund its Pro Rata Share of its
obligations to Borrowers hereunder. No Lender shall be responsible for the
failure of any other Lender to fund its Pro Rata Share of such Borrowing on any
Funding Date nor shall any Lender be responsible for the failure of any other
Lender to perform its respective obligations hereunder.
Section 2.04. Conditions of Borrowings. Borrowings, other than Borrowings
made at the request of Agent Bank for the purpose of funding repayment of L/C
Reimbursement Obligations as hereinafter provided, will only be made so long as
Borrowers are in full compliance with each of the requirements and conditions
precedent set forth in Article III B of this Credit Agreement. Provided,
however, upon the consent of Requisite Lenders, Lenders shall advance Borrowings
requested by Borrowers hereunder, notwithstanding the existence of less
than full compliance with the requirements of Articles III B, and Borrowings so
made shall be deemed to have been made pursuant to this Credit Agreement.
Section 2.05. The Revolving Credit Note and Interest Rate Options.
The Credit Facility shall be further evidenced by the Revolving Credit Note
payable to the order of Agent Bank on behalf of the Lenders. Borrowers waive
any rights which they might otherwise have under Colorado Revised Statutes
13-50-02 or 00-00-000 (or under any corresponding future statute or rule of law
in any jurisdiction) by reason of any release of fewer than all of the
Borrowers. Agent Bank shall record manually or electronically the date and
amount of each Borrowing advanced by the Lenders together with the applicable
Interest Period in the case of portions of the unpaid principal under the Credit
Facility bearing interest with reference to a LIBO Rate, and the amount of each
repayment of principal and interest made thereunder by Borrowers; provided,
however, the failure to make such a record or notation with respect to any
Borrowing or repayment thereof, or an error in making such a record or notation,
shall not limit or otherwise affect the obligations of Borrowers hereunder or
under the Revolving Credit Note. Agent Bank shall provide Borrowers and
Guarantor with a copy of such entries upon the written request of Borrowers
and/or Guarantor. The aggregate unpaid balance of principal and interest of the
Note as set forth on the
33
most recent data control system printout of Agent Bank shall be
rebuttably presumptive evidence of the sums owing and unpaid on the Note.
b. Interest shall accrue on the entire outstanding principal balance of the
Credit Facility at a rate per annum equal to the Base Rate plus the Applicable
Margin, unless Borrowers request a LIBOR Loan pursuant to Section 2.03 or elect
pursuant to Section 2.05(c) hereinbelow to have interest accrue on a portion or
portions of the outstanding principal balance of the Credit Facility at a LIBO
Rate ("Interest Rate Option"), in which case interest on such portion or
portions shall accrue at a rate per annum equal to such LIBO Rate plus the
Applicable Margin in effect as of the second Banking Business Day prior to the
first day of the applicable Interest Period, as long as: (i) each such LIBOR
Loan is in a minimum amount of One Million Dollars ($1,000,000.00) and in
minimum increments of One Hundred Thousand Dollars ($100,000.00), and (ii) no
more than four (4) LIBOR Loans may be outstanding at any one time. Interest
accrued on each Base Rate Loan shall be due and payable on the first Banking
Business Day of the month following the Closing Date, on the first Banking
Business Day of each successive month thereafter, and on the Maturity Date. For
each LIBOR Loan, accrued interest shall be due and payable at the end of each
Interest Period applicable thereto, but in any event no less frequently than at
the end of each three (3) month period during the term of such LIBOR Loan.
Except as qualified above, the outstanding principal balance hereunder may be a
Base Rate Loan or one or more LIBOR Loans, or any combination thereof, as
Borrowers shall specify.
c. So long as no Default or Event of Default shall have occurred and
remains continuing, Borrowers may Convert from one Interest Rate Option
to another Interest Rate Option or continue an Interest Rate Option for
another Interest Period by giving irrevocable notice to Agent Bank of such
Conversion by 9:00 a.m., on a day which is at least three (3) Banking
Business Days prior to the proposed date of such Conversion to or
Continuation of each LIBOR Loan or one (1) Banking Business Day prior to the
proposed date of such Conversion to each Base Rate Loan. Each such notice
shall be made by an Authorized Officer by telephone and thereafter
immediately confirmed in writing by delivery to Agent Bank of a
Continuation/Conversion Notice specifying the date of such Conversion or
Continuation, the amounts to be so Converted or Continued and the Interest
Period if the Conversion or Continuation is being made with reference to a
LIBOR Loan. Upon receipt of such Continuation/Conversion Notice, Agent
Bank shall promptly set the applicable interest rate (which in the case of
a LIBOR Loan shall be the LIBO Rate plus the Applicable Margin as of the
second Banking Business Day prior to the first day of the applicable Interest
Period) and the applicable Interest Period if the Conversion or Continuation
is being made with reference to a LIBOR Loan and shall confirm the same in
writing to Borrowers and Lenders. Each Conversion shall be on a Banking
Business Day. No LIBOR Loan shall be converted to a Base Rate Loan or
renewed on any day other than
34
the last day of the current Interest Period relating to such amounts
outstanding unless Borrowers pay any applicable Breakage Charges. All
Borrowings advanced at the request of Agent Bank under Section 2.08 of the
Credit Agreement shall bear interest with reference to the Base Rate plus the
Applicable Margin, subject to Borrowers' right to Convert such Borrowing to a
LIBOR Loan or LIBOR Loans as provided herein. If Borrowers fail to give a
Continuation/Conversion Notice for the continuation of a LIBOR Loan as a LIBOR
Loan for a new Interest Period in accordance with this Section 2.05(c), such
LIBOR Loan shall automatically become a Base Rate Loan at the end of its then
current Interest Period.
d. Each interest period (each individually an "Interest Period" and
collectively the "Interest Periods") for a LIBOR Loan shall commence on the date
such LIBOR Loan is made or the date of Conversion or Continuation of any amount
or amounts of the outstanding Borrowings hereunder to a LIBOR Loan, as the case
may be, and shall end on the date which is one (1), two (2), three (3) or six
(6) months thereafter, as elected by Borrowers. However, no Interest Period may
extend beyond the Maturity Date and no Interest Period may extend beyond any
Reduction Date unless the sum of (i) the aggregate amount of LIBOR Loans having
an Interest Period ending after such Reduction Date, plus (ii) the L/C Exposure
and Potential L/C Exposure of all Letters of Credit outstanding and requested
for which the Stated Expiry Date is after such Reduction Date, does not exceed
the Maximum Permitted Balance after giving effect to the Scheduled Reduction on
such Reduction Date. Each Interest Period for a LIBOR Loan shall commence and
end on a Banking Business Day. If any Interest Period commences on a date for
which there is no corresponding date in the month in which it is scheduled to
end, such Interest Period shall end on the last Banking Business Day of such
month. If any Interest Period would otherwise expire on a day which is not a
Banking Business Day, the Interest Period shall be extended to expire on the
next succeeding Banking Business Day, unless the result of such extension would
be to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Banking Business
Day.
e. The applicable LIBO Rate and Base Rate shall be determined by the Agent
Bank, and notice thereof shall be given promptly to Borrowers and Lenders. Each
determination of the applicable Base Rate and LIBO Rate shall be conclusive and
binding upon the Borrowers, in the absence of manifest or demonstrable error.
The Agent Bank shall, upon written request of Borrowers or any Lender, deliver
to Borrowers or such Lender, as the case may be, a statement showing the
computations used by the Agent Bank in determining any rate hereunder.
f. Computation of interest on all Base Rate Loans and LIBOR Loans
shall be calculated on the basis of a year of three hundred sixty (360) days
and the actual number of days elapsed. The applicable Base Rate shall be
effective the same day as a change in the Base Rate is announced by WFB as
being effective.
35
g. If with respect to any Interest Period, (a) the Agent Bank reasonably
determines (which determination shall be binding and conclusive on Borrowers)
that by reason of circum-stances affecting the inter-bank eurodollar market
adequate and reasonable means do not exist for ascertaining the applicable LIBO
Rate, or (b) Requisite Lenders advise Agent Bank that the LIBO Rate as
determined by Agent Bank will not adequately and fairly reflect the cost to such
Lenders of maintaining or funding, for such Interest Period, a LIBOR Loan under
the Credit Facility, then so long as such circumstances shall continue: (i)
Agent Bank shall promptly notify Borrowers thereof, (ii) the Lenders shall not
be under any obligation to make a LIBOR Loan or Convert a Base Rate Loan into a
LIBOR Loan for which such circumstances exist, and (iii) on the last day of the
then current Interest Period, the LIBOR Loan for which such circumstances exist
shall, unless then repaid in full, automatically Convert to a Base Rate Loan.
h. Notwithstanding any other provisions of the Credit Agreement, if, after
the Closing Date, any law, rule, regulation, treaty, interpretation or directive
(whether having the force of law or not) or any change therein shall make it
unlawful for any Lender to make or maintain LIBOR Loans, then (i) the commitment
and agreement to maintain LIBOR Loans as to such Lender shall immediately be
suspended, and (ii) unless required to be terminated earlier, LIBOR Loans as to
such Lender, if any, shall be Converted on the last day of the then current
Interest Period applicable thereto to Base Rate Loans. If it shall become
lawful for such Lender to again maintain LIBOR Loans, then Borrowers may once
again as to such Lender request Conversions to the LIBO Rate.
Section 2.06. Security for the Credit Facility. As security for the due and
punctual payment and performance of the terms and provisions of this Credit
Agreement, the Revolving Credit Note and all of the other Loan Documents, the
Security Documentation shall be executed and delivered to Agent Bank, as of the
Closing Date, by the respective parties to each of the Security Documentation
and recorded and/or filed as required by the Depository Closing Instructions.
Section 2.07. Place and Manner of Payment.
All amounts payable by Borrowers to the Lenders shall be made to Agent Bank on
behalf of Lenders pursuant to the terms of the Credit Agreement and the
Revolving Credit Note and shall be made on a Banking Business Day in lawful
money of the United States of America and in immediately available funds. Other
than in connection with the Scheduled Reductions of principal, Borrowers shall
not make repayments ("Principal Prepayments") of the outstanding balance of
principal owing under the Revolving Credit Note more frequently than three (3)
such Principal Prepayments during each calendar month. Each such Principal
Prepayment of a Base Rate Loan shall be in a minimum amount of Five Hundred
Thousand Dollars
36
($500,000.00) (or, if less, the outstanding principal amount of Base Rate
Loans) and in increments of One Hundred Thousand Dollars ($100,000.00) in
excess thereof. Each such Principal Prepayment of a LIBOR Loan shall be in a
minimum amount of One Million Dollars ($1,000,000.00) and in increments of One
Hundred Thousand Dollars ($100,000.00) in excess thereof.
b. All such amounts payable by Borrowers shall be made to Agent Bank at its
office located at Xxxxx Fargo Bank, Syndications Division, 000 Xxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other address as may
be directed in writing by Agent Bank from time to time. If such payment is
received by Agent Bank prior to 11:00 a.m., Agent Bank shall credit Borrowers
with such payment on the day so received and shall promptly disburse to the
appropriate Lenders on the same day the Pro Rata Share of payments relating to
the Credit Facility, in immediately available funds. If such payment is
received by Agent Bank after 11:00 a.m., Agent Bank shall credit Borrowers with
such payment as of the next Banking Business Day and disburse to the appropriate
Lenders on the next Banking Business Day such Pro Rata Share of such payment
relating to the Credit Facility in immediately available funds. Any payment on
the Credit Facility made by Borrowers to Agent Bank pursuant to the terms of
this Credit Agreement or the Revolving Credit Note for the account of Lenders
shall constitute payment to the appropriate Lenders. If the Revolving Credit
Note or any payment required to be made thereon or hereunder, is or becomes due
and payable on a day other than a Banking Business Day, the due date thereof
shall be extended to the next succeeding Banking Business Day and interest
thereon shall be payable at the then applicable rate during such extension.
c. Subject to Section 2.07(a), the outstanding principal owing under the
Credit Facility and the Revolving Credit Note may be prepaid at any time in
whole or in part without penalty; provided, however, that any portion or
portions of the unpaid principal balance which is accruing interest at a LIBO
Rate may only be prepaid or repaid on the last day of the applicable
Interest Period unless Borrowers give three (3) days prior written notice
to Agent Bank and additionally pay concurrently with such prepayment or
repayment such additional amount or amounts as will compensate Lenders for any
losses, costs or expenses which they may incur as a result of such payment,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such LIBOR Loan
("Breakage Charges"). A certificate of a Lender as to amounts payable
hereunder shall be conclusive and binding on Borrowers for all purposes,
absent manifest or demonstrable error. Any calculation hereunder shall
be made on the assumption that each Lender has funded or will fund each
LIBOR Loan in the London interbank market; provided that no Lender shall have
any obligation to actually fund any LIBOR Loan in such manner.
37
d. Unless the Agent Bank receives notice from an Authorized Officer prior to
the date on which any payment is due to the Lenders that the Borrowers will not
make such payment in full as and when required, the Agent Bank may assume that
the Borrowers have made such payment in full to the Agent Bank on such date in
immediately available funds and the Agent Bank may (but shall not be so
required), in reliance upon such assumption, distribute to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrowers have not made such payment in full to the Agent Bank, each
Lender shall repay to the Agent Bank on demand such amount distributed to such
Lender, together with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Lender until the date repaid.
Section 2.08. Issuance of Letters of Credit.
a. Any Authorized Officer of Borrowers may from time to time request that a
Letter of Credit be issued by delivering to L/C Issuer (with a telecopy to the
Agent Bank) on a Banking Business Day, at least five (5) Banking Business Days
prior to the date of such proposed issuance, an L/C Agreement in L/C Issuer's
then standard form (consistent with the terms of the Credit Agreement),
completed to the satisfaction of L/C Issuer and such other certificates as the
L/C Issuer may reasonably request; provided, however, that no Letter of Credit
shall be issued (a) if any Default or Event of Default has occurred and remains
continuing, or (b) if after giving effect to the issuance thereof, the aggregate
Stated Amount of outstanding Letters of Credit would exceed One Million Dollars
($1,000,000.00), or (c) the Stated Amount of the requested Letter of Credit
exceeds the Maximum Availability. Each Letter of Credit shall be issued by the
L/C Issuer on the Banking Business Day specified in Borrowers' application
therefor. Each request for a Letter of Credit and each Letter of Credit shall
be subject to the Uniform Customs and Practice for Documentary Credits,
International Chamber of Commerce Publication New 1994 Revision No. 500, or any
successor publication then in effect. Each Standby Letter of Credit will be
issued for a term not greater than one (1) year and shall not include any
provision for automatic renewal. Each Commercial Letter of Credit will be
issued for a term not greater than one hundred eighty (180) calendar days. In
no event shall any Letter of Credit have a Stated Expiry Date later than thirty
(30) days prior to the Maturity Date. Promptly after receipt of each request
for the issuance of a Letter of Credit and immediately prior to the issuance
thereof, L/C Issuer shall obtain telephonic verification from Agent Bank that
the amount of such request does not exceed the then Available Borrowings. The
L/C Issuer shall promptly notify the Agent Bank of the aggregate L/C Exposure of
outstanding Letters of Credit each time there is a change therein. Each Lender
(other than the L/C Issuer) agrees that, upon the issuance of any Letter of
Credit it shall automatically acquire a participation interest in the L/C
Issuer's liability under such Letter of Credit in an amount equal to such
Lender's Pro Rata Share of such liability, and each Lender (other than the
38
L/C Issuer) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be unconditionally
obligated to the L/C Issuer to pay and discharge when due, its Pro Rata Share of
the L/C Issuer's liability under such Letter of Credit.
b. Upon presentation of a draft drawn under any Letter of Credit, L/C Issuer
shall promptly notify the Agent Bank and Borrowers of the amount under such
draft and the date upon which such draft is to be funded. On or before two (2)
Banking Business Days following such notice (unless Borrowers have made other
arrangements acceptable to the L/C Issuer to pay the amount of such draft in
full), Borrowers shall advance to L/C Issuer the amount of such draft from
Borrowers' available funds or shall request a Borrowing under the Credit
Facility in an amount sufficient to pay the amount of such draft in full. The
Agent Bank, upon receipt of such funds from the Lenders, shall automatically
provide such amount to the L/C Issuer for payment of the amount of such draft
and the balance of the Borrowing shall be deposited in immediately available
funds to the Designated Deposit Account. In the event Borrower fails to advance
to L/C Issuer the amount of such draft from Borrower's available funds or to
request a Borrowing within two (2) Banking Business Days from receipt of the
notice as specified above, on the third (3rd) Banking Business Day following
Agent Bank's receipt of such notice, Agent Bank shall, without notice to or
consent of the Borrower and without regard to any other conditions precedent for
the making of Borrowings under the Credit Facility, including, without
limitation the remedies set forth in Section 7.02, cause a Borrowing to be made
and funded by the Lenders under the Credit Facility in the amount necessary to
pay the amount of such draft in full. Upon the occurrence of any Event of
Default, L/C Issuer shall, without notice or further authorization or consent of
Borrower whatsoever, be authorized to immediately cause the Cash Collateral
Account to be established and funded by Lenders with a Borrowing advanced to
Agent Bank equal to the aggregate amount of the L/C Exposure then outstanding.
All amounts held by L/C Issuer in the Cash Collateral Account shall be held as
security for the repayment of any L/C Reimbursement Obligation thereafter
arising pursuant to the terms of the L/C Agreement(s) and the Cash Collateral
Pledge Agreement. Borrowings advanced by Lenders to pay drafts drawn upon or to
secure repayment of the L/C Exposure under Letters of Credit pursuant to this
subsection shall: (i) constitute Borrowings under the Credit Facility, (ii)
initially be Base Rate Loans and (iii) be subject to all of the provisions of
this Credit Agreement concerning Borrowings under the Credit Facility, except
that such Borrowings shall be made upon demand of the Agent Bank as set forth
above rather than upon Notice of Borrowing by Borrowers and shall be made,
notwithstanding anything in this Credit Agreement to the contrary, without
regard to any other conditions precedent to the making of Borrowings under the
Credit Agreement and notwithstanding any Default or Event of Default thereunder.
All amounts paid by L/C Issuer on a draft drawn under any Letter of Credit which
has not been funded or concurrently reimbursed by Borrowers or through a
Borrowing as
39
provided hereinabove, shall bear interest at the Base Rate plus the
Applicable Margin per annum until repaid or reimbursed to L/C Issuer.
c. Each Lender's obligation to advance Borrowings in the proportionate
amount of its Syndication Interest in the Credit Facility of any unreimbursed
amounts outstanding under any Letter of Credit pursuant hereto is several, and
not joint or joint and several. The failure of any Lender to perform its
obligation to advance a Borrowing in a proportionate amount of such Lender's
Syndication Interest of any unreimbursed amounts outstanding under a Letter of
Credit will not relieve any other Lender of its obligation hereunder to advance
such Borrowing in the amount of such other Lender's proportionate Syndication
Interest of such amount, nor relieve the Lender which has failed to fund of its
obligation to fund hereunder. The Borrowers agree to accept the Borrowings for
payment of Letters of Credit as provided hereinabove, whether or not such
Borrowings could have been made pursuant to the terms of Article III B or any
other section of the Credit Agreement.
d. Letters of Credit shall be used and issued for the benefit of Borrowers
for the general corporate purposes of Borrowers relating to the Casino
Facilities.
Section 2.09. Fees.
a. On the Closing Date, Borrower shall pay the unpaid balance of the
non-refundable upfront fee (the "Upfront Fee"), in such amount as has been
agreed upon by Agent Bank and Borrower in the Upfront Fee Side Letter, which
Upfront Fee shall be retained by Agent Bank or distributed in whole or in part
to Lenders as may be agreed between Agent Bank and Lenders.
b. Commencing with the Closing Date and continuing until the Maturity Date
(or the Bank Facility Termination, whichever shall first occur), Borrowers shall
pay a quarterly nonusage fee (the "Nonusage Fee") to the Agent Bank for the
account of Lenders at a per annum rate based on the Leverage Ratio of the
Borrower Consolidation, calculated as of each Fiscal Quarter end, to determine
the applicable Nonusage Percentage as set forth in Table Two of the definition
of Applicable Margin. As of the Closing Date, the Nonusage Percentage shall be
0.375%.
The Nonusage Fee shall be calculated as the product of (i) the
applicable Nonusage Percentage multiplied by (ii) the daily average of the
Maximum Permitted Balance less the daily average of the Funded Outstandings
during such Fiscal Quarter, computed on the basis of a three hundred sixty (360)
day year based on the number of actual days elapsed. Each Nonusage Fee shall be
payable in arrears on a quarterly basis on or before the fifth (5th) day
following receipt by Borrowers of an invoice from Agent Bank setting forth the
amount of such Nonusage Fee for each
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applicable Fiscal Quarter, and on the Maturity Date. Each Nonusage Fee shall be
promptly distributed by Agent Bank to Lenders in proportion to their respective
Syndication Interests in the Credit Facility.
c. Concurrently with the issuance of each Letter of Credit, Borrowers shall
pay an issuance fee to the L/C Issuer ("L/C Fee") in an amount equal to the
Stated Amount of each such Letter of Credit multiplied by two percent (2.00%)
per annum for the number of days elapsing from the issuance date to the Stated
Expiry Date of each such Letter of Credit, but in no event shall the L/C Fee be
less than Five Hundred Dollars ($500.00) for each Letter of Credit. From each
L/C Fee the greater of Five Hundred Dollars ($500.00) or one quarter of one
percent (.25%) of the Stated Amount of each such Letter of Credit, calculated on
a per annum basis as provided hereinabove, shall be retained by L/C Issuer
for its own account and the balance of each L/C Fee shall be promptly
distributed by Agent Bank to Lenders in proportion to their respective
Syndication Interests in the Credit Facility. All L/C Fees paid by Borrowers
are nonrefundable and shall be deemed fully earned upon issuance of the
applicable Letter of Credit."
Section 2.10. Late Charges and Default Rate.
a. If any payment due under the Revolving Credit Note is not paid within
three (3) Banking Business Days after receipt by Borrowers of written notice of
such nonpayment from Agent Bank, Borrowers promise to pay a late charge in the
amount of three percent (3%) of the amount of such delinquent payment and Agent
Bank need not accept any late payment made unless it is accompanied by such
three percent (3%) late payment charge. Any late charge shall be paid to
Lenders in proportion to their respective Syndication Interests.
b. In the event of the existence of an Event of Default,
commencing on the first (1st) Banking Business Day following the receipt by
Borrowers of written notice of the occurrence of such Event of Default from
Agent Bank, the total of the unpaid balance of the principal and the then
accrued and unpaid interest owing under the Revolving Credit Note shall commence
accruing interest at a rate equal to five percent (5%) over the Base Rate (the
"Default Rate") until all Events of Default which may exist have been cured, at
which time the interest rate shall revert to the rate of interest otherwise
accruing pursuant to the terms of the Revolving Credit Note.
c. In the event of the occurrence of an Event of Default,
Borrowers agree to pay all reasonable costs of collection, including the
reasonable attorneys' fees incurred by Agent Bank, in addition to and at the
time of the payment of such sum of money and/or the performance of such acts as
may be required to cure such Event of Default. In the event legal action is
commenced for the collection of any sums owing hereunder or under the terms of
the Revolving Credit Note, the Borrowers agree that any
41
judgment issued as a consequence of such action against Borrowers shall bear
interest at a rate equal to the Default Rate until fully paid.
Section 2.11. Net Payments. All payments under this Credit Agreement, the
Revolving Credit Note and/or a L/C Reimbursement Obligation shall be made
without set-off, counterclaim, recoupment or defense of any kind and in such
amounts as may be necessary in order that all such payments, after deduction or
withholding for or on account of any future taxes, levies, imposts, duties or
other charges of whatsoever nature imposed by the United States or any
Governmental Authority, other than franchise taxes or any tax on or measured by
the gross receipts or overall net income of any Lender pursuant to the income
tax laws of the United States or any State or any Governmental Authority, or the
jurisdiction where each Lender's principal office is located (collectively
"Taxes"), shall not be less than the amounts otherwise specified to be paid
under this Credit Agreement and the Revolving Credit Note. A certificate as to
any additional amounts payable to the Lenders under this Section 2.11 submitted
to the Borrowers by the Lenders shall show in reasonable detail an accounting of
the amount payable and the calculations used to determine in good faith such
amount and shall be conclusive absent manifest or demonstrable error. Any
amounts payable by the Borrowers under this Section 2.11 with respect to past
payments shall be due within thirty (30) days following receipt by the Borrowers
of such certificate from the Lenders; any such amounts payable with respect to
future payments shall be due within thirty (30) days after demand with such
future payments. With respect to each deduction or withholding for or on
account of any Taxes, the Borrowers shall promptly furnish to the Lenders such
certificates, receipts and other documents as may be required (in the reasonable
judgment of the Lenders) to establish any tax credit to which the Lenders may be
entitled.
Section 2.12. Increased Costs. If after the date hereof the adoption of, or
any change in, any applicable law, rule or regulation (including without
limitation Regulation D of the Board of Governors of the Federal Reserve System
and any successor thereto), or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender with any future request or future directive (whether or not having
the force of law) of any such Governmental Authority, central bank or comparable
agency:
a. Shall subject any Lender to any tax, duty or other charge with respect
to the Credit Facility, the Revolving Credit Note and/or L/C Reimbursement
Obligation or such Lender's obligation to make any funding of the Credit
Facility, or shall change the basis of taxation of payments to such Lender of
the principal of, or interest on, the Credit Facility or any other amounts due
under the Revolving Credit Note and/or a L/C Reimbursement Obligation in respect
of the Credit Facility or such Lender's obligation to fund the Credit Facility
(except for changes in the rate of any franchise tax
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or tax on the gross receipts or overall net income of such Lender imposed
by the United States or any Governmental Authority pursuant to the income
tax laws of the United States or any State or Governmental Authority, or the
jurisdiction where each Lender's principal office is located); or
b. With respect to the Bank Facilities or the obligation of the Lenders to
advance Borrowings under the Credit Facility or to issue or participate in
Letters of Credit under the L/C Facility, shall impose, modify or deem
applicable any reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capitalization, capital adequacy or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender; or
c. Shall impose on any Lender any other condition affecting the Credit
Facility, the Revolving Credit Note or such Lender's obligation to advance
Borrowings under the Credit Facility;
and the result of any of the foregoing, as set forth in subsections (a), (b) or
(c) is to increase the cost to (or in the case of Regulation D or reserve
requirements referred to above or a successor thereto, to impose a cost on) such
Lender of making or maintaining the Credit Facility, or to reduce the amount of
any sum or rate of return received or receivable by such Lender under the
Revolving Credit Note, then within thirty (30) days after demand by such Lender
(which demand shall be accompanied by a certificate setting forth the basis of
such demand), the Borrowers shall pay directly to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost (or in
the case of Regulation D or reserve requirements referred to above or a
successor thereto, such costs which may be imposed upon such Lender) or such
reduction of any sum or rate of return received or receivable under the
Revolving Credit Note. A certificate as to any additional amounts payable to
any Lender under this Section 2.12 submitted to the Borrowers by such Lender
shall show in reasonable detail an accounting of the amount payable and the
calculations used to determine in good faith such amount and shall be conclusive
absent manifest or demonstrable error.
Section 2.13. Mitigation; Exculpation.
a. Each Lender agrees that it will promptly notify the Borrowers in writing
upon its becoming aware that any payments are to become due to it under this
Credit Agreement pursuant to Section 2.11 or 2.12. Each Lender further agrees
that it will use reasonable efforts not materially disadvantageous to it (in its
reasonable determination) in order to avoid or minimize, as the case may be, the
payment by the Borrowers of any additional amounts pursuant to Section 2.11 or
2.12. Each Lender represents, to the best of its knowledge, that as of the
Closing Date no such amounts are payable to it.
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b. Borrowers shall not be liable to any Lender for any payments under
Section 2.11 or 2.12 arising to the extent of such Lender's gross negligence or
wilful misconduct or breach of any laws (other than as a result of Borrowers'
breach), or for amounts which were incurred more than ninety (90) days prior to
the date Borrowers are notified of the incurrence of such amount.
ARTICLE II
CONDITIONS PRECEDENT TO THE CLOSING DATE
----------------------------------------
A. Closing Conditions. The obligation of each of the Banks hereunder is
subject to the following conditions precedent, each of which shall be satisfied
prior to May 10, 2000 (unless each of the Banks, in their sole and absolute
discretion, shall agree otherwise). The occurrence of the Closing Date is
subject to and contingent upon Agent Bank having received, in each case in form
and substance reasonably satisfactory to Banks, or in the case of an occurrence,
action or event, the occurrence of each of the following:
Section 3.01. Credit Agreement. Executed counterparts of this Credit
Agreement in sufficient duplicate originals for each of the Banks.
Section 3.02. The Revolving Credit Note and Guaranty.
a. The Revolving Credit Note duly executed by the Borrowers in favor of
Agent Bank.
b. The Guaranty duly executed by the Guarantor in favor of Agent Bank.
Section 3.03. Security Documentation. The Security Documentation set forth
below, duly executed by Borrowers or other party thereto, consisting of the
following:
a. Deed of Trust;
b. Financing Statements;
c. Assignment of Entitlements, Contracts, Rents and Revenues; and
d. Assignment of Golden Horseshoe Lease.
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Section 3.04. Other Loan Documents. The following Loan Documents duly
executed by Borrowers and each other applicable party thereto consisting of the
following:
a. Environmental Certificate;
b. Payment Subordination Agreement (for each Subordinated Debt outstanding
or incurred as of the Closing Date); and
x. Xxxxxx Horseshoe Lease Estoppel Certificate.
Section 3.05. Articles of Incorporation, Bylaws, Corporate Resolution,
Certificate of Good Standing and Closing Certificate. Agent Bank shall have
received from each of the Borrowers: (i) a Certificate of Good Standing issued
by the Secretaries of State of the State of Colorado with respect to CCCC and of
the State of Delaware with respect to WMCKAC, WMCKVC and Guarantor
(together with a Certificate of Good Standing as a foreign corporation issued by
the Colorado Secretary of State with respect to WMCKAC and WMCKVC) and each
dated within thirty (30) calendar days of the Closing Date and telephonically
confirmed as of the Closing Date, (ii) a copy of the respective articles of
incorporation and by-laws certified as of the Closing Date to be true, correct
and complete by a duly Authorized Officer of each of the Borrowers and
Guarantor, respectively, (iii) an original Certificate of Corporate Resolution
and Certificate of Incumbency executed by the Secretary of each of the Borrowers
and Guarantor and attested to by its respective President, Vice President, or
Treasurer authorizing each such Borrower and Guarantor to enter into all
documents and agreements to be executed by it pursuant to this Credit Agreement
and further authorizing and empowering the officer or officers who will execute
such documents and agreements with the authority and power to execute such
documents and agreements on behalf of each respective corporation, (iv)
designation by corporate resolution and an original certificate ("Authorized
Officer Certificate"), substantially in the form of the Authorized Officer
Certificate marked "Exhibit D", affixed hereto and by this reference
incorporated herein and made a part hereof, of the officers of Borrowers who are
authorized to give Notices of Borrowing, Compliance Certificates and all other
notices, requests, reports, consents, certifications and authorizations on
behalf of the Borrowers (each individually an "Authorized Officer" and
collectively the "Authorized Officers") and (v) an original closing certificate
("Closing Certificate"), substantially in the form of the Closing Certificate
marked "Exhibit E", affixed hereto and by this reference incorporated herein and
made a part hereof, duly executed by an Authorized Officer of Borrowers.
Section 3.06. Opinion of Counsel. The opinion of counsel to the Borrowers
and Guarantor, dated as of the Closing Date and addressed to the Agent Bank
and each of the Banks, together with their respective successors and
assigns,
45
substantially in the form of the legal opinion marked "Exhibit
K", affixed hereto and by this reference incorporated herein and made a
part hereof.
Section 3.07. Title Insurance Policy. The Title Insurance Policy (or
proforma commitment for the issuance thereof) together with such endorsements
and re-insurance requirements as set forth in the Depository Closing
Instructions.
Section 3.08. Survey. If required by the Title Company as a condition for
the issuance of the Title Policy, current ALTA survey for the Real Property
subject to exceptions approved by Agent Bank prior to the Closing Date, which
must (i) be certified to Agent Bank and the Title Company, (ii) show the Real
Property to be free of encroachments, overlaps, and other survey defects, (iii)
show the courses and distances of the boundary lines for the Real Property, (iv)
show that all existing or to be constructed improvements are located within said
boundary lines, and (v) show the location of all above and below ground
easements, improvements, appurtenances, utilities, rights-of-way, water rights,
if any, and ingress and egress, by reference to book and page numbers and/or
filed map reference. On or before the Closing Date, Borrowers shall comply with
all other survey requirements of Title Company for the issuance of the Title
Insurance Policy.
Section 3.09. Payment of Taxes. Evidence satisfactory to Agent Bank that
all past and current real and personal property taxes and assessments which are
presently due and payable applicable to the Real Property have been paid in
full.
Section 3.10. Insurance. Copies of the declaration pages of each of the
insurance policies certified to be true and correct by an Authorized Officer of
the Borrowers, together with original binders evidencing Borrowers as named
insured, and original certificates of insurance, loss payable and mortgagee
endorsements naming Agent Bank as mortgagee, loss payee and additional insured,
as required by the applicable insurance provisions set forth in Section 5.09 of
this Credit Agreement.
Section 3.11. Payment of Upfront Fees. Payment by Borrowers of the Upfront
Fee as provided in Section 2.09(a) hereinabove.
Section 3.12.Reimbursement for Expenses and Fees. Reimbursement by Borrowers
for all reasonable fees and out-of-pocket expenses incurred by Agent Bank in
connection with the Credit Facility, including, but not limited to, escrow
charges, title insurance premiums, environmental examinations, recording fees,
appraisal fees, reasonable attorney's fees of Xxxxxxxxx & Xxxxxx, LLC and
Colorado counsel retained by them, insurance consultant fees, and all other like
fees and expenses remaining unpaid as of the Closing Date to the extent then due
and payable on the Closing Date, provided that the amount then invoiced shall
not thereafter preclude Borrowers' obligation to pay such costs and expenses
relating to
46
the closing of the Credit Facility following the Closing Date
or to reimburse Agent Bank for the payment thereof.
Section 3.13. Schedule of Spaceleases and Equipment Leases and Contracts. A
Schedule of Spaceleases (Schedule 4.16) and Equipment Leases and Contracts
(Schedule 4.17) in each instance setting forth the name of the other party
thereto, a brief description of each spacelease, equipment lease and contract
and the commencement and ending date thereof, to the extent known to Borrowers
as of the Closing Date.
Section 3.14. Environmental Site Assessments. No additional Environmental
Site Assessment or Assessments of the Real Property described on the Title
Report shall be required as of the Closing Date.
Section 3.15. Lease and Option.
a. A true and correct copy of the Golden Horseshoe Lease and of all
amendments and modifications thereto; and
b. A true and correct copy of the T-Shirt Shop Option and of all amendments
and modifications thereto.
Section 3.16. Schedule of all Significant Litigation. A Schedule of
Significant Litigation (Schedule 3.16), in each instance setting forth the names
of the other parties thereto, a brief description of such litigation,
whether or not such litigation is covered by insurance and, if so, whether the
defense thereof and liability therefor has been accepted by the applicable
insurance company indicating whether such acceptance of such defenses with or
without a reservation of rights, the commencement date of such litigation and
the amount sought to be recovered by the adverse parties thereto or the amount
which is otherwise in controversy.
Section 3.17. Financial Statements. For Fiscal Year 1999, audited
consolidated financial statements of Guarantor including consolidating schedules
which present the balance sheet and statement of operations of the Borrower
Consolidation.
Section 3.18. No Injunction or Other Litigation. No law or regulation shall
prohibit, and no order, judgment or decree of any Governmental Authority shall,
and no litigation shall be pending or threatened which in the reasonable
judgment of the Agent Bank would or would reasonably be expected to, enjoin,
prohibit, limit or restrain the execution and delivery of this Credit Agreement
or the performance by the Borrowers of any other obligations in respect thereof.
47
Section 3.19. Additional Documents and Statements. Such additional
documents, affidavits, certificates and opinions as Lenders may reasonably
require to insure compliance with this Credit Agreement. The statements set
forth in Section 3.21 shall be true and correct.
B. Conditions Precedent to all Borrowings. The obligation of each
Lender and Agent Bank to make any Borrowing requested to be made on any Funding
Date is subject to the occurrence of each of the following conditions precedent
as of such Funding Date:
Section 3.20. Notice of Borrowing. With respect to any Borrowing, the Agent
Bank shall have received in accordance with Section 2.03 on or before such
Funding Date an original and duly executed Notice of Borrowing or facsimile copy
thereof, to be promptly followed by an original.
Section 3.21. Certain Statements. On the Closing Date and as of the Funding
Date the following statements shall be true and correct:
a. The representations and warranties with respect to the Borrowers
contained in Article IV hereof (other than representations and warranties which
expressly speak only as of a different date which shall be true and correct as
of such date) are true and correct on and as of the Funding Date and as of the
Closing Date in all material respects as though made on and as of that date,
except to the extent that such representations and warranties are not true and
correct as a result of a change which is permitted by this Credit Agreement or
by any other Loan Document, or which is otherwise consented to by Requisite
Lenders;
b. The representations and certifications contained in the Environmental
Certificate are true and correct in all material respects (other than
representations and warranties which expressly speak only as of a different date
which shall be true and correct as of such date);
c. Since the date of the most recent financial statements referred to in
Section 5.08, no Material Adverse Change shall have occurred; and
d. No event has occurred or as a result of any Borrowings contemplated
hereby would occur and is continuing, or would result from the making thereof,
which constitutes a Default or Event of Default hereunder.
Section 3.22 Gaming Permits. The Borrowers Consolidation shall have all
Gaming Permits material to or required for the conduct of its gaming businesses
and the conduct of games of chance at the Casino Facilities and such
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Gaming Permits shall not then be suspended, enjoined or
prohibited (for any length of time) by any Gaming Authority or any other
Governmental Authority.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Banks to enter into this Credit Agreement, Borrowers and
Guarantor make the following representations and warranties:
Section 4.01. Organization; Power and Authorization. WMCKAC, WMCKVC and
Guarantor are each a corporation duly organized and validly existing under the
laws of the State of Delaware. CCCC is a corporation duly organized and validly
existing under the laws of the State of Colorado. Each Borrower and
Guarantor (i) has all requisite corporate power, authority and legal right to
execute and deliver each document, agreement or certificate to which it is a
party or by which it is bound in connection with the Credit Facility, to
consummate the transactions and perform its obligations hereunder and
thereunder, and to own its properties and assets and to carry on and conduct its
business as presently conducted or proposed to be conducted, and (ii) has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Credit Agreement and the other Loan Documents to which it is
a party or by which it is bound and to consummate the transactions contemplated
hereunder and thereunder.
Section 4.02. Authority; Compliance with other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by
Borrowers and Guarantor, as applicable, of the Loan Documents and the execution
of the Loan Documents have been duly authorized by all necessary corporate
action and do not:
a. require any consent or approval not heretofore obtained of any member,
director, stockholder, security holder or creditor of such Party;
b. violate or conflict with any provision of such Party's articles of
incorporation or bylaws, as applicable;
c. violate any requirement of Law, including any Gaming Law, applicable to
such Party;
d. constitute a "transfer of an interest" or an "obligation incurred"
that is avoidable by a trustee under Section 548 of the Bankruptcy Code of
1978, as amended, or constitute a "fraudulent conveyance," "fraudulent
obligation" or "fraudulent
49
transfer" within the meanings of the Uniform Fraudulent Conveyances Act
or Uniform Fraudulent Transfer Act, as enacted in any applicable jurisdiction;
or
e. result in a breach of, or would, with the giving of notice or the lapse
of time or both, constitute a breach of or default under, or cause or permit the
acceleration of any obligation owed under, any indenture or loan or credit
agreement or any other Contractual Obligation to which such Party is a party or
by which such Party or any of its assets are bound or affected.
Section 4.03. Litigation. Except as disclosed on the Schedule of
Significant Litigation delivered in connection with Section 3.16, to the best
knowledge of Borrowers and Guarantor, after due inquiry and investigation, there
is no action, suit, proceeding, inquiry, hearing or investigation pending
or threatened, in any court of law or in equity, or before any Governmental
Authority, which could reasonably be expected to result in any Material Adverse
Change in any Casino Facility or in its business, financial condition,
properties or operations. To the best knowledge of Borrowers, after due inquiry
and investigation, no Borrower is in violation of or default with respect to any
order, writ, injunction, decree or demand of any such court or Governmental
Authority.
Section 4.04. Agreements Legal, Binding, Valid and Enforceable. This Credit
Agreement, the Revolving Credit Note, the Security Documentation and all other
Loan Documents, when executed and delivered by Borrowers in connection with the
Credit Facility and the Guaranty when executed and delivered by Guarantor will
constitute legal, valid and binding obligations of Borrowers and Guarantor,
respectively, enforceable against Borrowers and Guarantor, as applicable, in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
relating to or affecting the enforcement of creditors' rights and the exercise
of judicial discretion in accordance with general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
Section 4.05. Information and Financial Data Accurate; Financial Statements;
No Adverse Change. All information and financial and other data previously
furnished in writing by Borrowers and/or Guarantor in connection with the Credit
Facility was true, correct and complete in all material respects as of the date
Furnished (unless subsequently corrected prior to the date hereof), and there
has been no Material Adverse Change with respect thereto to the date of this
Credit Agreement since the dates thereof. No information has been omitted which
would make the information previously furnished in such financial statements to
Banks misleading or incorrect in any material respect to the date of this Credit
Agreement. Any and all financial statements heretofore furnished to Banks by
Borrowers and/or Guarantor: (i) present fairly the financial position of
Borrowers and/or Guarantor, as the case may be,
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as at their respective dates and the results of operations and
changes in cash flows for the periods to which they apply, and (ii) have
been prepared, except as noted therein, in conformity with GAAP applied on a
consistent basis throughout the periods involved. Since the date of the
financial statements referred to in this Section 4.05, there has been no
Material Adverse Change in the financial condition, business or operations of
the Borrowers and/or Guarantor.
Section 4.06. Governmental Approvals. All consents, approvals, orders or
authorizations of, or registrations, declarations, notices or filings with any
Governmental Authority and any other Person, which may be required in connection
with the valid execution and delivery of this Credit Agreement and the other
Loan Documents by Borrowers and Guarantor, as applicable, and the carrying-out
or performance of any of the transactions required or contemplated hereunder, or
thereunder, by Borrowers, have been obtained or accomplished and are in full
force and effect. All consents, approvals, orders or authorizations of, or
registrations, declarations, notices or filings with any Governmental Authority
and any other Person, the failure of which could reasonably be expected to
result in a Material Adverse Change, which may be required by Borrowers in
connection with the use and operation of the Casino Facilities have been
obtained or accomplished and are in full force and effect.
Section 4.07. Payment of Taxes. Borrowers have duly filed or caused to be
filed all federal, state and local tax reports and returns which are required to
be filed by them and have paid or made provisions for the payment of, all
material taxes, assessments, fees and other governmental charges which have or
may have become due pursuant to said returns or otherwise pursuant to any
assessment received by Borrowers except such taxes, assessments, fees or other
governmental charges, if any, as are being contested in good faith by any
Borrower by appropriate proceedings and for which such Borrower has maintained
adequate reserves for the payment thereof in accordance with GAAP.
Section 4.08 Title to Properties. Borrowers shall have good and marketable fee
title to the Real Property (other than the Golden Horseshoe Property) as the
same is defined as of the Closing Date, at all times during the term of the
Credit Facility. Borrowers shall have a leasehold interest in and to the Golden
Horseshoe Property pursuant to the Golden Horseshoe Lease or fee title to the
Golden Horseshoe Property at all times during the term of the Credit Facility.
Borrowers and Guarantor have good and marketable title to: (a) all of their
respective properties and assets reflected in the most recent financial
statements referred to in Section 4.05 hereof as owned by them (except those
properties and assets disposed of since the date of said financial statements in
the ordinary course of business or those properties and assets which are no
longer used or useful in the conduct of its businesses), including, but not
limited to, Borrowers' interest in patents, trademarks, tradenames,
servicemarks, and
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licenses relating to or pertaining to the Casino Facilities,
and (b) all properties and assets acquired by them subsequent to the date of the
most recent financial statements referred to in Section 4.05 hereof. All
such properties and assets are not subject to any liens, encumbrances or
restrictions except Permitted Encumbrances. All roads, easements and rights of
way necessary for the full utilization of the Real Property have been completed
and/or obtained.
Section 4.09. No Untrue Statements. All statements, representations and
warranties made by Borrowers and Guarantor, in this Credit Agreement, any other
Loan Document and any other agreement, document, certificate or instrument
previously furnished or to be furnished by Borrowers and/or Guarantor to Banks
pursuant to the provisions of this Credit Agreement, (i) are and shall be true,
correct and complete in all material respects, at the time they were made, (ii)
do not and shall not contain (at the time they were made) any untrue statement
of a material fact, and (iii) do not and shall not omit to state (at the time
they were made) a material fact necessary in order to make the information
contained herein or therein not misleading or incomplete. Borrowers and
Guarantor understand that all such statements, representations and warranties
shall be deemed to have been relied upon by Banks as a material inducement to
establish the Credit Facility.
Section 4.10. Brokerage Commissions. No person is entitled to receive any
brokerage commission, finder's fee or similar fee or payment in connection with
the extensions of credit contemplated by this Credit Agreement as a result of
any agreement entered into by Borrowers. No brokerage or other fee, commission
or compensation is to be paid by Banks with respect to the extensions of credit
contemplated hereby as a result of any agreement entered into by Borrowers, and
Borrowers agree to indemnify Banks against any such claims for brokerage fees or
commissions and to pay all expenses including, without limitation, reasonable
attorney's fees incurred by Banks in connection with the defense of any action
or proceeding brought to collect any such brokerage fees or commissions.
Section 4.11. No Defaults. Borrowers are not in violation of or in default
with respect to any applicable Laws which materially and adversely affect the
business or financial condition of the Casino Facilities. Without limiting the
generality of the foregoing, Borrowers are not in violation or default (nor is
there any waiver in effect which, if not in effect, would result in a violation
or default) in any material and adverse respect under any indenture, evidence of
indebtedness, loan or financing agreement or other agreement or instrument of
whatever nature to which they, or any of them, are a party or by which they, or
any of them, are bound, which in any case could reasonably be expected to result
in a Material Adverse Change.
Section 4.12. Employee Retirement Income Security Act of 1974. No
Reportable Event has occurred and is continuing with respect to any Pension Plan
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under ERISA, that gives rise to liabilities that materially
adversely affect the financial condition or operations of Borrowers.
Section 4.13. Subsidiaries. As of the Closing Date, Borrowers do not have
any Subsidiaries which are not members of the Borrower Consolidation.
Section 4.14. Utility Services. All utility services necessary for the
Casino Facilities including, without limitation, electrical, water, gas and
sewage services and facilities are presently in service and fully operational at
the Casino Facilities.
Section 4.15. Policies of Insurance. Each of the copies of the policies,
declaration pages, original binders and certificates of insurance evidencing the
Policies of Insurance as required under Section 5.09 with respect to the Casino
Facilities delivered to Agent Bank by Borrowers (i) is a true, correct and
complete copy of the respective original thereof as in effect on the date hereof
or thereof, without amendments or modifications of any of said documents or
instruments not included in such copies, and (ii) has not been terminated and is
in full force and effect. Borrowers are not in default in the observance or
performance of its obligations under said documents and instruments, and
Borrowers have all things required to be done as of the date of this Credit
Agreement to keep unimpaired their rights thereunder.
Section 4.16. Spaceleases. A schedule of all executed Spaceleases
pertaining to the Casino Facilities, or any portion thereof, in existence as of
the Closing Date hereof, is set forth on Schedule 4.16 attached hereto.
Section 4.17. Equipment Leases and Contracts. A schedule of all executed
Equipment Leases and Contracts pertaining to the Casino Facilities or any
portion thereof, in existence on the date hereof, is set forth on Schedule 4.17
attached hereto.
Section 4.18. Gaming Permits and Approvals. As of the Closing Date, all
Gaming Permits required to be held by Borrowers necessary for the operation of
gaming activities at the Casino Facilities will be current and in good standing.
Section 4.19. Environmental Certificate. The representations and
certifications contained in the Environmental Certificate are true and correct
in all material respects.
Section 4.20. Compliance with Statutes, etc. To the best of their
knowledge, Borrowers are in compliance in all material respects with all
applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all
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Governmental Authorities, domestic or foreign, in respect of
the conduct of their business and the ownership of their property.
Section 4.21. Investment Company Act. No Borrower is an "investment
company" nor a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
Section 4.22. Public Utility Holding Company Act. No Borrower is a "holding
company," nor a "subsidiary company" of a "holding company," nor an "affiliate"
of a "holding company" nor of a "subsidiary company" of a "holding company,"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
Section 4.23. Labor Relations. There is no strike or work stoppage in
existence, or to the best knowledge of Borrowers threatened, involving any
Borrower or the Casino Facilities.
Section 4.24. Trademarks, Patents, Licenses, Franchises, Formulas and
Copyrights. Borrowers own all the patents, trademarks, permits, service marks,
trade names, copyrights, licenses, franchises and formulas, or has a valid
license or sublicense of rights with respect to the foregoing, and has obtained
assignments of all leases and other rights of whatever nature, necessary for the
present conduct of their business at the Casino Facilities, without any known
conflict with the rights of others which, or the failure to obtain which, as the
case may be, could reasonably be expected to result in a Material Adverse Change
on the business, operations, property, assets or condition (financial or
otherwise) of Borrowers taken as a whole.
Section 4.25. Contingent Liabilities. As of the Closing Date, Borrowers
have incurred no material Contingent Liabilities (any Contingent Liability in
excess of One Million Dollars ($1,000,000.00) being deemed material) other than
those described on Schedule 4.25.
Section 4.26 Golden Horseshoe Lease. The copies of the Golden
Horseshoe Lease and all modifications and amendments thereto (if any) which have
been delivered to Agent Bank in accordance with Section 3.15 are each a true,
correct and complete copy of the respective original thereof, as in effect on
the Closing Date, and no amendments or modifications have been made to such
Golden Horseshoe Lease, except as set forth by documents delivered to Agent Bank
in accordance with said Section 3.15 or otherwise reasonably approved in
writing by Requisite Lenders. The Golden Horseshoe Lease has not been terminated
and is in full force and effect. WMCKAC is not in default in the observance or
performance of any of its obligations under the Golden Horseshoe Lease and has
done all things required to be done as of the Closing Date to keep unimpaired
its rights thereunder.
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ARTICLE II
GENERAL COVENANTS OF BORROWERS AND GUARANTOR
--------------------------------------------
To induce the Banks to enter into this Credit Agreement and establish the
Credit Facility, Borrowers and Guarantor covenant to Banks as follows:
A. Affirmative Covenants.
Section 5.01. FF&E. Borrowers shall furnish, fixture and equip the Casino
Facilities with FF&E they reasonably deem appropriate for the operation of the
Casino Facilities. All FF&E that is purchased and installed in the Casino
Facilities shall be purchased free and clear of any liens, encumbrances or
claims, other than Permitted Encumbrances. If Borrowers should sell, transfer,
convey or otherwise dispose of any FF&E and not replace such FF&E with purchased
items of equivalent value and utility or replace said FF&E with leased FF&E
of equivalent value and utility, within the permissible leasing and purchase
agreement limitation set forth herein, to the extent such non-replaced FF&E
exceeds a cumulative aggregate value of One Hundred Fifty Thousand Dollars
($150,000.00) during the term of the Credit Facility, Borrowers shall be
required to immediately, permanently reduce the Maximum Permitted Balance of the
Credit Facility by the amount of the Capital Proceeds of the FF&E so disposed of
in excess of such One Hundred Fifty Thousand Dollars ($150,000.00), subject,
however, to the right of Agent Bank to verify to its reasonable satisfaction the
amount of said Capital Proceeds; in the event Agent Bank and Borrowers do not
agree as to the value of the FF&E disposed of and the amount of the Capital
Proceeds, then Borrowers, at their sole cost and expense, shall obtain a written
appraisal of the FF&E disposed of, in excess of One Hundred Fifty Thousand
Dollars ($150,000.00) as provided hereinabove, from an appraiser reasonably
satisfactory to Agent Bank, setting forth said values and amounts, and Lenders
agree to accept the results of said appraisal. The Maximum Permitted Balance
shall immediately be reduced without duplication by the amount of the FF&E
disposed of, in excess of One Hundred Fifty Thousand Dollars ($150,000.00), as
set forth by such appraisal.
Section 5.02. Permits; Licenses and Legal Requirements. Borrowers shall
comply in all material respects with and keep in full force and effect, as and
when required, all Gaming Permits and all material permits, licenses and
approvals obtained from any Governmental Authorities which are required for the
operation and use of the Casino Facilities. Borrowers shall comply in all
material respects with all applicable material existing and future laws, rules,
regulations, orders, ordinances and requirements of all Governmental
Authorities, and with all recorded restrictions affecting the Casino Facilities.
All material contracts and agreements relating to the operation of the Casino
Facilities shall be held in the name of a Borrower.
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Section 5.03. Compliance with Payment Subordination Agreement. Until Credit
Facility Termination, Borrowers and Guarantor shall fully perform and comply
with all covenants, terms and conditions imposed or assumed by Borrowers and
Guarantor under the Payment Subordination Agreement executed in connection with
the Subordinated Debt.
Section 5.04. Protection Against Lien Claims. Borrowers shall give written
notice to Agent Bank on or before ten (10) days of any Borrower's actual
knowledge thereof, of any lien claim filed against any Borrower or any portion
of the Real Property. Borrowers shall promptly pay and discharge or cause to be
paid and discharged all claims and liens for labor done and materials and
services supplied and furnished in connection with the Casino Facilities in
accordance with this Section 5.04. If any mechanic's lien or materialman's lien
shall be recorded, filed or suffered to exist against any portion of the Real
Property or any interest therein by reason of work, labor, services or materials
supplied, furnished or claimed to have been supplied and furnished to the Casino
Facilities upon Borrowers' receipt of written notice from Agent Bank demanding
the release and discharge of such lien, said lien or claim shall be paid,
released and discharged of record within sixty (60) days following its receipt
of such notice.
Section 5.05. No Change in Character of Business. Until Credit Facility
Termination Borrowers shall not effect a material change in the nature and
character of their business at the Casino Facilities as presently contemplated
and disclosed to Banks.
Section 5.06. Preservation and Maintenance of Properties and Assets;
Acquisition of Additional Property.
a. Until Credit Facility Termination, (a) Borrowers shall operate,
maintain and preserve all rights, privileges, franchises, licenses, Gaming
Permits and other properties and assets necessary to conduct their
businesses and the Casino Facilities, the absence of which would result in a
Material Adverse Change, in accordance in all material respects with all
applicable governmental laws, ordinances, approvals, rules and regulations
and requirements, including, but not limited to, zoning, sanitary, pollution,
building, environmental and safety laws and ordinances, rules and
regulations promulgated thereunder, and (b) Borrowers shall not consolidate
with, remove, demolish, materially alter, discontinue the use of, sell,
transfer, assign, hypothecate or otherwise dispose of to any Person (other
than to another member of the Borrower Consolidation),any part of their
properties and assets necessary for the continuance of their business, as
presently conducted and as presently contemplated, other than in the normal
course of business or as otherwise permitted pursuant to this Credit
Agreement.
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b. Furthermore, notwithstanding the provisions contained in Section 5.25, in
the event any Borrower, Guarantor or any Affiliate and/or Subsidiary thereof,
shall acquire the fee interest in the T-Shirt Shop or shall acquire any other
real property or rights to the use of real property which is used in a material
manner in connection with the Casino Facilities, or any of them, Borrowers shall
concurrently with the acquisition of such real property or the rights to the use
of such real property, execute or cause the execution of such documents as may
be necessary to add such real property or rights to the use of real property as
Collateral under the Credit Facility. Borrowers shall not remove, demolish,
materially alter, discontinue the use of, sell, transfer, assign, hypothecate or
otherwise dispose of to any Person, any part of their properties and assets
necessary for the continuance of their businesses, as presently conducted, other
than in the normal course of Borrowers' business and as provided in Sections
5.01 and 5.07.
Section 5.07. Repair of Properties and Assets. Until Credit Facility
Termination, Borrowers shall, at their own cost and expense, (a) maintain,
preserve and keep in a manner consistent with gaming casino operating practices
generally applicable to casino operations operating in the Cripple Creek,
Colorado area, their assets and properties, including, but not limited to, the
Collateral and all FF&E owned or leased by Borrowers in good and substantial
repair, working order and condition, ordinary wear and tear excepted, (b) from
time to time, make or cause to be made, all repairs, replacements, renewals,
improvements and betterments to the Casino Facilities that Borrowers deem
reasonably necessary, and (c) from time to time, make such substitutions,
additions, modifications and improvements that Borrowers deem reasonably
necessary. All alterations, replacements, renewals, or additions made pursuant
to this Section 5.07 shall become and constitute a part of said assets and
property and subject, inter alia, to the provisions of Section 5.01 and subject
to the lien of the Security Documentation.
Section 5.08. Financial Statements; Reports; Certificates and Books and
Records. Until Credit Facility Termination, the Borrower Consolidation and
Guarantor shall, unless the Agent Bank (with the written approval of the
Requisite Lenders) otherwise consents, at Borrowers' Consolidation and
Guarantor's sole expense, deliver to the Agent Bank and each of the Lenders a
full and complete copy of each of the following:
a. As soon as practicable, and in any event within forty-five (45) days
after the end of each Fiscal Quarter following the Closing Date, the balance
sheet of the Borrower Consolidation as at the end of such Fiscal Quarter and an
income statement, statement of operations and a statement of cash flows for the
Fiscal Quarter under review and reflecting year-to-date performance of the
Borrower Consolidation and, a comparison of the financial performance of the
Borrower Consolidation to the prior Fiscal Year's operations. Such financial
Statements shall be certified by an
57
Authorized Officer of the Borrower Consolidation as fairly presenting the
financial condition, results of operations and cash flows of the Borrower
Consolidation in accordance with GAAP, except as noted therein, as at such date
and for such periods, subject only to normal year-end accruals and audit
adjustments;
b. As soon as practicable, and in any event within forty-five (45) days
after the end of each Fiscal Quarter (including the fourth (4th) Fiscal Quarter
in any Fiscal Year), a pricing certificate in the form marked "Exhibit G",
affixed hereto and by this reference incorporated herein and made a part hereof
(the "Pricing Certificate") setting forth a preliminary calculation of the
Leverage Ratio as of the last day of such Fiscal Quarter, and providing
reasonable detail as to the calculation thereof, which calculations shall be
based on the preliminary unaudited financial statements of the Borrower
Consolidation for such Fiscal Quarter, and as soon as practicable thereafter, in
the event of any material variance in the actual calculation of the Leverage
Ratio from such preliminary calculation, a revised Pricing Certificate setting
forth the actual calculation thereof; provided, however, that in the event that
Borrowers do not deliver a Pricing Certificate when due, then until (but only
until) such Pricing Certificate is delivered as provided herein, the Leverage
Ratio shall be deemed, for the purpose of determining the Applicable Margin, to
be greater than 3.0 to 1.0 and the Applicable Margin determined with respect
thereto;
c. As soon as practicable, and in any event within one hundred twenty (120)
days after the end of each Fiscal Year, the balance sheet of the Borrower
Consolidation as at the end of such Fiscal year and an income statement,
statement of operations and statement of cash flows for such Fiscal Year, all in
reasonable detail. Such financial statements shall be prepared in accordance
with GAAP, except as noted therein, and such balance sheet and statements shall
be accompanied by a report of independent public accountants of recognized
standing selected by the Borrower Consolidation and reasonably satisfactory to
the Requisite Lenders (it being understood that any "Big 6" accounting firm
shall be automatically deemed satisfactory to the Requisite Lenders), which
report shall be prepared in accordance with generally accepted auditing
standards as at such date, and shall not be subject to any qualifications or
exceptions as to the scope of the audit nor to any other qualification or
exception determined by the Requisite Lenders in their good faith business
judgment to be adverse to the interests of the Banks. Concurrently with the
submission of such annual audited financial statements, such independent
certified public accountants shall additionally furnish to Agent Bank a
Compliance Certificate, certifying that such independent certified public
accountant has no actual knowledge of any Default or Event of Default;
d. As soon as practicable, and in any event within forty-five (45) days
after the commencement of each Fiscal Year, a budget for the Borrowers,
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including for such Fiscal Year, projected statement of operations and
projected statement of cash flow, all in reasonable detail;
e. As soon as reasonably practical after each Fiscal Year End, but in no
event later than forty-five (45) days following each Fiscal Year End, the
Borrower Consolidation shall submit to Agent Bank, with sufficient copies for
distribution to each of the Lenders, an internally prepared annual capital
expenditure budget with respect to the Casino Facilities for the next ensuing
Fiscal Year, which shall be reconciled as of the end of each Fiscal Quarter with
actual Capital Expenditures made to the date of such Fiscal Quarter end. Each
such quarterly reconciliation shall be made as soon as practicable, and in any
event within forty-five (45) days after the end of each Fiscal Quarter;
f. On or before forty-five (45) days after the end of each Fiscal Quarter
following the Closing Date, and continuing until Credit Facility Termination,
the Borrower Consolidation shall, at the Borrower Consolidation's sole expense,
deliver to the Agent Bank for distribution by it to the Banks, a Compliance
Certificate in each instance duly and accurately prepared and signed by an
Authorized Officer;
g. Until Bank Facility Termination, the Borrower Consolidation shall keep
and maintain complete and accurate books and records. Borrowers shall permit
Banks and any authorized representatives of Banks to have reasonable access to
and to inspect, examine and make copies of the books and records, any and all
accounts, data and other documents of Borrowers at all reasonable times upon the
giving of reasonable notice of such intent. In addition: (i) in the event of
the occurrence of any Default or Event of Default, or (ii) in the event any
Material Adverse Change occurs, Borrowers shall promptly, and in any event
within three (3) days after actual knowledge thereof, notify Agent Bank in
writing of such occurrence;
h. Promptly after the same are available, copies of each annual report,
quarterly report, proxy or financial statement or other report or communication
sent to the stockholders of Guarantor, and copies of all annual, regular,
periodic and special reports and registration statements which Guarantor may
file or be required to file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not
otherwise required to be delivered to the Banks pursuant to other provisions of
this Section 5.08; and
i. Until Credit Facility Termination, Borrowers and Guarantor shall
furnish to Agent Bank, with sufficient copies for distribution to each of the
Banks any financial information or other information bearing on the financial
status of the Borrowers which is reasonably requested by Agent Bank or Requisite
Lenders.
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Section 5.09. Insurance. Borrowers shall obtain, or cause to be obtained,
and shall maintain or cause to be maintained with respect to the Casino
Facilities, at all times throughout the period commencing on the Closing Date
and continuing until Credit Facility Termination at their own cost and expense,
and shall deposit with Agent Bank on or before the Closing Date:
a. Property Insurance. The Borrower Consolidation shall maintain an "All
Risk" (special causes of loss or equivalent), including flood and earthquake
perils with a sublimit of no less than One Million Dollars ($1,000,000.00),
covering the building and improvements, and any other permanent structures for
one hundred percent (100%) of the replacement cost. Upon the request of Agent
Bank, replacement cost for insurance purposes will be established by an
independent appraiser mutually selected by Borrowers and Agent Bank. The policy
will include Agreed Amount (waiving co-insurance) and replacement cost
valuation and building ordinance endorsements. The policy will include a
standard mortgagee clause (ISO form or equivalent) and provide that all losses
in excess of One Hundred Thousand Dollars ($100,000.00) be adjusted with the
Agent Bank. The Borrowers waive any and all rights of subrogation against
Banks.
b. Personal Property (including machinery, equipment, furniture, fixtures,
stock). The Borrower Consolidation shall maintain "All Risk" property coverage
for all personal property owned, leased or for which any Borrower is legally
liable. Such policy shall include a Lenders Loss Payable endorsement in favor
of Agent Bank.
The policy providing real property and personal property coverages, as
specified in 5.09(a) and (b) hereinabove, may include a deductible of no more
than Ten Thousand Dollars ($10,000.00) for any single occurrence. Flood and
earthquake deductibles can be no more than Twenty-Five Thousand Dollars
($25,000.00), if a separate deductible applies.
c. Business Interruption/Extra Expense. The Borrower Consolidation shall
maintain combined Business Interruption/Extra Expense coverage with a limit
representing no less than one hundred percent (100%) of the projected annual net
profit plus continuing expenses (including debt service) for the Casino
Facilities. Such coverage shall also include extensions for off premises power
losses and an extended period of indemnity of ninety (90) days endorsement.
These coverages may have a deductible of no greater than twenty-four (24) hours,
or Twenty-Five Thousand Dollars ($25,000.00), if a separate deductible applies.
d. Boiler and Machinery. The Borrower Consolidation shall maintain a
Boiler and Machinery policy for the Casino Facilities written on a Comprehensive
Form with a combined direct and indirect limit of no less than Two Million
Five Hundred Thousand Dollars ($2,500,000.00). The policy shall include
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extensions for Agreed Amount (waiving co-insurance) and Replacement Cost
Valuation. The policy may contain deductibles of no greater than Ten Thousand
Dollars ($10,000.00) direct and twenty-four (24) hours indirect.
e. Crime Insurance. The Borrower Consolidation shall obtain a comprehensive
crime policy, including the following coverages:
(i) employee dishonesty - Five Hundred Thousand Dollars
($500,000.00);
(ii) money and securities (inside) - One Hundred Thousand Dollars
($100,000.00);
(iii) money and securities (outside) - One Hundred Thousand
Dollars ($100,000.00);
(iv) depositor's forgery - One Hundred Thousand Dollars
($100,000.00);
(v) computer fraud - One Hundred Thousand Dollars ($100,000.00).
The policy must be amended so that money is defined to include "tokens
and chips" (as defined by the Gaming Laws). The policy may contain deductibles
of no greater than Fifty Thousand Dollars ($50,000.00) for employee dishonesty
and Ten Thousand Dollars ($10,000.00) for all other agreements listed above.
f. Commercial General Liability (1996 form or equivalent). The Borrower
Consolidation shall maintain a Commercial General Liability policy with a One
Million Dollar ($1,000,000.00) combined single limit for bodily injury and
property damage, including Products Liability, Contractual Liability, and all
standard policy form extensions. The policy must provide a Two Million Dollar
($2,000,000.00) general aggregate (per location, if multi-location risk) and be
written on an "occurrence form". The policy will include extensions for Liquor
legal, Employee Benefits legal, Innkeepers legal and Safe Deposit legal. If the
general liability policy contains a self-insured retention, it shall be no
greater than Five Thousand Dollars ($5,000.00) per occurrence, with an aggregate
retention of no more than One Hundred Thousand Dollars ($100,000.00), including
expenses.
The policy shall be endorsed to include Agent Bank as an additional
insured on behalf of the Banks. Definition of additional insured shall include
all officers, directors, employees, agents and representatives of the additional
insured. The coverage
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for additional insured shall apply on a primary basis irrespective of any other
insurance whether collectible or not.
g. Automobile. Borrowers shall maintain a comprehensive Automobile
Liability Insurance Policy written under coverage "symbol 1", providing a One
-Million Dollar ($1,000,000.00) combined single limit for bodily injury and
property damage covering all owned, non-owned and hired vehicles of the Borrower
Consolidation. If the policy contains a self insured retention it shall be
no greater than Five Thousand Dollars ($5,000.00) per occurrence, with an
aggregate retention of no more than One Hundred Thousand Dollars ($100,000.00),
including expenses.
h. Workers Compensation and Employers Liability Insurance. The Borrower
Consolidation shall maintain a standard workers compensation policy in
compliance with all applicable laws of the State of Colorado, including
employers liability coverage subject to a limit of no less than One Million
Dollars ($1,000,000.00) each employee, One Million Dollars ($1,000,000.00) each
accident, One Million Dollars ($1,000,000.00) policy limit. The policy shall
include endorsements for Voluntary Compensation Coverage and Stop Gap Liability.
If the Borrower Consolidation has elected to self-insure Workers Compensation
coverage in the State of Colorado, the Agent Bank must be furnished with a copy
of the certificate from the state permitting self-insurance and evidence of a
Stop Loss Excess Workers Compensation policy with a specific retention of no
greater than One Hundred Fifty Thousand Dollars ($150,000.00).
i. If the Borrower Consolidation's general liability and automobile policies
include a self-insured retention, it is agreed and fully understood that the
Borrower Consolidation is solely responsible for payment of all amounts due
within said self-insured retentions. Any Indemnification/Hold Harmless
provision is extended to cover all liabilities associated with said self-insured
retentions.
j. Umbrella Liability. An Umbrella Liability policy shall be purchased with
a limit of not less than Fifteen Million Dollars ($15,000,000.00) providing
excess coverage over all limits and coverages indicated in paragraphs (f), (g)
and (h) above. The limits can be obtained by a combination of Primary and
Excess Umbrella policies, provided that all layers follow form with the
underlying policies indicated in (f), (g) and (h) and are written on an
"occurrence" form. This policy shall be endorsed to include the Agent Bank as
an additional insured on behalf of the Banks, in the same manner set forth in
Section 5.09(f) hereinabove.
k. All policies indicated above shall be written with insurance companies
licensed and admitted to do business in the State of Colorado and shall be rated
no lower than "A XII" in the most recent addition of A.M. Best and "AA" in the
most recent edition of Standard & Poor's, or such other carrier reasonably
acceptable to
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Agent Bank. All policies discussed above shall be endorsed to provide
that in the event of a cancellation, non-renewal or material modification, Agent
Bank shall receive thirty (30) days prior written notice thereof. The
Borrower Consolidation shall furnish Agent Bank with Certificates of Insurance
executed by an authorized agent of the applicable insurance company or companies
evidencing compliance with all insurance provisions set forth in Section 5.09
(a) through (j) on an annual basis. Certificates of Insurance executed by an
authorized agent of each carrier providing insurance evidencing continuation of
all coverages set forth in Section 5.09 (a) through (j) will be provided on or
before the Closing Date and annually on or before ten (10) days prior to the
expiration of each policy. All certificates and other notices related to the
insurance program shall be delivered to Agent Bank concurrently with the
delivery of such certificates or notices to such carrier or to Borrowers.
I. Any other insurance reasonably requested by Agent Bank in such amounts
and covering such risks as may be reasonably required and customary in the
hotel/casino industry in the general location of the Casino Facilities.
Section 5.10. Taxes. Throughout the term of the Credit Facility, Borrowers
shall prepare and timely file or cause to be prepared and timely filed all
federal, state and local tax returns required to be filed by it, and Borrowers
shall pay and discharge prior to delinquency all material taxes, assessments and
other governmental charges or levies imposed upon them, or in respect of
any of their respective properties and assets except such taxes, assessments and
other governmental charges or levies, if any, as are being contested in good
faith by Borrowers in the manner which is set forth for such contests by Section
4.07 herein.
Section 5.11. Permitted Encumbrances Only. Until Credit Facility
Termination, Borrowers shall not create, incur, assume or suffer to exist
any mortgage, deed of trust, pledge, lien, security interest, encumbrance,
attachment, levy, distraint, or other judicial process or burdens of any kind
and nature except the Permitted Encumbrances on or with respect to the
Collateral, except (a) with respect to matters described in Section 5.04 and
5.10, such items as are being discharged, released and/or contested, as the
case may be, in the manner described therein, written notice of all tax lien
contests and all other items involving amounts in excess of $250,000.00 in the
aggregate having been given to Agent Bank, and (b) with respect to any other
items involving amounts in excess of $250,000.00 in the aggregate, if any, as
are being contested in good faith by appropriate proceedings and for which
Borrowers have given
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written notice thereof to Agent Bank and have maintained
adequate reserves for the payment thereof.
Section 5.12. Advances. Until Credit Facility Termination, if Borrowers
should fail (i) to perform or observe, or (ii) to cause to be performed or
observed, any covenant or obligation of such Borrowers under this Credit
Agreement or any of the other Loan Documents, the failure of which could
reasonably be expected to result in a Material Adverse Change, then Agent Bank,
upon the giving of reasonable notice, may (but shall be under no obligation to)
take such steps as are necessary to remedy any such non-performance or
non-observance and provide for payment thereof. All amounts advanced by Agent
Bank or Lenders pursuant to this Section 5.12 shall become an additional
obligation of Borrowers to Lenders secured by the Security Documentation and
other Loan Documents, shall reduce the amount of Available Borrowings and shall
become due and payable by Borrowers on the next interest payment date, together
with interest thereon at a rate per annum equal to the Default Rate (such
interest to be calculated from the date of such advancement to the date of
payment thereof by Borrowers).
Section 5.13. Further Assurances. Borrowers, Guarantor, Agent Bank and each
of the Banks will, at the expense of the Borrowers, do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, such
amendments or supplements hereto or to any of the Loan Documents and such
further documents, instruments and transfers as any such party may reasonably
require for the curing of any defect in the execution or acknowledgement hereof
or in any of the Loan Documents, or in the description of the Real Property or
other Collateral or for the proper evidencing of giving notice of each lien or
security interest securing repayment of the Credit Facility. Further, upon the
execution and delivery of the Deed of Trust and each of the Loan Documents and
thereafter, from time to time, Borrowers shall cause the Deed of Trust and each
of the Loan Documents and each amendment and supplement thereto to be filed,
registered and recorded and to be refiled, re-registered and re-recorded in such
manner and in such places as may be reasonably required by the Requisite Lenders
or Agent Bank, in order to publish notice of and fully protect the liens of the
Security Documentation and to protect or continue to perfect the security
interests created by the Security Documentation in the Collateral and to perform
or cause to be performed from time to time any other actions required by law and
execute or cause to be executed any and all instruments of further assurance
that may be necessary for such publication, perfection, continuation and
protection.
Section 5.14. Indemnification. Borrowers and Guarantor agree to and do
hereby jointly and severally indemnify, protect, defend and save harmless Agent
Bank and each of the Banks and their respective directors, trustees, officers,
employees, agents, attorneys and shareholders (individually an "Indemnified
Party" and collectively the "Indemnified Parties") from and against any
and all losses, damages,
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expenses or liabilities of any kind or nature from any
investigations, suits, claims, demands or other proceedings, including
reason-able counsel fees incurred in investigating or defending such claim,
suffered by any of them and caused by, relating to, arising out of, resulting
from, or in any way connected with this Credit Agreement, with any other Loan
Document or with the transactions contemplated herein and thereby; provided,
however, Borrowers and Guarantor shall not be obligated to indemnify, protect,
defend or save harmless an Indemnified Party if, and to the extent, the loss,
damage, expense or liability was caused by (a) the gross negligence or willful
or intentional misconduct of such Indemnified Party, or (b) the breach of this
Credit Agreement or any other Loan Document by such Indemnified Party or the
breach of any laws, rules or regulations by an Indemnified Party (other than
those breaches of laws arising from any Borrower's or Guarantor's default). In
case any action shall be brought against any Indemnified Party based upon any of
the above and in respect to which indemnity may be sought against Borrowers
and/or Guarantor, Agent Bank shall promptly notify Borrowers and Guarantor in
writing, and Borrowers and Guarantor shall assume the defense thereof, including
the employment of counsel selected by Borrowers and Guarantor and reasonably
satisfactory to Agent Bank, the payment of all costs and expenses and the right
to negotiate and consent to settlement. Upon reasonable determination made by
an Indemnified Party that such counsel would have a conflict representing such
Indemnified Party and Borrowers and Guarantor, the applicable Indemnified Party
shall have the right to employ, at the expense of Borrowers, separate counsel in
any such action and to participate in the defense thereof. Borrowers and
Guarantor shall not be liable for any settlement of any such action effected
without its consent, but if settled with Borrowers' or Guarantor's consent, or
if there be a final judgment for the claimant in any such action, Borrowers and
Guarantor agree to indemnify, defend and save harmless such Indemnified Parties
from and against any loss or liability by reason of such settlement or judgment.
In the event that any Person is adjudged by a court of competent jurisdiction
not to have been entitled to indemnification under this Section 5.14, it shall
repay all amounts with respect to which it has been so adjudged. If and to the
extent that the indemnification provisions contained in this Section 5.14 are
unenforceable for any reason, the Borrowers and Guarantor hereby agree to make
the maximum contribution to the payment and satisfaction of such obligations
that is permissible under applicable law. The provisions of this Section 5.14
shall survive the termination of this Credit Agreement, the repayment of the
Credit Facility and the assignment or subparticipation of all or any portion of
the Syndication Interest held by any Lender pursuant to Section 10.10.
Section 5.15. Compliance With Other Loan Documents. Borrowers and Guarantor
shall comply in all material respects with each and every term, condition and
agreement contained in the Loan Documents.
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Section 5.16. Suits or Actions Affecting Borrowers. Until Credit Facility
Termination, Borrowers shall promptly advise Agent Bank in writing within ten
(10) days of any Borrower's knowledge of (a) any Significant Litigation claims,
litigation, proceedings or disputes (whether or not purportedly on behalf of
Borrowers) against, or to the actual knowledge of Borrowers, threatened or
affecting any Borrower which could reasonably be expected to result in an award
of monetary damages in excess of One Million Dollars ($1,000,000.00), (b) any
material labor controversy resulting in or threatening to result in a strike
against the Casino Facilities, or (c) any proposal by any Governmental Authority
to acquire any of the material assets or business of Borrowers.
Section 5.17. Maintenance of Designated Deposit Account. Until Credit
Facility Termination, Borrowers shall maintain the Designated Deposit Account to
facilitate the operational process of the Credit Facility.
Section 5.18. Notice to Gaming Authorities Board. Borrowers shall make all
required reports and disclosures to the Gaming Authorities on a timely basis.
Section 5.19. Tradenames, Trademarks and Servicemarks. No Borrower shall
assign or in any other manner alienate its interest in any material tradenames,
trademarks or servicemarks relating or pertaining to the Casino Facilities
during the term of the Credit Facility, except pursuant to the Security
Documentation. No Borrower shall change its name without first giving sixty
(60) days prior written notice to Agent Bank, together with evidence reasonably
satisfactory to the Agent Bank that all notices and other documents required to
be delivered, recorded or filed in order to perfect and protect the security
interest granted by such Borrower to the Banks in such trademarks, tradenames
and servicemarks and the other Collateral have been so delivered, recorded
and/or filed.
Section 5.20. Notice of Hazardous Materials. Within ten (10) days
after any Borrower obtaining actual knowledge thereof, Borrowers shall
immediately advise Agent Bank and each of the Lenders in writing and deliver
a copy of (a) any and all enforcement, clean-up, removal or other governmental
or regulatory actions expected to cost in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00) instituted, completed or threatened pursuant to any
applicable federal, state or local laws, ordinances or regulations relating
to any Hazardous Materials (as defined in the Environmental Certificate)
affecting the Collateral ("Hazardous Materials Laws"); (b) all claims made or
threatened by any third party against any Borrower or the Casino Facilities
in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) relating to
damage, contribution, cost recovery compensation, loss or injury resulting from
any Hazardous Materials (the matters set forth in clauses (a) and (b) above are
hereinafter referred to as "Hazardous Materials Claims"); and (c) the discovery
of any occurrence or condition on any real property adjoining or in the
vicinity of the Casino Facilities that could cause the Real Property or any
part thereof to be classified as a "border-zone
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property" under the provisions of, or to be otherwise subject
to any restrictions on the ownership, occupancy, transferability or use of the
Casino Facilities under, any Hazardous Materials Laws.
Section 5.21. Compliance with Statutes, etc. Borrowers will comply with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all Governmental Authorities, domestic or foreign, in respect of the
conduct of their business and the ownership of the property (including
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls) the non-compliance with which would result
in a Material Adverse Change.
Section 5.22. Compliance with Access Laws.
a. Borrowers agree that Borrowers and the Casino Facilities shall at all
times comply in all material respects with the applicable requirements of the
Americans with Disabilities Act of 1990; the Fair Housing Amendments Act of
1988; and other federal, state or local laws or ordinances related to disabled
access; or any statute, rule, regulation, ordinance, order of Governmental
Authorities, or order or decree of any court adopted or enacted with respect
thereto, as now existing or hereafter amended or adopted (collectively, the
"Access Laws"). At any time, Agent Bank may require a certificate of compliance
with the Access Laws and indemnification agreement in a form reasonably
acceptable to Agent Bank. Agent Bank may also require a certificate of
compliance with the Access Laws from an architect, engineer, or other third
party acceptable to Agent Bank.
b. Notwithstanding any provisions set forth herein or in any other document,
Borrowers shall not alter or permit any tenant or other person to alter the
Casino Facilities in any manner which would increase any Borrower's
responsibilities for compliance with the Access Laws without the prior written
approval of Agent Bank. In connection with such approval, Agent Bank may
require a certificate of compliance with the Access Laws from an architect,
engineer or other person acceptable to Agent Bank.
c. Borrowers agree to give prompt written notice to Agent Bank of the
receipt by any Borrower of any claims of violation of any of the Access Laws and
of the commencement of any proceedings or investigations which relate to
compliance with any of the Access Laws.
d. Borrowers and Guarantor shall and do hereby jointly and severally
indemnify, defend and hold harmless Indemnified Parties from and against any and
all claims, demands, damages, costs, expenses, losses, liabilities, penalties,
fines and other proceedings including, without limitation, reasonable attorneys'
fees and expenses arising directly or indirectly from or out of or in any way
connected with any failure of the Casino Facilities to comply with any of the
Access Laws. The obligations
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and liabilities of Borrowers and Guarantor under this section shall
survive Facility Termination, any satisfaction, assignment, judicial or
nonjudicial foreclosure proceeding, or delivery of a deed in lieu of
foreclosure.
Section 5.23.. Golden Horseshoe Lease.
a. Until Credit Facility Termination, Borrowers shall fully perform and
comply with or cause to be performed and complied with all of the respective
material covenants, material terms and material conditions imposed or assumed by
them, or any of them, as lessee under the Golden Horseshoe Lease. None of
the Borrowers shall amend, modify or terminate, or enter into any agreement to
amend, modify or terminate the Golden Horseshoe Lease without the prior written
consent of Agent Bank.
b. On or before June 30, 2003, Borrowers shall either: (i) give written
notice to Teller Realty, Inc. of Borrowers' intent to exercise the option to
purchase the Golden Horseshoe Property under the Golden Horseshoe Lease; or (ii)
provide for the term of the Golden Horseshoe Lease to be extended until at least
June 30, 2010, according to terms and conditions which are reasonably acceptable
to Requisite Lenders.
Section 5.24. Office Building.
a. On or before forty-five (45) days following the Closing Date, Borrowers
shall deliver to Agent Bank an Environmental Site Assessment of the Office
Building Parcel.
b. Promptly following the written request of Agent Bank, but in any event no
later than ten (10) Banking Business Days following Borrowers' receipt of such
request, Borrowers shall duly execute and deliver such additional Security
Documentation as may be reasonably required by Agent Bank and its attorneys for
the purpose of adding the Office Building Parcel as Collateral for the Bank
Facilities.
c. All reasonable costs and expenses of adding the Office Building Parcel as
additional Collateral shall be paid by Borrowers, including, without limitation,
all reasonable attorneys fees, title insurance premiums and recording costs.
Section 5.25. Additional Real Property Acquisitions.
a. Borrowers may acquire title to Additional Real Property Acquisitions
that are vacant or otherwise not improved with any buildings or structures
without limitation. Provided, however, that prior to the expenditure of any
Capital Expenditures or further Investment for the construction of any buildings
or structures on
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such Additional Real Property Acquisition, Borrowers shall: (i) deliver
to Agent Bank an Environmental Site Assessment of such Additional Real Property
Acquisition, (ii) receive written approval of such Environmental Site Assessment
from Agent Bank, and (iii) promptly following the written request of Agent
Bank, but in any event no later than ten (10) Banking Business Days following
Borrowers' receipt of such request, duly execute and deliver such additional
Security Documentation as may be reasonably required by Agent Bank and its
attorneys for the purpose of adding the applicable Additional Real Property
Acquisition as Collateral for the Bank Facilities.
b. Borrowers shall not acquire title to any Additional Real Property
Acquisition that is improved with a building or other structure unless and until
Borrowers shall have: (i) delivered to Agent Bank an Environmental Site
Assessment of such Additional Real Property Acquisition, (ii) received written
approval of such Environmental Site Assessment from Agent Bank, and (iii)
promptly following the written request of Agent Bank, but in any event no later
than ten (10) Banking Business Days following Borrowers' receipt of such
request, duly executed and delivered such additional Security Documentation as
may be reasonably required by Agent Bank and its attorneys for the purpose of
adding the applicable Additional Real Property Acquisition as Collateral for the
Bank Facilities.
c. All reasonable costs and expenses of adding each applicable Additional
Real Property Acquisition as additional Collateral shall be paid by Borrowers,
including, without limitation, all reasonable attorneys fees, title insurance
premiums and recording costs.
Section 5.26. Updated Appraisal. In the event of the occurrence of a
Default or Event of Default or if at any time an appraisal of the Collateral
prepared in compliance with FIRREA is determined to be necessary by Agent Bank
or Requisite Lenders, Borrowers agree to pay all reasonable fees, costs and
expenses incurred by Agent Bank in connection with the engagement and
preparation of such appraisal. Borrowers shall not be obligated to pay for more
than one of such appraisals.
ARTICLE II
FINANCIAL COVENANTS
-------------------
Until Credit Facility Termination, Borrowers and Guarantor agree, as set
forth below, to comply or cause compliance with the following Financial
Covenants.
Section 6.01. Leverage Ratio. Commencing on the Closing Date and continuing
as of each Fiscal Quarter end until the Maturity Date, the Borrower
Consolidation shall maintain a maximum Leverage Ratio no greater than 3.10
to 1.00.
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Section 6.02. Interest Expense Coverage Ratio. Commencing on the Closing
Date and continuing as of each Fiscal Quarter end until the Maturity Date, the
Borrower Consolidation shall maintain a minimum Interest Expense Coverage Ratio
no less than 1.50 to 1.00. Each Interest Expense Ratio calculation shall be
made on a cumulative basis with respect to each applicable Fiscal Quarter and
the most recently ended three (3) preceding Fiscal Quarters on a rolling four
(4) Fiscal Quarter basis.
Section 6.03. TFCC Ratio. Commencing as of the Closing Date and continuing
as of each Fiscal Quarter end until the Maturity Date, the Borrower
Consolidation shall maintain a minimum TFCC Ratio of no less than 1.10 to 1.00.
Each TFCC Ratio calculation shall be made on a cumulative basis with respect to
each applicable Fiscal Quarter and the most recently ended three (3) preceding
Fiscal Quarters on a rolling four (4) Fiscal Quarter basis.
Section 6.04. Restriction on Transfer of Ownership. Until Credit Facility
Termination, all of the issued and outstanding capital stock of WMCKVC shall be
owned by Guarantor and all of the issued and outstanding capital stock of CCCC
and WMCKAC shall be owned by WMCKVC.
Section 6.05. Total Indebtedness. The Borrower Consolidation shall not owe
or incur any Indebtedness, except as specifically permitted hereinbelow:
a. Funded Outstandings under the Credit Facility;
b. Secured Interest Rate Xxxxxx up to the aggregate amount of Eighteen
Million Dollars ($18,000,000.00);
c. Secured purchase money Indebtedness and Capital Lease Liabilities
relating to FF&E to be used in connection with the Casino Facilities up to the
maximum aggregate principal amount of Two Hundred Fifty Thousand Dollars
($250,000.00) at any time outstanding;
d. Indebtedness to Guarantor or any Subsidiary or Affiliate of Guarantor
which is not a member of the Borrower Consolidation shall not exceed Five
Hundred Thousand Dollars ($500,000.00) in the aggregate at any time;
e. The Indebtedness evidenced by the BGP Note; and
f. The Subordinated Debt as of the Closing Date and any additional
unsecured subordinated debt, the rate of interest and repayment terms of which
are first approved in writing by Agent Bank and for which a payment
subordination agreement, in the form of Exhibit I hereto, has been first
executed in favor of Agent Bank on behalf of Lenders.
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Section 6.06. Capital Expenditures. Commencing with the Closing Date,
Borrowers shall make, or cause to be made, annual Capital Expenditures to the
Casino Facilities in a minimum amount of Two Hundred Fifty Thousand Dollars
($250,000.00) during each Fiscal Year. In no event shall the Borrower
Consolidation expend in excess of Five Hundred Thousand Dollars ($500,000.00) on
Non-Financed Capital Expenditures during any Fiscal Year.
Section 6.07. Other Liens. Borrowers shall not grant, consent to or
otherwise agree to liens, encumbrances or negative pledges with respect to any
of its respective assets or any of the Collateral, other than (a) liens existing
as of the Closing Date acceptable to the Agent Bank and disclosed in writing
prior to the Closing Date, (b) liens permitted under the terms of this Credit
Agreement as Permitted Encumbrances, and (c) liens created or evidenced by the
Security Documentation.
Section 6.08. Consolidation, Merger, Sale of Assets, etc. No Borrower will
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 forgoing at any future time) all or any material part of
its property or assets, except that (i) the Borrowers may make sales of
inventory in the ordinary course of business and (ii) the Borrowers may, in the
ordinary course of business, sell or otherwise dispose of FF&E which is
uneconomic or obsolete subject to the provisions set forth in Section 5.01.
Section 6.09. Investment Restrictions. Other than Investments held by
Borrowers as of the date of this Credit Agreement or as otherwise permitted
herein or approved in writing by Agent Bank, the Borrower Consolidation shall
not make any Investments (whether by way of loan, stock purchase, capital
contribution, or otherwise) other than the following:
a. Direct obligations of the United States Government;
b. Prime commercial paper (AA rated or better);
c. Certificates of Deposit or Repurchase Agreement issued by a commercial
bank having capital surplus in excess of One Hundred Million Dollars
($100,000,000.00);
d. Money market or other funds of nationally recognized institutions
investing solely in obligations described in (a), (b) and (c) above;
e. Loans and advances to Guarantor or to any Subsidiary or Affiliate of
Guarantor which is not a member of the Borrower Consolidation shall not
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exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate at any
one time;
f. Investments and Capital Expenditures in the Casino Facilities;
g. Investments for the acquisition of the T-Shirt Shop pursuant to exercise
of the option to purchase which is granted by the T-Shirt Shop Option;
h. Investments and Capital Expenditures to the Office Building Parcel;
i. Investments for the acquisition of title to Additional Real Property
Acquisitions and Investments and Capital Expenditures for the construction of
buildings and other improvements thereon subject to the conditions precedent and
provisions set forth in Section 5.25; and
j. Investments for the acquisition of the Double Eagle Hotel & Casino up to
the maximum cumulative aggregate amount of One Million Five Hundred Thousand
Dollars ($1,500,000.00), provided that the terms and conditions of such
investment are first approved by Requisite Lenders in their sole discretion.
Section 6.10. Ratio of Guarantor Funded Debt to Borrower Consolidation
EBITDA. The ratio of Guarantor's consolidated Funded Debt (excluding all debt
of Century Casinos Africa, or any of its Subsidiaries which is related to the
Caledon Investment and which is nonrecourse as to Guarantor) to the Borrower
Consolidation's EBITDA as of the end of each Fiscal Quarter shall be less than
or equal to 4.00 to 1.00.
Section 6.11. Contingent Liabilities. Borrowers shall not incur any
Contingent Liabilities, other than Secured Interest Rate Xxxxxx up to the limits
provided in Section 6.05(b).
Section 6.12. ERISA. Borrowers shall not:
a. At any time, permit any Pension Plan which is maintained by Borrowers or
to which Borrowers are obligated to contribute on behalf of their employees, in
such case if to do so would constitute a Material Adverse Change, to:
(i) engage in any non-exempt "prohibited transaction", as such
term is defined in Section 4975 of the Code;
(ii) incur any material "accumulated funding deficiency", as
that term is defined in Section 302 of ERISA; or
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(iii) suffer a termination event to occur which may reasonably be
expected to result in liability of Borrowers to the Pension Plan or to the
Pension Benefit Guaranty Corporation or the imposition of a lien on the
Collateral pursuant to Section 4068 of ERISA.
b. Fail, upon Borrowers becoming aware thereof, promptly to notify the Agent
Bank of the occurrence of any "reportable event" (as defined in Section
4043 of ERISA) or of any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) with respect to any Pension Plan which is maintained
by Borrowers or to which Borrowers are obligated to contribute on behalf of
their employees or any trust created thereunder.
c. At any time, permit any Pension Plan which is maintained by
Borrowers or to which Borrowers are obligated to contribute on behalf of its
employees to fail to comply with ERISA or other applicable laws in any respect
that would result in a Material Adverse Change.
Section 6.13. Margin Regulations. No part of the proceeds of the Credit
Facility will be used by Borrowers to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock. Neither the making of such loans, nor the use of the proceeds of such
loans will violate or be inconsistent with the provisions of Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System.
Section 6.14. No Subsidiaries. Other than WMCKVC's ownership of CCCC and
WMCKAC, Borrowers shall not own or create any Subsidiaries without the prior
written consent of Agent Bank.
Section 6.15. Transactions with Affiliates. Transactions by Borrowers with
Affiliates of Borrowers or Guarantor other than arms length transactions for
fair market value shall be and are hereby prohibited.
Section 6.16. Change in Accounting Principles. Except as otherwise
provided herein, if any changes in accounting principles from those used in the
preparation of the most recent financial statements delivered to Agent Bank
pursuant to the terms hereof are hereinafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants
(or successors thereto or agencies with similar functions) and are adopted by
the Borrowers with the agreement of their independent certified public
accountants and such changes result in a change in the method of calculation of
any of the financial covenants, standards or terms found herein, the parties
hereto agree to enter into negotiations in order to amend such provisions so as
to equitably reflect such changes with the desired result that the
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criteria for evaluating the financial condition of Borrowers
shall be the same after such changes as if such changes had not been made;
provided, however, that no change in GAAP that would affect the method of
calculation of any of the financial covenants, standards or terms shall be given
effect in such calculations until such provisions are amended, in a manner
satisfactory to Agent Bank, Requisite Lenders and Borrowers, to so reflect such
change in accounting principles.
ARTICLE II
EVENTS OF DEFAULT
-----------------
Section 7.01. Events of Default. Any of the following events and the
passage of any applicable notice and cure periods shall constitute an Event of
Default hereunder:
a. Any representation or warranty made by Borrowers or Guarantor pursuant to
or in connection with this Credit Agreement, the Revolving Credit Note, the
Environmental Certificate, or any other Loan Document or in any report,
certificate, financial statement or other writing furnished by Borrowers or
Guarantor in connection herewith, shall prove to be false, incorrect or
misleading in any materially adverse aspect as of the date when made (unless
cured within thirty (30) days of the date when made if such representation or
warranty is capable of being cured);
b. Borrowers shall have defaulted in the payment of any interest on the
Revolving Credit Note for a period of five (5) days from the date Agent Bank
gives written notice that such payment is due or shall have defaulted in the
payment of any principal on the Revolving Credit Note for two (2) days after
written notice thereof is delivered to Borrowers by Agent Bank;
c. Any of the Security Documentation or any provision thereof shall cease to
be in full force and effect in any material respect or shall cease to give the
Agent Bank in any material respect the liens, rights, powers and privileges
Purported to be created thereby or the Borrowers shall default in the due
performance or observance of any term, covenant or agreement on their part to be
performed or observed pursuant to the Security Documentation for a period of
thirty (30) days after written notice thereof is delivered to Borrowers by
Agent Bank or any Lender of such failure (or such shorter period following
such notice as may be specifically required in any Loan Document), provided
that with respect to default of any term, covenant or agreement (other than a
Financial Covenant) which cannot be cured within such thirty (30) day period in
the reasonable judgment of Agent Bank, Borrowers shall have a period of ninety
(90) days to cure such default so long as Borrowers commence such cure within
the thirty (30) day period and diligently continues to cure such default;
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d. Borrowers shall have defaulted in the payment of any late charge,
Non-usage Fees, expenses, indemnities or any other amount owing under any Loan
Document for a period of five (5) days after notice thereof to Borrowers from
Agent Bank;
e. Borrowers or Guarantor shall fail duly and punctually to perform or
comply in all material respects with any other term, covenant, condition or
promise contained in this Credit Agreement, the Revolving Credit Note or any
other Loan Document and such failure shall continue for thirty (30) days after
written notice thereof is delivered to Borrowers and Guarantor by Agent Bank or
any Lender of such failure (or such shorter period following such notice as may
be required in any Loan Document), provided that with respect to default of any
term, covenant or agreement (other than a Financial Covenant) which cannot be
cured within such thirty (30) day period in the reasonable judgment of Agent
Bank, Borrowers and Guarantor shall have a period of ninety (90) days to cure
such default so long as Borrowers and Guarantor commence such cure within the
thirty (30) day period and diligently continue to cure such default;
f. Any Borrower or Guarantor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official, for all or
substantially all of its property, or shall consent to any such relief or to the
appointment or taking possession by any such official in any involuntary case or
other proceeding against it;
g. An involuntary case or other proceeding shall be commenced against any
Borrower or Guarantor seeking liquidation, reorganization or other relief with
respect to itself or its debts under the Bankruptcy Code or any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official, for all or substantially all of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of
ninety (90) days;
h. Any Borrower or Guarantor makes an assignment of all or substantially all
of its assets for the benefit of its creditors or admits in writing its
inability to pay its debts generally as they become due;
i. Borrowers shall fail to pay when due in accordance with its terms and
provisions any other Indebtedness of such Borrowers which failure would
result in a Material Adverse Change and continues beyond the period of
grace, if any, therefore;
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j. The occurrence of any event of default, beyond any applicable grace
period, or any termination event under the terms of any agreement with any
Lender in connection with a Secured Interest Rate Hedge relating to the Credit
Facility;
k. The occurrence of any Reportable Event as defined under the ERISA, which
Agent Bank determines reasonably and in good faith constitutes proper grounds
for the termination of any employee pension benefit plan or pension plan of any
Borrower covered by ERISA by the Pension Benefit Guaranty Corporation or for the
appointment by an appropriate United States District Court of a trustee to
administer any such plan, which occurs and continues for thirty (30) days after
written notice of such determination shall have been given to Borrowers by Agent
Bank;
l. Commencement against any Borrower, any time after the execution of this
Credit Agreement, of any litigation which is not stayed, bonded, dismissed,
terminated or disposed of to the satisfaction of Requisite Lenders within ninety
(90) days after its commencement, and which (i) could materially adversely
affect the priority of the encumbrances and security interests granted Agent
Bank by the Deed of Trust in the Real Property, or (ii) results in the issuance
of a preliminary or permanent injunction which is not dissolved or stayed
pending appeal within sixty (60) days of its issuance and which preliminary or
permanent injunction materially adversely affects Borrowers' right to use the
Real Property as the Casino Facilities;
m. The failure of any Borrower to hold all necessary Gaming Permits as of
the Closing Date. The loss or suspension, other than on account of force
majeure, of any Borrower's unrestricted Gaming Permits or the failure of any
Borrower to maintain gaming activities in the Casino Facilities other than on
account of force majeure for a period in excess of thirty (30) consecutive days;
n. Any order, judgment or decree shall be entered against any Borrower
decreeing its involuntary dissolution or split up and such order shall remain
undischarged and unstayed for a period in excess of thirty (30) days, or any
Borrower shall otherwise dissolve or cease to exist;
o. The occurrence of any default under the Guaranty or the revocation,
termination or repudiation of any of the Guarantor's promises, obligations or
covenants under the Guaranty; or
p. The failure by WMCKAC to timely perform any obligation which it may have
under the Golden Horseshoe Lease.
Section 7.02. Default Remedies. Upon the occurrence of any Event of Default,
Agent Bank, upon the consent or direction of Requisite Lenders, shall declare
the unpaid balance of the Credit Facility, together with the interest
thereon, to be fully
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due and payable, and, Agent Bank shall, upon the consent or
direction of Requisite Lenders, exercise any or all of the following remedies:
a. Terminate the obligation of Lenders to make any advances for Borrowings
and may declare all outstanding unpaid Indebtedness hereunder and under the
Revolving Credit Note and other Loan Documents together with all accrued
interest thereon immediately due and payable without presentation, demand,
protest or notice of any kind. This remedy will be deemed to have been
automatically exercised on the occurrence of any event set out in Sections
7.01(f), (g) or (h) with respect to any Borrower or any Guarantor.
b. The Banks and/or Agent Bank may exercise any and all remedies available
to Banks or Agent Bank under the Loan Documents.
c. The Banks and/or Agent Bank may exercise any other remedies available to
Banks or Agent Bank at law or in equity, including requesting the appointment of
a receiver to perform any acts required of Borrowers under this Credit
Agreement, and Borrowers hereby specifically consent to any such request by
Banks.
For the purpose of carrying out this section and exercising these rights,
powers and privileges, Borrowers hereby irrevocably constitute and appoint Agent
Bank as their true and lawful attorney-in-fact to execute, acknowledge and
deliver any instruments and do and perform any acts such as are referred to in
this paragraph in the name and on behalf of Borrowers. Agent Bank on behalf of
Lenders may exercise one or more of Lenders' remedies simultaneously and all its
remedies are nonexclusive and cumulative. Lenders shall not be required to
pursue or exhaust any Collateral or remedy before pursuing any other Collateral
or remedy. Lenders' failure to exercise any remedy for a particular default
shall not be deemed a waiver of (i) such remedy, nor their rights to exercise
any other remedy for that default, nor (ii) their right to exercise that remedy
for any subsequent default.
Section 7.03. Application of Proceeds. All payments and proceeds received
and all amounts held or realized from the sale or other disposition of the
Casino Facilities and other Collateral, which are to be applied hereunder
towards satisfaction of Borrowers' obligations under this Credit Agreement,
shall be applied in the manner set forth in Colorado Revised Statutes or
otherwise in the following order of priority:
a. First, to the payment of all reasonable fees, costs and expenses
(including reasonable attorney's fees and expenses) incurred by Agent Bank and
Banks, their agents or representatives in connection with the realization
upon any of the Collateral;
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b. Next, to the payment in full of any other amounts due under this Credit
Agreement and any other Loan Documents (other than the Revolving Credit Note);
c. Next, to the balance of interest remaining unpaid on the Revolving Credit
Note;
d. Next, to the balance of principal remaining unpaid on the Revolving
Credit Note;
e. Next, the balance, if any, of such payments or proceeds to whomever may
be legally entitled thereto.
Section 7.04. Notices. In order to entitle Agent Bank and/or Banks to
exercise any remedy available hereunder, it shall not be necessary for Agent
Bank and/or Banks to give any notice, other than such notice as may be required
expressly herein.
Section 7.05. Agreement to Pay Attorney's Fees and Expenses. Subject to the
provisions of Section 10.14, upon the occurrence of an Event of Default, as a
result of which Agent Bank and/or Banks shall require and employ attorneys or
incur other expenses for the collection of payments due or to become due or the
enforcement or performance or observance of any obligation or agreement on the
part of Borrowers contained herein, Borrowers and Guarantor shall, on demand,
pay to Agent Bank and Banks the actual and reasonable fees of such attorneys
(including actual and reasonable allocated costs of in-house legal counsel) and
such other reasonable expenses so incurred by Agent Bank and Banks.
Section 7.06. No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Credit Agreement should be breached by either party
and thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
Section 7.07. Licensing of Agent Bank and Lenders. In the event of the
occurrence of an Event of Default hereunder or under any of the Loan
Documents and it shall become necessary, or in the opinion of Requisite
Lenders advisable, for an agent, supervisor, receiver or other representative
of Agent Bank and Banks to become licensed under the provisions of the Gaming
Laws of the State of Colorado, or rules and regulations adopted pursuant
thereto, as a condition to receiving the benefit of any Collateral encumbered by
the Security Documentation or other Loan Documents for the benefit of
Lenders or otherwise to enforce their rights hereunder or thereunder,
Borrowers do hereby give their consent to the granting of such license or
licenses and
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agree to execute such further documents as may be required in
connection with the evidencing of such consent.
Section 7.08. Exercise of Rights Subject to Applicable Law. All rights,
remedies and powers provided by this Article VII may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
the laws of any Governmental Authority and all of the provisions of this Article
VII are intended to be subject to all applicable mandatory provisions of law
that may be controlling and to be limited to the extent necessary so that they
will not render this Credit Agreement invalid, unenforceable or not entitled to
be recorded or filed under the provisions of any applicable law.
Section 7.09. Discontinuance of Proceedings. In case Agent Bank and/or
Banks shall have proceeded to enforce any right, power or remedy under this
Credit Agreement, the Revolving Credit Note, the Security Documentation or any
other Loan Document by foreclosure, entry or otherwise, and such proceedings
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to Banks, then and in every such case Borrowers, Guarantor,
Agent Bank and/or Banks shall be restored to their former positions and rights
hereunder with respect to the Collateral, and all rights, remedies and powers of
Agent Bank and Banks shall continue as if such proceedings had not been taken,
subject to any binding rule by the applicable court or other tribunal in any
such proceeding.
ARTICLE II
DAMAGE, DESTRUCTION AND CONDEMNATION
------------------------------------
Section 8.01. No Abatement of Payments. If all or any part of the
Collateral shall be materially damaged or destroyed, or if title to or the
temporary use of the whole or any part of any of the Collateral shall be taken
or condemned by a competent authority for any public use or purpose, or by
exercise of the power of eminent domain, there shall be no abatement or
reduction in the amounts payable by Borrowers hereunder or under the Revolving
Credit Note, and Borrowers shall continue to be obligated to make such payments.
Section 8.02. Distribution of Capital Proceeds Upon Occurrence of
Fire, Other Perils or Condemnation. All monies received from "All Risk"
including flood and earthquake insurance policies covering any of the
Collateral or from condemnation or similar actions in regard to said
Collateral, shall be paid directly to Agent Bank. However, in the event the
amount paid to Agent Bank is equal to or less than Five Hundred Thousand
Dollars ($500,000.00), such amount shall be paid directly to Borrowers unless
a Default or Event of Default shall have occurred and then be continuing.
In the event the amount paid to Agent Bank is greater than Five Hundred
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Thousand Dollars ($500,000.00), then, unless a Default or
Event of Default has occurred hereunder and is then continuing, the entire
amount so collected or so much thereof as may be required to repair or replace
the destroyed or condemned property, shall, subject to the condition set forth
below, be released to Borrowers for repair or replacement of the property
destroyed or condemned or to reimburse Borrowers for the costs of such repair or
replacement incurred prior to the date of such release. If a Default or
Event of Default has occurred hereunder and is then continuing such amount may,
at the option of Requisite Lenders, be applied to pay the outstanding balance of
the Credit Facility. In the event the amount so collected is applied to pay or
reduce the outstanding balance of the Credit Facility, the amount received by
Agent Bank shall be applied in the priority set forth in Section 7.03 and, if
such application is made when a Default or Event of Default has occurred and
remains continuing, then Borrowers shall not be entitled to any further
Borrowings. In the event Banks are required to release all or a portion of the
collected funds to Borrowers for such repair or re-placement of the property
destroyed or condemned, such release of funds shall be made in accordance with
the following terms and conditions:
a. The repairs, replacements and rebuilding shall be made in accordance with
plans and specifications approved by Agent Bank and in accordance with all
applicable laws, ordinances, rules, regulations and requirements of Governmental
Authorities;
b. Borrowers shall provide Agent Bank with a detailed estimate of the costs
of such repairs or restora-tions;
c. Borrowers shall satisfy the Requisite Lenders that after the
reconstruction is completed, the value of the Casino Facilities will not be less
than Thirty-Seven Million Two Hundred Thousand Dollars ($37,200,00.00), which
value shall be based upon a multiple of projected EBITDA for the reconstructed
Casino Facilities, which multiple and projected EBITDA shall be determined by
Requisite Lenders, and shall be subject to such adjustments as Requisite Lenders
may require, all in their reasonable discretion;
d. In the Agent Bank's sole reasonable opinion, any undisbursed portion of
the Available Borrowings contemplated hereunder, after deposit of such proceeds,
is sufficient to pay all costs of reconstruction of the Casino Facilities or
other Collateral damaged, destroyed or condemned; or if the undisbursed portion
of such Credit Facility is not sufficient, Borrowers shall provide evidence
reasonably acceptable to Agent Bank of the availability of additional funds
sufficient to pay such additional costs of reconstructing the Collateral;
e. Borrowers have delivered to the Agent Bank a construction contract for
the work of reconstruction in form and content, including insurance
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requirements, acceptable to the Agent Bank with a contractor acceptable
to the Agent Bank;
f. The Requisite Lenders in their reasonable discretion have determined that
after the work of reconstruction is completed, the Casino Facilities or
Collateral damaged, destroyed or condemned will produce income sufficient to pay
all costs of operations and maintenance of the applicable Collateral with a
reasonable reserve for repairs, and service all debts secured by the applicable
Collateral;
g. No Default or Event of Default has occurred and is continuing hereunder;
h. Borrowers have provided evidence reasonably acceptable to Agent Bank of
the availability of funds (taking into consideration the amount of Borrowings
available and the amount of proceeds, if any, of insurance policies covering
property damage and business interruption, loss or rental income in connection
with the Casino Facilities or Collateral damaged, destroyed or condemned
accruing and immediately forthcoming to the Agent Bank) to be sufficient to
service the Indebtedness secured hereby during the period of reconstruction;
i. Before commencing any such work, Borrowers shall, at its own cost and
expense, furnish Agent Bank with appropriate endorsements, if needed, to the
"All Risk" insurance policy which Borrowers are then presently maintaining, and
course of construction insurance to cover all of the risks during the course of
such work;
j. Such work shall be commenced by Borrowers within one hundred twenty (120)
days after (i) settlement shall have been made with the insurance companies or
condemnation proceeds shall have been received, and (ii) all the necessary
governmental approvals shall have been obtained, and such work shall be
completed within a reasonable time, free and clear of all liens and
encumbrances, except Permitted Encumbrances; and
k. Disbursements of such insurance or condemnation proceeds shall be made
in the customary manner used by Agent Bank for the disbursement of construction
loans.
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ARTICLE II
AGENCY PROVISIONS
-----------------
Section 9.01. Appointment.
a. Each Lender hereby (i) designates and appoints WFB as the Agent Bank of
such Lender under this Credit Agreement and the Loan Documents, (ii) authorizes
and directs Agent Bank to enter into the Loan Documents other than this Credit
Agreement for the benefit of Lenders, and (iii) authorizes Agent Bank to take
such action on its behalf under the provisions of this Credit Agreement and the
Loan Documents and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto, subject to
the limitations referred to in Sections 9.10(a) and 9.10(b). Agent Bank
agrees to act as such on the express conditions contained in this Article IX.
b. The provisions of this Article IX are solely for the benefit of Agent
Bank and Lenders, and Borrowers and Guarantor shall not have any rights to rely
on or enforce any of the provisions hereof (other than as expressly set forth in
Sections 9.03, 9.09 and 10.10), provided, however, that the foregoing shall
in no way limit Borrowers' obligations under this Article IX. In performing its
functions and duties under this Credit Agreement, Agent Bank shall act solely as
Agent Bank of Lenders and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for
Borrowers, Guarantor or any other Person.
Section 9.02. Nature of Duties. Agent Bank shall not have any duties
or responsibilities except those expressly set forth in this Credit
Agreement or in the Loan Documents. The duties of Agent Bank shall be
administrative in nature. Subject to the provisions of Sections 9.05 and
9.07, Agent Bank shall administer the Credit Facility in the same manner as
it administers its own loans. Promptly following the effectiveness of this
Credit Agreement, Agent Bank shall send to each Lender a duplicate executed
original, to the extent the same are available in sufficient numbers, of the
Credit Agreement and a copy of each other Loan Document in favor of Lenders
and a copy of the filed or recorded Security Documentation, with the originals
of the latter to be held and retained by Agent Bank for the benefit of all
Lenders. Agent Bank shall not have by reason of this Credit Agreement a
fiduciary relationship in respect of any Lender. Nothing in this Credit
Agreement or any of the Loan Documents, expressed or implied, is intended or
shall be construed to impose upon Agent Bank any obligation in respect of
this Credit Agreement or any of the Loan Documents except as expressly set
forth herein or therein. Each Lender shall make its own independent
investigation of the financial condition and affairs of the Borrowers,
Guarantor and the Collateral in connection with the making and the continuance
of the Credit Facility
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hereunder and shall make its own appraisal of the
creditworthiness of the Borrowers, Guarantor and the Collateral, and, except as
specifically provided herein, Agent Bank shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming
into its possession before the Closing Date or at any time or times thereafter.
Section 9.03. Disbursement of Borrowings.
a. Not later than the next Banking Business Day following receipt of a
Notice of Borrowing, Agent Bank shall send a copy thereof by facsimile to each
other Lender and shall otherwise notify each Lender of the proposed Borrowing
and the Funding Date. Each Lender shall make available to Agent Bank (or the
funding bank or entity designated by Agent Bank), the amount of such Lender's
Pro Rata Share of such Borrowing in immediately available funds not later than
the times designated in Section 9.03(b). Unless Agent Bank shall have been
notified by any Lender not later than the close of business (San Francisco time)
on the Banking Business Day immediately preceding the Funding Date in
respect of any Borrowing that such Lender does not intend to make available to
Agent Bank such Lender's Pro Rata Share of such Borrowing, Agent Bank may assume
that such Lender shall make such amount available to Agent Bank. If any Lender
does not notify Agent Bank of its intention not to make available its Pro Rata
Share of such Borrowing as described above, but does not for any reason make
available to Agent Bank such Lender's Pro Rata Share of such Borrowing, such
Lender shall pay to Agent Bank forthwith on demand such amount, together with
interest thereon at the Federal Funds Rate. In any case where a Lender does not
for any reason make available to Agent Bank such Lender's Pro Rata Share of such
Borrowing, Agent Bank, in its sole discretion, may, but shall not be obligated
to, fund to Borrowers such Lender's Pro Rata Share of such Borrowing. If Agent
Bank funds to Borrowers such Lender's Pro Rata Share of such Borrowing and if
such Lender subsequently pays to Agent Bank such corresponding amount, such
amount so paid shall constitute such Lender's Pro Rata Share of such Borrowing.
Nothing in this Section 9.03(a) shall alter the respective rights and
obligations of the parties hereunder in respect of a Defaulting Lender or a
Non-Pro Rata Borrowing.
b. Requests by Agent Bank for funding by Lenders of Borrowings will be made
by telecopy. Each Lender shall make the amount of its Pro Rata Share of such
Borrowing available to Agent Bank in Dollars and in immediately available funds,
to such bank and account, in El Segundo, California as Agent Bank may designate,
not later than 9:00 A.M. (San Francisco time) on the Funding Date designated in
the Notice of Borrowing with respect to such Borrowing, but in no event earlier
than two (2) Banking Business Days following Lender's receipt of the applicable
Notice of Borrowing.
c. Nothing in this Section 9.03 shall be deemed to relieve any Lender
of its obligation hereunder to make its Pro Rata Share of Borrowings on
any
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Funding Date, nor shall any Lender be responsible for the failure of any
other Lender to perform its obligations to advance its Pro Rata Share of any
Borrowing hereunder, and the Pro Rata Share of the Aggregate Commitment of any
Lender shall not be increased or decreased as a result of the failure by any
other Lender to perform its obligation to advance its Pro Rata Share of any
Borrowing.
Section 9.04. Distribution and Apportionment of Payments.
a. Subject to Section 9.04(b), payments actually received by Agent Bank for
the account of Lenders shall be paid to them promptly after receipt thereof by
Agent Bank, but in any event within one (1) Banking Business Day, provided that
Agent Bank shall pay to Lenders interest thereon, at the Federal Funds Rate from
the Banking Business Day following receipt of such funds by Agent Bank
until such funds are paid in immediately available funds to Lenders. Subject to
Section 9.04(b), all payments of principal and interest in respect of Funded
Outstandings, all payments of the fees described in this Credit Agreement, and
all payments in respect of any other Obligations shall be allocated among such
other Lenders as are entitled thereto, in proportion to their respective Pro
Rata Shares or otherwise as provided herein. Agent Bank shall promptly
distribute, but in any event within one (1) Banking Business Day, to each Lender
at its primary address set forth on the appropriate signature page hereof or on
the applicable Assignment and Assumption Agreement, or at such other address as
a Lender may request in writing, such funds as it may be entitled to receive,
provided that Agent Bank shall in any event not be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Lender and may suspend all payments and seek appropriate relief (including,
without limitation, instructions from Requisite Lenders or all Lenders, as
applicable, or an action in the nature of interpleader) in the event of any
doubt or dispute as to any apportionment or distribution contemplated hereby.
The order of priority herein is set forth solely to determine the rights and
priorities of Lenders as among themselves and may at any time or from time to
time be changed by Lenders as they may elect, in writing in accordance with
Section 10.01, without necessity of notice to or consent of or approval by
Borrowers or any other Person. All payments or other sums received by Agent
Bank for the account of Lenders (including, without limitation, principal and
interest payments, the proceeds of any and all insurance maintained with respect
to any of the Collateral, and any and all condemnation proceeds with respect to
any of the Collateral) shall not constitute property or assets of the Agent Bank
and shall be held by Agent Bank, solely in its capacity as administrative and
collateral agent for itself and the other Lenders, subject to the Loan
Documents.
b. Notwithstanding any provision hereof to the contrary, until such
time as a Defaulting Lender has funded its Pro Rata Share of Borrowing
which was previously a Non Pro Rata Borrowing, or all other Lenders have
received payment in full (whether by repayment or prepayment) of the principal
due in respect of such Non Pro
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Rata Borrowing, all principal sums owing to such Defaulting Lender
hereunder shall be subordinated in right of payment to the prior payment in full
of all principal in respect of all Non Pro Rata Borrowing in which the
Defaulting Lender has not funded its Pro Rata Share. This provision governs
only the relationship among Agent Bank, each Defaulting Lender, and the other
Lenders; nothing hereunder shall limit the obligation of Borrowers to repay all
Borrowings in accordance with the terms of this Credit Agreement. The
provisions of this section shall apply and be effective regardless of whether an
Event of Default occurs and is then continuing, and notwithstanding (i) any
other provision of this Credit Agreement to the contrary, (ii) any instruction
of Borrowers as to their desired application of payments or (iii) the suspension
of such Defaulting Lender's right to vote on matters which are subject to the
consent or approval of Requisite Lenders or all Lenders. No Nonusage Fee shall
accrue in favor of, or be payable to, such Defaulting Lender from the date of
any failure to fund Borrowings or reimburse Agent Bank for any Liabilities and
Costs as herein provided until such failure has been cured, and Agent Bank shall
be entitled to (A) withhold or setoff, and to apply to the payment of the
defaulted amount and any related interest, any amounts to be paid to such
Defaulting Lender under this Credit Agreement, and (B) bring an action or suit
against such Defaulting Lender in a court of competent jurisdiction to recover
the defaulted amount and any related interest. In addition, the Defaulting
Lender shall indemnify, defend and hold Agent Bank and each of the other Lenders
harmless from and against any and all Liabilities and Costs, plus interest
thereon at the Default Rate, which they may sustain or incur by reason of or as
a direct consequence of the Defaulting Lender's failure or refusal to abide by
its obligations under this Credit Agreement.
Section 9.05. Rights, Exculpation, Etc. Neither Agent Bank, any Affiliate of
Agent Bank, nor any of their respective officers, directors, employees, agents,
attorneys or consultants, shall be liable to any Lender for any action taken or
omitted by them hereunder or under any of the Loan Documents, or in connection
herewith or therewith, except that Agent Bank shall be liable for its gross
negligence or willful misconduct. In the absence of gross negligence or willful
misconduct, Agent Bank shall not be liable for any apportionment or distribution
of payments made by it in good faith pursuant to Section 9.04, and if any such
apportionment or distribution is subsequently determined to have been made in
error the sole recourse of any Person to whom payment was due, but not made,
shall be to recover from the recipients of such payments any payment in excess
of the amount to which they are determined to have been entitled. Agent
Bank shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Credit Agreement, any of the Security Documentation or any of the other Loan
Documents, or any of the transactions contemplated hereby and thereby; or for
the financial condition of the Borrowers, Guarantor or any of their Affiliates.
Agent Bank shall not be required to make any inquiry concerning either the
performance or observance of any of the
85
terms, provisions or conditions of this Credit Agreement or
any of the Loan Documents or the financial condition of the Borrowers, Guarantor
or any of their Affiliates, or the existence or possible existence of any
Default or Event of Default.
Section 9.06. Reliance. Agent Bank shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents, telecopies
or any telephone message believed by it in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person, and with respect to
all matters pertaining to this Credit Agreement or any of the Loan Documents and
its duties hereunder or thereunder, upon advice of legal counsel (including
counsel for Borrowers), independent public accountant and other experts selected
by it.
Section 9.07. Indemnification. To the extent that Agent Bank is not
reimbursed and indemnified by Borrowers or Guarantor, Lenders will reimburse,
within ten (10) Banking Business Days after notice from Agent Bank, and
indemnify and defend Agent Bank for and against any and all Liabilities and
Costs which may be imposed on, incurred by, or asserted against it in any way
relating to or arising out of this Credit Agreement, the Security Documentation
or any of the other Loan Documents or any action taken or omitted by Agent Bank
or under this Credit Agreement, the Security Documentation or any of the other
Loan Documents, in proportion to each Lender's Pro Rata Share; provided that no
Lender shall be liable for any portion of such Liabilities and Costs resulting
from Agent Bank's gross negligence or willful misconduct. The obligations of
Lenders under this Section 9.07 shall survive the payment in full of all
Obligations and the termination of this Credit Agreement. In the event that
after payment and distribution of any amount by Agent Bank to Lenders, any
Lender or third party, including Borrowers or Guarantor, any creditor of
Borrowers or Guarantor or a trustee in bankruptcy, recovers from Agent Bank any
amount found to have been wrongfully paid to Agent Bank or disbursed by Agent
Bank to Lenders, then Lenders, in proportion to their respective Pro Rata
Shares, shall reimburse Agent Bank for all such amounts. Notwithstanding the
foregoing, Agent Bank shall not be obligated to advance Liabilities and Costs
and may require the deposit by each Lender of its Pro Rata Share of any material
Liabilities and Costs anticipated by Agent Bank before they are incurred or made
payable.
Section 9.08. Agent Individually. With respect to its Pro Rata Share
of the Aggregate Commitment hereunder and the Borrowings made by it, Agent
Bank shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender. The terms "Lenders", "Requisite Lenders" or
any similar terms may include Agent Bank in its individual capacity as a
Lender or one of the Requisite Lenders, but Requisite Lenders shall not include
Agent Bank solely in its capacity as Agent Bank and need not necessarily
include Agent Bank in its capacity as a Lender. Agent Bank and any Lender and
its Affiliates may accept deposits from, lend money to, and
86
generally engage in any kind of banking, trust or other
business with any Borrower, Guarantor or any of its Affiliates as if it were not
acting as Agent Bank or Lender pursuant hereto.
Section 9.09. Successor Agent Bank; Resignation of Agent Bank; Removal of
Agent Bank.
a. Agent Bank shall automatically cease to be Agent Bank hereunder in the
event a petition in bankruptcy shall be filed by or against Agent Bank or the
Federal Deposit Insurance Corporation or any other Governmental Authority shall
assume control of Agent Bank or Agent Bank's interests under the Credit
Facility. Further, Lenders (other than Agent Bank) may unanimously remove Agent
Bank at any time upon the occurrence of gross negligence or wilful
misconduct by Agent Bank by giving at least thirty (30) Banking Business Days'
prior written notice to Agent Bank, Borrowers and all other Lenders. Such
resignation or removal shall take effect upon the acceptance by a successor
Agent Bank of appointment pursuant to clause (b) or (c).
b. Upon any such notice of resignation by or removal of Agent Bank,
Requisite Lenders shall appoint a successor Agent Bank which appointment shall
be subject to Borrowers' consent (other than upon the occurrence and during the
continuance of any Event of Default), which shall not be unreasonably withheld
or delayed. Any successor Agent Bank must be a bank (i) the senior debt
obligations of which (or such bank's parent's senior unsecured debt obligations)
are rated not less than Baa-2 by Xxxxx'x Investors Services, Inc. or a
comparable rating by a rating agency acceptable to Requisite Lenders and (ii)
which has total assets in excess of Ten Billion Dollars ($10,000,000,000.00).
c. If a successor Agent Bank shall not have been so appointed within said
thirty (30) Banking Business Day period, the retiring or removed Agent Bank,
with the consent of Borrowers (other than upon the occurrence and during the
continuance of any Event of Default) (which may not be unreasonably withheld or
delayed), shall then appoint a successor Agent Bank who shall meet the
requirements described in subsection (b) above and who shall serve as Agent Bank
until such time, if any, as Requisite Lenders, with the consent of Borrowers
(other than upon the occurrence and during the continuance of any Event of
Default), appoint a successor Agent Bank as provided above.
Section 9.10. Consent and Approvals.
a. Each consent, approval, amendment, modification or waiver
specifically enumerated in this Section 9.10(a) shall require the consent
of Requisite Lenders:
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(i) Approval of Borrowings with less than full compliance with requirements
of Article IIIB (Section 2.06);
(ii) Approval of any amendment, modification or termination
or agreement to amend, modify or terminate the Subordinated Debt (Section 5.03);
(iii) Consent to modification to financial reporting
requirements or production of additional financial or other information (Section
5.08);
(iv) Approval of a change in the method of calculation of any
financial covenants, standards or terms as a result of a change in accounting
principle (Section 6.15);
(v) Direct Agent Bank to declare the unpaid balance of the
Credit Facility fully due and payable (Section 7.02);
(vi) Direct the disposition of insurance proceeds or
condemnation awards under certain circumstances (Section 8.02);
(vii) Approval of appointment of successor Agent Bank
(Section 9.09);
(viii) Approval of certain Protective Advances (Section
9.11(a));
(ix) Approval of a Post-Foreclosure Plan and related matters
(Section 9.11(e));
(x) Consent to action or proceeding against any Borrower,
Guarantor or the Collateral by any Lender (Section 9.12);
(xi) Except as referred to in subsection (b) below, approval
of any amendment, modification or termination of this Credit Agreement, or
waiver of any provision herein (Section 10.01).
b. Each consent, approval, amendment, modification or waiver specifically
enumerated in Section 10.01(a) through (c) shall require the consent of all
Lenders.
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c. In addition to the required consents or approvals referred to in
subsection (a) above, Agent Bank may at any time request instructions from
Requisite Lenders with respect to any actions or approvals which, by the terms
of this Credit Agreement or of any of the Loan Documents, Agent Bank is
permitted or required to take or to grant without instructions from any Lenders,
and if such instructions are promptly requested, Agent Bank shall be absolutely
entitled to refrain from taking any action or to withhold any approval and shall
not be under any liability whatsoever to any Lender for refraining from taking
any action or withholding any approval under any of the Loan Documents until it
shall have received such instructions from Requisite Lenders. Without limiting
the foregoing, no Lender shall have any right of action whatsoever against Agent
Bank as a result of Agent Bank acting or refraining from acting under this
Credit Agreement, the Security Documentation or any of the other Loan Documents
in accordance with the instructions of Requisite Lenders or, where applicable,
all Lenders. Agent Bank shall promptly notify each Lender at any time that the
Requisite Lenders have instructed Agent Bank to act or refrain from acting
pursuant hereto.
d. Each Lender agrees that any action taken by Agent Bank at the direction
or with the consent of Requisite Lenders in accordance with the provisions of
this Credit Agreement or any Loan Document, and the exercise by Agent Bank at
the direction or with the consent of Requisite Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all Lenders, except for actions
specifically requiring the approval of all Lenders. All communications from
Agent Bank to Lenders requesting Lenders' determination, consent, approval or
disapproval (i) shall be given in the form of a written notice to each Lender,
(ii) shall be accompanied by a description of the matter or thing as to which
such determination, approval, consent or disapproval is requested, or shall
advise each Lender where such matter or thing may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
Agent Bank by Borrowers or Guarantor in respect of the matter or issue to be
resolved, and (iv) shall include Agent Bank's recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in any
event within ten (10) Banking Business Days (the "Lender Reply Period"). Unless
a Lender shall give written notice to Agent Bank that it objects to the
recommendation or determination of Agent Bank (together with a written
explanation of the reasons behind such objection) within the Lender Reply
Period, such Lender shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the
approval of Requisite Lenders or all Lenders, Agent Bank shall submit its
recommendation or determination for approval of or consent to such
recommendation or determination to all Lenders and upon receiving the required
approval or consent shall follow the course of action or
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determination recommended to Lenders by Agent Bank or such other course
of action recommended by Requisite Lenders, and each non-responding Lender shall
be deemed to have concurred with such recommended course of action.
Section 9.11. Agency Provisions Relating to Collateral.
a. Agent Bank is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, from time to time
prior to an Event of Default, to take any action with respect to any
Collateral or Loan Document which may be necessary to perfect and maintain liens
of the Security Documentation upon the Collateral granted pursuant to the Loan
Documents. Agent Bank may make, and shall be reimbursed by Lenders (in
accordance with their Pro Rata Shares), to the extent not reimbursed by
Borrowers or Guarantor, for, Protective Advance(s) during any one (1) calendar
year with respect to the Collateral up to the sum of (i) amounts expended to pay
real estate taxes, assessments and governmental charges or levies imposed upon
such Collateral, (ii) amounts expended to pay insurance premiums for policies of
insurance related to such Collateral, and (iii) One Hundred Thousand Dollars
($100,000.00). Protective Advances in excess of said sum during any calendar
year for any Collateral shall require the consent of Requisite Lenders. In
addition, Agent Bank is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, to waive the
imposition of the late fees provided for in Section 2.08(a) up to a maximum of
two (2) times per calendar year, including any extensions.
b. Lenders hereby irrevocably authorize Agent Bank, at its option and in its
discretion, to release any Security Documentation granted to or held by Agent
Bank upon any Collateral (i) upon Credit Facility Termination and repayment and
satisfaction of all Borrowings, and all other Obligations and the termination of
this Credit Agreement, or (ii) if approved, authorized or ratified in writing by
Agent Bank at the direction of all Lenders. Agent Bank shall not be required to
execute any document to evidence the release of the Security Documentation
granted to Agent Bank for the benefit of Lenders herein or pursuant hereto upon
any Collateral if, in Agent Bank's opinion, such document would expose Agent
Bank to liability or create any obligation or entail any consequence other than
the release of such Security Documentation without recourse or warranty, and
such release shall not in any manner discharge, affect or impair the Obligations
or any Security Documentation upon (or obligations of Borrowers in respect of)
any property which shall continue to constitute part of the Collateral.
c. Except as provided in this Credit Agreement, Agent Bank shall have no
obligation whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by Borrowers or is cared for, protected or
insured or has been encumbered or that the Security Documentation granted to
Agent Bank herein or in any of the other Loan Documents or pursuant hereto or
thereto have been properly or
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sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority.
d. Should Agent Bank (i) employ counsel for advice or other representation
(whether or not any suit has been or shall be filed) with respect to any
Collateral or any part thereof, or any of the Loan Documents, or the attempt to
enforce any security interest or Security Documentation on any of the
Collateral, or (ii) commence any proceeding or in any way seek to enforce its
rights or remedies under the Loan Documents, irrespective of whether as a result
thereof Agent Bank shall acquire title to any Collateral, either through
foreclosure, deed in lieu of foreclosure or otherwise, each Lender, upon demand
therefor from time to time, shall contribute its share (based on its Pro Rata
Share) of the reasonable costs and/or expenses of any such advice or other
representation, enforcement or acquisition, including, but not limited to, fees
of receivers or trustees, court costs, title company charges, filing and
recording fees, appraisers' fees and fees and expenses of attorneys to the
extent not otherwise reimbursed by Borrowers or Guarantor; provided that Agent
Bank shall not be entitled to reimbursement of its attorneys' fees and expenses
incurred in connection with the resolution of disputes between Agent Bank and
other Lenders unless Agent Bank shall be the prevailing party in any such
dispute. Any loss of principal and interest resulting from any Event of Default
shall be shared by Lenders in accordance with their respective Pro Rata Shares.
It is understood and agreed that in the event Agent Bank determines it is
necessary to engage counsel for Lenders from and after the occurrence of an
Event of Default, said counsel shall be selected by Agent Bank.
e. In the event that all or any portion of the Collateral is acquired by
Agent Bank as the result of a foreclosure or the acceptance of a deed or
assignment in lieu of foreclosure, or is retained in satisfaction of all or any
part of Borrowers' or Guarantor's obligations, title to any such Collateral or
any portion thereof shall be held in the name of Agent Bank or a nominee or
subsidiary of Agent Bank, as agent, for the ratable benefit of Agent Bank and
Lenders. Agent Bank shall prepare a recommended course of action for
such Collateral (the "Post-Foreclosure Plan"), which shall be subject to
the approval of the Requisite Lenders. In the event that Requisite
Lenders do not approve such Post-Foreclosure Plan, any Lender shall be
permitted to submit an alternative Post-Foreclosure Plan to Agent Bank, and
Agent Bank shall submit any and all such additional Post-Foreclosure Plans
to the Lenders for evaluation and the approval of Requisite Lenders. In
accordance with the approved Post-Foreclosure Plan, Agent Bank shall manage,
operate, repair, administer, complete, construct, restore or otherwise deal
with the Collateral acquired and administer all
transactions relating thereto, including, without limitation, employing a
management agent, leasing agent and other agents, contractors and employees,
including agents of the sale of such Collateral, and the collecting of rents and
other sums from such Collateral and paying the expenses of such Collateral;
actions taken by Agent Bank with respect to the
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Collateral, which are not provided for in the approved Post-Foreclosure
Plan or reasonably incidental thereto, shall require the consent of Requisite
Lenders by way of supplement to such Post-Foreclosure Plan. Upon demand
therefor from time to time, each Lender will contribute its share (based on its
Pro Rata Share) of all reasonable costs and expenses incurred by Agent Bank
pursuant to the Post-Foreclosure Plan in connection with the construction,
operation, management, maintenance, leasing and sale of such Collateral. In
addition, Agent Bank shall render or cause to be rendered by the managing agent,
to each of the Lenders, monthly, an income and expense statement for such
Collateral, and each of the Lenders shall promptly contribute its Pro Rata Share
of any operating loss for such Collateral, and such other expenses and operating
reserves as Agent Bank shall deem reasonably necessary pursuant to and in
accordance with the Post-Foreclosure Plan. To the extent there is net operating
income from such Collateral, Agent Bank shall, in accordance with all applicable
Gaming Laws and the Post-Foreclosure Plan, determine the amount and timing of
distributions to Lenders. All such distributions shall be made to Lenders in
accordance with their respective Pro Rata Shares. Lenders acknowledge that if
title to any Collateral is obtained by Agent Bank or its nominee, such
Collateral will not be held as a permanent investment but will be liquidated as
soon as practicable. Agent Bank shall undertake to sell such Collateral, at
such price and upon such terms and conditions as the Requisite Lenders shall
reasonably determine to be most advantageous. Any purchase money mortgage or
deed of trust taken in connection with the disposition of such Collateral in
accordance with the immediately preceding sentence shall name Agent Bank, as
agent for Lenders, as the beneficiary or mortgagee. In such case, Agent Bank
and Lenders shall enter into an agreement with respect to such purchase money
mortgage defining the rights of Lenders in the same Pro Rata Shares as provided
hereunder, which agreement shall be in all material respects similar to this
Article IX insofar as the same is appropriate or applicable.
Section 9.12. Lender Actions Against Collateral. Each Lender agrees that it
will not take any action, nor institute any actions or proceedings, against
Borrowers, Guarantor or any other obligor hereunder, under the Security
Documentation or under any other Loan Documents with respect to exercising
claims against or rights in any Collateral without the consent of Requisite
Lenders.
Section 9.13. Ratable Sharing. Subject to Section 9.03 and 9.04,
Lenders agree among themselves that (i) with respect to all amounts
received by them which are applicable to the payment of the Obligations,
equitable adjustment will be made so that, in effect, all such amounts
will be shared among them ratably in accordance with their Pro Rata Shares,
whether received by voluntary payment, by counterclaim or cross action or
by the enforcement of any or all of the Obligations, or the Collateral,
(ii) if any of them shall by voluntary payment or by the exercise of any right
of counterclaim or otherwise, receive payment of a proportion of the aggregate
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amount of the Obligations held by it which is greater than its
Pro Rata Share of the payments on account of the Obligations, the one
receiving such excess payment shall purchase, without recourse or warranty, an
undivided interest and participation (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in such Obligations owed to the
others so that all such recoveries with respect to such Obligations shall be
applied ratably in accordance with their Pro Rata Shares; provided, that if all
or part of such excess payment received by the purchasing party is thereafter
recovered from it, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to that party to the extent
necessary to adjust for such recovery, but without interest except to the extent
the purchasing party is required to pay interest in connection with such
recovery. Borrowers and Guarantor agree that any Lender so purchasing a
participation from another Lender pursuant to this Section 9.13 may, to the
fullest extent permitted by law, exercise all its rights of payment with respect
to such participation as fully as if such Lender were the direct creditor of
Borrowers and Guarantor in the amount of such participation. No Lender shall
exercise any setoff, banker's lien or other similar right in respect to any
Obligations without the prior written approval by Agent Bank.
Section 9.14. Delivery of Documents. Agent Bank shall as soon as reasonably
practicable distribute to each Lender at its primary address set forth on the
appropriate counterpart signature page hereof, or at such other address as a
Lender may request in writing, (i)copies of all documents to which such Lender
is a party or of which is executed or held by Agent Bank on behalf of such
Lender, (ii) all documents of which Agent Bank receives copies from Borrowers or
Guarantor pursuant to Article VI and Section 10.03, (iii) all other documents or
information which Agent Bank is required to send to Lenders pursuant to the
terms of this Credit Agreement, (iv) other information or documents received by
Agent Bank at the request of any Lender, and (v) all notices received by Agent
Bank pursuant to Section 5.20. In addition, within fifteen (15) Banking
Business Days after receipt of a request in writing from a Lender for written
information or documents provided by or prepared by Borrowers, or Guarantor,
Agent Bank shall deliver such written information or documents to such
requesting Lender if Agent Bank has possession of such written information or
documents in its capacity as Agent Bank or as a Lender.
Section 9.15. Notice of Events of Default. Agent Bank shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default (other than nonpayment of principal of or interest on the Credit
Facility) unless Agent Bank has received notice in writing from a Lender,
Borrowers or Guarantor referring to this Credit Agreement or the other Loan
Documents, describing such event or condition and expressly stating that
such notice is a notice of a Default or Event of Default. Should Agent Bank
receive such notice of the occurrence of a Default or Event of Default, or
should Agent Bank send Borrowers or Guarantor a notice of
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Default or Event of Default, Agent Bank shall promptly give
notice thereof to each Lender.
ARTICLE II
GENERAL TERMS AND CONDITIONS
----------------------------
The following terms and conditions shall be applicable throughout the term
of this Credit Agreement:
Section 10.01. Amendments and Waivers. (a) No amendment or modification of
any provision of this Credit Agreement shall be effective without the written
agreement of Requisite Lenders (after notice to all Lenders), Borrowers and
Guarantor (except for amendments to Section 9.04(a) which do not require the
consent of Borrowers or Guarantor), and (b) no termination or waiver of any
provision of this Credit Agreement, or consent to any departure by Borrowers or
Guarantor therefrom (except as expressly provided in Section 9.11(a) with
respect to waivers of late fees), shall in any event be effective without the
written concurrence of Requisite Lenders (after notice to all Lenders), which
Requisite Lenders shall have the right to grant or withhold at their sole
discretion, except that the following amendments, modifications or waivers shall
require the consent of all Lenders:
a. modify any requirement hereunder that any particular action be taken by
all the Lenders or by the Requisite Lenders, modify this Section 10.01 or change
the definition of "Requisite Lenders", or remove Agent Bank under Section
9.09(a), shall be effective unless consented to by all of the Lenders;
b. increase the Aggregate Commitment or the Syndication Interest of any
Lender, release any Collateral except as specifically provided in the Credit
Agreement, release the Guaranty or any Guarantor from liability thereunder,
extend the Maturity Date or change any provision expressly requiring the consent
of all Lenders shall be made without the consent of each Lender; or
c. reduce any fees described in Section 2.07(b) or extend the due date for,
or reduce or postpone the amount of, any Scheduled Reductions on the Credit
Facility, or reduce the rate of interest or postpone the payment of interest on
the Credit Facility, shall be made without the consent of all of the Lenders.
No amendment, modification, termination or waiver of any provision of Article IX
or any other provision referring to Agent Bank shall be effective without the
written concurrence of Agent Bank, but only if such amendment, modification,
termination or waiver alters the obligations or rights of Agent Bank. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or
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demand on Borrowers or Guarantor in any case shall entitle Borrowers or
Guarantor to any other further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.01 shall be binding on each
assignee, transferee or recipient of Agent Bank's or any Lender's Syndication
Interest under this Credit Agreement or the Credit Facility at the time
outstanding.
Section 10.01. Failure to Exercise Rights. Nothing herein contained shall
impose upon Banks, Borrowers or Guarantor any obligation to enforce any terms,
covenants or conditions contained herein. Failure of Banks, Borrowers or
Guarantor, in any one or more instances, to insist upon strict performance by
Borrowers, Guarantor or Banks of any terms, covenants or conditions of this
Credit Agreement or the other Loan Documents, shall not be considered or taken
as a waiver or relinquishment by Banks, Borrowers or Guarantor of their right to
insist upon and to enforce in the future, by injunction or other
appropriate legal or equitable remedy, strict compliance by Borrowers, Guarantor
or Banks with all the terms, covenants and conditions of this Credit Agreement
and the other Loan Documents. The consent of Banks, Borrowers or Guarantor to
any act or omission by Borrowers, Guarantor or Banks shall not be construed to
be a consent to any other or subsequent act or omission or to waive the
requirement for Banks', Borrowers' or Guarantor's consent to be obtained in any
future or other instance.
Section 10.03. Notices and Delivery. Unless otherwise specifically provided
herein, any consent, notice or other communication herein required or permitted
to be given shall be in writing and may be personally served, telecopied or sent
by courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a telecopy (or
on the next Banking Business Day if such telecopy is received on a non-Banking
Business Day or after 5:00 p.m. on a Banking Business Day) or four (4) Banking
Business Days after deposit in the United States mail (registered or certified,
with postage prepaid and properly addressed). Notices to Agent Bank pursuant to
Articles II shall not be effective until received by Agent Bank. For the
purposes hereof, the addresses of the parties hereto (until notice of a change
thereof is delivered as provided in this Section 10.03) shall be as set forth
below each party's name on the signature pages hereof, or, as to each party, at
such other address as may be designated by such party in an Assignment and
Assumption Agreement or in a written notice to all of the other parties. All
deliveries to be made to Agent Bank for distribution to the Lenders shall be
made to Agent Bank at the addresses specified for notice on the signature page
hereto and in addition, a sufficient number of copies of each such delivery
shall be delivered to Agent Bank for delivery to each Lender at the address
specified for deliveries on the signature page hereto or such other address as
may be designated by Agent Bank in a written notice.
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Section 10.04. Modification in Writing. This Credit Agreement and the other
Loan Documents constitute the entire agreement between the parties and supersede
all prior agreements, including, without limitation, the Commitment Letter,
whether written or oral with respect to the subject matter hereof, including,
but not limited to, any term sheets furnished by any of the Banks to Borrowers
and/or Guarantor. Neither this Credit Agreement, nor any other Loan Documents,
nor any provision herein, or therein, may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
Section 10.05. Other Agreements. If the terms of any documents, certificates
or agreements delivered in connection with this Credit Agreement are
inconsistent with the terms of the Loan Documents, Borrowers and Guarantor shall
use their best efforts to amend such document, certificate or agreement to the
satisfaction of Agent Bank to remove such inconsistency.
Section 10.06. Counterparts. This Credit Agreement may be executed by the
parties hereto in any number of separate counterparts with the same effect as if
the signatures hereto and hereby were upon the same instrument. All such
counterparts shall together constitute but one and the same document.
Section 10.07. Rights, Powers and Remedies are Cumulative. None of the
rights, powers and remedies conferred upon or reserved to Agent Bank, Banks,
Borrowers or Guarantor in this Credit Agreement are intended to be exclusive of
any other available right, power or remedy, but each and every such right, power
and remedy shall be cumulative and not alternative, and shall be in addition to
every right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute. Any forbearance, delay or omission by
Agent Bank, Banks, Borrowers or Guarantor in the exercise of any right, power or
remedy shall not impair any such right, power or remedy or be considered or
taken as a waiver or relinquishment of the right to insist upon and to enforce
in the future, by injunction or other appropriate legal or equitable remedy, any
of said rights, powers and remedies given to Agent Bank, Banks, Borrowers or
Guarantor herein. The exercise of any right or partial exercise thereof by
Agent Bank, Banks, Borrowers or Guarantor shall not preclude the further
exercise thereof and the same shall continue in full force and effect until
specifically waived by an instrument in writing executed by Agent Bank or Banks,
as the case may be.
Section 10.08. Continuing Representations. All agreements, representations
and warranties made herein shall survive the execution and delivery of this
Credit Agreement, the making of the Credit Facility hereunder and the
execution and delivery of each other Loan Document until and final payment
of all sums owing
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under the Credit Facility and each of the Credit Facility have
been irrevocably terminated.
Section 10.09. Successors and Assigns. All of the terms, covenants,
warranties and conditions contained in this Credit Agreement shall be binding
upon and inure to the sole and exclusive benefit of the parties hereto and their
respective successors and assigns.
Section 10.10. Assignment of Loan Documents by Borrowers or Syndication
Interests by Lenders.
a. This Credit Agreement and the other Loan Documents to which Borrowers are
parties will be binding upon and inure to the benefit of Borrowers, the
Agent Bank, each of the Banks, and their respective successors and assigns,
except that, Borrowers may not assign their rights hereunder or thereunder or
any interest herein or therein without the prior written consent of all the
Lenders. Any attempted assignment or delegation in contravention of the
foregoing shall be null and void. Any Lender may at any time pledge its
Syndication Interest in the Credit Facility, the Credit Agreement and the Loan
Documents to a Federal Reserve Bank, but no such pledge shall release that
Lender from its obligations hereunder or grant to such Federal Reserve Bank the
rights of a Lender hereunder absent foreclosure of such pledge.
b. Each Lender may assign all or any part of its Syndication Interest in the
Credit Facility to any Affiliate of such Lender or to any other Lender without
Consent and to one or more financial institutions that are Eligible Assignees
with the prior consent of the Agent Bank and Borrowers (which consents
shall not be unreasonably withheld or delayed); provided, however, that Agent
Bank and its Affiliates shall at all times during the life of the Credit
Facility hold aggregate Syndication Interests no less than the amount of
the largest Syndication Interest held by any Lender in the Credit Facility;
and further provided, however, that the minimum amount of each such assignment
shall be One Million Dollars ($1,000,000.00), or such lesser amount as
constitutes the remaining amount of a Lender's Syndication Interest in the
Credit Facility (except that there shall be no minimum assignment among the
Lenders or to their Affiliates), and each assignee Lender (or assignor if
so agreed between the assignee Lender and such assignor) shall pay to the Agent
Bank an assignment fee of Two Thousand Five Hundred Dollars ($2,500.00)
with respect to each such assignment. Each such assignment shall be
evidenced by an assignment substantially in the form of an Assignment and
Assumption Agreement or other form reasonably acceptable to Agent Bank,
Borrowers and Guarantor. Upon any such assignment, the assignee financial
institution shall become a Lender for all purposes under the Credit Agreement
and each of the Loan Documents and the assigning Lender shall be released from
its further obligations hereunder to the extent of such assignment. Agent Bank
agrees to give prompt notice to Borrowers and each of the Lenders of each
assignment made
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under this Section 10.10(b) and to deliver to Borrowers and each of the
Lenders each revision to the Schedule of Lenders' Proportions in Credit Facility
made as a consequence of each such assignment.
c. Each Lender may sell sub-participations without notice to or consent of
the Borrowers or Agent Bank to any Eligible Subparticipant for all or any part
of its Syndication Interest in the Credit Facility; provided, however, that (i)
such selling Lender shall remain responsible for its total obligations under the
Credit Agreement and each of the Loan Documents, (ii) the Borrowers and the
Agent Bank shall continue to deal solely with such selling Lender in connection
with such Lender's rights and obligations under the Credit Agreement and each of
the Loan Documents, and (iii) such selling Lender shall not sell any
participation under which the Eligible Subparticipant would have rights to
approve any amendment or waiver relating to the Credit Agreement or any Loan
Document except to the extent any such amendment or waiver would (1) extend the
final Maturity Date or the date for the payment or any installments of fees,
principal or interest due in respect of the Credit Facility, (2) reduce the
amount of any Scheduled Reduction in respect to the Credit Facility, (3) reduce
the interest rates applicable to the Credit Facility or (4) release any material
portion of the Collateral or Guarantor. Notwithstanding the foregoing, the
rights of the Lenders to make assignments and to grant sub-participations shall
be subject to the approval by the Gaming Authorities of the assignee or
sub-participant, to the extent required by applicable Gaming Laws.
Section 10.11. Action by Lenders. Whenever Banks shall have the right to
make an election, or to exercise any right, or their consent shall be required
for any action under this Credit Agreement or the Loan Documents, then such
election, exercise or consent shall be given or made for all Banks by Agent Bank
in accordance with the provisions of Section 10.01. Notices, reports and
other documents required to be given by Borrowers and/or Guarantor to Banks
hereunder may be given by Borrowers and/or Guarantor to Agent Bank on behalf of
Banks, with sufficient copies for distribution to each of the Banks, and the
delivery to Agent Bank shall constitute delivery to Banks. In the event any
payment or payments are received by a Lender other than Agent Bank, Borrowers
and Guarantor consent to such payments being shared and distributed as provided
herein.
Section 10.12. Time of Essence. Time shall be of the essence of this Credit
Agreement.
Section 10.13. Choice of Law and Forum. This Credit Agreement and each of
the Loan Documents shall be governed by and construed in accordance with the
internal laws of the State of Nevada without regard to principles of
conflicts of law; provided, however, that Colorado law shall govern the
perfection and enforcement of the Security Documentation. Borrowers and
Guarantor further agree that the full and
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exclusive forum for the determination of any action relating
to this Credit Agreement, the Loan Documents, or any other document or
instrument delivered in favor of Banks pursuant to the terms hereof, other than
the Security Documentation, shall be either an appropriate Court of the State of
Nevada or the United States District Court or United States Bankruptcy
Court for the District of Nevada. The full and exclusive forum for the
determination of any action relating to the Security Documentation or the
Collateral shall either be an appropriate court of the State of Colorado or the
United States District or the United States Bankruptcy Court for the District of
Colorado.
Section 10.14. Arbitration.
a. Other than an action or legal proceeding instituted by Agent Bank for the
purpose of exercising any remedy under the Security Documentation, upon the
request of any party, whether made before or after the institution of any legal
proceeding, any action, dispute, claim or controversy of any kind (e.g., whether
in contract or in tort, statutory or common law, legal or equitable) ("Dispute")
now existing or hereafter arising between the parties in any way arising out of,
pertaining to or in connection with the Credit Agreement, Loan Documents or any
related agreements, documents, or instruments (collectively the "Documents"),
may, by summary proceedings (e.g., a plea in abatement or motion to stay further
proceedings), bring an action in court to compel arbitration of any Dispute.
b. All Disputes between the parties shall be resolved by binding arbitration
governed by the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction.
c. No provision of, nor the exercise of any rights under this arbitration
clause shall limit the rights of any party, and the parties shall have the right
during any Dispute, to seek, use and employ ancillary or preliminary remedies,
judicial or otherwise, for the purposes of realizing upon, preserving,
protecting or foreclosing upon any property, real or personal, which is involved
in a Dispute, or which is subject to, or described in, the Documents, including,
without limitation, rights and remedies relating to: (i) foreclosing against any
real or personal property collateral or other security by the exercise of a
power of sale under the Security Documentation or other security agreement or
instrument, or applicable law, (ii) exercising self-help remedies (including
setoff rights) or (iii) obtaining provisional or ancillary remedies such as
injunctive relief, sequestration, attachment, garnishment or the appointment
of a receiver from a court having jurisdiction before, during or after
the pendency of any arbitration. The institution and maintenance of an
action for judicial relief or pursuit of provisional or ancillary remedies
or exercise of self-help remedies shall not constitute a waiver of the right
of any party, including the plaintiff, to submit the Dispute to arbitration
nor render inapplicable the compulsory arbitration provision hereof.
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Section 10.15. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
BORROWERS, GUARANTOR AND EACH OF THE BANKS EACH MUTUALLY HEREBY EXPRESSLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND,
OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS CREDIT AGREEMENT, THE NOTE,
THE GUARANTY OR ANY OF THE LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, RELATED
TO, OR INCIDENTAL TO THE DEALINGS OF BORROWERS, GUARANTOR AND BANKS WITH RESPECT
TO THIS CREDIT AGREEMENT, THE NOTE, THE GUARANTY OR ANY OF THE LOAN DOCUMENTS,
OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS, GUARANTOR AND
EACH OF THE BANKS EACH MUTUALLY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION,
CLAIM, DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY
AND THAT THE DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION
WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE
COMPLAINING PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Section 10.16. Scope of Approval and Review. Any inspection of the Casino
Facilities shall be deemed to be made solely for Banks' internal purposes and
shall not be relied upon by the Borrowers, Guarantor or any third party. In no
event shall Lenders be deemed or construed to be joint venturers or partners of
Borrowers or Guarantor.
Section 10.17. Severability of Provisions. In the event any one or more of
the provisions contained in this Credit Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 10.18. Cumulative Nature of Covenants. All covenants contained
herein are cumulative and not exclusive of each other covenant. Any action
allowed by any covenant shall be allowed only if such action is not prohibited
by any other covenant.
Section 10.19. Costs to Prevailing Party. If any action or arbitration
proceeding is brought by any party against any other party under this Credit
Agreement or any of the Loan Documents, the prevailing party shall be entitled
to recover such costs and attorney's fees as the court in such action
or proceeding may adjudge reasonable.
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Section 10.20. Expenses.
a. Generally. Borrowers and Guarantor agree upon demand to pay, or
reimburse Agent Bank for, all of Agent Bank's external audit, legal (to the
extent incurred following the Closing Date and not relating to the closing of
this Credit Agreement), appraisal, valuation and investigation expenses and for
all other reasonable out-of-pocket costs and expenses of every type and nature
(excluding Lenders' travel expenses, other than those travel expenses incurred
by Agent Bank both before and after the Closing Date in connection with the sale
of Syndication Interests in the Credit Facility, but including, without
limitation, the reasonable fees, expenses and disbursements of Agent Bank's
internal appraisers, environmental advisors or legal counsel) incurred by Agent
Bank at any time (whether prior to, on or after the date of this Credit
Agreement) in connection with (i) its own audit and investigation of Borrowers
or Guarantor and the Collateral; (ii) the negotiation, preparation and execution
of this Credit Agreement (including, without limitation, the satisfaction or
attempted satisfaction of any of the conditions set forth in Article III), the
Security Documentation and the other Loan Documents and the advance of
Borrowings; (iii) the review and, if applicable, acceptance of additional
Collateral, including appraisal fees, title charges, recording fees and
reasonable attorneys' fees and costs incurred in connection therewith; (iv) any
appraisals performed pursuant to Section 5.24; (v) the creation, perfection or
protection of the Security Documentation on the Collateral (including, without
limitation, any fees and expenses for title and lien searches, local counsel in
various jurisdictions, filing and recording fees and taxes, duplication costs
and corporate search fees); (vi) enforcement of the Credit Agreement, the other
Loan Documents, the Borrowings and the Collateral, including, without
limitation, consultation with attorneys in connection therewith; and (vii) the
protection, collection or enforcement of any of the Obligations or the
Collateral, including Protective Advances.
b. After Event of Default. Borrowers and Guarantor further agree to
pay, or reimburse Agent Bank and Lenders, for all reasonable out-of-pocket
costs and expenses, including without limitation reasonable attorneys'
fees and disbursements incurred by Agent Bank or Lenders after the occurrence
of an Event of Default (i) in enforcing any Obligation or in foreclosing
against the Collateral or exercising or enforcing any other right or remedy
available by reason of such Event of Default; (ii) in connection with any
refinancing or restructuring of the credit arrangements provided under this
Credit Agreement in the nature of a "work-out" or in any insolvency or
bankruptcy proceeding; (iii) in commencing, defending or intervening in
any litigation or in filing a petition, complaint, answer, motion or other
pleadings in any legal proceeding relating to Borrowers, or Guarantor and
related to or arising out of the transactions contemplated hereby; (iv)
in taking any other action in or with respect to any suit or proceeding
(whether in bankruptcy or otherwise) relating to the Borrowers or Guarantor
or arising out of or relating to the Credit Facility; (v) in protecting,
preserving,
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collecting, leasing, selling, taking possession of, or liquidating any of
the Collateral; or (vi) in attempting to enforce or enforcing any lien in
any of the Collateral or any other rights under the Security Documentation.
Section 10.21. Setoff. In addition to any rights and remedies of the Agent
Bank provided by law, if any Event of Default exists, Agent Bank is authorized
at any time and from time to time, without prior notice to the Borrowers or
Guarantor, any such notice being waived by the Borrowers or Guarantor to the
fullest extent permitted by law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by
Agent Bank to or for the credit or the account of any Borrower or Guarantor
against any and all obligations of Borrowers or Guarantor under the Credit
Facility, now or hereafter existing, irrespective of whether or not the Agent
Bank shall have made demand under this Credit Agreement or any Loan Document and
although such amounts owed may be contingent or unmatured. Agent Bank
agrees promptly to notify the Borrowers and Guarantor (and Agent Bank shall
promptly notify each Lender) after any such setoff and application made by Agent
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of Agent Bank under
this Section 10.21 are in addition to the other rights and remedies which Agent
Bank may have.
Section 10.22. The Existing Credit Agreement and Existing RLC Note. The
parties hereto agree that as of the Closing Date the Existing Credit Agreement
shall be and is hereby amended, superseded and restated in its entirety by this
Credit Agreement and the Existing RLC Note shall be and is hereby amended,
superseded and restated in its entirety by the Revolving Credit Note. Promptly
following the Closing Date, Agent Bank shall return to the Borrowers the
Existing RLC Note marked "cancelled, superseded and restated."
Section 10.23. Schedules Attached. Schedules are attached hereto and
incorporated herein and made a part hereof as follows:
Schedule 2.01(a) - Schedule of Lenders' Proportions in Credit Facility
Schedule 2.01(c) - Aggregate Commitment Reduction Schedule
Schedule 3.16 - Schedule of Significant Litigation
Schedule 4.16 - Schedule of Spaceleases
Schedule 4.17 - Schedule of Equipment Leases and Contracts
Schedule 4.25 - Schedule of Contingent Liabilities
Section 10.24. Exhibits Attached. Exhibits are attached hereto and
incorporated herein and made a part hereof as
follows:
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Exhibit A - Revolving Credit Note - Form
Exhibit B - Guaranty - Form
Exhibit C - Notice of Borrowing - Form
Exhibit D - Authorized Officer's Certificate - Form
Exhibit E - Closing Certificate - Form
Exhibit F - Compliance Certificate - Form
Exhibit G - Pricing Certificate - Form
Exhibit H - Continuation/Conversion Notice - Form
Exhibit I - Payment Subordination Agreement - Form
Exhibit J - Cash Collateral Pledge Agreement - Form
Exhibit K - Legal Opinion - Form
Exhibit L - Assignment and Assumption Agreement - Form
Exhibit M - Title Report
Exhibit N - Office Building Parcel - Description
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be
executed as of the day and year first above written.
BORROWERS:
WMCK VENTURE CORP.,
a Delaware corporation
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Secretary
CENTURY CASINOS CRIPPLE
CREEK, INC.,
a Colorado corporation
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Secretary
WMCK ACQUISITION
CORP., a Delaware
corporation
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Secretary
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GUARANTOR:
CENTURY CASINOS, INC.,
a Delaware corporation
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Secretary
Address for the Borrower
Consolidation and Guarantor:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Faegre & Xxxxxx, LLP
0000 Xxxxxxxx Xxxxx
000 00xx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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BANKS:
XXXXX FARGO BANK,
National Association,
Agent Bank, L/C Issuer and Lender
By /s/ Xxxx Xxxxx
Xxxx Xxxxx,
Assistant Vice President
Address:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxx, A.V.P.
Phone: (000) 000-0000
Fax: (000) 000-0000
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