1
Exhibit 10.1
$500,000,000
CREDIT AGREEMENT,
dated as of June 19, 1996
among
BOYD GAMING CORPORATION
and
CALIFORNIA HOTEL AND CASINO,
as the Borrowers,
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
CANADIAN IMPERIAL BANK OF COMMERCE,
as L/C Issuer,
WELLS FARGO BANK N.A.,
as Swingline Lender,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and WELLS FARGO BANK N.A.,
as Co-Managing Agents,
BANKERS TRUST COMPANY,
CREDIT LYONNAIS LOS ANGELES BRANCH and
SOCIETE GENERALE,
as Co-Agents
and
CANADIAN IMPERIAL BANK OF COMMERCE
as the Agent
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................ 2
1.1. Defined Terms............................................... 2
1.2. Use of Defined Terms....................................... 24
1.3. Cross-References........................................... 24
1.4. Accounting and Financial Determinations.................... 24
ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES................ 24
2.1. Commitments................................................ 24
2.1.1. Revolving Loan Commitment.......................... 24
2.1.2. Swing Loan Commitment.............................. 25
2.1.3. Lenders Not Permitted or Required To
Make Loans......................................... 25
2.2. Reduction of Commitment Amounts............................ 25
2.2.1. Optional........................................... 25
2.2.2. Mandatory.......................................... 26
2.2.3. Post Default Application........................... 27
2.3. Borrowing Procedure........................................ 27
2.3.1. Revolving Loans.................................... 28
2.3.2. Swing Loans........................................ 28
2.4. Continuation and Conversion Elections...................... 29
2.5. Funding.................................................... 29
2.6. Notes...................................................... 29
2.7. Letter of Credit Procedure................................. 30
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES.................. 31
3.1. Repayments and Prepayments.................................. 31
3.1.1. Payment Terms...................................... 31
3.1.2. Special Swing Loan Provisions...................... 32
3.1.3. Post Default Application of Payments............... 33
3.2. Interest Provisions........................................ 34
3.2.1. Rates.............................................. 34
3.2.2. Post-Maturity Rates................................ 34
3.2.3. Payment Dates...................................... 34
3.2.4. Interest Rate Determination........................ 35
3.3. Fees....................................................... 35
3.3.1. Unused Fee......................................... 35
3.3.2. Upfront Fees....................................... 35
3.3.3. Letter of Credit Fees.............................. 35
3.3.4. Agent's Fees....................................... 36
3.4. Agreement to Repay Letter of Credit Drawings with
Revolving Loans............................................ 36
3.5. Letter of Credit Participations............................ 37
ARTICLE IV CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS............... 38
4.1. Eurodollar Rate Lending Unlawful........................... 38
4.2. Deposits Unavailable....................................... 38
4.3. Increased Costs, etc....................................... 39
4.4. Funding Losses............................................. 39
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4.5. Increased Capital Costs...................................... 40
4.6. Taxes........................................................ 40
4.7. Payments, Computations, etc.................................. 42
4.8. Sharing of Payments.......................................... 42
4.9. Setoff....................................................... 43
4.10. Use of Proceeds.............................................. 44
4.11. Discretion of Lenders as to Manner of Funding................ 44
4.12. Substitution................................................. 44
ARTICLE V CONDITIONS TO BORROWING...................................... 44
5.1. Initial Borrowing............................................ 44
5.1.1. Resolutions, etc.................................... 45
5.1.2. Delivery of Notes................................... 45
5.1.3. Guaranties.......................................... 46
5.1.4. Security Agreements................................. 46
5.1.5. Deeds of Trust...................................... 47
5.1.6. Surveys............................................. 47
5.1.7. Appraisals.......................................... 47
5.1.8. Environmental Audit................................. 47
5.1.9. First Preferred Ship Mortgages...................... 47
5.1.10. Consents, etc....................................... 48
5.1.11. Insurance Coverages................................. 48
5.1.12. Hazardous Materials Indemnity....................... 49
5.1.13. Solvency............................................ 49
5.1.14. Opinions of Counsel................................. 49
5.1.15. Closing Fees, Expenses, etc......................... 49
5.1.16. Application of Proceeds; Discharge of
Obligations......................................... 49
5.1.17. Loan Documents...................................... 50
5.2. All Borrowings............................................... 50
5.2.1. Compliance with Warranties, No Default,
etc................................................. 50
5.2.2. Borrowing Request................................... 50
5.2.3. Satisfactory Legal Form............................. 51
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................... 51
6.1. Organization, etc............................................ 51
6.2. Due Authorization, Non-Contravention, etc.................... 52
6.3. Government Approval, Regulation, etc......................... 52
6.4. Validity, etc................................................ 53
6.5. Financial Information........................................ 53
6.6. No Material Adverse Effect................................... 53
6.7. Litigation, etc.............................................. 53
6.8. Subsidiaries................................................. 53
6.9. Ownership of Properties...................................... 54
6.10. Compliance................................................... 54
6.11. Pension and Welfare Plans.................................... 54
6.12. Environmental Warranties..................................... 54
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6.13. Regulations G, U and X........................................ 56
6.14. Taxes......................................................... 56
6.15. Accuracy of Information....................................... 56
ARTICLE VII COVENANTS...................................................... 57
7.1. Affirmative Covenants......................................... 57
7.1.1. Financial Information, Reports,
Notices, etc......................................... 57
7.1.2. Compliance with Laws, etc............................ 59
7.1.3. Construction and Maintenance of
Properties, Etc...................................... 60
7.1.4. Insurance............................................ 60
7.1.5. Books and Records.................................... 62
7.1.6. Environmental Covenant............................... 63
7.1.7. Maintenance of Existence............................. 63
7.1.8. Gaming and Liquor Licenses........................... 63
7.1.9. Accuracy of Information.............................. 63
7.1.10. Additional Guaranties................................ 63
7.1.11. Pledgor EBITDA....................................... 64
7.2. Negative Covenants............................................ 64
7.2.1. Business Activities.................................. 64
7.2.2. Indebtedness......................................... 64
7.2.3. Liens................................................ 65
7.2.4. Financial Condition.................................. 67
7.2.5. Investments.......................................... 67
7.2.6. Restricted Payments.................................. 68
7.2.7. Capital Expenditures................................. 68
7.2.8. Consolidation, Merger, etc........................... 69
7.2.9. Asset Dispositions, etc.............................. 69
7.2.10. Transactions with Affiliates......................... 70
7.2.11. Negative Pledges, etc................................ 70
7.2.12. Amendments or Waivers of Subordinated Debt
Documents............................................ 71
7.2.13. Subsidiaries......................................... 71
7.2.14. Fiscal Year.......................................... 71
7.2.15. Hedging Obligations.................................. 71
ARTICLE VIII EVENTS OF DEFAULT............................................. 71
8.1. Listing of Events of Default.................................. 71
8.1.1. Non-Payment of Obligations........................... 71
8.1.2. Breach of Warranty................................... 72
8.1.3. Non-Performance of Certain Covenants and
Obligations.......................................... 72
8.1.4. Non-Performance of Other Covenants and
Obligations.......................................... 72
8.1.5. Default on Other Indebtedness........................ 72
8.1.6. Judgments............................................ 72
8.1.7. Pension Plans........................................ 73
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8.1.8. Change of Control................................ 73
8.1.9. Bankruptcy, Insolvency, etc...................... 73
8.1.10. Loan Documents................................... 74
8.1.11. Gaming License................................... 74
8.1.12. Governmental Approvals........................... 74
8.1.13. Liens on Shares of Significant
Subsidiaries..................................... 75
8.2. Action if Bankruptcy....................................... 75
8.3. Action if Other Event of Default........................... 75
ARTICLE IX THE AGENT.................................................. 75
9.1. Actions.................................................... 75
9.2. Funding Reliance, etc...................................... 76
9.3. Exculpation................................................ 76
9.4. Successor.................................................. 77
9.5. Credit Decisions........................................... 77
9.6. Copies, etc................................................ 78
9.7. Collateral Agent........................................... 78
ARTICLE X MISCELLANEOUS PROVISIONS................................... 78
10.1. Waivers, Amendments, etc................................... 78
10.2. Notices.................................................... 79
10.3. Payment of Costs and Expenses.............................. 79
10.4. Indemnification............................................ 80
10.5. Survival................................................... 81
10.6. Severability............................................... 81
10.7. Headings................................................... 81
10.8. Execution in Counterparts, Effectiveness, etc.............. 82
10.9. Governing Law; Entire Agreement............................ 82
10.10. Successors and Assigns..................................... 82
10.11. Sale and Transfer of Loans and Notes; Participations
in Loans and Notes......................................... 82
10.11.1. Assignments...................................... 82
10.11.2. Participations................................... 84
10.12. Other Transactions......................................... 85
10.13. Joint and Several Liability................................ 85
10.14. Waiver of Jury Trial....................................... 86
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SCHEDULES
I Percentages
II Disclosure Schedule
EXHIBITS
A Form of Revolving Note
B Swingline Note
C Form of Borrowing Request
D Form of Continuation/Conversion Notice
E Form of Deed of Trust
F Form of General Continuing Guaranty
G Hazardous Materials Indemnity
H Form of Lender Assignment Agreement
I Form of Security Agreement
J Solvency Certificate
K Opinion of Borrowers' and Guarantors' Counsel
L Form of Compliance Certificate
M Form of Prepayment Notice
N Joint Borrower Provisions
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$500,000,000 CREDIT AGREEMENT
THIS CREDIT AGREEMENT, made as of June 19, 1996, by and between BOYD
GAMING CORPORATION, a Nevada corporation ("Boyd Gaming") and CALIFORNIA HOTEL
AND CASINO, a Nevada corporation ("CH&C"; CH&C and Boyd Gaming being referred to
collectively as the "Borrowers" and each individually as a "Borrower"), the
commercial lending institutions listed on the signature pages hereof
(collectively, the "Lenders"), WELLS FARGO BANK N.A., as Swingline Lender,
CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), as letter of credit issuer, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and WELLS FARGO BANK N.A., as
co-managing agents (herein, in such capacity, the "Co-Managing Agents"), BANKERS
TRUST COMPANY, CREDIT LYONNAIS LOS ANGELES BRANCH and SOCIETE GENERALE, as
co-agents (herein, in such capacity, the "Co-Agents"), and CIBC, as
administrative agent and collateral agent for the Lenders (herein, in such
capacity, called the "Agent").
R E C I T A L S:
WHEREAS, the Borrowers desire to obtain Commitments from the Lenders
pursuant to which Loans and Letters of Credit, in a maximum aggregate principal
amount at any one time outstanding not to exceed $500,000,000, will be made to,
or issued for the account of, the Borrowers from time to time prior to the
Maturity Date; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrowers and to issue Letters of Credit
for the account of the Borrowers or for the account of the Borrowers and one or
more of their respective Subsidiaries; and
WHEREAS, such Loans and Letters of Credit will be used
(a) to make payment in full, concurrently with the initial
Borrowing hereunder, of all Indebtedness identified in Item 5.1.16 of
the Disclosure Schedule ("Indebtedness and Liens to be Discharged");
(b) to finance the New Ventures permitted by the terms of this
Agreement;
(c) to repay the Boyd Notes at any time after a Permitted Note
Issuance; and
(d) for general corporate purposes and working capital
purposes of the Borrowers and their Subsidiaries;
8
NOW, THEREFORE, it is agreed as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" is defined in the preamble and includes each other Person as
shall have subsequently been appointed as the successor Agent pursuant to
Section 9.4.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the highest of
(a) the rate of interest most recently announced by the Agent
at its Domestic Office as its reference rate;
(b) the Federal Funds Rate most recently determined by the
Agent plus 1/2 of 1%; and
(c) the CD Published Moving Rate most recently determined by
the Agent plus 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Agent or any other Lender in connection with
extensions of credit. Changes in the rate of
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interest on that portion of any Loans maintained as Base Rate Loans will take
effect simultaneously with each change in the Alternate Base Rate. The Agent
will give notice promptly to the Borrowers and the Lenders of changes in the
Alternate Base Rate.
"Applicable Base Rate Margin" is the rate per annum determined by
reference to the definition of the term "Applicable Margin."
"Applicable Eurodollar Rate Margin" is the rate per annum determined by
reference to the definition of the term "Applicable Margin."
"Applicable Margin" means, in the case of any Base Rate Loan or
Eurodollar Rate Loan, a rate per annum determined by reference to Boyd Gaming's
Funded Debt to EBITDA Ratio as follows:
Funded Debt Applicable Base Applicable Eurodollar Unused
to EBITDA Ratio Rate Margin Rate Margin Fee
- --------------- ----------- ----------- ---
Less than 2.0 0.000% +1.00% 0.3750%
Greater than or 0.000% +1.250% 0.3750%
equal to 2.0,
but less than 2.50
Greater than or +0.250% +1.500% 0.3750%
equal to 2.50,
but less than 3.00
Greater than or +0.500% +1.750% 0.4375%
equal to 3.00,
but less than 3.50
3.50 or greater +0.750% +2.000% 0.500%
The "Applicable Base Rate Margin" and the "Applicable Eurodollar Rate Margin"
shall be adjusted on the first day of each March, June, September and December
(or, if such day is not a Business Day, on the next succeeding Business Day),
based on the Funded Debt to EBITDA Ratio as of the last day of the preceding
Fiscal Quarter. If Boyd Gaming should fail to deliver in a timely manner a
certificate required under Section 7.1.1(d) hereof, then, until Boyd Gaming
shall have provided such certificate, it shall be presumed that the Funded Debt
to EBITDA Ratio as of the end of the preceding Fiscal Quarter was greater than
3.50 (and, from the date of the delivery of such certificate, the Applicable
Margin for all Base Rate Loans and Eurodollar Rate Loans shall be determined by
reference to such certificate).
"Assignee Lender" is defined in Section 10.11.1.
"Atlantic City Entity" means Stardust A.C., a New Jersey general
partnership, fifty percent of which is owned by a
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Subsidiary of Mirage Resorts, Inc. and fifty percent of which is owned by a
Subsidiary of Boyd Gaming, and any successor entity thereto in which Boyd Gaming
holds a fifty percent interest.
"Atlantic City Joint Venture" means the proposed development by the
Atlantic City Entity of a hotel with at least 1000 rooms and adjoining casino in
Atlantic City, New Jersey.
"Authorized Officer" means, relative to each Borrower, those of its
officers whose signatures and incumbency shall have been certified to the Agent
and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrowers" is defined in the preamble.
"Borrowing" means the Loans of the same Type made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrowers, substantially in the form of Exhibit
C hereto.
"Boyd Family" means William S. Boyd, any direct descendant or spouse of
such person, or any direct descendant of such spouse, and any trust or other
estate in which each person who has a beneficial interest directly or indirectly
through one or more intermediaries in any capital stock of Boyd Gaming is one of
the foregoing persons.
"Boyd Gaming" is defined in the preamble.
"Boyd Indenture" means that certain Indenture dated as of September 3,
1993 among Boyd Gaming, as issuer, and State Street Bank and Trust Company, as
trustee.
"Boyd Kansas City" means Boyd Kansas City, Inc., a Missouri corporation
and, as of the Effective Date, a wholly-owned Subsidiary of Boyd Gaming.
"Boyd Kenner" means Boyd Kenner, Inc., a Louisiana corporation and
wholly-owned Subsidiary of Boyd Gaming.
"Boyd Mississippi" means Boyd Mississippi, Inc., a Nevada corporation
and wholly-owned Subsidiary of Boyd Gaming.
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"Boyd Notes" means the $150,000,000 of 10-3/4% Senior Subordinated
Notes of Boyd Gaming due September 1, 2003 outstanding under the Boyd Indenture.
"Boyd Tunica" means Boyd Tunica, Inc., a Mississippi corporation and
wholly-owned Subsidiary of Boyd Gaming.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York or Las Vegas; and
(b) relative to the making, continuing, prepaying or repaying
of any Eurodollar Rate Loans, any day on which dealings in Dollars are
carried on in the London eurodollar interbank market.
"Capital Expenditures" means, for any period, without duplication, the
sum of
(a) the aggregate amount of all expenditures of Boyd Gaming
and its Subsidiaries for fixed or capital assets made during such
period which, in accordance with GAAP, would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capitalized Lease Liabilities" means all monetary obligations of Boyd
Gaming or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with 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.
"CD Published Moving Rate" means, at any time, the latest three-week
moving average (adjusted to the nearest 1/100 of 1%) of daily secondary market
morning offering rates in the United States for 90-day certificates of deposit
of major United States money market lenders, such three-week moving average
(adjusted to the basis of a year of 365 or 366 days, as the case may be) being
determined weekly for the three-week period ending on the previous Friday by the
Agent on the basis of
(a) such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New
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York (as adjusted for reserves and assessments in the same manner as
the CD Quoted Rate), or
(b) if such publication shall be suspended or
terminated, the CD Quoted Rate determined by the Agent.
"CD Quoted Rate" means, relative to any determination of the CD
Published Moving Rate in circumstances when publication of the rates referred to
in clause (a) of the definition thereof has been suspended or terminated, the
rate of interest per annum determined by the Agent to be the sum (adjusted to
the nearest 1/100 of 1%, if any) of
(a) the rate obtained by dividing
(i) the average (rounded upwards, if necessary, to
the nearest 1/100 of 1%) of the bid rates quoted to the Agent
in New York at approximately 10:00 a.m. New York City time (or
as soon thereafter as practicable), from time to time by three
certificate of deposit dealers of recognized standing selected
by the Agent in its sole discretion for the purchase at face
value of 90-day certificates of deposit in an amount
approximately equal or comparable to the amount of CIBC Inc.'s
portion of the credit outstanding hereunder with respect to
which the CD Quoted Rate is being determined by
(ii) a percentage (expressed as a decimal equivalent)
equal to 100% minus the average of the daily percentages
specified during such period by the F.R.S. Board for
determining the maximum reserve requirement (including, but
not limited to, any marginal reserve requirement) for a member
bank in respect of liabilities consisting of or including
(among other liabilities) 90-day Dollar nonpersonal time
deposits in the United States,
plus
(b) the daily average during such period of the net annual
assessment rates estimated by the Agent for determining the then
current annual assessment payable by a member bank to the Federal
Deposit Insurance Corporation (or any successor) for insuring Dollar
deposits of a member bank in the United States.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
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"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change of Control" is defined in Section 8.1.8.
"CH&C" is defined in the preamble.
"CH&C Indenture" means that certain Indenture dated as of November 15,
1992, among CHFC, as issuer, CH&C, as guarantor, and State Street Bank and Trust
Company, as trustee.
"CH&C Notes" means the $185,000,000 of 11% Senior Subordinated Notes of
CH&C due December 1, 2002 outstanding under the CH&C Indenture.
"CHFC" means California Hotel Finance Corporation, a wholly-owned
Subsidiary of CH&C.
"CIBC" is defined in the preamble.
"CIBC Inc." means CIBC Inc., a Delaware corporation.
"Co-Agents" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means, collectively, the Pledged Casinos, the vessels
subject to the First Preferred Ship Mortgages, the property described in the
Security Agreements, all property pledged pursuant to Section 7.1.11 and all
other property and interests pledged as collateral security for the Obligations.
"Co-Managing Agents" is defined in the preamble.
"Commitment" means, as the context may require, a Lender's Revolving
Loan Commitment or the Swingline Lender's Swingline Commitment.
"Commitment Amount" means, as the context may require, the Revolving
Loan Commitment Amount or the Swing Loan Commitment Amount.
"Commitment Fee Amount" means, on any date, $500,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2 (without giving
effect to any temporary reductions in availability under the second sentence of
Section 2.2.2(d)), minus the aggregate principal amount of outstanding Revolving
Loans, minus the aggregate undrawn face amount of outstanding Letters of Credit.
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"Commitment Reduction Date" means each date specified in clause (c) of
Section 2.2.2.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in
clauses (a) through (d) of Section 8.1.9;
(b) any other Event of Default shall have occurred and be
continuing and as a result thereof (i) the Loans are declared to be due
and payable or (ii) the Commitments have been terminated, in either
case pursuant to Section 8.3 ; or
(c) the failure of the Effective Date to occur on or before
June 30, 1996.
"Completion Guaranty" means a Contingent Guaranty given by Boyd Gaming
or one of its Subsidiaries to a holder of Indebtedness of, or an obligee of, a
New Venture Entity which obligates Boyd Gaming or such Subsidiary to cause the
completion of construction of a New Venture and/or to provide funding for all or
a portion of any construction cost overruns with respect thereto.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the debt, obligation or
other liability of any other Person (other than by endorsements of instruments
in the course of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person. The amount of any Person's
obligation under any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount (or maximum
outstanding principal amount, if larger) of the debt, obligation or other
liability guaranteed thereby; provided, however, that the amount of any
Contingent Liability consisting of a Completion Guaranty shall be deemed to be
zero unless and until such Person's independent auditors have quantified the
amount of exposure thereunder (and thereafter shall be deemed to be the amount
as quantified from time to time).
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrowers, substantially in the form of Exhibit D hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control
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which, together with the Borrowers, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"Deed of Trust" means each Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated the Effective Date and
substantially in the form of Exhibit E, executed and delivered pursuant to
Section 5.1.5 as amended, supplemented, restated or otherwise modified from time
to time.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule II.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"EBITDA" means, for any period, Boyd Gaming and its Subsidiaries'
consolidated earnings before depreciation, amortization, interest expense,
pre-opening expenses, extraordinary items and taxes, all as determined in
accordance with GAAP, plus (without duplication) the earnings, before
depreciation, amortization, interest expense, pre-opening expenses,
extraordinary items and taxes, all as determined in accordance with GAAP, during
such period for any New Venture which becomes a direct or indirect Subsidiary of
Boyd Gaming during such period, in either case, plus (or minus) any non-cash
loss (or gain) arising from a change in GAAP.
"Effective Date" means the date this Agreement becomes effective
pursuant to the second sentence of Section 10.8.
"Eldorado" means Eldorado, Inc., a Nevada corporation and a direct,
wholly-owned Subsidiary of CH&C that operates the Eldorado Casino in Henderson,
Nevada and the Jokers Wild Casino in Henderson, Nevada.
"Eligible Assignee" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any
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other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the United States of
America; (c) a Person that is engaged in the business of commercial finance and
that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (iii) a Person of which a Lender is a Subsidiary; and
(d) a financial institution that is, to the extent required under applicable
Gaming Laws, registered with, approved by, or not disapproved by (whichever may
be required under applicable Gaming Laws), all applicable Gaming Boards.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) regulating or imposing liability or
standards of conduct with respect to Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Eurodollar Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender as designated from time to
time by notice from such Lender to the Borrowers and the Agent, whether or not
outside the United States, which shall be making or maintaining Eurodollar Rate
Loans of such Lender hereunder.
"Eurodollar Rate" means, relative to the Interest Period for each
Eurodollar Rate Loan comprising all or any part of the same Borrowing, the rate
of interest equal to (a) the interest rate per annum for deposits in U.S.
dollars in an amount approximately equal to the amount of CIBC Inc.'s Eurodollar
Rate Loan and for a period approximately equal to such Interest Period which
appears on page 3750 of the Dow Jones Telerate Screen as of 11:00 a.m. London
time two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, or (b) if such a rate does
not appear on page 3750 of the Dow Jones Telerate Screen, the average (rounded
upwards, if necessary, to the nearest 1/100 of 1%) of the rates per annum at
which Dollar deposits in immediately available funds are offered to each
Reference Lender in the interbank market as at or about 11:00 a.m. New York time
two Business Days prior to the beginning of such Interest Period for delivery on
the first day of such Interest Period, and in an amount approximately equal to
the amount of CIBC Inc.'s Eurodollar Rate
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Loan comprising part of such Borrowing and for a period equal to such Interest
Period.
"Eurodollar Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a Eurodollar Rate Loan for
any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) ------------------------------------
1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate (Reserve Adjusted) for the Interest Period for each
Eurodollar Rate Loan comprising part of the same Borrowing will be determined by
the Agent on the basis of the applicable rates furnished to and received by the
Agent from the Reference Lenders, two Business Days before the first day of such
Interest Period, subject to the provisions of Section 3.2.4.
"Eurodollar Reserve Percentage" means, relative to each Interest
Period, a percentage (expressed as a decimal) equal to the daily average during
such Interest Period of the percentages in effect on each day of such Interest
Period, as prescribed by the F.R.S. Board, for determining the maximum aggregate
reserve requirements (including any emergency, supplemental or other marginal
reserve requirement) applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other applicable regulation issued from time to time by the
F.R.S. Board which prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as currently defined in Regulation D having a term approximately
equal or comparable to such Interest Period.
"Event of Default" is defined in Section 8.1.
"Expansion Capital Expenditure" means any Capital Expenditure of Boyd
Gaming or any of its Subsidiaries (a) made with respect to any Venture that is,
or after giving effect to such expenditures will be, wholly-owned by a Borrower,
a Guarantor or a direct or indirect wholly-owned Subsidiary of Boyd Gaming or
(b) which further expands any existing Venture wholly-owned by a Borrower, a
Guarantor or a direct or indirect wholly-owned Subsidiary of Boyd Gaming and
which is not properly characterized as a Maintenance Capital Expenditure.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
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(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"First Preferred Ship Mortgages" means that certain First Preferred
Ship Mortgage on the Whole of the Patco 400, Official Number 545101 and that
certain First Preferred Ship Mortgage on the Whole of Judy's Prize, Official
Number 1028010, to be filed at the Falling Waters, West Virginia, United States
Coast Guard Documentation Office.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on June 30; references to a Fiscal Year with a number corresponding to
any calendar year (e.g. the "1996 Fiscal Year") refer to the Fiscal Year ending
on the June 30 occurring during such calendar year.
"Fixed Charge Coverage Ratio" means the ratio of (a) twelve-month
trailing EBITDA plus rental payments during such period to (b) the sum of (i)
Boyd Gaming's and its Subsidiaries' consolidated interest expense, provision for
taxes and rental payments (each as defined under GAAP) for such twelve-month
period, plus (ii) all dividends and distributions paid on any shares of capital
stock of Boyd Gaming and all redemptions and repurchases of any shares of
capital stock of Boyd Gaming during such twelve month period plus (iii) all
mandatory principal payments required to be made by Boyd Gaming or any of its
Subsidiaries (whether or not such payments are actually made) for such
twelve-month period (exclusive of (A) the payment of the Indebtedness identified
in Item 6 of the Disclosure Schedule ("Indebtedness and Liens to be Discharged")
and (B) the payment of the Loans to the extent required by any mandatory
reductions of the Commitments).
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funded Debt" means the consolidated Indebtedness of Boyd Gaming and
its Subsidiaries of the nature referred to in clauses (a), (b), (c), (f) and (g)
of the definition of "Indebtedness".
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"Funded Debt to EBITDA Ratio" means the ratio of (a) Funded Debt to (b)
twelve-month trailing EBITDA. For purposes of determining such ratio, the
outstanding Funded Debt as of the last day of any Fiscal Quarter shall be the
average of the outstanding Funded Debt as of the last day of each calendar month
in such Fiscal Quarter.
"GAAP" is defined in Section 1.4.
"Gaming Board" means any governmental agency that holds regulatory,
licensing or permit authority over gambling, gaming or casino activities
conducted by Boyd Gaming or any of its Subsidiaries within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling, gaming or
casino activities conducted by Boyd Gaming or any of its Subsidiaries within its
jurisdiction.
"Guaranties" means the guaranties dated the date hereof executed and
delivered by the Guarantors pursuant to Section 5.1.3, and any Guaranty executed
and delivered by a Significant Subsidiary pursuant to Section 7.1.10 hereof,
each of which shall be substantially in the form of Exhibit F hereto, as
amended, supplemented or otherwise modified from time to time.
"Guarantors" means, collectively, Mare-Bear, Sam-Will, Boyd Tunica,
Boyd Kansas City, Eldorado, Boyd Mississippi, Boyd Kenner, MSW, any other
Significant Subsidiary of a Borrower and any other Subsidiary that executes a
Guaranty pursuant to the provisions of Section 7.1.10.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended; or
(c) any hazardous, dangerous or toxic chemical, material or
substance within the meaning of any other applicable federal, state or
local law, regulation, ordinance or requirement (including consent
decrees and administrative orders) requiring investigation or
remediation or regulating or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended or hereafter amended.
"Hazardous Materials Indemnity" means that certain Hazardous Materials
Indemnity executed and delivered by Boyd Gaming and each of the Pledgors
pursuant to Section 5.1.12, substantially in the
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form of Exhibit G hereto, as amended, supplemented, restated or otherwise
modified from time to time.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of a Borrower, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to such financial statement and which the
Required Lenders reasonably determine is unacceptable.
"including" means including without limiting the generality of any
description preceding such term.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and,
without duplication, all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments other than by
endorsements of instruments in the ordinary course of collection;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
bankers' acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which (i) have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities or (ii) are treated as operating leases
under GAAP but are treated as secured financings for commercial law and
federal income tax
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purposes (commonly referred to as "synthetic" leases or off-balance
sheet loans);
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be determined
(including trade payables and other current accrued liabilities arising
in the ordinary course of business);
(e) without duplication, net liabilities of such Person under
all Hedging Obligations, as determined in accordance with GAAP;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services (excluding trade payables and other
current accrued liabilities arising in the ordinary course of
business), and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership in which such Person is a general partner or
any joint venture in which such Person is a joint venturer to the extent of such
Person's liability for such Indebtedness in connection with such partnership or
joint venture.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Period" means, relative to any Eurodollar Rate Loans
comprising part of the same Borrowing, the period beginning on (and including)
the date on which such Eurodollar Rate Loan is made or continued as, or
converted into, a Eurodollar Rate Loan pursuant to Section 2.3 or 2.5 and shall
end on (but exclude) the day which numerically corresponds to such date one,
two, three or six months thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month) or for such other
time period for which the Agent shall determine that Dollar deposits are
generally available in the interbank market, in either case as the
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Borrowers may select in their relevant notice pursuant to Section 2.3 or 2.5;
provided, however, that
(a) the Borrowers shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than twelve different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of the next calendar month, in which case such
Interest Period shall end on the Business Day next preceding such
numerically corresponding day);
(d) no Interest Period may end later than the Stated
Maturity Date; and
(e) the Borrowers shall select Interest Periods that will
enable the Borrowers to meet their payment obligations on each
Commitment Reduction Date without having to prepay any Eurodollar Rate
Loans.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"L/C Fees" is defined in Section 3.3.3.
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"L/C Issuer" shall mean CIBC, and its successors and assigns.
"Laws" is defined in Section 6.10.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit H hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" means a standby letter of credit issued at the
request and for the account of the Borrowers or for the account of the Borrowers
and one or more of their respective Subsidiaries pursuant to Section 2.7.
"Lien" means any security interest, mortgage, pledge, hypothecation, or
other assignment, deposit arrangement, encumbrance, or lien (statutory or
other).
"Loan" means, as the context may require a Revolving Loan or a Swing
Loan of any Type made hereunder.
"Loan Document" means this Agreement, the Notes, each Letter of Credit,
the Deeds of Trust, the First Preferred Ship Mortgages, the Security Agreements,
the Guaranties, the Hazardous Materials Indemnity and each other document or
instrument to be delivered in connection with this Agreement.
"Maintenance Capital Expenditures" means any Capital Expenditures by
Boyd Gaming or its Subsidiaries which are made to maintain or restore the
condition or usefulness of property of Boyd Gaming or its Subsidiaries but which
are not properly chargeable to repairs and maintenance in accordance with GAAP;
provided, however, that such term shall not include any Capital Expenditures to
restore the condition or usefulness of property to the extent funded from
insurance proceeds delivered to Boyd Gaming or its Subsidiaries in accordance
with the terms of the Loan Documents.
"Majority Lenders" means, at any time, Lenders having at least 51% of
the Revolving Percentages of all Lenders.
"Mare-Bear" means Mare-Bear, Inc., a Nevada corporation and
wholly-owned Subsidiary of CH&C.
"Material Adverse Effect" means any circumstances or event which is
reasonably likely to (i) have any material adverse effect upon the validity or
enforceability of this Agreement, the Notes or any other Loan Document, (ii) be
material and adverse to the condition (financial or otherwise), business,
operations or property of the Borrowers and the Guarantors taken as a whole, or
(iii) materially impair the ability of either of the Borrowers or
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any Guarantor to fulfill its respective obligations under this Agreement, the
Notes or any other Loan Document.
"Maturity Date" means, for any Commitment hereunder, the earliest of
(a) the date on which such Commitment is terminated in full
pursuant to the terms of this Agreement or is reduced to zero pursuant
to Section 2.2;
(b) the date on which any Commitment Termination Event occurs;
and
(c) the Stated Maturity Date.
"Monthly Payment Date" means the first day of each calendar month or,
if any such day is not a Business Day, the next succeeding Business Day.
"MSW" means MSW, Inc., a Nevada corporation which is a wholly-owned
Subsidiary of CH&C.
"Net Cash Proceeds" means, with respect to any Restricted Disposition,
the gross consideration received by or for the account of its seller minus (i)
transfer taxes paid or payable as a result of such sale, (ii) broker's
commissions and other professional fees and expenses relating to such sale that
are payable by the seller, (iii) any amount applied to repayment of Indebtedness
secured by a Lien permitted under Section 7.2.3 on the asset that is the subject
of such sale and (iv) any promissory notes received by the seller in connection
with such sale.
"New Venture" means any Venture (other than the Proposed Acquisition)
not wholly-owned by Boyd Gaming or one of its Subsidiaries as of the Effective
Date but which after the Effective Date is owned by Boyd Gaming, one of its
Subsidiaries or a New Venture Entity in which Boyd Gaming or one of its
Subsidiaries holds an Investment.
"New Venture Entity" means the Person or Persons that directly owns a
New Venture, if such Person or Persons are neither a Borrower nor a Subsidiary
of Boyd Gaming. The Atlantic City Entity is a New Venture Entity.
"New Venture Investment" means any Investment of Boyd Kansas City, Boyd
Gaming or any of its direct or indirect wholly-owned Subsidiaries in a New
Venture Entity. Boyd Gaming's proposed Investment in the Atlantic City Entity,
if consummated, would constitute a New Venture Investment.
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"Note" means, as the context may require, either a Revolving Note or
the Swingline Note.
"Notes" means the Revolving Notes and the Swingline Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers arising under or in connection with this Agreement, the Notes, the
Letters of Credit and each other Loan Document.
"Organic Document" means, relative to any Person, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements to which such Person is a party applicable to any of its
authorized shares of capital stock.
"Participant" is defined in Section 10.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which
either Borrower or any corporation, trade or business that is, along with the
Borrowers (or either of them), a member of a Controlled Group, may have
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Permitted Disposition" means any (a) sale or disposition of assets by
a Borrower or any Guarantor in the ordinary course of business (which sale shall
for purposes hereof include replacement of gaming equipment), or (b) sale or
disposition by a Borrower or any Guarantor of assets other than any Collateral
in individual transactions or related transactions in an aggregate amount of not
more than $10,000,000 in any Fiscal Year or $40,000,000 over the term of this
Agreement, or (c) sale or disposition by a Borrower or any Guarantor of any
Collateral so long as (i) such assets are not material to the business,
operations or property of the Venture in which such assets are used and (ii) the
aggregate value of all such assets sold or disposed does not exceed $10,000,000
in the aggregate over the term of this Agreement, or (d) sale of Boyd Gaming's
stock so long as such sale does not cause a Change of Control, or (e)
disposition of assets made consistent with each Pledgor's historical practices
in connection with the renovation, expansion or modification of any of the
Pledged Casinos or (f) the sale by Boyd Gaming of up to 10% of the capital stock
of Boyd Kansas City or (g) the sale of the riverboat known as Mary's Prize,
Official Number O.N.1028011.
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"Permitted Liens" means the Liens permitted under Section 7.2.3.
"Permitted Note Issuance" means an issuance by Boyd Gaming of senior or
subordinated unsecured notes on terms reasonably acceptable to the Agent and the
Co-Managing Agents.
"Person" means any natural person, corporation, partnership, joint
venture, firm, limited liability company, association, government, governmental
agency or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Personal Property Collateral" is defined in Section 5.1.4.
"Plan" means any Pension Plan or Welfare Plan.
"Pledged Casinos" shall mean all real property interests underlying (i)
Sam's Town Kansas City, (ii) Sam's Town Tunica, (iii) Sam's Town Las Vegas, (iv)
the California Hotel and Casino, (v) the Stardust Hotel and Casino, (vi) the
Fremont Hotel and Casino and all rights appurtenant thereto and (vii) any
Ventures pledged pursuant to Section 7.1.11, all property subject to the Liens
of the First Preferred Ship Mortgages, and all fixtures, personal property and
other improvements now existing or to be constructed on any of such properties
(exclusive of any gaming equipment to the extent the pledge thereof is
prohibited by local law).
"Pledgor EBITDA" means, for any period, the consolidated earnings of
the Pledgors attributable to the Pledged Casinos before depreciation,
amortization, interest expense, pre-opening expenses, extraordinary items and
taxes, all as determined in accordance with GAAP, plus the earnings, before
depreciation, amortization, interest expense, pre-opening expenses,
extraordinary items and taxes, all as determined in accordance with GAAP, during
such period for any Venture that becomes a Pledged Casino pursuant to Section
7.1.11 hereof during such period, in either case, plus (or minus) any non-cash
loss (or gain) arising from a change in GAAP.
"Pledgors" means CH&C, Mare-Bear, Sam-Will, Boyd Tunica, Boyd Kansas
City and any other Subsidiary designated by Boyd Gaming that delivers the
documentation required by the terms of Section 7.1.11 hereof.
"Proposed Acquisition" means the proposed acquisition of the capital
stock of Par-A-Dice Gaming Corporation, owner of a riverboat casino and hotel
with approximately 208 rooms in and near East Peoria, Illinois.
"Reference Lenders" means CIBC, Wells Fargo Bank N.A. and Bank of
America National Trust and Savings Association.
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"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time, Lenders having at least 66.6% of
the Revolving Percentages of all Lenders.
"Restricted Disposition" means any sale or disposition of assets by
either Borrower or any Guarantor that is not a Permitted Disposition.
"Revolving Loan" means each Loan made by the Lenders pursuant to the
Revolving Loan Commitment.
"Revolving Loan Commitment" is defined in Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $500,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2, minus the
aggregate principal amount of indebtedness of the Borrowers to the Swingline
Lender resulting from outstanding Swing Loans, minus the aggregate undrawn face
amount of outstanding Letters of Credit.
"Revolving Note" means a promissory note of the Borrowers payable to
any Lender in the form of Exhibit A hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrowers to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Revolving Percentage" means, relative to any Lender for all Revolving
Loans made or Letters of Credit issued, the percentage set forth opposite its
name on Schedule I or as set forth in its Lender Assignment Agreement, as such
percentage may be adjusted from time to time pursuant to Lender Assignment
Agreements executed by such Lender and its Assignee Lenders and delivered
pursuant to Section 10.11.
"Sam-Will" means Sam-Will, Inc., a Nevada corporation and wholly-owned
Subsidiary of CH&C.
"Sam's Town Kansas City" means Sam's Town Kansas City, which facility
is owned by Boyd Kansas City and is located in Kansas City, Missouri.
"Sam's Town Las Vegas" means Sam's Town Hotel, Gambling Hall and
Bowling Center, which facility is owned by CH&C and is located in Las Vegas,
Nevada.
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"Sam's Town Tunica" means Sam's Town Hotel and Gambling Hall, which
facility is owned by Boyd Tunica and is located in Tunica County, Mississippi.
"Security Agreements" means those agreements executed and delivered
pursuant to Section 5.1.4, as such agreements may be amended, supplemented,
restated or otherwise modified from time to time, including, without limitation,
(a) each Deed of Trust, to the extent such document covers Personal Property
Collateral and (b) those certain Assignments of Warranties, Personal Property
Leases, Management and Service Contracts, Permits and Approvals and Insurance
Proceeds, each duly executed by each Pledgor, which will cover all of the
property and rights described therein that can be pledged without the consent of
any third party and which will be in substantially the form of Exhibit I hereto.
"Significant Subsidiary" means each Subsidiary of either
Borrower that
(a) is designated with an asterisk in Item 2 ("Existing
Subsidiaries") of the Disclosure Schedule;
(b) accounted for at least 5% of consolidated revenues of Boyd
Gaming and its Subsidiaries or 5% of consolidated earnings of Boyd
Gaming and its Subsidiaries before interest and taxes, in each case for
the four fiscal quarters of Boyd Gaming ending on the last day of the
last fiscal quarter of Boyd Gaming immediately preceding the date as of
which any such determination is made; or
(c) has assets which represent at least 5% of the consolidated
assets of Boyd Gaming and its Subsidiaries as of the last day of the
last fiscal quarter of Boyd Gaming immediately preceding the date as of
which any such determination is made,
all of which, with respect to clauses (b) and (c), shall be as reflected on the
financial statements of Boyd Gaming for the period, or as of the date, in
question.
"Stated Maturity Date" means June 18, 2001.
"Subordinated Debt" means the Boyd Notes, the CH&C Notes and any
refunding, replacement or refinancing of the CH&C Notes permitted under Section
7.2.2, and all additional unsecured Indebtedness of the Borrowers for money
borrowed which is subordinated, upon terms satisfactory to the Required Lenders,
in right of payment to the payment in full in cash of all Obligations.
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock
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having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person; provided, however, that the
term "Subsidiary" shall not include any New Venture Entity in which Boyd Gaming
or any of its Subsidiaries owns less than 80% of the outstanding capital stock
or other ownership interests.
"Swingline Commitment" is defined in Section 2.1.2.
"Swingline Lender" means Wells Fargo Bank N.A., and its successors and
assigns.
"Swingline Note" means a promissory note of the Borrowers payable to
the Swingline Lender in the form of Exhibit B hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrowers to the Swingline Lender resulting
from outstanding Swing Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Swing Loan" means each Loan made by the Swingline Lender pursuant to
the Swingline Commitment.
"Swing Loan Commitment Amount" means, on any date, $15,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2.
"Tangible Net Worth" means the consolidated net worth of Boyd Gaming
and its Subsidiaries after subtracting therefrom the aggregate amount of any
intangible assets of Boyd Gaming and its Subsidiaries, including goodwill,
franchises, licenses, patents, trademarks and trade names.
"Taxes" is defined in Section 4.6.
"Title Company" means Lawyers Title Insurance Company or such other
title insurance company as may be reasonably acceptable to the Agent.
"Title Policies" is defined in Section 5.1.5.
"Type" means, relative to any Borrowing or Loan, the portion thereof,
if any, being maintained as a Base Rate Loan or
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"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Unused Fees" is defined in Section 3.3.1.
"Venture" means any casino, hotel, casino/hotel, resort, resort/hotel,
riverboat, riverboat/dockside casino, entertainment center or similar facility
(or any site or proposed site for any of the foregoing), together with the
businesses and operations incidental thereto.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each Note, Borrowing Request,
Continuation/Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with this Agreement or any other Loan
Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this 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 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared, in accordance with those generally
accepted accounting principles ("GAAP") applied in the preparation of the
financial statements referred to in Section 6.5.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Article V), each Lender severally agrees to make Loans
pursuant to the Commitments described in this Section 2.1.
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring before the Maturity Date, each Lender will make Loans to
the Borrowers equal to such Lender's Revolving Percentage of the aggregate
amount of the Borrowing of
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Revolving Loans requested by the Borrowers to be made on such day. The
Commitment of each Lender described in this Section 2.1.1 is herein referred to
as its "Revolving Loan Commitment". On the terms and subject to the conditions
hereof, the Borrowers may from time to time borrow, prepay and reborrow
Revolving Loans.
SECTION 2.1.2. Swing Loan Commitment. From time to time on any Business
Day occurring before the Maturity Date, the Swingline Lender will make Swing
Loans to the Borrowers equal to the amount of Swing Loans requested by the
Borrowers to be made on such day. The commitment of the Swingline Lender
described in this Section 2.1.2 is herein referred to as its "Swingline
Commitment". On the terms and subject to the conditions hereof, the Borrowers
may from time to time borrow, repay and reborrow Swing Loans.
SECTION 2.1.3. Lenders Not Permitted or Required To Make Loans.
(a) No Lender shall be permitted or required to make any
Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Revolving Loans
(i) of all Lenders would exceed the Revolving Loan
Commitment Amount as the availability thereunder may be
temporarily reduced pursuant to the second sentence of
Section 2.2.2(d), or
(ii) of such Lender would exceed such Lender's
Revolving Percentage of the Revolving Loan Commitment Amount.
(b) The Swingline Lender shall not be permitted or required
to make any Swing Loan if, after giving effect thereto,
(i) the aggregate outstanding principal amount of
all Swing Loans would exceed the Swingline Loan Commitment
Amount; or
(ii) the amount of such Swing Loan would exceed the
Revolving Loan Commitment Amount as the availability
thereunder may be temporarily reduced pursuant to the second
sentence of Section 2.2.2(d) minus the aggregate principal
amount of outstanding Revolving Loans.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment Amounts
are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrowers may, from time to time
on any Business Day, voluntarily reduce the amount of any
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Commitment Amount; provided, however, that all such reductions shall require at
least five Business Days' prior notice to the Agent and be permanent, and any
partial reduction of any Commitment Amount shall be in a minimum amount of
$1,000,000 or an integral multiple thereof. Prior to the occurrence and
continuance of an Event of Default, all voluntary reductions of the Commitments
by the Borrowers shall be made to reduce the Revolving Loan Commitment and, in
the case of the last $15,000,000 of the Revolving Loan Commitment, the Swing
Loan Commitment.
SECTION 2.2.2. Mandatory.
(a) There shall be a mandatory reduction of the Commitment
Amounts in an amount equal to all Net Cash Proceeds realized from any
Restricted Disposition. Such reduction shall be made immediately upon
consummation of such Restricted Disposition, and prior to the
occurrence and continuance of an Event of Default, shall be applied in
the following manner:
first, to any unused portion of the Revolving Loan
Commitment and, in the case of the last $15,000,000 of
the Revolving Loan Commitment, the Swing Loan
Commitment, in which event such unused portion of the
Revolving Loan Commitment (or the Revolving Loan
Commitment and the Swingline Commitment) shall, to the
extent of such Net Cash Proceeds, be cancelled and the
Borrowers may retain proceeds in an amount equal to the
amount of the Revolving Loan Commitment so cancelled;
and
second, to the prepayment of the outstanding Revolving
Loans in excess of such unused portion of the Revolving
Loan Commitment and the corresponding cancellation of
the Revolving Loan Commitment by the amount of such
prepayment; provided that at such time, if any, as the
Revolving Loan Commitment is equal to or less than
$15,000,000, the Net Cash Proceeds shall be applied pro
rata to the outstanding Revolving Loans and Swing Loans,
with a cancellation of the Revolving Loan Commitment and
Swing Loan Commitment Amount by the amount of such
prepayment.
(b) All net non-cash proceeds (including any promissory
notes) realized from any Restricted Disposition shall immediately upon
receipt thereof be assigned and delivered to the Agent as and shall be
held by the Agent as additional Collateral for the performance of the
Obligations. Upon the reduction of any non-cash proceeds to cash, such
cash shall be applied by the Agent as provided in clause (a) above or
as provided in Section 2.2.3, if applicable;
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(c) The Revolving Loan Commitment Amount and the aggregate
outstanding principal amount of all Revolving Loans, Swing Loans and
Letters of Credit shall be reduced on or before each date set forth
below to an amount not more than the amount set forth opposite such
date:
Date Revolving Loan Commitment Amount
---- --------------------------------
December 19, 1998 $475,000,000
June 19, 1999 $425,000,000
December 19, 1999 $375,000,000
June 19, 2000 $325,000,000
December 19, 2000 $275,000,000
June 18, 2001 -0-
(d) To the extent Boyd Gaming completes Permitted Note
Issuances in an aggregate amount in excess of $200,000,000, the
Revolving Loan Commitment Amount shall be permanently reduced by the
amount of such excess (which reductions shall be applied to the pro
rata reduction of scheduled commitment reductions under paragraph (c)
above). In addition, after a Permitted Note Issuance, the availability
under the Revolving Loan Commitment Amount shall be reduced by the
lesser of (i) the amount of such Permitted Note Issuance less the
amount of any permanent reduction of the Revolving Loan Commitment
Amount described in the preceding sentence and (ii) the cost to redeem
all of the Boyd Notes, and such reduction in availability shall remain
in effect until Boyd Gaming funds a redemption of all or a portion of
the Boyd Notes, at which time the availability under the Revolving Loan
Commitment Amount shall increase by an amount equal to the lesser of
(i) the amount of such Permitted Note Issuance less the amount of any
permanent reduction of the Revolving Loan Commitment described in the
first sentence of this clause or (ii) the cost to complete such
redemption of all or such portion of the Boyd Notes.
(e) Notwithstanding anything to the contrary herein, the
Borrowers may not reduce the Revolving Loan Commitment Amount to an
amount less than the aggregate undrawn face amount of outstanding
Letters of Credit then in effect unless the Borrowers shall have
deposited with the Agent all amounts required pursuant to the second
paragraph of Section 2.7 hereof.
SECTION 2.2.3. Post Default Application. After the occurrence
and during the continuance of an Event of Default, all optional and mandatory
reductions of commitment amounts under Section 2.2.1 and clauses (a), (b), (d)
and (e) of Section 2.2.2 shall be applied to the pro rata reduction of amounts
outstanding under the Revolving Loan Commitment and the Swing Loan Commitment.
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In the case of Revolving Loans, such reductions shall be applied to the
scheduled reductions set forth in clause (c) of Section 2.2.2 in the inverse
order of their maturity.
SECTION 2.3. Borrowing Procedure.
SECTION 2.3.1. Revolving Loans. The Borrowers may from time
to time irrevocably request that a Borrowing of Revolving Loans be made by
delivering a Borrowing Request to the Agent (i) for a Eurodollar Rate Loan, on
or before 11:30 a.m. New York time, on a Business Day, at least three Business
Days prior to the date of such proposed Borrowing, in a minimum amount of
$3,000,000 or an integral multiple of $1,000,000 in excess thereof, or in the
unused amount of the Revolving Loan Commitment Amount, as the availability
thereof may be reduced pursuant to Section 2.2.2(d) and (ii) for a Base Rate
Loan, on or before 11:30 a.m. New York time, on a Business Day, at least one
Business Day prior to the date of such proposed Borrowing, in a minimum amount
of $3,000,000 or an integral multiple of $1,000,000 in excess thereof, or in the
unused amount of the Revolving Loan Commitment Amount, as the availability
thereof may be reduced pursuant to Section 2.2.2(d). The Agent shall promptly
notify each other Lender in writing of the terms of such Borrowing Request. On
the terms and subject to the conditions of this Agreement, each Borrowing shall
be comprised of the Type of Revolving Loans, and shall be made on the Business
Day, specified in such Borrowing Request. On or before 1:00 p.m., New York time,
on the Business Day such Revolving Loans are to be made, each Lender shall
deposit with the Agent same day funds in an amount equal to such Lender's
Revolving Percentage of the requested Borrowing. Such deposit will be made to an
account which the Agent shall specify from time to time by notice to the
Lenders. No Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Revolving Loan. To the extent funds are received
from the Lenders, on the proposed date for such Borrowing the Agent shall make
such funds available to the Borrowers at the office of the Agent.
SECTION 2.3.2. Swing Loans. The Borrowers may from time to
time irrevocably request, by delivering a telephonic notice to the Swingline
Lender (which notice shall promptly be confirmed by telecopy to the Swingline
Lender and to the Agent) that a Borrowing of Swing Loans be made, by 1:00 p.m.,
Las Vegas time, on or before the date such Borrowing is requested, in a minimum
amount of $100,000 or an integral multiple thereof, or in the unused amount of
the Swingline Loan Commitment Amount. On the terms and subject to the conditions
of this Agreement, each such Borrowing shall be compromised of Base Rate Loans,
and shall be made on the Business Day specified in such Borrowing Request. The
Swingline Lender shall make funds in an amount equal to the requested Borrowing
available to the Borrowers to the accounts the Borrowers shall have specified in
their Borrowing Request. Each request by
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the Borrowers for a Borrowing of Swing Loans shall be deemed to reaffirm the
representations set forth in subsections (a), (b) and (c) of Section 5.2.1. The
Swingline Lender shall not fund a Borrowing of Swing Loans if prior to the date
of such Borrowing the Swingline Lender shall have received written notice from
the Agent or any Lender of the existence and continuance of a Default or an
Event of Default.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Agent on or before 11:30 a.m., New York
time, on a Business Day, the Borrowers may from time to time irrevocably elect,
on not less than three or more than five Business Days' notice that all, or any
portion in an aggregate minimum amount of $3,000,000 and an integral multiple of
$1,000,000 in excess thereof, of any Loan be, in the case of Base Rate Loans,
converted into Eurodollar Rate Loans or, in the case of Eurodollar Rate Loans,
continued as a Eurodollar Rate Loan or that all, or any portion in an aggregate
minimum amount of $3,000,000 and an integral multiple of $1,000,000 in excess
thereof of any Loan be, in the case of Eurodollar Rate Loans, converted into
Base Rate Loans (in the absence of delivery of a Continuation/Conversion Notice
with respect to any Eurodollar Rate Loan at least three Business Days before the
last day of the then current Interest Period with respect thereto, such
Eurodollar Rate Loan shall, on such last day, automatically convert to a Base
Rate Loan); provided, however, that no portion of the outstanding principal
amount of any Loans may be continued after the end of the applicable Interest
Period therefor as, or be converted into, Eurodollar Rate Loans when any Default
has occurred and is continuing. The Agent shall promptly notify each other
Lender in writing of the terms of such Continuation/Conversion Notice.
SECTION 2.5. Funding. Subject to the provisions of Section 4.11 hereof,
each Lender may, if it so elects, fulfill its obligation to make, continue or
convert Eurodollar Rate Loans hereunder by causing one of its foreign branches
or Affiliates (or an international banking facility created by such Lender) to
make or maintain such Eurodollar Rate Loan; provided, however, that such
Eurodollar Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrowers to repay such
Eurodollar Rate Loan shall nevertheless be to such Lender for the account of
such foreign branch, Affiliate or international banking facility. In addition,
the Borrowers hereby consent and agree that, for purposes of any determination
to be made for purposes of Sections 4.1, 4.2, 4.3, or 4.4, it shall be
conclusively assumed that each Lender elected to fund all Eurodollar Rate Loans
by purchasing Dollar deposits in its Eurodollar Office's interbank eurodollar
market.
SECTION 2.6. Notes. Each Lender's Revolving Loans shall be evidenced by
a Note payable to the order of such Lender in a
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maximum principal amount equal to such Lender's Revolving Percentage as set
forth on Schedule I hereto of $500,000,000. The Swingline Lender's Swing Loans
shall be evidenced by a Swingline Note payable to the order of the Swingline
Lender in a maximum principal amount equal to the Swing Loan Commitment Amount.
The Borrowers hereby irrevocably authorize each Lender to make (or cause to be
made) appropriate notations on the grid attached to such Lender's Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to the Loans evidenced thereby. Upon request by the
Borrowers, each Lender agrees to confirm to the Borrowers the information
reflected in such notations. Such notations shall be conclusive and binding on
the Borrowers absent manifest error; provided, however, that the failure of any
Lender to make any such notations shall not limit or otherwise affect any
Obligations of the Borrowers.
SECTION 2.7. Letter of Credit Procedure. The Borrowers may from time to
time request that a Letter of Credit be issued by delivering to the L/C Issuer
(with a telecopy to the Agent) on a Business Day, at least five Business Days
prior to the date of such proposed issuance, a Letter of Credit application in
the L/C Issuer's then standard form, completed to the satisfaction of the 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 if after giving
effect to the issuance thereof, the aggregate undrawn face amount of outstanding
Letters of Credit would exceed the lesser of (a) $15,000,000 or (b) the
Revolving Loan Commitment Amount minus the aggregate unpaid principal amount of
Revolving Loans and Swing Loans then outstanding. On the terms and subject to
the conditions of this Agreement, each Letter of Credit shall be issued by the
L/C Issuer on the Business Day specified in the Borrowers' application therefor.
The Agent shall promptly notify each Lender in writing of the material terms of
each Letter of Credit issued by the L/C Issuer. Each request for a Letter of
Credit and each Letter of Credit shall be subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication Number 500. Each Letter of Credit will be issued for a term
of not more than one year, and in no event shall any Letter of Credit have an
expiration date later than the Stated Maturity Date.
Upon any termination of the Revolving Loan Commitment prior to the
Stated Maturity Date, the Borrowers shall deposit with the Agent an amount equal
to 105% of the aggregate amount available to be drawn under outstanding Letters
of Credit, such amount to be placed in a segregated, interest-bearing cash
collateral account pledged to the Lenders as Collateral hereunder over which
Borrowers shall have no control but which shall be applied solely to repay the
Borrowers' obligations in connection with such Letters of
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Credit unless an Event of Default has occurred and is continuing. In the event
the expiry date (or earlier termination) of any Letter of Credit should occur
with no draw having been made thereunder for which the Borrowers have not made
reimbursement and so long as no Event of Default has occurred and is continuing,
the amount of the cash collateral account shall be reduced by 105% of the
undrawn amount of such expired Letter of Credit and the amount of such reduction
shall be paid to the Borrowers (and, in the case of the final Letter of Credit
to expire or otherwise be terminated, the remaining balance of the cash
collateral account shall be paid to the Borrowers).
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrowers shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date.
SECTION 3.1.1. Payment Terms. Prior to the Stated Maturity Date of
each Loan, the Borrowers
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Loans; provided, however, that
(i) no such prepayment of any Eurodollar Rate Loan
may be made on any day other than the last day of the
Interest Period for such Loan;
(ii) all such voluntary prepayments of any
Eurodollar Rate Loan shall require at least three Business
Days' prior written notice to the Agent and all such
voluntary partial prepayments shall be in an aggregate
minimum amount of $3,000,000 and integral multiples of
$1,000,000 in excess thereof or such lesser amount as will
prepay such Loan in full;
(iii) all such voluntary prepayments of any Base
Rate Loan outstanding under the Revolving Loan Commitment
shall require at least one Business Day's notice, and all
such voluntary partial prepayments shall be in an aggregate
minimum amount of $3,000,000 and integral multiples of
$1,000,000 in excess thereof or such lesser amount as will
prepay such Loan in full; and
(iv) all such voluntary prepayments of any Swing
Loan shall require at least one Business Day's notice to the
Swingline Lender (unless notice shall have been given by
11:30 a.m., Las Vegas time and payment shall be received by
1:00 p.m. Las Vegas time, in which event one
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Business Day's notice shall not be required), and all such
voluntary partial prepayments shall be in an aggregate
minimum amount of $100,000 or integral multiples of $100,000
or such lesser amount as will prepay such Loan in full.
(b) shall, one (1) Business Day after receipt of Net Cash
Proceeds, apply such proceeds in accordance with clause (a) of Section
2.2.2 or Section 2.2.3, if applicable; and
(c) shall, immediately upon any acceleration of the Stated
Maturity Date pursuant to Section 8.2 or Section 8.3, repay all Loans.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. All mandatory
prepayments pursuant to clause (b) above shall require at least one (1) Business
Day prior written notice to the Agent. All prepayments of Revolving Loans shall
be applied first to the repayment of Base Rate Loans and second to the repayment
of Eurodollar Rate Loans in the direct order of the maturity of the Interest
Periods therefor. All notices of prepayment required to be delivered to the
Agent hereunder (other than notices relating to Swing Loans) shall be in
substantially the form of Exhibit M. The Agent shall promptly notify each other
Lender of the terms of each notice of prepayment.
SECTION 3.1.2. Special Swing Loan Provisions. All Swing Loans
shall be payable with accrued interest thereon solely to the Swingline Lender
for its own account, and shall otherwise be subject to all the terms and
conditions applicable to the Revolving Loans (unless otherwise specifically set
forth herein). Upon the earlier to occur of (x) thirty days after the making of
any Swing Loan or (y) one Business Day after the occurrence of an Event of
Default, the Borrowers shall repay all of such Swing Loans in cash by 1:00 p.m.,
Las Vegas time, on the date due or make a Borrowing of Revolving Loans in an
amount at least equal to the aggregate outstanding principal amount of all Swing
Loans together with all accrued interest thereon, and shall apply the proceeds
of such Borrowing to repay in its entirety the aggregate outstanding principal
amount of all Swing Loans together with accrued interest thereof to the date of
such repayment.
In the event that any portion of any Swing Loan is not repaid when due,
the Swingline Lender shall promptly notify the Agent and the Agent shall
promptly, and in no event later than 5:00 p.m., New York time, two Business Days
after its receipt of such notice, notify each Lender in writing of the
unreimbursed amount of such Swing Loan and of such Lender's Revolving Percentage
of such unreimbursed amount. Each of the Lenders shall make a Revolving Loan in
an amount equal to such Lender's Revolving Percentage of
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the unreimbursed amount of such Swing Loan, together with accrued unpaid
interest thereon (to the extent that there is availability under the Revolving
Loan Commitment), and pay the proceeds thereof, in immediately available funds,
directly to the Agent for the account of the Swingline Lender, not later than
1:00 p.m., New York time, on the next Business Day after the date such Lender is
notified by the Agent. Revolving Loans made by the Lenders to repay unreimbursed
Swing Loans pursuant to this subsection shall constitute Revolving Loans
hereunder, initially shall be Base Rate Loans and shall be subject to all of the
provisions of this Agreement concerning Revolving Loans, except that such
Revolving Loans shall be made upon demand by the Agent as set forth above rather
than upon notice by the Borrowers, and shall be made, notwithstanding anything
in this Agreement to the contrary, without regard to satisfaction of conditions
precedent to the making of Revolving Loans set forth in Article V of this
Agreement; provided, however that no Lender shall be obligated to make such
Revolving Loans if, prior to the date of the Borrowing of the Swing Loan to be
refunded, the Swingline Lender had received written notice from the Agent or any
Lender of the existence and continuance of a Default or an Event of Default.
Each Lender's obligation to make Revolving Loans in the amount of its
Revolving Percentage of any unreimbursed Swing Loan pursuant hereto is several,
and not joint or joint and several. The failure of any Lender to perform its
obligation to make a Revolving Loan in the amount of such Lender's Revolving
Percentage of any unreimbursed Swing Loan will not relieve any other Lender of
its obligation hereunder to make a Revolving Loan in the amount of such other
Lender's Revolving Percentage of such unreimbursed Swing Loan. Any Lender may,
but shall have no obligation to any Person to, assume all or any portion of any
non-performing Lender's obligation to make a Revolving Loan in the amount of
such Lender's Revolving Percentage of such unreimbursed Swing Loan. The
Borrowers agree to accept the Revolving Loans hereinabove provided, whether or
not such Loans could have been made pursuant to the terms of Section 5.2 hereof
or any other Section of this Agreement.
In the event, for whatever reason, the Agent determines that the
Lenders are not able to, or that it could be disadvantageous for the Lenders to,
advance their respective Revolving Percentage of Revolving Loans for the purpose
of refunding Swing Loans as required hereunder, then each of the Lenders
absolutely and unconditionally agrees to purchase and take from the Swingline
Lender on demand an undivided participation interest in Swing Loans outstanding
in an amount equal to their respective Revolving Percentage of such Swing Loans.
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SECTION 3.1.3. Post Default Application of Payments.
Notwithstanding any provision of Section 3.1.1 to the contrary, after the
occurrence and during the continuance of an Event of Default, all optional and
mandatory payments under Section 3.1.1 shall be applied first to pay any fees
and expenses then due and owing, second to the pro rata payment of accrued and
unpaid interest on all Loans and third to the pro rata reduction of amounts
outstanding under the Revolving Loan Commitment and the Swingline Commitment.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrowers may elect
that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Base Rate Margin in effect from time
to time; and
(b) on that portion maintained as a Eurodollar Rate Loan,
during each Interest Period applicable thereto, equal to the sum of the
Eurodollar Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Eurodollar Rate Margin in effect from time to time.
All Eurodollar Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
Eurodollar Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any
principal amount of any Loan is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or after any other monetary Obligation of
the Borrowers hereunder shall have become due and payable, the Borrowers shall
pay interest (after as well as before judgment) on such amounts at a rate per
annum equal to the Alternate Base Rate plus a margin of 3% until such amount is
paid in full.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan
shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) with respect to Base Rate Loans, on each Monthly Payment
Date occurring on and after the Effective Date;
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(c) with respect to Eurodollar Rate Loans, the last day of
each applicable Interest Period (and, if such Interest Period shall
exceed three months, at the end of the third month thereof); and
(d) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4. Interest Rate Determination. If the Eurodollar
Rate cannot be determined pursuant to clause (a) of the definition thereof, each
Reference Lender agrees to furnish to the Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the Reference
Lenders shall fail timely to furnish such information to the Agent, the Agent
shall determine such interest rate on the basis of the information furnished by
the remaining Reference Lenders.
SECTION 3.3. Fees. The Borrowers agree to pay to the Agent and each
Lender the fees set forth in this Section 3.3.
SECTION 3.3.1. Unused Fee. The Borrowers agree to pay to the
Agent for the account of each Lender, for the period (including any portion
thereof when any of its Commitments are suspended by reason of the Borrowers'
inability to satisfy any condition of Article V or when any portion of the
Revolving Loan Commitment Amount may be temporarily unavailable pursuant to the
second sentence of Section 2.2.2(d)) commencing on the Effective Date and
continuing through the earlier of (x) termination by the Borrowers of the
Revolving Loan Commitment on three Business Days' written notice or (y) the
Maturity Date, an unused fee (the "Unused Fee") at the rate per annum set forth
under the column labelled "Unused Fee" in the definition of "Applicable Margin"
opposite Boyd Gaming's Funded Debt to EBITDA Ratio as of the last day of the
most recently ended Fiscal Quarter, calculated on the average daily Commitment
Fee Amount. The Unused Fee shall be payable by the Borrowers quarterly in
arrears on the last day of March, June, September and December in each year (or,
if such day is not a Business Day, on the next succeeding Business Day),
commencing with the first such date to occur after the Effective Date, and on
any expiration or termination of the Revolving Loan Commitment.
SECTION 3.3.2. Upfront Fees. On the Effective Date, the
Borrowers agree to pay to the Agent for the account of each Lender upfront fees
in such amounts as have been agreed upon previously by the Agent and each such
Lender.
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SECTION 3.3.3. Letter of Credit Fees. The Borrowers agree to
pay to the Agent, for the account of the Lenders, letter of credit fees (the
"L/C Fees") on the average daily face amount of outstanding Letters of Credit
during each Fiscal Quarter, calculated at a per annum rate equal to the
Applicable Eurodollar Rate Margin in effect on the last day of such Fiscal
Quarter. The Borrowers further agree to pay to the L/C Issuer, for its own
account, a fronting fee (the "Fronting Fee") equal to 0.125% per annum of the
average daily face amount of outstanding Letters of Credit during each Fiscal
Quarter, calculated on the last day of such Fiscal Quarter. The L/C Fees and the
Fronting Fee shall be computed on the basis of a year comprised of 365 days or,
if appropriate, 366 days and shall be payable quarterly in arrears, on the last
day of March, June, September and December.
SECTION 3.3.4. Agent's Fees. To the Agent for its own
account, fees in such amounts and at such times as more particularly set forth
in that certain confidential fee letter dated April 2, 1996 between the Agent
and the Borrowers.
SECTION 3.4. Agreement to Repay Letter of Credit Drawings with
Revolving Loans. The Borrowers agree to reimburse the L/C Issuer for each draft
that is paid under any Letter of Credit for the amount of (a) such draft and (b)
any reasonable taxes, fees, charges or other costs and expenses incurred by the
L/C Issuer in connection with such payment, whether such draft is paid before,
on or after termination of the Revolving Loan Commitment. If the L/C Issuer
shall notify the Borrowers and the Agent prior to 11:00 a.m., New York time, on
any day that payment has been made under any Letter of Credit, the Borrowers
shall reimburse the L/C Issuer with the proceeds of a Revolving Loan made
pursuant to Section 3.5 not later than the following Business Day. If such
notice to the Borrowers and the Agent shall be given after 11:00 a.m., New York
time, the Borrowers shall reimburse the L/C Issuer with the proceeds of a
Revolving Loan made pursuant to Section 3.5 not later than the second following
Business Day. Interest shall be payable on any and all unreimbursed amounts
advanced by the L/C Issuer under this Section from the date such amounts have
been advanced by the L/C Issuer until reimbursed at the rate of interest payable
on the Revolving Loans.
The payment obligations of the Borrowers under this Section shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including without limitation,
the following circumstances:
(a) the existence of any claim, set-off, defense or other
right which the Borrowers may have at any time against any beneficiary,
or any transferee, of any Letter of Credit (or any Persons for whom any
such beneficiary or any such
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transferee may be acting), the L/C Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated
herein, or any unrelated transaction;
(b) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
unenforceable in any respect or any statement therein being untrue or
inaccurate in any respect; provided that any such statement or other
document appears, on examination, to be regular on its face; or
(c) payment by the L/C Issuer under any Letter of Credit
against presentation of drafts, certificates, claims, documents or
required statements that do not strictly comply with the terms of the
Letter of Credit; provided that, upon examination, any such drafts,
certificates, claims, documents or statements appear on their face to
be in accordance with the Letter of Credit.
SECTION 3.5. Letter of Credit Participations. The L/C Issuer
irrevocably agrees to grant and hereby grants to each Lender, and, to induce the
L/C Issuer to issue Letters of Credit hereunder, each Lender irrevocably agrees
to accept and purchase and hereby accepts and purchases from the L/C Issuer for
such Lender's own account and risk an undivided interest equal to such Lender's
Revolving Percentage in the L/C Issuer's obligations and rights under each
Letter of Credit issued hereunder and each draft paid by the L/C Issuer
hereunder.
Upon presentation of a draft drawn under any Letter of Credit, the L/C
Issuer shall promptly notify the Agent and the Agent shall promptly notify each
Lender of the amount under such draft and of such Lender's Percentage of such
amount. Unless (i) the Borrowers shall have previously reimbursed the L/C Issuer
for the amount of such draft or (ii) there is a sufficient amount in any cash
collateral account established to cover payments to be made under such Letter of
Credit, each of the Lenders shall thereafter make a Revolving Loan in an amount
equal to such Lender's Revolving Percentage of the amount of such payment made
by the L/C Issuer, together with any accrued and unpaid interest thereon. Each
Lender shall pay the proceeds of its Loan, in immediately available funds,
directly to the Agent for the account of the L/C Issuer, (i) not later than 1:00
p.m. New York time, on the following Business Day if the Agent shall have
provided notice prior to 11:30 a.m. New York time, and (ii) if the Agent shall
have provided notice after 11:30 a.m. New York time, not later than 1:00 p.m.
New York time, on the second following Business Day. Revolving Loans made by the
Lenders to repay amounts under Letters of Credit pursuant to this subsection
shall constitute Revolving Loans hereunder, initially shall be Base Rate Loans
and shall be subject to all of the provisions of this Agreement concerning
Revolving Loans, except
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that such Revolving Loan shall be made upon demand by the Agent as set forth
above rather than upon notice by the Borrowers, and shall be made,
notwithstanding anything in this Agreement to the contrary, without regard to
satisfaction of conditions precedent to the making of Revolving Loans set forth
in Article V of this Agreement and, notwithstanding any termination of the
Revolving Loan Commitment prior to the Stated Maturity Date, Revolving Loans
shall be made to reimburse the L/C Issuer for any drafts paid under any Letter
of Credit outstanding on the date of such termination.
Each Lender's obligation to make Revolving Loans in the amount of its
Revolving Percentage of any unreimbursed amounts outstanding under a Letter of
Credit pursuant hereto is several, and not joint or joint and several. The
failure of any Lender to perform its obligation to make a Revolving Loan in the
amount of such Lender's Revolving Percentage of any unreimbursed amounts
outstanding under an Letter of Credit will not relieve any other Lender of its
obligation hereunder to make a Revolving Loan in the amount of such other
Lender's Revolving Percentage of such amounts. Any Lender may, but shall have no
obligation to any Person to, assume all or any portion of any non-performing
Lender's obligation to make a Revolving Loan in the amount of such Lender's
Revolving Percentage of such amount outstanding under a Letter of Credit. The
Borrowers agree to accept the Revolving Loans hereinabove provided, whether or
not such loans could have been made pursuant to the terms of Section 5.2 hereof,
or any other Section of this Agreement.
ARTICLE IV
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
SECTION 4.1. Eurodollar Rate Lending Unlawful. If any Lender shall
determine that the introduction of or any change in or in the interpretation of
any law makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for such Lender to make, continue or maintain any
Loan as, or to convert any Loan into, a Eurodollar Rate Loan, the obligation of
such Lender to make, continue, maintain or convert any such Loans shall, upon
such determination, forthwith be suspended until such Lender shall notify the
Agent that the circumstances causing such suspension no longer exist, and all
Eurodollar Rate Loans of such Lender shall automatically convert into Base Rate
Loans at the end of the then current Interest Periods with respect thereto or
sooner, if required by such law or assertion. Until the circumstances causing
such suspension no longer exist, such Lender(s) shall have no obligation to make
or continue any Loans as, or to convert any Loans into Eurodollar Rate Loans.
SECTION 4.2. Deposits Unavailable. If the Agent shall have determined
that
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(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Reference Lenders in
the interbank market; or
(b) by reason of circumstances affecting the interbank
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Eurodollar Rate Loans, then, upon notice from
the Agent to the Borrowers and the Lenders, the obligations of all
Lenders under Section 2.3 and Section 2.4 to make or continue any Loans
as, or to convert any Loans into, Eurodollar Rate Loans shall forthwith
be suspended until the Agent shall notify the Borrowers and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased Costs, etc. The Borrowers agree to reimburse
each Lender for any increase in the cost to such Lender of, or any reduction in
the amount of any sum receivable by such Lender in respect of, (i) making,
continuing or maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert) any Loans into,
Eurodollar Rate Loans or (ii) any Letter of Credit (or any Lender's
participation therein) issued hereunder as a result of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in adopted after the Effective Date of, any law or regulation, directive,
guideline, decision or request (whether or not having force of law) of any
court, central bank, regulator or other governmental authority (whether or not
having the force of law and whether or not the failure to comply with such
guideline or requirement would be unlawful). Such Lender shall promptly notify
the Agent and the Borrowers in writing of the occurrence of any such event, such
notice to state, in reasonable detail, the reasons therefor and the additional
amount required fully to compensate such Lender for such increased cost or
reduced amount. Such additional amounts shall be payable by the Borrowers
directly to such Lender within five (5) days of its receipt of such notice, and
such notice shall, in the absence of manifest error, be conclusive and binding
on the Borrowers.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a
Eurodollar Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any Eurodollar Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto, whether
pursuant to Section 3.1 or otherwise;
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(b) any Loans not being made as Eurodollar Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
Eurodollar Loans in accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Agent), the Borrowers shall, within five (5) Business Days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in adopted after the Effective Date of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of law) of any
court, central bank, regulator or other governmental authority or the
implementation of any risk-based capital guideline or other requirement (whether
or not having the force of law and whether or not the failure to comply with
such guideline or requirement would be unlawful) heretofore or hereafter issued
by any governmental authority, whereby such law or regulation affects or would
affect the amount of capital required or expected to be maintained by any Lender
or any Person controlling such Lender, and such Lender reasonably determines
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender or any Letter of
Credit issued by such Lender or in which such Lender is a risk participant is
reduced to a level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Lender to the Borrowers, the
Borrowers shall within two (2) Business Days after demand pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrowers. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its reasonable
discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrowers of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or
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franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, other than taxes imposed
on or measured by any Lender's net income or receipts by the U.S., any state,
the jurisdiction in which such Lender is organized or the country in which such
Lender's Eurodollar Office is located (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to be
made by the Borrowers hereunder is required in respect of any Taxes pursuant to
any applicable law, rule or regulation, then, subject to the Borrowers' receipt
of the documentation required by the terms of the last paragraph of this Section
4.6, the Borrowers will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such authority; and
(c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Agent or any Lender
with respect to any payment received by the Agent or such Lender hereunder, the
Agent or such Lender may pay such Taxes and the Borrowers will promptly pay such
additional amounts (including any penalties, interest or expenses (unless such
penalties, interest or expenses are attributable solely to the actions of such
Lender)) as is necessary in order that the net amount received by such person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such person would have received had not such Taxes been
asserted.
If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fail to remit to the Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrowers. Without prejudice to the survival of any other
agreement of the Borrowers hereunder or any other Loan Document, the agreements
of the Borrowers contained in this Section shall survive the payment in full of
all its Obligations.
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Upon the request of the Borrowers or the Agent, each Lender that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the due date of any payments under the Notes and subsequently as
required by law, execute and deliver to the Borrowers and the Agent, one or more
(as the Borrowers or the Agent may reasonably request) United States Internal
Revenue Service Forms 4224 or Forms 1001 or such other forms or documents (or
successor forms or documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender is exempt from
withholding or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrowers pursuant to this Agreement, the Notes
(other than the Swingline Note) or any other Loan Document shall be made by the
Borrowers to the Agent for the pro rata account of the Lenders entitled to
receive such payment. All such payments required to be made to the Agent shall
be made, without setoff, deduction or counterclaim, not later than 1:00 p.m.,
New York time, on the date due, in same day or immediately available funds, to
Morgan Guaranty Trust Company of New York, 60 Wall Street, New York, New York
10260, ABA No. 021 000 238 for account of: Canadian Imperial Bank of Commerce
account no. 630 00 480, for further credit to agented loans account no.
07-09611, attention: syndications, reference: Boyd Gaming Corporation, or to
such other account as the Agent shall specify from time to time by written
notice to the Borrowers. Funds received after such time shall be deemed to have
been received by the Agent on the next succeeding Business Day. The Agent shall
promptly remit in same day funds on the Business Day received to each Lender its
share, if any, of such payments received by the Agent for the account of such
Lender. All interest shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period
for which such interest is payable over a year comprised of 360 days (or, in the
case of interest on a Base Rate Loan, 365 days or, if appropriate, 366 days).
All Unused Fees, L/C Fees and other fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such fees are payable over a year
comprised of 365 days or, if appropriate, 366 days. Whenever any payment to be
made shall otherwise be due on a day which is not a Business Day, such payment
shall (except as otherwise required by clause (c) of the definition of the term
"Interest Period" with respect to Eurodollar Rate Loans) be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of
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any Loan (other than pursuant to the terms of Sections 4.3, 4.4, 4.5 and 4.6) in
excess of its pro rata share of payments then or therewith obtained by all
Lenders holding Loans of such Type, such Lender shall purchase from the other
Lenders such participations in Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (a) the amount of
such selling Lender's required repayment to the purchasing Lender to (b) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrowers agree that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrowers in the amount of such participation. If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on such secured
claim. For the purposes of determining a Lender's applicable pro rata share, all
issued and outstanding Letters of Credit shall be considered Revolving Loans,
and any payments in respect thereof shall be deposited in the cash collateral
account established pursuant to Section 2.7 hereof. If any Letter of Credit
shall thereafter expire or terminate without being drawn, the amount previously
deposited into the cash collateral account in respect thereof shall be released
from the cash collateral account and distributed to the Lenders on a pro rata
basis or, if no Loans shall be outstanding, delivered to the Borrowers.
SECTION 4.9. Setoff. Each Lender, with the consent of the Agent and the
Required Lenders, shall, upon the occurrence of any Default described in clauses
(a) through (d) of Section 8.1.9 or upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrowers hereby grant to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrowers (or either of them) then or thereafter maintained with such Lender;
provided, however, that any such appropriation and application shall be subject
to the
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provisions of Section 4.8. Each Lender agrees promptly to notify the Borrowers
and the Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
SECTION 4.10. Use of Proceeds. The Borrowers shall apply the proceeds
of each Borrowing in accordance with the third recital. Without limiting the
foregoing, no proceeds of any Loan will be used to acquire any equity security
of a class which is registered pursuant to Section 12 of the Securities Exchange
Act of 1934 or any "margin stock", as defined in F.R.S. Board Regulation U.
SECTION 4.11. Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if such
Lender had actually funded and maintained each Eurodollar Loan during the
Interest Period for such Loan through the purchase of deposits having a maturity
corresponding to the last day of such Interest Period and bearing an interest
rate equal to the Eurodollar Rate for such Interest Period. Each Lender shall
use reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to take appropriate action, including the selection of
a jurisdiction of its Eurodollar Office or the changing of the jurisdiction of
its Eurodollar Office, as the case may be, so as to avoid the imposition of any
increased costs or withholding taxes or to eliminate the amount of any such
increased costs or withholding taxes which may thereafter accrue; provided that
no such selection or change of the jurisdiction for its Eurodollar Office shall
be made if, in the reasonable judgment of such Lender, such selection or change
would be disadvantageous to such Lender.
SECTION 4.12. Substitution. In the event that (x) any Lender's
obligation to make Eurodollar Rate Loans has been declared unlawful pursuant to
Section 4.1 or (y) any Lender has demanded compensation under Section 4.3 or
4.6, and so long as there does not exist a Default or Event of Default, the
Borrowers shall have the right, with the consent of the Agent, to designate
another financial institution (which may be one or more of the Lenders) as a
substitute for such Lender to purchase the Notes (for a price equal to all
principal, interest, fees and costs owed to such Lender) and assume the
Commitments of such Lender.
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ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing. The obligations of the Lenders to fund
the initial Borrowing or the L/C Issuer to issue the initial Letter of Credit
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 5.1; provided, that if the
initial Borrowing is not funded by June 30, 1996, the Commitments shall then
expire.
SECTION 5.1.1. Resolutions, etc. The Agent shall have
received from each of the Borrowers a certificate, dated the date of the initial
Borrowing, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and each
other Loan Document to be executed by it; and
(c) such Borrower's articles of incorporation and bylaws,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of each Borrower canceling or
amending such prior certificate; and the Agent shall have received from each
Guarantor a certificate, dated the date of the initial Borrowing, of its
Secretary or Assistant Secretary as to
(a) resolutions of the Board of Directors then in full force
and effect authorizing the execution, delivery and performance of its
Guaranty and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to its Guaranty, and each other Loan
Document to be executed by it; and
(c) its articles of incorporation and bylaws,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Guarantor canceling or
amending such prior certificate. In addition, the Agent shall have received from
each Borrower and each Guarantor a certificate, dated not earlier than May 1,
1996 from the Secretary of State of each State in which such Person is
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qualified to do business confirming the good standing in that State of that
Borrower or Guarantor, as the case may be.
SECTION 5.1.2. Delivery of Notes. The Agent shall have
received, for the account of each Lender, the Notes duly executed and delivered
by the Borrowers.
SECTION 5.1.3. Guaranties. The Agent shall have received the
Guaranties, dated the date hereof, duly executed by each of the Guarantors.
SECTION 5.1.4. Security Agreements. The Agent shall have
received executed counterparts of the Security Agreements, duly executed by each
of the Pledgors, covering all of each such Person's equipment, gaming devices
(but only to the extent permitted by applicable law) and associated equipment,
fixtures, furnishings, inventory, accounts, intangibles and other personal
property of every kind and description located in or on the Pledged Casinos,
including, to the extent permitted by the terms of the financing or leasing
agreements applicable thereto, all furniture, fixtures and equipment that are
financed or leased (all of the foregoing is collectively referred to as the
"Personal Property Collateral"), together with
(a) acknowledgment copies of properly filed Uniform
Commercial Code financing statements (Form UCC-1), dated a date
reasonably near to and prior to the date of the initial Borrowing, or
such other evidence of filing as may be acceptable to the Agent, naming
each of the Pledgors (as appropriate) as the debtor, and the Agent on
behalf of the Lenders, as the secured party, or other similar
instruments or documents, filed under the Uniform Commercial Code of
all jurisdictions as may be necessary or, in the opinion of the Agent,
desirable to perfect the security interest of the Agent pursuant to the
Security Agreements;
(b) executed copies of proper Uniform Commercial Code
termination statements, if any, necessary to release all Liens and
other rights of any Person securing any existing Liens (other than
Permitted Liens), together with such other Uniform Commercial Code
termination statements as the Agent may reasonably request; and
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-3), or a similar search report
certified by a party selected by and acceptable to the Agent, dated a
date reasonably near to the date of the initial Borrowing, listing all
effective financing statements which name each of the Pledgors (under
their present names and any previous names) as the debtor and which are
filed in the jurisdictions in which filings were made pursuant to
clause
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(a) above, together with copies of such financing statements
(none of which (other than those described in clause (a), if such
Form UCC-3 or search report, as the case may be, is
current enough to list such financing statements described in clause
(a)) shall cover any Collateral described in the Security Agreements).
SECTION 5.1.5. Deeds of Trust. The Agent shall have received
executed counterparts of a Deed of Trust with respect to each Pledged Casino,
dated as of the date hereof, duly executed by each of the owners of the Pledged
Casinos, together with
(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of each of the Deeds
of Trust as may be necessary or, in the reasonable opinion of the
Agent, desirable effectively to record the Deeds of Trust as valid,
perfected Liens against the Pledged Casinos, which Liens are subject to
no outstanding monetary Liens recorded against Pledgors' interest in
the Pledged Casino;
(b) title policies (collectively, the "Title Policies") in
favor of the Agent on behalf of the Lenders in amounts and in form and
substance satisfactory to the Agent and issued by the Title Company,
with respect to each Deed of Trust; and
(c) such other approvals, opinions, or documents in
connection with the foregoing as the Agent may reasonably request.
SECTION 5.1.6. Surveys. The Agent shall have received, in
triplicate, a surveyor's current plat of survey (dated not earlier than May 1,
1996) of each of the Pledged Casinos prepared (and so certified) in compliance
with the provisions of the applicable state survey standards by a registered
land surveyor of the state in which such Pledged Casino is located, and
certified to the Agent and the Title Company.
SECTION 5.1.7. Appraisals. The Agent shall have received
copies of MAI appraisals prepared in accordance with the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, addressed to the Agent, with
respect to each Pledged Casino, prepared by Hospitality Valuation Services, Inc.
and in form, scope and substance satisfactory to the Agent in all material
respects, which appraisals shall not have been withdrawn or modified. Such
appraisals shall establish that the aggregate appraised value of the Pledged
Casinos is not less than $769,000,000.
SECTION 5.1.8. Environmental Audit. The Agent shall have
received copies of a so-called "phase one" environmental audit
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covering each Pledged Casino, in each case prepared by an environmental
consulting firm selected by the Borrowers and reasonably acceptable to the
Agent, and in form, substance and results, reasonably satisfactory to the Agent.
SECTION 5.1.9. First Preferred Ship Mortgages. The Agent
shall have received executed counterparts of the First Preferred Ship Mortgages,
dated as of the date hereof, duly executed by each of Boyd Kansas City and Boyd
Tunica, together with
(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of each of the First
Preferred Ship Mortgages as may be necessary or, in the reasonable
opinion of the Agent, desirable effectively to record the First
Preferred Ship Mortgages as valid, perfected Liens against the vessels
described therein, which Liens are subject to no outstanding monetary
Liens recorded against such vessels; and
(b) such other approvals, opinions or documents in connection
with the foregoing as the Agent may reasonably request.
SECTION 5.1.10. Consents, etc. The Agent shall have received
certified copies of all documents evidencing any necessary corporate action of
the Borrowers, material consents, shareholder, creditor, material lessor,
governmental and material regulatory approvals or exemptions in connection with
this Agreement, all in form and substance reasonably satisfactory to the Agent
and, as to legal matters, its counsel.
SECTION 5.1.11. Insurance Coverages.
(a) The Borrowers shall have obtained, and the Agent shall
have approved, the following insurance coverages with respect to the
Pledged Casinos:
(i) Comprehensive general public liability
insurance in an amount reasonably satisfactory to the Agent
and the Borrowers covering the Borrowers and the Guarantors;
(ii) Worker's compensation insurance (or self
insurance therefor) and employer's liability insurance for
the Borrowers and the Guarantors, all in such amounts as may
be required by statute;
(iii) If commercially available, flood
insurance if any Pledged Casino is located in an area
designated by the Secretary of Housing and Urban Development
as a special flood hazard area; and
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(iv) Rental or business interruption insurance
in amounts sufficient to pay operating expenses, lost rental
income and debt service for a period of up to six months on
each Pledged Casino.
(b) All policies of insurance required to be maintained by
the Borrowers and the Guarantors shall be issued by companies
reasonably satisfactory to the Agent and shall have coverages and
endorsements (including, without limitation, waivers of subrogation and
waivers of breach of warranty) and be written for such amount as the
Agent may reasonably require. All policies of insurance required to be
maintained by Borrowers and the Guarantors must name the Agent as
mortgagee and additional insured or loss payee, must insure the
interest of the Agent in the property as mortgagee and must provide
that no cancellation or material modification of the policies will be
made without thirty days' prior written notice to Agent. Certificates
for all such policies must be delivered to the Agent and approved by
the Agent (which approval shall not be unreasonably withheld).
SECTION 5.1.12. Hazardous Materials Indemnity. The Agent
shall have received the Hazardous Materials Indemnity, dated as of the date
hereof, duly executed by the Pledgors.
SECTION 5.1.13. Solvency. The Agent shall have received a
certificate substantially in the form of Exhibit J hereto from the president,
the chief executive or chief financial Authorized Officer of each of the
Borrowers as to solvency of each Borrower and each of the Guarantors, both
before and after giving effect to the transactions contemplated by this
Agreement.
SECTION 5.1.14. Opinions of Counsel. The Agent shall have
received opinions, dated the date of the initial Borrowing and addressed to the
Agent and all Lenders, from Morrison & Foerster LLP, McDonald Carano Wilson
Bergin Frankovich & Hicks, Watkins Ludlam & Stennis, P.A., Stinson Mag & Fizzel
and Terribery, Caroll & Yancy, counsel to the Borrowers and the Guarantors as to
the matters set forth in Exhibit K hereto.
SECTION 5.1.15. Closing Fees, Expenses, etc. The Agent shall
have received for its own account, or for the account of each Lender, all fees,
costs and expenses due and payable pursuant to Sections 3.3 and, if then
invoiced, 10.3.
SECTION 5.1.16. Application of Proceeds; Discharge of
Obligations. The proceeds of the initial Borrowing shall be applied to discharge
the obligations and liens described on Item 6 of the Disclosure Schedule, and
the Agent shall have received such payment instructions, payoff letters,
termination statements and other instruments to effect the termination of such
obligations and
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liens as the Agent shall deem necessary or appropriate, all duly executed by the
applicable obligees and in suitable form for filing or recording, as applicable.
SECTION 5.1.17. Loan Documents. The Agent shall have received
copies of such other documents or such other evidence as the Agent may
reasonably request showing that the Loans have been fully secured on the terms
described in this Agreement.
SECTION 5.2. All Borrowings. Subject to the provisions of Section
3.1.2, the obligation of the L/C Issuer to issue any Letter of Credit or of each
Lender to fund any Loan on the occasion of any Borrowing (including the initial
Borrowing) that would increase the aggregate principal amount of Loans
outstanding hereunder shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc.
Both before and after giving effect to the issuance of a Letter of Credit or any
Borrowing (but, if any Default of the nature referred to in Section 8.1.5 shall
have occurred with respect to any other Indebtedness, without giving effect to
the application, directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.7) shall be true
and correct with the same effect as if then made (unless stated to
relate solely to an earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date);
(b) except as disclosed by the Borrowers to the Agent and the
Lenders pursuant to Section 6.7
(i) no labor controversy, litigation, action,
arbitration or governmental investigation or proceeding shall
be pending or, to the knowledge of the Borrowers, threatened
against Boyd Gaming or any of its Subsidiaries which if
adversely determined may be reasonably expected to have a
Material Adverse Effect; and
(ii) no development shall have occurred in any
labor controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 6.7
which may be reasonably expected to have a Material Adverse
Effect; and
(c) no Default shall have then occurred and be continuing.
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SECTION 5.2.2. Borrowing Request. Except for the Borrowings
of Swing Loans, the Borrowers shall have furnished the Agent with a Borrowing
Request for such Borrowing. Each of the delivery of a Borrowing Request and the
acceptance by the Borrowers of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrowers that on the date of such Borrowing
(both immediately before and after giving effect to such Borrowing and the
application of the proceeds thereof) the statements made in Subsection 5.2.1 are
true and correct. Each request by the Borrowers for the issuance of a Letter of
Credit shall be made pursuant to a Letter of Credit application in the L/C
Issuer's then current form. Delivery of such application and the delivery by the
L/C Issuer of the Letter of Credit shall constitute a representation and
warranty by the Borrowers that on the date of issuance of such Letter of Credit
(both immediately before and after giving effect thereto) the statements made in
Subsection 5.2.1 are true and correct. Each request by the Borrowers for
Borrowings of Swing Loans and the acceptance by the Borrowers of the proceeds of
such Swing Loans shall constitute a representation and warranty by the Borrowers
that on the date of such Borrowing (both immediately before and after giving
effect to such Borrowing in the application of the proceeds thereof) the
statements made in Subsection 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents
executed or submitted pursuant hereto by or on behalf of Boyd Gaming or any of
its Subsidiaries shall be satisfactory in form and substance to the Agent and
its counsel; the Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Agent or its counsel may
reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Loans and issue Letters of Credit hereunder, the Borrowers
represent and warrant, jointly and severally, unto the Agent and each Lender as
set forth in this Article VI.
SECTION 6.1. Organization, etc. Boyd Gaming and each Significant
Subsidiary are corporations validly organized and existing and in good standing
under the laws of the State of its incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each jurisdiction
where the nature of their business requires such qualification, unless the
failure to so qualify may not reasonably be expected to have a Material Adverse
Effect, and have full power and authority and hold
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all requisite governmental licenses, permits and other approvals necessary to
enter into and perform their respective Obligations under this Agreement, the
Notes and each other Loan Document and to own and hold their respective property
and to conduct their respective business substantially as currently conducted.
As of the Effective Date, each Guarantor is a Significant Subsidiary.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each of the Borrowers of this Agreement, the Notes,
each other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each Guarantor of each Loan Document executed or to
be executed by each Guarantor, are within each such Person's corporate powers,
have been duly authorized by all necessary corporate action, and do not
(a) contravene such Person's Organic Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting either Borrower or any Guarantor, except where such
contravention may not reasonably be expected to have a Material Adverse
Effect; or
(c) result in, or require the creation or imposition of, any
Lien on either of the Borrower's or any Guarantor's properties other
than pursuant to the Loan Documents.
SECTION 6.3. Government Approval, Regulation, etc. Except for such
authorizations, approvals or notices obtained or delivered as of the Effective
Date or subsequently required in connection with the addition of any Guarantor
pursuant to Section 7.1.10 or the pledge of any additional Venture pursuant to
Section 7.1.11 or the delivery of any estoppels and consents pursuant to Section
7.1.12, no authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or other Person is
required for the due execution, delivery or performance (i) by the Borrowers of
this Agreement, the Notes or any other Loan Document or (ii) by any Guarantor of
any Loan Document to which any of them is a party, except that pursuant to
regulation 8.130 of the Nevada Gaming Control Board a notice of the Borrowers'
execution of this Credit Agreement must be filed with the Nevada Gaming Control
Board within the time periods prescribed therein and pursuant to Mississippi
Gaming Commission Regulation III.I.11 a notice and report of the material terms
of this Agreement and certain related information must be filed with the
Mississippi Gaming Commission within the time period prescribed therein. Neither
of the Borrowers nor any of their Subsidiaries is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
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a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrowers will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrowers enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally, and general principles of equity; and each Loan Document executed by
each Guarantor will, on the due execution and delivery thereof, constitute, the
legal, valid and binding obligations of each such Person enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and general principles of
equity.
SECTION 6.5. Financial Information. The audited balance sheet of Boyd
Gaming and its Subsidiaries as at June 30, 1995, the unaudited balance sheet of
Boyd Gaming and its Subsidiaries as at March 31, 1996, the operating statements
for each of the Pledged Casinos for the nine-month period ending March 31, 1996,
and the related statements of income and cash flow of Boyd Gaming and its
Subsidiaries, copies of which have been furnished to the Agent and each Lender,
have been prepared in accordance with GAAP consistently applied, and present
fairly the consolidated financial condition of the corporations covered thereby
as at the dates thereof and the results of their operations for the periods then
ended.
SECTION 6.6. No Material Adverse Effect. Since March 31, 1996, there
has been no Material Adverse Effect.
SECTION 6.7. Litigation, etc. As of the Effective Date, there is no
pending or, to the knowledge of the Borrowers, threatened labor controversy,
litigation, action, or proceeding affecting Boyd Gaming or any of its
Subsidiaries, or any of their respective properties, assets or revenues, which,
if adversely determined may be reasonably expected to have a Material Adverse
Effect, except as disclosed in Item 1 ("Litigation; Labor Matters") of the
Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrowers have no direct or indirect
Subsidiaries, except those Subsidiaries
(a) which are identified in Item 2 ("Existing Subsidiaries")
of the Disclosure Schedule and which are wholly-owned by a Borrower as
of the Effective Date; or
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(b) which are permitted to have been formed or acquired in
accordance with Section 7.2.5 or Section 7.2.13.
SECTION 6.9. Ownership of Properties. Boyd Gaming and each of its
Subsidiaries have good and marketable title to all of their respective
properties and assets, in the case of Boyd Gaming and each of its Subsidiaries,
free and clear of all Liens, charges or claims (including infringement claims
with respect to patents, trademarks, copyrights and the like) except as
permitted pursuant to Section 7.2.3. The provisions of the Deeds of Trust, the
First Preferred Ship Mortgages and the Security Agreements are effective to
create, in favor of the Agent (for the benefit of the Lenders), valid and
perfected first priority Liens on the Pledged Casinos, the vessels subject to
the First Preferred Ship Mortgages and all personal property described in the
Security Agreements and the Deeds of Trust, subject only to the Permitted Liens.
All governmental approvals necessary or, in the reasonable opinion of the Agent,
desirable to perfect and protect, and establish and maintain the priority of,
such Liens have been duly effected or taken.
SECTION 6.10. Compliance. The Borrowers and the Guarantors are in
compliance with all presently existing applicable statutes, laws, regulations,
rules, ordinances and orders of any kind whatsoever (including, but not limited
to, any zoning and building laws or ordinances, subdivision laws or ordinances,
any Environmental Laws, or any presently existing rules, regulations or orders
of any governmental entity, authority or agency) (all of which are sometimes
hereinafter collectively referred to as "Laws"), and with all presently existing
covenants and restrictions of record relating to the use and occupancy of any of
their respective properties, in any case except to the extent that failure to so
comply may not reasonably be expected to have a Material Adverse Effect.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement by the Borrowers and prior to the date of any Borrowing
hereunder, no steps have been taken to terminate any Pension Plan, and no
contribution failure has occurred with respect to any Pension Plan sufficient to
give rise to a Lien under section 302(f) of ERISA. No condition exists or event
or transaction has occurred with respect to any Pension Plan which is reasonably
likely to result in the incurrence by either Borrower or any member of the
Controlled Group of any material liability, fine or penalty. Except as disclosed
in Item 4 ("Employee Benefit Plans") of the Disclosure Schedule, neither either
Borrower nor any member of the Controlled Group has any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
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SECTION 6.12. Environmental Warranties. Except as set forth in Item 5
("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by Boyd Gaming or any of its Subsidiaries
have been, and continue to be, owned or leased by Boyd Gaming and such
Subsidiaries in material compliance with all applicable Environmental
Laws;
(b) there have been no past, and there are no pending or
threatened
(i) claims, complaints, notices or requests
for information received by Boyd Gaming or any of its
Subsidiaries with respect to any alleged violation of any
applicable Environmental Law;
(ii) complaints, notices or inquiries to Boyd
Gaming or any of its Subsidiaries regarding potential
liability under any applicable Environmental Law; or
(iii) claims, complaints, notices or requests
to Boyd Gaming or any its Subsidiaries requiring
investigation or remediation under any applicable
Environmental Law;
that, singly or in the aggregate, have, or may be reasonably expected
to have, a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials in
violation of any applicable Environmental Law at, on or under any
property now or previously owned or leased by Boyd Gaming or any of its
Subsidiaries that, singly or in the aggregate, may be reasonably
expected to have a Material Adverse Effect;
(d) Boyd Gaming and its Subsidiaries have been issued and are
in material compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental matters
that are required pursuant to any Environmental Law and necessary for
their businesses;
(e) no property now or previously owned or leased by Boyd
Gaming or any of it Subsidiaries is listed or proposed for listing
(with respect to owned property only) on the National Priorities List
pursuant to and as defined by CERCLA, on the CERCLIS or on any similar
state list of sites requiring investigation or clean-up;
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(f) there are no underground storage tanks, or water, gas or
oil wells, active or abandoned, including petroleum storage tanks, on
or under any property now or previously owned or leased by Boyd Gaming
or any of its Subsidiaries that, singly or in the aggregate, may be
reasonably expected to have a Material Adverse Effect;
(g) there are no polychlorinated biphenyls or friable
asbestos present at any of the Pledged Casinos that, singly or in the
aggregate, have, or may be reasonably expected to have a Material
Adverse Effect; and
(h) as of the Effective Date, to the best of the Borrowers'
knowledge, no conditions exist at, on or under any property now or
previously owned or leased by Boyd Gaming or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, would
give rise to any material liability under any existing Environmental
Law.
SECTION 6.13. Regulations G, U and X. Neither Borrower is engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 6.14. Taxes. Boyd Gaming and each of its Subsidiaries have
filed all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be owing, except
any such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
SECTION 6.15. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrowers in
writing to the Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is true and accurate in every
material respect on the date as of which such information is dated or certified
and as of the date of execution and delivery of this Agreement by the Borrowers
or has been subsequently supplemented by other or further information to the
extent necessary to give the Agent and the Lenders true and accurate knowledge
of the subject matter thereof, and such information is not, or shall not be, as
the case may be, incomplete by omitting to state any material fact necessary to
make such information not misleading.
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ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrowers, jointly and
severally, agree with the Agent and each Lender that, until all Commitments have
terminated, all Letters of Credit have expired or been cash-collateralized and
all Obligations have been paid and performed in full, the Borrowers will perform
the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc.
The Borrowers will furnish to each Lender and the Agent copies of the following
financial statements, reports, notices and information:
(a) as soon as available and in any event within 45 days
after the end of each of the first three Fiscal Quarters of each Fiscal
Year of Boyd Gaming, consolidated balance sheets of Boyd Gaming and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of income and cash flow of Boyd Gaming and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter,
certified by the chief financial officer of Boyd Gaming;
(b) as soon as available and in any event within 90 days
after the end of each Fiscal Year of Boyd Gaming, a copy of the annual
audit report for such Fiscal Year for Boyd Gaming and its Subsidiaries,
including therein consolidated balance sheets of Boyd Gaming and its
Subsidiaries as of the end of such Fiscal Year and consolidated
statements of income and cash flow of Boyd Gaming and its Subsidiaries
for such Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Agent by Deloitte & Touche
or other independent public accountants reasonably acceptable to the
Agent and the Required Lenders, together with a certificate from such
accountants confirming compliance with each of the financial ratios and
restrictions contained in Section 7.2 and to the effect that, in making
the examination necessary for the signing of such annual report by such
accountants, they have not become aware of any Default or Event of
Default that has occurred and is continuing, all as certified by the
chief financial officer of Boyd Gaming;
(c) as soon as available and in any event within 45 days
after the end of each of the first three Fiscal Quarters of each Fiscal
Year, a certificate in substantially the form of Exhibit L hereto,
executed by the chief financial officer of Boyd Gaming, showing (in
reasonable detail and with
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appropriate calculations and computations in all respects satisfactory
to the Agent) compliance with the financial covenants set forth in
Section 7.2;
(d) as soon as possible and in any event within 45 days after
the end of each Fiscal Quarter, a computation of the Funded Debt to
EBITDA Ratio as of the end of such Fiscal Quarter and a written report,
in form and detail reasonably acceptable to the Agent, with respect to
the status of each New Venture, including the amounts of Expansion
Capital Expenditures and New Venture Investments made, and reasonably
anticipated to be made, with respect thereto, each certified by the
chief financial officer of Boyd Gaming;
(e) promptly after request by the Agent or any Lender, copies
of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the
board of directors) of the Borrowers by independent accountants in
connection with the accounts or books of the Borrowers or any of their
Subsidiaries, or any audit of any of them;
(f) as soon as possible and in any event within 30 days after
the end of each month, monthly and year-to-date operating statements
for each Venture owned by Boyd Gaming and its Subsidiaries, each of
which statements shall compare the financial performance of such
Venture to Boyd Gaming's projections and each of which shall be
certified by the chief financial officer of Boyd Gaming and accompanied
by a narrative report describing the results of operations of such
Venture during such month;
(g) as soon as possible and in any event within five days
after a Borrower obtains knowledge of the occurrence of each Default, a
statement of an Authorized Officer of a Borrower setting forth details
of such Default and the action which the Borrowers have taken and
propose to take with respect thereto;
(h) as soon as possible and in any event within five days
after a Borrower obtains knowledge of the (x) occurrence of any
material adverse development with respect to any labor controversy,
litigation, action or proceeding described in Section 6.7 (including,
without limitation, the entry against a Borrower or any of its
Subsidiaries of a judgment in excess of $1,000,000) or (y) commencement
of any material labor controversy, litigation, action or proceeding of
the type described in Section 6.7, notice thereof and, as promptly as
possible, but in no event later than ten Business Days after such
event, copies of all documentation relating thereto;
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(i) promptly after the sending or filing thereof, copies of
all reports which either Borrower sends to any of its security holders
or any regulatory commission having jurisdiction over a Borrower
(except to the extent that such reports are restricted from disclosure
by the particular regulatory agency), and all reports and registration
statements which Boyd Gaming or any of its Subsidiaries files with the
Securities and Exchange Commission or any national securities exchange;
(j) within thirty days after the beginning of each Fiscal
Year of Boyd Gaming, financial projections for each Venture owned by
Boyd Gaming and its Subsidiaries for such Fiscal Year, in reasonable
detail and in all respects satisfactory to the Agent;
(k) promptly upon becoming aware of the institution of any
steps by either Borrower or any other Person to terminate any Pension
Plan, or the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under section
302(f) of ERISA, or the taking of any action with respect to a Pension
Plan which is reasonably likely to result in the requirement that the
Borrowers furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan
which is reasonably likely to result in the incurrence by the Borrowers
of any material liability, fine or penalty, or any material increase in
the contingent liability of the Borrowers with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies of all
documentation relating thereto; and
(l) such other information respecting the condition or
operations, financial or otherwise, of Boyd Gaming or any of their
Subsidiaries as any Lender or the Agent may from time to time
reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrowers will,
and will cause each of their Subsidiaries to, comply in all material respects
with all applicable laws, rules, regulations and orders (including, without
limitation, all applicable gaming laws, rules, regulations and orders and all
filings described in Section 6.3) except to the extent that failure to so comply
may not reasonably be expected to have a Material Adverse Effect, such
compliance by each Significant Subsidiary to include (without limitation):
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation; and
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(b) the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 7.1.3. Construction and Maintenance of Properties,
Etc. Boyd Gaming shall, and shall cause its Subsidiaries to, maintain and
preserve all of their properties necessary or useful in the proper conduct of
their business (including, in the case of the Pledgors, the Pledged Casinos), in
good working order and condition in all material respects, ordinary wear and
tear excepted and make necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times. The Borrowers shall not permit all or any portion of any
of the Pledged Casinos to be removed, demolished or materially altered, except
in connection with the improvement, renovation or expansion thereof and to the
extent that the value thereof is not materially impaired, and shall restore,
replace or rebuild any Pledged Casino, or any part thereof now or hereafter
damaged or destroyed by any casualty (whether or not insured against or
insurable).
SECTION 7.1.4. Insurance.
(a) In addition to maintaining the insurance coverage
required as of the Effective Date under Section 5.1.11 hereof, Boyd
Gaming will, and will cause each of its Subsidiaries to, maintain or
cause to be maintained with responsible insurance companies insurance
with respect to the Pledged Casinos and the business of the Borrowers
and their Subsidiaries conducted therein or in connection therewith
(including business interruption insurance) against such casualties and
contingencies and of such types and in such amounts as is customary in
the case of similar businesses and will furnish to each Lender annually
and thirty days prior to the expiry of any policy a certificate of an
Authorized Officer of a Borrower setting forth the nature and extent of
all insurance maintained by Boyd Gaming and its Subsidiaries in
accordance with Section 5.1.11 and this Section.
(b) All such policies of insurance shall:
(i) be written by financially responsible
companies selected by the Borrowers and having an A.M. Best
rating of "A" or better and being in a financial size
category of XII or larger, or by other companies acceptable
to the Required Lenders; and
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(ii) name the Agent and the Lenders as
additional insured, or loss payee, as its interest may appear
(except in the case of workers' compensation insurance);
(iii) provide that it will not be cancelled or
reduced, except after not less than 30 days' written notice
to the Agent;
(iv) provide that the interests of the Agent
and the Lenders shall not be invalidated by: (A) any act or
negligence of a Borrower or any Person (other than the
Lenders or the Agent) having an interest in any property
covered by any Deed of Trust, First Preferred Ship Mortgage
or Security Agreement; (B) any foreclosure or other
proceeding relating to such property; (C) any negligent or
unintentional breach or violation of any warranty,
declaration or condition in any policy of insurance by a
Borrower; provided, however, that neither the Agent nor any
Lender shall be deemed to have made any such warranty,
declaration or to be subject to any such condition in respect
of any such policy or insurance; or (D) any change in the
title to or ownership of all or any part of the Pledged
Casinos;
(v) waive all rights of subrogation of the
insurers against the Agent and the Lenders;
(vi) waive any right of the insurers to
set-off or counterclaim or to make any other deduction,
whether by way of attachment or otherwise, as against the
Agent or any Lender;
(vii) waive all claims for insurance premiums
or commissions or additional premiums or assessments against
the Agent and the Lenders; and
(viii) provide that, except in the case of
third-party liability insurance, the proceeds of any loss
affecting real or personal property or interests shall be
applied in accordance with the terms of the applicable Deed
of Trust, First Preferred Ship Mortgage or Security
Agreement.
(c) The Borrowers will advise the Agent promptly of any
policy cancellation, reduction or amendment.
(d) On or before the date of the initial Borrowing hereunder,
the Borrowers will deliver to the Agent certificates of insurance
reasonably satisfactory to the Agent
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evidencing the existence of all insurance required to be maintained by
the Borrowers under this Agreement setting forth the respective
coverages, limits of liability, carriers, policy numbers and periods of
coverage and showing that such insurance will be effective through July
1, 1996 as to property insurance policies for the Pledged Casinos
subject only to the payment of premiums as they become due. Thereafter,
on each July 1 of each year (commencing in 1996) the Borrowers will
deliver to the Agent certificates of insurance evidencing that all
insurance required to be maintained by the Borrowers under this
Agreement will be in effect through the respective anniversary dates of
the following Fiscal Year, subject only to the payment of premiums as
they become due. In addition, the Borrowers will not materially modify
any of the provisions of any policy with respect to casualty insurance
without delivering the original copy of the endorsement reflecting such
modification to the Agent. The Borrowers will not obtain or carry
separate insurance concurrent in form or contributing in the event of
loss with that required by this Section 7.1.4. unless the Agent on
behalf of the Lenders are named insured under such insurance, with loss
payable as provided in this Agreement. The Borrowers will immediately
notify the Agent whenever any such separate insurance is obtained and
shall deliver to the Agent the certificates evidencing the same.
(e) Without limiting the obligations of the Borrowers under
the foregoing provisions of this Section 7.1.4., in the event the
Borrowers shall fail to maintain in full force and effect insurance as
required by the foregoing provisions of this Section 7.1.4., then the
Agent may, and shall if instructed so to do by the Required Lenders,
procure insurance covering the interests of the Lenders and the Agent
in such amounts and against such risks as otherwise would be required
hereunder and the Borrowers shall reimburse the Agent in respect of any
premiums paid by the Agent in respect thereof.
SECTION 7.1.5. Books and Records. Boyd Gaming will, and will
cause each of its Significant Subsidiaries to, keep books and records which
accurately reflect all of their business affairs and transactions and permit the
Agent and each Lender or any of their respective representatives, at reasonable
times and intervals, to visit all of its offices, to discuss its financial
matters with its officers and independent public accountant (and each Borrower
hereby authorizes such independent public accountant to discuss such Borrower's
financial matters with each Lender or its representatives whether or not any
representative of a Borrower is present) and to examine (and, at the expense of
the Borrowers, photocopy a reasonable number of extracts from) any of its books
or other corporate records. The Borrowers shall cooperate with any
representative of the Agent or any Lender in connection with the
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exercise by the Agent or such Lender of its rights under this Section 7.1.5.
SECTION 7.1.6. Environmental Covenant. Boyd Gaming will, and
will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all applicable Environmental Laws, keep all
permits, approvals, certificates, licenses and other authorizations
required pursuant to applicable Environmental Laws in effect and remain
in material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws;
(b) promptly notify the Agent and provide copies upon receipt
of all written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties under, or compliance of its
facilities and properties with, applicable Environmental Laws, and
shall promptly commence and diligently proceed to cure, to the
reasonable satisfaction of the Agent any actions and proceedings
relating to violations of compliance with applicable Environmental
Laws; and
(c) provide such information and certifications which the
Agent may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Maintenance of Existence. The Borrowers will
take all action necessary to maintain their corporate existence and the
corporate existence of each Guarantor.
SECTION 7.1.8. Gaming and Liquor Licenses. The Borrowers will
maintain, and will cause each Guarantor to maintain, (i) such valid gaming
licenses, registrations and findings of suitability in all jurisdictions as may
be necessary to conduct their casino businesses and (ii) all liquor licenses and
registrations as may be necessary to sell alcoholic beverages from and in their
casinos.
SECTION 7.1.9. Accuracy of Information. All factual
information furnished after the date of execution and delivery of this Agreement
by or on behalf of either Borrower or any Guarantor in writing to the Agent or
any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby will be true and accurate in every material
respect on the date as of which such information is dated or certified, and such
information shall not be incomplete by omitting to state any material fact
necessary to make such information not misleading.
SECTION 7.1.10. Additional Guaranties. Promptly upon the
determination that any Subsidiary has become a Significant
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Subsidiary, the Borrowers will cause such Significant Subsidiary to execute and
deliver a Guaranty substantially in the form of Exhibit F hereto. In addition,
the Borrowers may, from time to time, cause any Subsidiary to execute and
deliver a Guaranty substantially in the form of Exhibit F hereto, and such
Subsidiary shall thereafter be a Guarantor for purposes hereof.
SECTION 7.1.11. Pledgor EBITDA. If the Pledgor EBITDA for any
Fiscal Year shall be less than $121,500,000, then, within 120 days after the end
of such Fiscal Year, Boyd Gaming or one of its Subsidiaries shall deliver to the
Agent for the benefit of the Lenders (i) a Guaranty, if such Subsidiary and has
not heretofore executed a Guaranty, (ii) one or more Deeds of Trust and Security
Agreements substantially in the form required by Sections 5.1.4, and 5.1.5
hereof, together with all other documentation required thereunder, encumbering
one or more Ventures not already constituting a Pledged Casino, (iii) legal
opinions in form and substance satisfactory to the Agent, and (iv) the
documentation required by Sections 5.1.1, 5.1.6, 5.1.7 and 5.1.8 hereof in
respect of such Venture(s), so that after giving effect thereto, on a pro forma
basis, the Pledgor EBITDA (including the EBITDA from the newly Pledged Casino)
is not less than $121,500,000. Upon the Agent's receipt of all documentation
required by the preceding sentence, the Person executing such documentation
shall, if not already a Pledgor, become a Pledgor, and the Venture subject to
such Deed of Trust shall become a Pledged Casino, for all purposes hereof.
SECTION 7.1.12. Landlord Estoppels. The Borrowers will use
their best efforts (without the expenditure of commercially unreasonable
consideration therefor) to obtain estoppel and consent letters, in form and
substance satisfactory to the Agent, as promptly as practicable from the lessors
of any parcels underlying the Pledged Casinos for which estoppel and consents
shall not have been obtained prior to the Effective Date.
SECTION 7.1.13. Designation of Debt. Within thirty days after
the Effective Date, CH&C shall deliver to the Trustee for the CH&C Notes an
officer's certificate designating the Indebtedness hereunder as "Designated
Senior Indebtedness" under such indenture.
SECTION 7.2. Negative Covenants. The Borrowers agree, jointly and
severally, with the Agent and each Lender that, until all Commitments have
terminated, all Letters of Credit have expired or been cash-collateralized and
all Obligations have been paid and performed in full, the Borrowers will perform
the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrowers will not,
and will not permit any of their Significant Subsidiaries or any New Venture
Entity to, engage in any business activity, except
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for (i) the ownership and operation of casinos, hotel/casinos, riverboats and
the related facilities or any other Venture and (ii) such activities as may be
incidental or related thereto.
SECTION 7.2.2. Indebtedness. The Borrowers will not, and will
not permit any of their Subsidiaries to, create, incur, assume or suffer to
exist or otherwise become or be liable in respect of any Indebtedness other than
the following:
(i) the Obligations;
(ii) the Boyd Notes and CH&C Notes outstanding on the
Effective Date, any notes issued pursuant to a Permitted Note Issuance
and in the case of the CH&C Notes, any refunding, replacement or
refinancing on terms (including without limitation interest rate,
maturity and terms of subordination) no less favorable to CH&C and the
Lenders than those under the existing CH&C Notes;
(iii) Hedging Obligations entered into by the Borrowers with
any Lender or any Affiliate of any Lender to hedge the Borrowers'
exposure with respect to interest rate fluctuations, which Hedging
Obligations may, at a Lender's discretion, be ratably secured by the
Collateral; provided, in no event shall the notional principal amount
of such secured Hedging Obligations exceed $300,000,000 in the
aggregate;
(iv) unsecured trade debt incurred in the ordinary course of
business and unsecured accrued liabilities incurred in the ordinary
course of business;
(v) Indebtedness in an aggregate amount not to exceed
$50,000,000 at any time outstanding; provided, however that any secured
Indebtedness permitted hereunder shall be secured by only those assets
that are purchased, leased or financed with the funds provided thereby;
and
(vi) direct or indirect Indebtedness of the Borrowers'
Subsidiaries to a Borrower or another Subsidiary or Indebtedness of
either Borrower to the other Borrower or to any Subsidiary;
provided, however, that no additional Indebtedness other than
Indebtedness pursuant to subsection (iv) or Indebtedness to Guarantors
or Indebtedness from a Guarantor to a Borrower or a Guarantor pursuant
to subsection (vi) hereof, shall be permitted to be incurred if
immediately before, or after giving effect to the incurrence thereof,
any Default shall have occurred and be continuing. The Agent shall
execute such documentation as may be reasonably required by a lender or
lessor pursuant to subsection (v) above in order to evidence
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that such lender or lessor's Lien on the assets leased or financed by
such lender or lessor, if perfected and non-avoidable, is prior in
right to any Lien in favor of the Lenders.
SECTION 7.2.3. Liens. The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon (i) any of the Pledged Casinos or any of the Collateral, (ii) any
real or personal property of any Guarantor, (iii) Boyd Kenner's interest in
Treasure Chest LLC, or (iv) the management contracts for the Silver Star Hotel
and Casino or Treasure Chest Casino, in each case whether now owned or hereafter
acquired, except (solely with respect to the foregoing clauses (i) and (ii)):
(a) Liens securing payment of the Obligations, granted
pursuant to any Loan Document;
(b) Liens described in, and securing indebtedness permitted
by, Section 7.2.2(iii), which Liens shall be secured ratably with the
Obligations, and Liens described in, and securing indebtedness
permitted by, Section 7.2.2(v);
(c) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable
without penalty or being diligently contested in good faith by
appropriate proceedings and which have been stayed pending resolution
and for which adequate reserves in accordance with GAAP shall have been
set aside on its books;
(d) Liens for labor done and materials and services supplied
and furnished (i) which have not been filed or recorded for more than
sixty (60) days; (ii) which have not been filed or recorded for more
than one hundred twenty (120) days and with respect to which, within
the first sixty (60) days after such filing or recordation, the
Borrowers or the Subsidiary whose property is the subject of such a
Lien has commenced, and thereafter diligently continues to prosecute by
appropriate means, the release of such lien of record pursuant to the
provisions of applicable state or federal law or (iii) which the Title
Company has agreed to insure over in a manner satisfactory to the
Agent;
(e) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
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(f) easements, rights of way, restrictions and similar
encumbrances incurred in the ordinary course of business not materially
adversely affecting the value of any of the Pledged Casinos;
(g) judgment Liens securing an aggregate amount less than
$300,000 in existence less than twenty consecutive days after the entry
thereof or with respect to which execution has been stayed by reason of
a pending appeal or otherwise or the payment of which is covered in
full (subject to a customary deductible) by insurance;
(h) Liens held by joint venture partners, any lender to any
New Venture Entity and any assignees thereof, with respect to the
interests of a Borrower or one of its Subsidiaries in a New Venture
Entity; provided that such Lien shall secure and relate only to the
obligations of such New Venture Entity; and
(i) Liens in existence on the date hereof described in Item 3
of the Disclosure Schedule;
provided that this Section 7.2.3 shall not apply to prohibit the
creation of a Lien to the extent necessary to prevent a revocation of a
gaming license under any applicable Gaming Laws if (i) no Default or
Event of Default then exists which is not curable by the creation of
the Lien; (ii) Borrowers have notified the Agent in writing of the
necessity to invoke this proviso at least ten Business Days (or such
shorter period as may be necessary in order to comply with a regulation
or order of the relevant Gaming Board) in advance; and (iii) the
creation of such Lien will not have a Material Adverse Effect.
SECTION 7.2.4. Financial Condition. The Borrowers will not
permit:
(a) Tangible Net Worth to be less than the sum of (i)
$210,000,000, plus (ii) 50% of Boyd Gaming's consolidated net income
(without giving effect to any losses) for each Fiscal Quarter ending on
or after September 30, 1996, plus (iii) an amount equal to the increase
in Boyd Gaming's stockholders equity following the Effective Date by
reason of sales and issuances of Boyd Gaming's capital stock, and (iv)
in the event the Proposed Acquisition is consummated, minus the amount
of goodwill, not to exceed $130,000,000, associated with the Proposed
Acquisition;
(b) the Funded Debt to EBITDA Ratio for any period of four
consecutive Fiscal Quarters ending during a period set forth below, to
be greater than the ratio set forth below opposite such period:
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Period Ratio
------ -----
Effective Date - March 31, 1997 4.0 to 1.0
April 1, 1997 - March 31, 1998 3.75 to 1.0
April 1, 1998 - March 31, 1999 3.50 to 1.0
April 1, 1999 and thereafter 3.00 to 1.0; or
(c) the Fixed Charge Coverage Ratio at the end of any Fiscal
Quarter, for the period of four consecutive Fiscal Quarters ending on
such date, to be less than 2.0 to 1.0 from the Effective Date through
March 31, 1998 or less than 2.25 to 1.0 at any time thereafter.
SECTION 7.2.5. Investments. The Borrowers will not, and will
not permit any of their Subsidiaries to, make, incur, assume or suffer to exist
any Investment other than (i) Investments in existing Ventures owned by Boyd
Gaming or one of its Subsidiaries; (ii) New Venture Investments not exceeding
$100,000,000 in the aggregate (or such greater amount as may be approved by the
Majority Lenders) on a cumulative basis during the term of this Agreement; (iii)
Expansion Capital Expenditures to the extent permitted by Section 7.2.7; (iv)
Investments consisting of or evidencing the extension of credit to customers of
Borrowers or any of their Subsidiaries in the ordinary course of business and
any Investments received in satisfaction or partial satisfaction thereof; (v)
Investments representing all or a portion of the sales price for property sold
to another Person and (vi) Investments of the Borrower's Subsidiaries in a
Borrower or any Subsidiary or Investments of either Borrower in the other
Borrower or any Subsidiary.
SECTION 7.2.6. Restricted Payments.
(a) Neither Boyd Gaming nor any of its Subsidiaries shall
purchase or redeem the Boyd Notes, the CH&C Notes or any other
Subordinated Debt other than (i) the redemption of the Boyd Notes at
any time after a Permitted Note Issuance in an amount not to exceed the
amount of such Permitted Note Issuance and (ii) any refunding,
replacement or refinancing of the CH&C Notes so long as the terms of
the replacement notes (including without limitation interest rate,
maturity, average life and terms of subordination) are no less
favorable to CH&C and the Lenders than those under the outstanding
notes.
(b) Boyd Gaming will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any
class of capital stock (now or hereafter outstanding) of Boyd Gaming or
on any warrants, options or other rights with respect to any shares of
any class of
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capital stock (now or hereafter outstanding) of Boyd Gaming or apply,
or permit any of its Subsidiaries to apply, any of its funds or assets
to the purchase or redemption of any shares of capital stock of Boyd
Gaming if either before or after giving effect thereto, there shall
exist a Default or an Event of Default.
(c) Boyd Gaming will not, and will not permit any of its
Subsidiaries to make any payment or prepayment of Subordinated Debt on
any day other than the stated scheduled date for such payment set forth
in the Subordinated Debt or redeem, purchase or defease any
Subordinated Debt provided, however that Boyd Gaming shall have the
right to refund, replace or refinance the existing Subordinated Debt as
permitted pursuant to clause (a) above; and provided further Boyd
Gaming may, after prior written notice to the Lenders, redeem, purchase
or defease any Subordinated Debt that any Gaming Board has ordered so
purchased, redeemed or defeased.
SECTION 7.2.7. Capital Expenditures. Except as otherwise
approved by the Majority Lenders, the Borrowers will not, and will not permit
any of their Subsidiaries to, make or commit to make any Capital Expenditure
other than:
(a) Expansion Capital Expenditures (other than those described in
clause (c) below) on a cumulative basis during the term of this Agreement in an
amount not to exceed $300,000,000 plus the net cash proceeds from the issuance
or sale of capital stock of Boyd Gaming, and no Expansion Capital Expenditure
made in respect of any single Venture shall exceed $100,000,000;
(b) Maintenance Capital Expenditures in any Fiscal Year set forth below
in an aggregate amount not to exceed the amount set forth opposite such Fiscal
Year:
Fiscal Year Amount
----------- ------
1996 $50,000,000
1997 $50,000,000
1998 $50,000,000
1999 $55,000,000
2000 $60,000,000
2001 $60,000,000; and
(c) Any of the following: (i) the Proposed Acquisition, but only to the
extent the purchase price therefor does not exceed $180,000,000, (ii) the
expenditure of up to $40,000,000 to renovate the Main Street Station Hotel and
Casino in downtown Las Vegas and (iii) the expenditure of up to $40,000,000 for
the construction of a hotel with approximately 350 rooms and a parking garage
with approximately 1,000 parking spaces at Sam's Town Tunica.
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SECTION 7.2.8. Consolidation, Merger, etc. The Borrowers will
not, and will not permit any of their Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof), provided, however that (i) any such domestic Subsidiary
may liquidate or dissolve voluntarily into, and may merge with and into, a
Borrower or any other domestic Subsidiary and (ii) either Borrower may
consolidate with or merge into any of its domestic Subsidiaries; provided,
however, that such Subsidiary agrees to assume the Obligations of such Borrower
hereunder in a manner reasonably satisfactory to the Required Lenders.
SECTION 7.2.9. Asset Dispositions, etc. Except for Permitted
Dispositions, the Borrowers will not, and will not permit any of their
Subsidiaries to, sell or dispose of any of the Collateral or any stock or assets
acquired in the Proposed Acquisition without the prior written consent of all
Lenders. The Borrowers will not, and will not permit any of their Subsidiaries
to, make any Restricted Disposition of any property that is not Collateral
without the prior written consent of the Required Lenders. Except for Permitted
Dispositions and as otherwise provided in Section 7.2.8 above, the Borrowers
will not, and will not permit any of their Subsidiaries to, otherwise sell,
transfer, lease, contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its assets
(including accounts receivable and capital stock of Subsidiaries) to any Person.
SECTION 7.2.10. Transactions with Affiliates. The Borrowers
will not, and will not permit any of their Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract with any of its
other Affiliates, including without limitation, any management contract, unless
such arrangement is fair and equitable to the applicable Borrower or such
Subsidiary and is of a sort which would be entered into by a prudent Person in
the position of the applicable Borrower or such Subsidiary with, or which is on
terms which are no less favorable than are obtainable from, any Person which is
not one of its Affiliates.
SECTION 7.2.11. Negative Pledges, etc. The Borrowers will
not, and will not permit any of their Subsidiaries to, enter into any agreement
prohibiting the creation or assumption of any Lien or restricting the ability of
any Subsidiary to make any payments to the Borrowers by way of dividends,
advances or repayments of advances to the Borrowers (except for the existing
restrictions on CH&C in the CH&C Indenture) or restricting the ability of the
Borrowers to amend or otherwise modify this Agreement or any other Loan
Document, except for
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(i) negative pledges in favor of joint venture partners, any
lender to any New Venture Entity or any assignees thereof, with respect
to the interests of a Borrower or one of its Subsidiaries in a New
Venture Entity; and
(ii) rights consisting of holdings in joint tenancy or other
forms of ownership interests (and rights associated therewith) in a New
Venture Entity or consisting of obligations of Borrowers or any of
their Subsidiaries to sell, or rights of other Persons to purchase, the
ownership interests of Borrowers or any of their Subsidiaries in a New
Venture Entity, which obligations or rights were created substantially
concurrently with the acquisitions of such ownership interests in the
New Venture Entity;
provided that this Section 7.2.11 shall not apply to prohibit the creation of a
negative pledge to the extent necessary to prevent a revocation of a gaming
license under any applicable Gaming Laws if (i) no Default or Event of Default
then exists which is not curable by the creation of the negative pledge, (ii)
Borrowers have notified the Agent in writing of the necessity to invoke this
proviso at least ten Business Days (or such shorter period as may be necessary
in order to comply with a regulation or order of the relevant Gaming Board) in
advance and (iii) the creation of such negative pledge will not have a Material
Adverse Effect.
SECTION 7.2.12. Amendments or Waivers of Subordinated Debt
Documents. The Borrower shall not, and shall not permit any of their
Subsidiaries to, amend or supplement any term or provision of any Subordinated
Debt or any documents pursuant to which any Subordinated Debt is outstanding, or
waive or otherwise relinquish any of its rights or causes of action under or
arising out of the Subordinated Debt or such other documents, without in each
case obtaining the prior written consent of the Required Lenders; provided,
however, notwithstanding the foregoing, the Borrowers and their Subsidiaries may
amend, supplement or waive any terms of any Subordinated Debt so long as the
Required Lenders shall have determined that, after giving effect to such
amendment, supplement or waiver, the terms of such Subordinated Debt are no less
favorable to the Borrowers and the Lenders than those under the existing
Subordinated Debt.
SECTION 7.2.13. Subsidiaries. The Borrowers will not create
any Subsidiaries, without the prior written consent of the Agent, which consent
shall not be unreasonably withheld, provided, that the provisions of this
Section 7.2.13 shall not require the Agent's consent for the formation of
wholly-owned direct and indirect Subsidiaries of a Borrower or a New Venture
Investment in a less than wholly-owned Subsidiary.
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SECTION 7.2.14. Fiscal Year. The Borrowers will not, and will
not permit any of their Subsidiaries to, change their Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrowers
shall fail to pay when due any payment or prepayment of any principal of any
Loan or the Borrowers shall fail to pay within five days of the date when due
any payment of interest on any Loan or any commitment fee or of any other
monetary Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or
warranty of the Borrowers made or deemed to be made hereunder or in any other
Loan Document or any other writing or certificate furnished by or on behalf of
the Borrowers to the Agent or any Lender for the purposes of or in connection
with this Agreement or any such other Loan Document (including any certificates
delivered pursuant to Article V) is or shall be incorrect when made in any
material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and
Obligations. The Borrowers shall default in the due performance and observance
of any of their obligations under Section 7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and
Obligations. The Borrowers shall default in the due performance and observance
of any other agreement contained herein, and such default shall continue
unremedied for a period of thirty days after notice thereof shall have been
given to the Borrowers by the Agent.
SECTION 8.1.5. Default on Other Indebtedness. A default shall
occur in the payment when due (after giving effect to any applicable notice and
grace periods), whether by acceleration or otherwise, of any Indebtedness (other
than Indebtedness described in Section 8.1.1, but including, without limitation,
all Subordinated Debt of either Borrower or any Guarantor) in an aggregate
amount exceeding $5,000,000 of Boyd Gaming or any of its Significant
Subsidiaries, or a default shall occur in the performance or observance of any
obligation or condition with respect to any such Indebtedness in an aggregate
amount exceeding $5,000,000 (including, without limitation, all Subordinated
Debt of either Borrower or any Guarantor), and to the extent required under the
terms of such Indebtedness, notice of such default shall have been given and any
applicable grace period shall have expired, if
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the effect of such default is to accelerate the maturity of any such
Indebtedness or to permit the holder or holders thereof, or any trustee or agent
for such holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the
payment of money in excess of $5,000,000 (not covered by insurance subject to
customary deductibles) shall be rendered against a Borrower or any of its
Significant Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) such judgment or order shall not have been vacated,
stayed, satisfied, discharged or bonded pending appeal within twenty
days from the entry thereof.
SECTION 8.1.7. Pension Plans. Any of the following events
shall occur with respect to any Pension Plan
(a) the institution of any steps by a Borrower, any member of
its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $3,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 8.1.8. Change of Control. Any of the following shall
occur: (a) a "Change of Control" (as such term is defined in the Boyd Indenture
or in any comparable instrument governing a permitted refinancing thereof) in
respect of Boyd Gaming shall occur; (b) the Boyd Family shall (i) cease to own
at least 35% of Boyd Gaming's outstanding voting stock or (ii) otherwise cease
to have the power to direct the management and policies of Boyd Gaming; (c) a
"Change in Control" (as such term is defined in the CH&C Indenture) in respect
of CH&C shall occur or (d) Boyd Gaming (i) shall own directly or indirectly,
less than 100% of CH&C's outstanding voting stock or (ii) shall otherwise cease
to have the power to direct the management and policies of CH&C (each of such
events shall be considered a "Change of Control").
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SECTION 8.1.9. Bankruptcy, Insolvency, etc. Either Borrower
or any Significant Subsidiary shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for such
Borrower or any of its Significant Subsidiaries or any property of any
thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for such Borrower or any of
its Significant Subsidiaries or for a substantial part of the property
of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within sixty days;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of such Borrower or
any of its Significant Subsidiaries, and, if any such case or
proceeding is not commenced by such Borrower or such Significant
Subsidiary, such case or proceeding shall be consented to or acquiesced
in by such Borrower or such Significant Subsidiary or shall result in
the entry of an order for relief or shall remain for ten days
uncontroverted or for sixty days undismissed; or
(e) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION 8.1.10. Loan Documents. (a) Any Loan Document shall
fail to remain in full force and effect; (b) any action shall be taken by either
Borrower or any Guarantor to discontinue a Loan Document or to assert the
invalidity thereof; (c) either Borrower or any Guarantor shall breach any term
of any Loan Document and such breach shall continue after any applicable notice
and/or grace period set forth in such Loan Document; or (d) any representation
or warranty made by either Borrower or any Guarantor in any Loan Document is
breached or is false or misleading in any material respect when made.
SECTION 8.1.11. Gaming License. Once licensed by a Gaming
Board, a Borrower or a Guarantor shall fail to possess a valid gaming license
for each casino owned by it or such license shall be suspended for a period of
fifteen days or longer.
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SECTION 8.1.12. Governmental Approvals. Any obligor under any
of the Loan Documents shall fail to obtain, renew, maintain or comply with any
such governmental approvals as shall be necessary (1) for the execution,
delivery or performance by such obligors of their respective obligations, or the
exercise of their respective rights, under the Loan Documents, or (2) for the
grant of the Liens created under the Deeds of Trust, the First Preferred Ship
Mortgages or the Security Agreements or for the validity and enforceability or
the perfection of or exercise by the Agent of its rights and remedies under the
Deeds of Trust, the First Preferred Ship Mortgages or the Security Agreements;
or any such governmental approval shall be revoked, terminated, withdrawn,
suspended, modified or withheld or shall cease to be effective; or any
proceeding shall be commenced by or before any governmental person for the
purpose of revoking, terminating, withdrawing, suspending, modifying or
withholding any such governmental approval and such proceeding is not dismissed
within 60 days; and such failure, revocation, termination, withdrawal,
suspension, modification, cessation or commencement is reasonably likely to
materially adversely affect (i) the rights or the interests of the Lenders under
the Loan Documents or (ii) the ability of any obligor to perform its obligations
under the Loan Documents.
SECTION 8.1.13. Liens on Shares of Significant Subsidiaries.
Any Lien, other than a Lien in favor of the Agent on behalf of the Lenders,
shall be placed on any capital stock of CH&C, California Hotel Finance Company
or any other Significant Subsidiary.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the outstanding principal
amount of all outstanding Loans and all other Obligations shall automatically be
and become immediately due and payable and the Commitments shall terminate,
without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Agent, upon the direction of the Required Lenders, shall by
notice to the Borrowers declare (i) all or any portion of the outstanding
principal amount of the Loans and other Obligations to be due and payable,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable
and/or (ii) except as otherwise provided in the immediately following sentence,
the Commitments (including, without limitation, the commitment of the Lenders to
issue any additional Letters of Credit) to be terminated, without further
notice, demand or presentment. Notwithstanding any termination of the Revolving
Loan Commitment prior to the Stated
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Maturity Date, Revolving Loans may thereafter be made to reimburse the L/C
Issuer for any drafts paid on or before the Stated Maturity Date under any
Letter of Credit outstanding on the date of such termination.
ARTICLE IX
THE AGENT
SECTION 9.1. Actions. Each Lender hereby appoints the Agent as its
administrative agent and as its collateral agent under and for purposes of this
Agreement, the Notes and each other Loan Document. After the occurrence of an
Event of Default, the Agent agrees to solicit the consent of the Required
Lenders prior to exercising any of its remedies under the Loan Documents. Each
Lender authorizes the Agent to act on behalf of such Lender under this
Agreement, the Notes and each other Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by the
Agent (with respect to which the Agent agrees that it will comply, except as
otherwise advised by counsel), to exercise such powers hereunder and thereunder
as are specifically delegated to or required of the Agent by the terms hereof
and thereof, together with such powers as may be reasonably incidental thereto.
Each Lender hereby indemnifies (which indemnity shall survive any termination of
this Agreement) the Agent, pro rata according to such Lender's Revolving
Percentage, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against, the Agent in any way
relating to or arising out of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, to the extent that the Agent is
not reimbursed by the Borrowers; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which result solely from the Agent's gross
negligence or wilful misconduct. The Agent shall not be required to take any
action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of the Agent shall be or become, in the Agent's
determination, inadequate, the Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Agent shall have been
notified by telephone, confirmed in writing, by any Lender by 3:00 p.m., New
York time, on the day prior to a Borrowing that such Lender will not make
available the amount which would constitute its Revolving Percentage of such
Borrowing on the date
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specified therefor, the Agent may assume that such Lender has made such amount
available to the Agent and, in reliance upon such assumption, make available to
the Borrowers a corresponding amount. If and to the extent that such Lender
shall not have made such amount available to the Agent, such Lender and the
Borrowers severally agree to repay the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Agent made such amount available to the Borrowers to the date such amount is
repaid to the Agent, at the Federal Funds Rate for the first two days such funds
are overdue and thereafter at the interest rate applicable from time to time on
the Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by them under this Agreement or any other Loan Document,
or in connection herewith or therewith, except for their own wilful misconduct
or gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of
this Agreement or any other Loan Document, nor for the creation, perfection or
priority of any Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by
the Borrowers of their obligations hereunder or under any other Loan Document.
The Agent shall be entitled to rely upon advice of counsel concerning legal
matters and upon any notice, consent, certificate, statement or writing which
the Agent believes to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Agent may resign as such at any time upon
at least thirty (30) days' prior notice to the Borrowers and all Lenders and the
Agent may be removed at any time by the Required Lenders. If the Agent at any
time shall resign or be removed, the Required Lenders and the Borrowers may
appoint another Person as a successor Agent and such appointee shall thereupon
become the Agent hereunder. If no successor Agent shall have been so appointed,
and shall have accepted such appointment, within thirty (30) days after such
retiring Agent's giving notice of resignation or the removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
be entitled to receive from the retiring Agent such documents of transfer and
assignment as such successor Agent may reasonably
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request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation or removal hereunder as the Agent, the
provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent under
this Agreement; and
(b) Section 10.3 shall continue to inure to its benefit.
SECTION 9.5. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers and such other documents,
information and investigations as such Lender has deemed appropriate, made its
own credit decision to extend its Commitments. Each Lender also acknowledges
that it will, independently of the Agent and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.6. Copies, etc. The Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Agent
by the Borrowers pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by the Borrower). The Agent will distribute to each
Lender copies of all communications received by the Agent from the Borrowers for
distribution to the Lenders in accordance with the terms of this Agreement. The
Swingline Lender shall provide the Agent with a summary of Swing Loan Borrowings
and repayments on a monthly basis, and the Agent shall promptly provide copies
of such summary to each Lender.
SECTION 9.7. Collateral Agent. The Agent shall hold all Collateral as
the agent for all of the Lenders and all net proceeds of the Collateral shall be
shared by the Lenders pursuant to the provisions of Section 4.8.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrowers and the Required Lenders (except where the
applicable
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provision of this Agreement or such other Loan Document specifies that a
determination is to be governed by all Lenders or the Majority Lenders);
provided, however, that no such amendment, modification or waiver which would:
(a) modify, amend or waive Section 7.1.11, modify any
requirement hereunder that any particular action be taken by all the
Lenders or by the Required Lenders, modify this Section 10.1 or change
the definitions of "Required Lenders" or "Majority Lenders", shall be
effective unless consented to by each Lender;
(b) increase any Commitment Amount or the Revolving
Percentage of any Lender, release any of the Collateral except pursuant
to Permitted Dispositions, release any Guaranty or any Guarantor,
extend the Maturity Date or change any provision expressly requiring
the consent of all Lenders shall be made without the consent of each
Lender;
(c) reduce any fees described in Article III without the
consent of each Lender affected thereby or extend the due date for, or
reduce the amount of, any scheduled repayment on any Loan (or reduce
the principal amount of or rate of interest on any Loan) shall be made
without the consent of the Lender holding the Note evidencing such
Loan;
(d) affect adversely the interests, rights or obligations of
the Agent qua the Agent shall be made without the consent of the Agent;
(e) modify Section 3.1.2 without the consent of the Swingline
Lender; or
(f) modify Sections 2.7, 3.4 or 3.5 without the consent of
the L/C Issuer.
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrowers in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Agent, any Lender or the
holder of any Note under this Agreement or any other Loan Document shall, except
as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
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SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted.
SECTION 10.3. Payment of Costs and Expenses. The Borrowers agree,
jointly and severally, to pay on demand all reasonable out-of-pocket costs and
reasonable expenses of the Agent (including the fees at normal hourly rates and
reasonable disbursements of (i) counsel to the Agent and (ii) local counsel, if
any, who may be retained by counsel to the Agent) in connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document (including, without
limitation, the title insurance policies required pursuant to Section
5.1.5(b) hereof, the appraisals required pursuant to Section 5.1.7
hereof and the Agent's syndication expenses prior to the Effective
Date), including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to this Agreement or any
other Loan Document as may from time to time hereafter be required,
including, without limitation, any further appraisals of the Pledged
Casinos that may hereafter be required by any regulatory or other
governmental authority, whether or not the transactions contemplated
hereby are consummated,
(b) the filing, recording, refiling or rerecording of the
Deeds of Trust, the First Preferred Ship Mortgages, the Security
Agreements and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements and modifications to
any thereof and any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or rerecorded by
the terms hereof or of the Deeds of Trust or the Security Agreements,
(c) the reasonable fees and expenses of the trustees under
the First Preferred Ship Mortgages, and
(d) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further agree to pay, and to save the Agent and the Lenders
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery
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of this Agreement, the Borrowings hereunder, or the issuance of the Notes or any
other Loan Documents, except for (i) any processing fees payable in connection
with the assignment of a Lender's Notes or Commitments or (ii) any taxes
properly payable by the Lenders under Section 4.6. The Borrowers also agree to
reimburse the Agent and each Lender upon demand for all reasonable out-of-pocket
expenses (including attorneys' fees and legal expenses) incurred by the Agent or
such Lender in connection with (x), after the occurrence and during the
continuance of any Default or Event of Default, the negotiation of any
restructuring or "work-out", whether or not consummated, of any Obligations and
(y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby indemnify, exonerate and hold the Agent and each Lender and
each of their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or Letter
of Credit; or
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrowers as the result of
any determination by the Required Lenders pursuant to Article V not to
fund any Borrowing);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any termination of this Agreement. The
representations and
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warranties made by the Borrowers in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document until full and final payment of the Obligations.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrowers and each Lender (or
notice thereof satisfactory to the Agent) shall have been received by the Agent
and notice thereof shall have been given by the Agent to the Borrowers and each
Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEVADA. This Agreement,
the Notes and the other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) a Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent
and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
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SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons in accordance with this Section
10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the written consent of the Agent and the Borrowers
(which consent shall not be unreasonably delayed or withheld) may at
any time assign and delegate to an Eligible Assignee, and
(b) with notice to the Borrowers and the Agent, and with the
consent of the Agent (which consent shall not be unreasonably delayed
or withheld) but without the consent of the Borrowers, may assign and
delegate to any of its Affiliates and with notice to the Borrowers and
the Agent, may assign and delegate to any other existing Lender
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction
of such Lender's Revolving Loans (and such fraction of any outstanding
Letters of Credit) and the corresponding Commitments therefor (which
assignment and delegation shall be of a constant, and not a varying,
percentage of all the assigning Lender's Revolving Loans (and such
fraction of any outstanding Letters of Credit) and the corresponding
Commitments therefor) in a minimum aggregate amount of $10,000,000
(unless such Assignee Lender is already a Lender hereunder, in which
event such minimum aggregate amount shall be $5,000,000) or, if less,
the entire amount of such Lender's total Commitments; provided, if the
Borrowers object to such proposed assignment, the Borrowers shall state
in reasonable detail the reasons why the Borrowers propose to withhold
such consent; and provided, further that any such Assignee Lender will
comply, if applicable, with the provisions contained in the final
paragraph of Section 4.6 and further provided, however, that, the
Borrowers and the Agent shall be entitled to continue to deal solely
and directly with such Lender in connection with the interests proposed
to be so assigned and delegated to an Assignee Lender until
(a) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Lender, shall have been given to the
Borrowers and the Agent by such Lender and such Assignee Lender,
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(b) such Assignee Lender shall have executed and delivered to
the Borrowers and the Agent a Lender Assignment Agreement, accepted by
the Agent and the Borrowers, and
(c) the processing fees described below shall have been paid.
From and after the date that the Agent and the Borrowers accept such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of an executed,
acknowledged and effective Lender Assignment Agreement, the Borrowers shall
execute and deliver to the Agent (for delivery to the relevant Assignee Lender)
new Notes evidencing such Assignee Lender's assigned Loans and Commitments and,
if the assignor Lender has retained Loans and Commitments hereunder, replacement
Notes in the principal amount of the Loans and Commitments retained by the
assignor Lender hereunder (such Notes to be in exchange for, but not in payment
of, those Notes then held by such assignor Lender). Each such Note shall be
dated the date of the predecessor Notes. The assignor Lender shall mark the
predecessor Notes "exchanged" and deliver them to the Borrowers. Accrued
interest on that part of the predecessor Notes evidenced by the new Notes, and
accrued fees, shall be paid as provided in the Lender Assignment Agreement.
Accrued interest on that part of the predecessor Notes evidenced by the
replacement Notes shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Notes and in this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee to the Agent (for the sole account of the Agent) upon
delivery of any Lender Assignment Agreement in the amount of $3,000 except in
the case of an assignment by a Lender to one of its affiliates. Any Lender may
at any time pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall
release that Lender from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
Notwithstanding anything in this Section 10.11.1 to the contrary, the rights of
the Lenders to make assignments of their Revolving Loans and corresponding
Commitments therefor shall be subject to the approval of any Gaming Board, to
the extent required by applicable Gaming Laws.
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SECTION 10.11.2. Participations. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
any of the Loans, Commitments, or other interests of such Lender hereunder;
provided, however, that
(a) no participation contemplated in this Section 10.11.2
shall relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations,
(c) the Borrowers and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and each of the other Loan
Documents,
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c) of
Section 10.1,
(e) no Participant shall be entitled to payment of any amount
under Section 4.6 that would not have been required to be paid to such
Lender had no participation occurred, and
(f) notwithstanding anything in this Section 10.11.2 to the
contrary, the rights of the Lenders to grant participations in any of
the Loans, Commitments, or other interests of any Lender hereunder
shall be subject to the approval of any Gaming Board, to the extent
required by applicable Gaming Laws.
The Borrowers acknowledge and agree that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.8, 4.9, 4.11 and 10.4, shall be considered a Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude the Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with either of the Borrowers or any of their Affiliates in which such Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
-85-
92
SECTION 10.13. Joint and Several Liability. Each Borrower has
determined that it is in its best interest and in furtherance of its legitimate
business purposes to induce the Lenders to extend credit to the Borrowers
pursuant to this Agreement. Each Borrower acknowledges and represents that its
business is integrally related to the business of the other Borrower, that the
availability of the Commitments to both of the Borrowers benefits each Borrower
individually and that the Loans made will be for and inure to the benefit of
both of the Borrowers individually and as a group. Accordingly, each Borrower
shall be jointly and severally liable (as a principal and not as a surety,
guarantor or other accommodation party) for each and every representation,
warranty, covenant and obligation to be performed by the Borrowers under this
Agreement, the Notes and the other Loan Documents, and each Borrower
acknowledges that in extending the credit provided herein the Lender is relying
upon the fact that the obligations of each Borrower hereunder are the joint and
several obligations of a principal. The invalidity, unenforceability or
illegality of this Agreement, the Notes or any other Loan Document as to one
Borrower or the release by the Lender of a Borrower hereunder or thereunder
shall not affect the Obligations of the other Borrower under this Agreement, the
Notes or the other Loan Documents, all of which shall otherwise remain the valid
and legally binding obligations of the other Borrower. Without limiting the
foregoing, each Borrower agrees to the Joint Borrower Provisions set forth in
Exhibit N, incorporated by this reference.
SECTION 10.14. Waiver of Jury Trial. EACH OF THE AGENT, THE LENDERS AND
THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE
BORROWERS. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT
AND EACH SUCH OTHER LOAN DOCUMENT.
-86-
93
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BOYD GAMING CORPORATION
By: /s/
-------------------------------
Title: Senior Vice President
Address: 2950 South Industrial Road
Las Vegas, Nevada 89109
Facsimile No.: (702) 792-7313
Attention: Chief Financial Officer
CALIFORNIA HOTEL AND CASINO
By: /s/
-------------------------------
Title: Senior Vice President
Address: 2950 South Industrial Road
Las Vegas, Nevada 89109
Facsimile No.: (702) 792-7313
Attention: Chief Financial Officer
94
CANADIAN IMPERIAL BANK OF COMMERCE,
AS AGENT AND L/C ISSUER
By: /s/
-------------------------------
Title: Senior Agent
Address: 425 Lexington Avenue
New York, New York 10017
Facsimile No.: (212) 856-3799
Attention: Syndications Department
95
PERCENTAGE LENDER
12.00000000% ($60,000,000) CIBC INC.
By /s/
-------------------------------
Title: Its Director
Notice Address:
350 South Grand Avenue,
Suite 2600
Los Angeles, California 90017
Facsimile No.: (213) 346-0157
Domestic Office:
Two Paces West
2727 Paces Ferry Road,
Suite 1200
Atlanta, Georgia 30339
Facsimile No.: (404) 319-4950
LIBOR Office:
Two Paces West
2727 Paces Ferry Road,
Suite 1200
Atlanta, Georgia 30339
Facsimile No.: (404) 319-4950
96
PERCENTAGE LENDER AND CO-MANAGING AGENT
- ---------- ----------------------------
6.75% ($33,750,000) BANK OF AMERICA NT&SA
By /s/ Scott Faber
--------------------------------
Title: Vice President
Notice Address:
555 South Flower Street, 10th Floor
Los Angeles, California 90071
Attention: Scott Faber
Vice President
Credit Products
Entertainment/Media
Facsimile No.: (213) 228-2641
with a copy to:
555 South Flower Street, 10th Floor
Los Angeles, California 90071
Attention: William Newby
Managing Director
Entertainment/Media
& Gaming #5777
Facsimile No.: (213) 228-3145
Domestic Office:
333 S. Beaudry Avenue
19th Floor
Los Angeles, California 90017
Attention: Youlando Harper
Account
Administration
Facsimile No.: (213) 345-6550
LIBOR Office:
333 S. Beaudry Avenue
19th Floor
Los Angeles, California 90017
Attention: Youlando Harper
Account
Administration
Facsimile No.: (213) 345-6550
97
PERCENTAGE LENDER, SWINGLINE LENDER AND
- ---------- ----------------------------
CO-MANAGING AGENT
-----------------
9.00000000% ($45,000,000) WELLS FARGO BANK,
NATIONAL ASSOCIATION
By /s/ David Kramer
-------------------------------------
Title: Vice President
Notice Address:
3800 Howard Hughes Parkway
Las Vegas, Nevada 89109
Attention: David Kramer
Gaming Industry
Division
Facsimile No.: (702) 791-6248
Domestic Office:
3800 Howard Hughes Parkway
Las Vegas, Nevada 89109
Attention: David Kramer
Gaming Industry
Division
Facsimile No.: (702) 791-6248
LIBOR Office:
1 East First Street, Suite 500
Reno, Nevada 89501
Attention: Donna Becker
Facsimile No.: (702) 334-5637
98
PERCENTAGE LENDER AND CO-AGENT
- ---------- -------------------
7.00000000% ($35,000,000) BANKERS TRUST COMPANY
By /s/ Mary Jo Jolly
--------------------------------------
Title: Assistant Vice President
Notice Address:
300 South Grand Avenue, 41st Floor
Los Angeles, CA 90071
Attention: Kevin Smith
Associate
Facsimile No.: (213) 620-8484
Domestic Office:
Loan Division, 14th Floor
130 Liberty Street
New York, New York 10006
Attention: Ariana Boer
Assistant Treasurer
Facsimile No.: (212) 250-6029/7351
LIBOR Office:
Loan Division, 14th Floor
130 Liberty Street
New York, New York 10006
Attention: Mary Rodwell/Ariana Boer
Facsimile No.: (212) 250-6029/7351
99
PERCENTAGE LENDER AND CO-AGENT
- ---------- -------------------
7.00000000% ($35,000,000) CREDIT LYONNAIS LOS ANGELES BRANCH
By /s/ Thierry Vincent
--------------------------------------------
Title: Vice President
Notice Address:
515 South Flower Street, Suite 2200
Los Angeles, California 90071
Attention: Thierry Vincent
Vice President
Branch Manager
Facsimile No.: (213) 623-3437
Domestic Office:
515 South Flower Street, Suite 2200
Los Angeles, California 90071
Attention: Thierry Vincent
Vice President
Branch Manager
Facsimile No.: (213) 623-3437
LIBOR Office:
515 South Flower Street, Suite 2200
Los Angeles, California 90071
Attention: Thierry Vincent
Vice President
Branch Manager
Facsimile No.: (213) 623-3437
100
PERCENTAGE LENDER AND CO-AGENT
- ---------- -------------------
7.00000000% ($35,000,000) SOCIETE GENERALE
By /s/ J. Blaine Shaum
----------------------------------
Title: Regional Manager
Notice Address:
2029 Century Park East, #2900
Los Angeles, California 90067
Attention: Donald Schubert,
Vice President
Banking and Credit
Facsimile No.: (310) 551-1537
Domestic Office:
2029 Century Park East, #2900
Los Angeles, California 90067
Attention: Doris Yun/Tulinh Wu
Facsimile No.: (310) 203-0539
LIBOR Office:
2029 Century Park East, #2900
Los Angeles, California 90067
Attention: Jan van Brussel
Banking and Credit
Facsimile No.: (310) 203-0539
101
PERCENTAGE LENDER
- ---------- ------
3.46666680% ($17,333,334) ABN AMRO BANK N.V.
SAN FRANCISCO INTERNATIONAL BRANCH
By: ABN AMRO North America, Inc.
as agent
By /s/ Bradford H. Leahy
------------------------------
Title: Officer
By /s/ L.T. Osborne
------------------------------
Title: Group Vice President
Notice Address:
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attention: Jeffrey A. French
Vice President &
Director
Facsimile No.: (415) 362-3524
Domestic Office:
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attention: Jeffrey A. French
Vice President &
Director
Facsimile No.: (415) 362-3524
LIBOR Office:
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attention: Jeffrey A. French
Vice President &
Director
Facsimile No.: (415) 362-3524
102
PERCENTAGE LENDER
- ---------- ------
3.46666660% ($17,333,333) THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By /s/
------------------------------------
Title: Senior Vice
President & Chief
Manager
Notice Address:
801 South Figueroa Street
Suite 500
Los Angeles, California 90017
Attention: Dean Kawai
Assistant Vice
President
Facsimile No.: (213) 687-4631
Domestic Office:
801 South Figueroa Street
Suite 500
Los Angeles, California 90017
Attention: Dean Kawai
Assistant Vice
President
Facsimile No.: (213) 687-4631
LIBOR Office:
801 South Figueroa Street
Suite 500
Los Angeles, California 90017
Attention: Dean Kawai
Assistant Vice
President
Facsimile No.: (213) 687-4631
103
PERCENTAGE LENDER
- ---------- ------
3.46666660% ($17,333,333) THE SANWA BANK, LIMITED
By /s/ Gill Realon
--------------------------------
Title: Vice President
Notice Address:
U.S. Banking Department
601 South Figueroa Street (W5-4)
Los Angeles, CA 90017
Attention: Gill Realon
Vice President
Facsimile No.: (213) 623-4912
(213) 896-7475
Domestic Office:
Loan Operations
601 South Figueroa Street (W5-4)
Los Angeles, CA 90017
Attention: Washington A. Boza
Assistant Vice
President & Manager
Facsimile No.: (213) 623-4912
(213) 896-7475
LIBOR Office:
Loan Operations
601 South Figueroa Street (W5-4)
Los Angeles, CA 90017
Attention: Washington A. Boza
Assistant Vice
President & Manager
Facsimile No.: (213) 623-4912
(213) 896-7475
104
PERCENTAGE LENDER
- ---------- ------
3.00000000% ($15,000,000) COMMERZBANK AG, LOS ANGELES BRANCH
By /s/ Christian Jagenberg
-------------------------------
Title: SVP and Manager
By /s/ Werner Schmidbauer
-------------------------------
Title: Vice President
Notice Address:
660 South Figueroa Street, #1450
Los Angeles, California 90017
Attention: Werner Schmidbauer
Vice President
Facsimile No.: (213) 623-0039
Domestic Office:
660 South Figueroa Street, #1450
Los Angeles, California 90017
Attention: Edna Youna
Assistant Cashier
Facsimile No.: (213) 623-0039
LIBOR Office:
660 South Figueroa Street, #1450
Los Angeles, California 90017
Attention: Edna Youna
Assistant Cashier
Facsimile No.: (213) 623-0039
105
PERCENTAGE LENDER
- ---------- ------
3.00000000% ($15,000,000) FIRST SECURITY BANK OF
UTAH, N.A.
By /s/ David P. Williams
-------------------------------
Title: Vice President
Notice Address:
Corporate Banking Division
2nd Floor
P.O. Box 30004 (84130)
15 East 100 South
Salt Lake City, Utah 84111
Attention: David P. Williams
Facsimile No.: (801) 246-5532
Domestic Office:
Corporate Banking Division
2nd Floor
P.O. Box 30004 (84130)
15 East 100 South
Salt Lake City, Utah 84111
Attention: David P. Williams
Facsimile No.: (801) 246-5532
LIBOR Office:
Corporate Banking Division
2nd Floor
P.O. Box 30004 (84130)
15 East 100 South
Salt Lake City, Utah 84111
Attention: David P. Williams
Facsimile No.: (801) 246-5532
106
PERCENTAGE LENDER
- ---------- ------
3.00000000% ($15,000,000) THE SUMITOMO BANK, LIMITED
By /s/ Barry P. Maddams
-------------------------------
Title: General Manager
U.S.C.B.D.
By /s/
-------------------------------
Title: Deputy General Counsel
Notice Address:
800 West Sixth Street, Suite 950
Los Angeles, California 90017
Attention: Bradford E. Chambers
Vice President
Facsimile No.: (213) 623-4629
Domestic Office:
233 S. Wacker Drive, Suite 5400
Chicago, Illinois 60606
Attention: Vice President &
Manager
Facsimile No.: (312) 876-1995
LIBOR Office:
233 S. Wacker Drive, Suite 5400
Chicago, Illinois 60606
Attention: Vice President &
Manager
Facsimile No.: (312) 876-1995
107
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) THE FIRST NATIONAL BANK OF BOSTON
By /s/
-------------------------------
Title: Director
Notice Address:
100 Federal Street
Boston, MA 02110
Attention: Reginald Dawson,
Director
Facsimile No.: (617) 434-3401
with a copy to:
100 Federal Street
Boston, MA 02110
Attention: Peter MacEwen,
Assistant Vice
President
Facsimile No.: (617) 434-3401
100 Federal Street
Boston, MA 02110
Attention: Angie Karayiannis,
Loan Administrator
Facsimile No.: (617) 434-9820
Domestic Office:
100 Federal Street
Boston, MA 02110
Attention: Reginald Dawson,
Director
Facsimile No.: (617) 434-3401
LIBOR Office:
100 Federal Street
Boston, MA 02110
Attention: Reginald Dawson,
Director
Facsimile No.: 617) 434-3401
108
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) BANK OF HAWAII
By /s/ Joseph T. Donalson
-------------------------------
Title: Vice President
Notice Address:
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Attention: Iwalani Sabarre-
Kapika
Facsimile No.: (808) 484-3606
with a copy to:
1839 South Alma School Road
Suite 150
Mesa, Arizona 85210
Attention: Joseph Donalson
Facsimile No.: (602) 752-8007
Domestic Office:
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Attention: Iwalani Sabarre-
Kapika
Facsimile No.: (808) 484-3606
LIBOR Office:
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Attention: Iwalani Sabarre-
Kapika
Facsimile No.: (808) 484-3606
109
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) THE BANK OF NEW YORK
By /s/
-------------------------------
Title: Vice President
Notice Address:
One Wall Street, 22nd Floor
New York, New York 19286
Attention: Sandra Morgan
Dawn Hertling
Facsimile No.: (212) 635-6877/6399
Domestic Office:
48 Wall Street
New York, New York 10286
Attention: Corporate Banking
Loans
Facsimile No.: (212) 635-6877/6399
LIBOR Office:
48 Wall Street
New York, New York 10286
Attention: Corporate Banking
Loans
Facsimile No.: (212) 635-6877/6399
110
PERCENTAGE LENDER
- ---------- ------
2.4000000% ($12,000,000) BANQUE NATIONALE DE PARIS
By /s/
-------------------------------
Title:
By /s/ Janice Ho
-------------------------------
Title: Vice President
Notice Address:
180 Montgomery Street
San Francisco, California 94104
Attention: Don Hart
Vice President
Facsimile No.: (415) 989-9041
with a copy to:
725 South Figueroa Street
Suite 2090
Los Angeles, California 90017
Attention: Janice Ho
Vice President
Facsimile No.: (213) 488-9602
Domestic Office:
725 South Figueroa Street
Suite 2090
Los Angeles, California 90017
Attention: Janice Ho
Vice President
Facsimile No.: (213) 488-9602
LIBOR Office:
725 South Figueroa Street
Suite 2090
Los Angeles, California 90017
Attention: Janice Ho
Vice President
Facsimile No.: (213) 488-9602
111
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By /s/ Masatake Yashiro
-------------------------------
Title: General Manager
Notice Address:
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Steven Bradley
Facsimile No.: (213) 488-9840
Domestic Office:
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Steven Bradley
Facsimile No.: (213) 488-9840
LIBOR Office:
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Steven Bradley
Facsimile No.: (213) 488-9840
112
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) NBD BANK
By /s/
-------------------------------
Title:
Notice Address:
Second Floor - Large Corporate
611 Woodward Avenue
Detroit, MI 48226
Attention: James B. Junker
Facsimile No.: (313) 225-2649
Domestic Office:
611 Woodward Avenue
Detroit, MI 48226
Attention: James B. Junker
Facsimile No.: (313) 225-2649
LIBOR Office:
611 Woodward Avenue
Detroit, MI 48226
Attention: James B. Junker
Facsimile No.: (313) 225-2649
113
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY
By /s/ Bernardo E. Correa-Henschke
------------------------------------------
Title: Vice President & Senior Manager
Notice Address:
550 South Hope Street, Suite 2500
Los Angeles, CA 90071
Attention: Jay Schwartz
Facsimile No.: (213) 892-0111
with a copy to:
550 South Hope Street, Suite 2500
Los Angeles, CA 90071
Attention: Araceli Figueroa
Theresa Pasamba
Facsimile No.: (213) 892-0111
Domestic Office:
550 South Hope Street, Suite 2500
Los Angeles, CA 90071
Attention: Jay Schwartz
Facsimile No.: (213) 892-0111
LIBOR Office:
550 South Hope Street, Suite 2500
Los Angeles, CA 90071
Attention: Jay Schwartz
Facsimile No.: (213) 892-0111
114
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) US BANK OF NEVADA
By /s/ Terry Gentry
-------------------------------
Title: Officer
Notice Address:
2300 West Sahara, Suite 120, Box 20
Las Vegas, NV 89102
Attention: Amy Robinson
Terry Gentry
Facsimile No.: (702) 386-3916
Domestic Office:
2300 West Sahara, Suite 120, Box 20
Las Vegas, NV 89102
Attention: Amy Robinson
Terry Gentry
Facsimile No.: (702) 386-3916
LIBOR Office:
2300 West Sahara, Suite 120, Box 20
Las Vegas, NV 89102
Attention: Amy Robinson
Terry Gentry
Facsimile No.: (702) 386-3916
115
PERCENTAGE LENDER
- ---------- ------
2.40000000% ($12,000,000) WHITNEY NATIONAL BANK
By /s/ John J. Zollinger, IV
-----------------------------------
Title: Assistant Vice President
Notice Address:
228 Saint Charles Avenue
New Orleans, Louisiana 70130
Attention: John J. Zollinger, IV
Facsimile No.: (504) 552-4622
Domestic Office:
228 Saint Charles Avenue
New Orleans, Louisiana 70130
Attention: John J. Zollinger, IV
Facsimile No.: (504) 552-4622
LIBOR Office:
228 Saint Charles Avenue
New Orleans, Louisiana 70130
Attention: John J. Zollinger, IV
Facsimile No.: (504) 552-4622
116
PERCENTAGE LENDER
- ---------- ------
2.25% ($11,250,000) BANK OF AMERICA NEVADA
By /s/ Herb Steege
-------------------------------
Title: Vice President
Notice Address:
300 South Fourth Street, 2nd Floor
Las Vegas, Nevada 89193-8600
Attention: Herb Steege
Facsimile No.: (702) 654-7158
Domestic Office:
300 South Fourth Street, 2nd Floor
Las Vegas, Nevada 89193-8600
Attention: Herb Steege
Facsimile No.: (702) 654-7158
LIBOR Office:
300 South Fourth Street, 2nd Floor
Las Vegas, Nevada 89193-8600
Attention: Herb Steege
Facsimile No.: (702) 654-7158
117
PERCENTAGE LENDER
- ---------- ------
1.60000000% ($8,000,000) DEPOSIT GUARANTY NATIONAL BANK
By /s/ Larry C. Ratzlaff
-------------------------------
Title: Senior Vice
President
Notice Address:
210 East Capitol Street
P.O. Box 1200
Jackson, Mississippi 39215-1200
Attention: Larry C. Ratzlaff
Senior Vice
President
Facsimile No.: (601) 354-8315
Domestic Office:
210 East Capitol Street
P.O. Box 1200
Jackson, Mississippi 39215-1200
Attention: Larry C. Ratzlaff
Senior Vice
President
Facsimile No.: (601) 354-8315
LIBOR Office:
210 East Capitol Street
P.O. Box 1200
Jackson, Mississippi 39215-1200
Attention: Larry C. Ratzlaff
Senior Vice
President
Facsimile No.: (601) 354-8315
118
PERCENTAGE LENDER
- ---------- ------
1.6000000% ($8,000,000) FIRST HAWAIIAN BANK
By /s/ Charles L. Jenkins
-------------------------------
Title: Vice President
Notice Address:
Corporate Banking, 19th Floor
1132 Bishop Street
Honolulu, HI 96813
Attention: Robert Wheeler
Facsimile No.: (808) 525-6372
Domestic Office:
Corporate Banking, 19th Floor
1132 Bishop Street
Honolulu, HI 96813
Attention: Brenda Deakins
Facsimile No.: (808) 525-6372
LIBOR Office:
Corporate Banking, 19th Floor
1132 Bishop Street
Honolulu, HI 96813
Attention: Brenda Deakins
Facsimile No.: (808) 525-6372
119
PERCENTAGE LENDER
- ---------- ------
1.60000000% ($8,000,000) GIROCREDIT BANK, AG DER SPARKASSEN,
GRAND CAYMAN ISLANDS BRANCH
By /s/
-------------------------------
Title:
By /s/
-------------------------------
Title:
Notice Address:
65 East 55th Street - 29th Floor
New York, New York 10022
Attention: John Redding
Facsimile No.: (212) 644-0644
Domestic Office:
65 East 55th Street - 29th Floor
New York, New York 10022
Attention: John Redding
Facsimile No.: (212) 644-0644
LIBOR Office:
65 East 55th Street - 29th Floor
New York, New York 10022
Attention: John Redding
Facsimile No.: (212) 644-0644
120
PERCENTAGE LENDER
- ---------- ------
1.60000000% ($8,000,000) IMPERIAL BANK
By /s/ Steven K. Johnson
---------------------------------
Title: Senior Vice President
Notice Address:
9920 South La Cienega Boulevard
Suite 1015
Inglewood, CA 90301
Attention: Steven K. Johnson
Vice President
Facsimile No.: (310) 417-5997
Domestic Office:
9920 South La Cienega Boulevard
Suite 1015
Inglewood, CA 90301
Attention: Steven K. Johnson
Vice President
Facsimile No.: (310) 417-5997
LIBOR Office:
9920 South La Cienega Boulevard
Suite 1015
Inglewood, CA 90301
Attention: Steven K. Johnson
Vice President
Facsimile No.: (310) 417-5997
121
PERCENTAGE LENDER
- ---------- ------
1.60000000% ($8,000,000) TRUSTMARK NATIONAL BANK
By /s/ Johnny Ray
-------------------------------
Title: Vice President
Notice Address:
P.O. Box 291
Jackson, MS 39205
Attention: Johnny Ray
Vice President
Facsimile No.: (601) 949-6250
OVERNIGHT ADDRESS:
248 East Capitol Street
Room 610
Jackson, MS 39201
Attention: Johnny Ray
Vice President
Domestic Office:
P.O. Box 291
Jackson, MS 39205
Attention: Johnny Ray
Vice President
Facsimile No.: (601) 949-6250
LIBOR Office:
P.O. Box 291
Jackson, MS 39205
Attention: Johnny Ray
Vice President
Facsimile No.: (601) 949-6250
122
EXHIBIT A
REVOLVING NOTE
Las Vegas, Nevada
$__________ June 19, 1996
FOR VALUE RECEIVED, the undersigned, BOYD GAMING CORPORATION and
CALIFORNIA HOTEL AND CASINO, each a Nevada corporation, jointly and severally
promise to pay to the order of _____________________ (the "Lender") the
principal sum of _______ DOLLARS ($__________) or, if less, the aggregate unpaid
principal amount of all Revolving Loans (as defined in the Credit Agreement,
hereinafter defined) made by the Lender to the undersigned pursuant to the
Credit Agreement, as shown in the schedule attached hereto (and any continuation
thereof), payable in full on or before the Maturity Date. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Credit Agreement.
The undersigned also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made to the Agent in
lawful money of the United States of America in same day or immediately
available funds.
This Note is a Revolving Note described in, and is subject to the terms
and provisions of, that certain Credit Agreement, dated as of even date herewith
(as the same may at any time be amended or modified and in effect, the "Credit
Agreement"), among the undersigned, certain financial institutions (including
the Lender), and the Agent, and payment of this Note is secured by certain of
the Loan Documents. Reference is hereby made to the Credit Agreement for a
statement of the prepayment rights and obligations of the undersigned, a
description of the properties mortgaged and assigned, the nature and extent of
the collateral security and the rights of the parties to the Loan Documents in
respect of such collateral security, and for a statement of the terms and
conditions under which the due date of this Note may be accelerated. Upon the
occurrence of any Event of Default as specified in the Credit Agreement, the
principal balance hereof and the interest accrued hereon may be declared to be
forthwith due and payable, and any indebtedness of the holder hereof to the
undersigned may be appropriated and applied hereon.
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In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the undersigned further agrees, subject only
to any limitation imposed by applicable law, to pay all expenses, including
reasonable attorneys' fees and legal expenses, incurred by the holder of this
Note in endeavoring to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN LAS VEGAS, NEVADA AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEVADA.
BOYD GAMING CORPORATION
By___________________________
Title: Senior Vice President
CALIFORNIA HOTEL AND CASINO
By___________________________
Title: Senior Vice President
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REVOLVING LOANS AND PRINCIPAL PAYMENTS
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Aggregate
Amount of Unpaid
Amount of Payment Principal
Loan Made Received Balance
Interest
Base Eurodollar Period (if Base Eurodollar Base Eurodollar Notation
Date Rate Rate applicable) Rate Rate Rate Rate Total Made By
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EXHIBIT B
SWINGLINE NOTE
Las Vegas, Nevada
$15,000,000 June 19, 1996
FOR VALUE RECEIVED, the undersigned, BOYD GAMING CORPORATION and
CALIFORNIA HOTEL AND CASINO, each a Nevada corporation, jointly and severally
promise to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (the
"Swingline Lender") at its principal office in 3800 Howard Hughes Parkway, Las
Vegas, Nevada 89109 the principal sum of FIFTEEN MILLION DOLLARS ($15,000,000)
or, if less, the aggregate unpaid principal amount of all Swing Loans (as
defined in the Credit Agreement, hereinafter defined) made by the Swingline
Lender to the undersigned pursuant to the Credit Agreement, as shown in the
schedule attached hereto (and any continuation thereof), payable in full on or
before the Maturity Date. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in the Credit Agreement.
The undersigned also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds.
This Note is the Swingline Note described in, and is subject to the
terms and provisions of, that certain Credit Agreement, dated as of even date
herewith (as the same may at any time be amended or modified and in effect, the
"Credit Agreement"), among the undersigned, certain financial institutions
(including the Swingline Lender), and the Agent, and payment of this Note is
secured by certain of the Loan Documents. Reference is hereby made to the Credit
Agreement for a statement of the prepayment rights and obligations of the
undersigned, a description of the properties mortgaged and assigned, the nature
and extent of the collateral security and the rights of the parties to the Loan
Documents in respect of such collateral security, and for a statement of the
terms and conditions under which the due date of this Note may be accelerated.
Upon the occurrence of any Event of Default as specified in the Credit
Agreement, the principal balance hereof and the interest accrued hereon may be
declared to be forthwith due and payable, and any indebtedness of the holder
hereof to the undersigned may be appropriated and applied hereon.
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In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the undersigned further agrees, subject only
to any limitation imposed by applicable law, to pay all expenses, including
reasonable attorneys' fees and legal expenses, incurred by the holder of this
Note in endeavoring to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN LAS VEGAS, NEVADA AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEVADA.
BOYD GAMING CORPORATION
By_____________________________
Title: Senior Vice President
CALIFORNIA HOTEL AND CASINO
By_____________________________
Title: Senior Vice President
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SWING LOANS AND PRINCIPAL PAYMENTS
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Aggregate
Amount of Unpaid
Amount of Payment Principal Notation
Date Loan Made Received Balance Total Made By
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EXHIBIT C
BORROWING REQUEST
Canadian Imperial Bank of Commerce, as Agent
425 Lexington Avenue
New York, NY 10017(1)
Attention: Loan Syndications
Re: Credit Agreement, dated as of June 19, 1996
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
the Credit Agreement, dated as of June 19, 1996 (together with all amendments,
if any, from time to time made thereto, the "Credit Agreement"), among BOYD
GAMING CORPORATION and CALIFORNIA HOTEL AND CASINO, each a Nevada corporation
(the "Borrowers"), certain financial institutions, and Canadian Imperial Bank of
Commerce, as agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
The Borrowers hereby request that a Revolving Loan be made in the
aggregate principal amount of $_____________________________ on _______________
, 19__ as a [Eurodollar Rate Loan having an Interest Period of months] [Base
Rate Loan].
The Borrowers request that the Revolving Loan made pursuant to this
Borrowing Request be credited to each of them as follows:
Boyd Gaming Corporation: $____________
California Hotel and Casino $____________
The Borrowers hereby certify and warrant that on the date the Borrowing
requested hereby is made (after giving effect to the making of such Borrowing,
but without, if any Default of the type referred to in Section 8.1.5 of the
Credit Agreement shall have occurred with respect to any other Indebtedness,
giving effect to the application, directly or indirectly, of the proceeds
thereof):
- --------
(1) Borrowing Requests for Swing Loans should also be sent to the Swingline
Lender.
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(a) the representations and warranties set forth in Article VI
(other than Section 6.7) of the Credit Agreement are true and correct
as if then made, except to the extent any representation or warranty
relates solely to an earlier date (in which case such representation or
warranty shall have been true and correct on and as of such earlier
date);
(b) no Default has occurred and is continuing or will have
occurred and be continuing; and
(c) no labor controversy, litigation, arbitration, or
governmental investigation or proceeding is pending or, to the
knowledge of the Borrowers, threatened against either Borrower or any
Subsidiary of either Borrower which if adversely determined may be
reasonably expected to have a Material Adverse Effect which was not
disclosed by the Borrowers pursuant to Section 6.7 of the Credit
Agreement, and no development not so disclosed shall have occurred in
any labor controversy, litigation, arbitration, or governmental
investigation or proceeding so disclosed, which, in either event, may
be reasonably expected to have a Material Adverse Effect.
The Borrowers agree that if prior to the time of the Borrowing
requested hereby any matter certified to herein by them will not be true and
correct at such time as if then made, they will immediately so notify the Agent.
Except to the extent, if any, that prior to the time of the Borrowing requested
hereby the Agent shall receive written notice to the contrary from the
Borrowers, each matter certified to herein shall be deemed once again to be
certified as true and correct at the date of such borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of
the following persons at the financial institutions indicated respectively:
Amount to be Person to be Paid Name, Address, etc.
Transferred Name Account No. of Transferee
- ----------- -------------------------- -------------------
$__________ _____________ ___________ ___________________
___________________
Attention:_________
$__________ _____________ ___________ ___________________
___________________
Attention:_________
Balance of The Borrowers ___________ ___________________
such proceeds ___________________
Attention:_________
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The Borrowers have caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
their duly Authorized Officers this ___ day of ____________, 19 .
BOYD GAMING CORPORATION
By_____________________________
Title:
CALIFORNIA HOTEL AND CASINO
By_____________________________
Title:
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EXHIBIT D
CONTINUATION/CONVERSION NOTICE
Canadian Imperial Bank of Commerce, as agent
425 Lexington Avenue
New York, NY 10017
Attention: Loan Syndications
Re: Credit Agreement dated as of June 19, 1996
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 2.3 of the Credit Agreement, dated as of June 19, 1996 (together with
all amendments, if any, from time to time made thereto, the "Credit Agreement"),
among BOYD GAMING CORPORATION and CALIFORNIA HOTEL AND CASINO, each a Nevada
corporation (the "Borrowers"), certain financial institutions, and Canadian
Imperial Bank of Commerce, as the agent. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
The Borrowers hereby request that on ___________ , 19 __,
(1) $____________ of the presently outstanding principal
amount of the Revolving Loans [originally made on ____________ , 19__]
[continued as such Loans on ____________, 19__] [converted into such
Loans on ___________, 19__],
(2) and presently being maintained as [Base Rate Loans]
[Eurodollar Rate Loans having an Interest Period ending on
____________, 19__],
(3) be [converted into] [continued as],
(4) [Eurodollar Rate Loans having an Interest Period of
_________ months] [Base Rate Loans].
The Borrowers hereby:
(a) certify and warrant that no Default has occurred and is
continuing; and
(b) agree that if prior to the time of such continuation or
conversion any matter certified to herein by them will not be true and
correct at such time as if then made, they will immediately so notify
the Agent.
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Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Agent shall receive written notice to the
contrary from the Borrowers, each matter certified to herein shall be deemed to
be certified at the date of such continuation or conversion as if then made.
The Borrowers have caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein to
be made, by its Authorized Officer this ___ day of ____________, 19__ .
BOYD GAMING CORPORATION
By___________________________
Title:
CALIFORNIA HOTEL AND CASINO
By___________________________
Title:
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EXHIBIT F
GENERAL CONTINUING GUARANTY
THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of June 19,
1996, is executed and delivered by SAM-WILL, INC., a Nevada corporation
("Guarantor"), in favor of Beneficiaries and in light of the following:
WHEREAS, Borrowers and Beneficiaries are, contemporaneously herewith,
entering into the Credit Agreement;
WHEREAS, in order to induce Beneficiaries to extend financial
accommodations to Borrowers pursuant to the Credit Agreement, and in
consideration thereof, Guarantor has agreed to guaranty the Guarantied
Obligations; and
WHEREAS, all capitalized terms not otherwise defined herein have the
meanings assigned to them in the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby
agrees, in favor of Beneficiaries, as follows:
1. Definitions and Construction.
(a) Definitions. The following terms, as used in this
Guaranty, shall have the following meanings:
"Agent" shall have the meaning ascribed thereto in
the Credit Agreement.
"Bankruptcy Code" shall mean The Bankruptcy Reform
Act of 1978 (11 U.S.C. SectionSection101-1330), as amended or
supplemented from time to time, and any successor statute, and
any and all rules issued or promulgated in connection
therewith.
"Beneficiaries" shall mean Agent and Lenders.
"Borrowers" shall mean Boyd Gaming Corporation and
California Hotel and Casino, each a Nevada corporation.
"Collateral" shall mean the property or assets
described in Section 16 hereof.
"Credit Agreement" shall mean that certain Credit
Agreement, dated as of even date herewith, among Borrowers,
Agent and Lenders.
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"Guarantied Obligations" shall mean the due and
punctual payment of all Indebtedness owing by Borrowers.
"Guarantor" shall have the meaning set forth in the
preamble to this Guaranty.
"Guaranty" shall have the meaning set forth in the
preamble to this document.
"Indebtedness" shall mean any and all obligations,
indebtedness, or liabilities of any kind or character owed to
Beneficiaries by Borrowers and arising directly or indirectly
out of or in connection with the Credit Agreement, the Notes,
or the other Loan Documents, including all such obligations,
indebtedness, or liabilities, whether for principal, interest
(including any and all interest which, but for the application
of the provisions of the Bankruptcy Code, would have accrued
on such amounts), premium, reimbursement obligations, fees,
costs, expenses (including attorneys' fees), or indemnity
obligations, whether heretofore, now, or hereafter made,
incurred, or created, whether voluntarily or involuntarily
made, incurred, or created, whether secured or unsecured (and
if secured, regardless of the nature or extent of the
security), whether absolute or contingent, liquidated or
unliquidated, or determined or indeterminate, whether
Borrowers are liable individually or jointly with others, and
whether recovery is or hereafter becomes barred by any statute
of limitations or otherwise becomes unenforceable for any
reason whatsoever, including any act or failure to act by
Beneficiaries. Without limiting the generality of the
foregoing, Indebtedness shall include all Hedging Obligations
arising under agreements between any Borrower, the Guarantor
or any Affiliate thereof and any Lender or any Affiliate of
any Lender.
"Lenders" shall have the meaning ascribed thereto in
the Credit Agreement.
"Loan Documents" shall have the meaning ascribed
thereto in the Credit Agreement.
"Notes" shall mean each of the promissory notes
issued by Borrowers to Lenders pursuant to the Credit
Agreement.
"Person" shall have the meaning ascribed thereto in
the Credit Agreement.
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"Subsidiary" shall have the meaning ascribed thereto
in the Credit Agreement.
(b) Construction. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular,
references to the singular include the plural, the part includes the
whole, the term "including" is not limiting, and the term "or" has the
inclusive meaning represented by the phrase "and/or." The words
"hereof," "herein," "hereby," "hereunder," and other similar terms
refer to this Guaranty as a whole and not to any particular provision
of this Guaranty. Any reference in this Guaranty to any of the
following documents includes any and all alterations, amendments,
extensions, modifications, renewals, or supplements thereto or thereof,
as applicable: the Loan Documents; the Credit Agreement; this Guaranty;
and the Notes. Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against Beneficiaries or
Guarantor, whether under any rule of construction or otherwise. On the
contrary, this Guaranty has been reviewed by Guarantor, Beneficiaries,
and their respective counsel, and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of Beneficiaries and Guarantor.
2. Guarantied Obligations. Guarantor hereby irrevocably and
unconditionally guaranties to Beneficiaries, as and for its own debt, until
final and indefeasible payment thereof has been made, the due and punctual
payment of the Guarantied Obligations, in each case when and as the same shall
become due and payable, whether at maturity, pursuant to a mandatory prepayment
requirement, by acceleration, or otherwise; it being the intent of Guarantor
that the guaranty set forth herein shall be a guaranty of payment and not a
guaranty of collection; provided, however, that Guarantor shall be liable under
this Guaranty for the maximum amount of such liability that can be incurred
without rendering this Guaranty, as it relates to Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount.
Guarantor represents and warrants to Beneficiaries that (i) neither
this Guaranty nor any collateral security therefor has been given with an intent
to hinder, delay or defraud any creditor of the Guarantor; (ii) Guarantor is not
engaged, or about to engage, in any business or transaction for which its assets
(other than those necessary to satisfy its obligations under this Guaranty or
those given as collateral security for such obligations) are unreasonably small
in relation to the business or transaction, nor does Guarantor intend to incur,
or believe or reasonably should believe that it will incur, debts
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beyond its ability to pay as they become due; (iii) Guarantor is not insolvent
at the time it gives this Guaranty, and the giving of this Guaranty and any
collateral security provided in connection herewith will not result in
Guarantor's becoming insolvent. Guarantor hereby covenants and agrees that, as
long as this Guaranty remains in effect, Guarantor (i) shall incur no
indebtedness beyond its ability to repay the same in full in accordance with the
terms thereof; and (ii) shall not take any action, or suffer to occur any
omission, which could give rise to a claim by any third party to set aside this
Guaranty or any collateral given in connection herewith, or in any manner impair
Beneficiaries' rights and privileges hereunder or thereunder.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a)
no such revocation shall be effective until written notice thereof has been
received by Beneficiaries, (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Beneficiaries in existence
on the date of such revocation, (d) no payment by Guarantor, Borrowers, or from
any other source, prior to the date of such revocation, shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrowers or from any
source other than Guarantor subsequent to the date of such revocation shall
first be applied to that portion of the Guarantied Obligations as to which the
revocation is effective and which are not, therefore, guarantied hereunder, and
to the extent so applied shall not reduce the maximum obligations of Guarantor
hereunder.
4. Performance under this Guaranty. In the event that either Borrower
fails to make any payment of any Guarantied Obligations on or before the due
date thereof, Guarantor immediately shall cause such payment to be made.
5. Primary Obligations. This Guaranty is a primary and original
obligation of Guarantor, is not merely the creation of a surety relationship,
and is an absolute, unconditional, and
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continuing guaranty of payment and performance which shall remain in full force
and effect without respect to future changes in conditions, including any change
of law or any invalidity or irregularity with respect to the issuance of the
Notes. Guarantor agrees that it is directly, jointly and severally with any
other guarantor of the Guarantied Obligations, liable to Beneficiaries, that the
obligations of Guarantor hereunder are independent of the obligations of
Borrowers or any other Guarantor, and that a separate action may be brought
against Guarantor, whether such action is brought against Borrowers or other
guarantor or whether Borrowers or any such other guarantor is joined in such
action. Guarantor agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by Beneficiaries of
whatever remedies they may have against Borrowers or any other guarantor, or the
enforcement of any lien or realization upon any security Beneficiaries may at
any time possess. Guarantor agrees that any release which may be given by
Beneficiaries to Borrowers or any other guarantor shall not release Guarantor.
Guarantor consents and agrees that Beneficiaries shall be under no obligation to
marshal any property or assets of Borrowers or any other guarantor in favor of
Guarantor, or against or in payment of any or all of the Guarantied Obligations.
6. Waivers.
(a) Guarantor hereby waives: (i) notice of acceptance hereof;
(ii) notice of any loans or other financial accommodations made or
extended under the Credit Agreement, or the creation or existence of
any Guarantied Obligations; (iii) notice of the amount of the
Guarantied Obligations, subject, however, to Guarantor's right to make
inquiry of Administrative Agent to ascertain the amount of the
Guarantied Obligations at any reasonable time; (iv) notice of any
adverse change in the financial condition of Borrowers or of any other
fact that might increase Guarantor's risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to the
Notes or any other instrument; (vi) notice of any Default or Event of
Default under the Credit Agreement; and (vii) all other notices (except
if such notice is specifically required to be given to Guarantor under
this Guaranty or any other Loan Document to which Guarantor is party)
and demands to which Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law,
Guarantor waives the right by statute or otherwise to require
Beneficiaries to institute suit against Borrowers or to exhaust any
rights and remedies which Beneficiaries have or may have against
Borrowers. In this regard, Guarantor agrees that it is bound to the
payment of each and all
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Guarantied Obligations, whether now existing or hereafter accruing, as
fully as if such Guarantied Obligations were directly owing to
Beneficiaries by Guarantor. Guarantor further waives any defense
arising by reason of any disability or other defense (other than the
defense that the Guarantied Obligations shall have been fully and
finally performed and indefeasibly paid) of Borrowers or by reason of
the cessation from any cause whatsoever of the liability of Borrowers
in respect thereof.
(c) To the maximum extent permitted by law, Guarantor hereby
waives: (i) any rights to assert against Beneficiaries any defense
(legal or equitable), set-off, counterclaim, or claim which Guarantor
may now or at any time hereafter have against Borrowers or any other
party liable to Beneficiaries; (ii) any defense, set-off, counterclaim,
or claim, of any kind or nature, arising directly or indirectly from
the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guarantied Obligations or any security therefor;
(iii) any defense arising by reason of any claim or defense based upon
an election of remedies by Beneficiaries; (iv) the benefit of any
statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof, and any act which shall defer or delay the
operation of any statute of limitations applicable to the Guarantied
Obligations shall similarly operate to defer or delay the operation of
such statute of limitations applicable to Guarantor's liability
hereunder; and (v) to the fullest extent permitted by law, any defense
or benefit that may be derived from or afforded by law which limits the
liability of or exonerates guaranties or sureties or requires
Beneficiaries to exhaust remedies against the Borrowers prior to
commencing any action or foreclosure against Guarantor or its
properties including, without limitation, the benefits of Nevada
Revised Statutes Sections 40.430 - 40.459, 40.475 and 40.485 as and to
the fullest extent permitted by Nevada Revised Statutes Section 40.495
(1989).
(d) Guarantor agrees that if all or a portion of the
Indebtedness or this Guaranty is at any time secured by a deed of trust
or mortgage covering interests in real property, Beneficiaries, in
their sole discretion, without notice or demand and without affecting
the liability of Guarantor under this Guaranty, may foreclose pursuant
to the terms of the Credit Agreement or otherwise the deed of trust or
mortgage and the interests in real property secured thereby by
non-judicial sale. Guarantor understands that the exercise by
Beneficiaries of certain rights and remedies contained in the Credit
Agreement and any such deed of trust or mortgage may affect or
eliminate Guarantor's right of
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subrogation against Borrowers and that Guarantor may therefore incur a
partially or totally non-reimbursable liability hereunder.
Nevertheless, Guarantor hereby authorizes and empowers Beneficiaries to
exercise, in their sole discretion, any rights and remedies, or any
combination thereof, which may then be available, since it is the
intent and purpose of Guarantor that the obligations hereunder shall be
absolute, independent and unconditional under any and all
circumstances. Notwithstanding any foreclosure of the lien of any deed
of trust or security agreement with respect to any or all of any real
or personal property secured thereby, whether by the exercise of the
power of sale contained therein, by an action for judicial foreclosure
or by an acceptance of a deed in lieu of foreclosure, Guarantor shall
remain bound under this Guaranty including its obligation to pay any
deficiency following a non-judicial foreclosure.
(e) (1) Notwithstanding anything to the contrary elsewhere
contained herein or in any other Loan Document, Guarantor hereby waives
with respect to each Borrower and its respective successors and assigns
(including any surety) and any other party any and all rights at Law or
in equity, to subrogation, to reimbursement, to exoneration, to
contribution, to setoff or to any other rights that could accrue to a
surety against a principal, to a guarantor against a maker or obligor,
to an accommodation party against the party accommodated, or to a
holder or transferee against a maker and which Guarantor may have or
hereafter acquire against any Borrower or any other party in connection
with or as a result of any Borrower's execution, delivery and/or
performance of the Credit Agreement or any other Loan Document.
Guarantor agrees that it shall not have or assert any such rights
against any Borrower or any Borrower's successors and assigns or any
other Person (including any surety), either directly or as an attempted
setoff to any action commenced against Guarantor by any Borrower (as
borrower or in any other capacity) or any other Person. Guarantor
hereby acknowledges and agrees that this waiver is intended to benefit
the Agent and the Lenders and shall not limit or otherwise affect any
of the Borrowers' liability hereunder, under any other Loan Document to
which any Borrower is a party, or the enforceability hereof or thereof.
(2) To the extent any waiver of subrogation contained in
subparagraph (e)(1) is unenforceable, Guarantor shall, until the
Guaranteed Obligations shall have been paid in full and the Commitments
shall have terminated and all Letters of Credit shall have expired or
been terminated or cancelled, withhold exercise of (a) any claim, right
or
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remedy, direct or indirect, that Guarantor now has or may hereafter
have against any Borrower or any of its assets in connection with this
Guaranty or the performance by Guarantor of its obligations hereunder,
in each case whether such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise and including
without limitation (i) any right of subrogation, reimbursement or
indemnification that Guarantor now has or may hereafter have against
any Borrower, (ii) any right to enforce, or to participate in, any
claim, right or remedy that the Agent or any Lender now has or may
hereafter have against any Borrower, and (iii) any benefit of, and any
right to participate in, any collateral or security now or hereafter
held by the Agent or any Lender, and (b) any right of contribution
Guarantor may have against any other guarantor of any of the Guaranteed
Obligations (including without limitation any such right of
contribution). Guarantor further agrees that, to the extent the
agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is
found by a court of competent jurisdiction to be void or voidable for
any reason, any rights of subrogation, reimbursement or indemnification
Guarantor may have against any Borrower or against any collateral or
security, and any rights of contribution Guarantor may have against any
such other guarantor, shall be junior and subordinate to any rights the
Agent or Lenders may have against any Borrower, to all right, title and
interest the Agent or Lenders may have in any such collateral or
security, and to any right the Agent or Lenders may have against such
other guarantor. The Agent, on behalf of Lenders, may use, sell or
dispose of any item of collateral or security as it sees fit without
regard to any subrogation rights Guarantor may have, and upon any such
disposition or sale any rights of subrogation Guarantor may have shall
terminate. If any amount shall be paid to Guarantor on account of any
such subrogation, reimbursement or indemnification rights at any time
when all Guaranteed Obligations shall not have been paid in full, such
amount shall be held in trust for the Agent on behalf of Lenders and
shall forthwith be paid over to the Agent for the benefit of Lenders to
be credited and applied against the Guaranteed Obligations, whether
matured or unmatured, in accordance with the Credit Agreement.
7. Releases. Guarantor consents and agrees that, without notice to or
by Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Beneficiaries may, by action or inaction, compromise or settle,
extend the period of duration or the time for the payment, or discharge the
performance of, or may refuse to, or otherwise not enforce, or may, by action or
inaction, release all or any one or more parties to, any one or
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more of the Credit Agreement, the Notes, or any of the other Loan Documents or
may grant other indulgences to Borrowers in respect thereof, or may amend or
modify in any manner and at any time (or from time to time) any one or more of
the Credit Agreement, the Notes, or any of the other Loan Documents, or may, by
action or inaction, release or substitute any other guarantor, if any, of the
Guarantied Obligations, or may enforce, exchange, release, or waive, by action
or inaction, any security for the Guarantied Obligations (including the
Collateral) or any other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No Election. Beneficiaries shall have the right to seek recourse
against Guarantor to the fullest extent provided for herein and no election by
Beneficiaries to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of Beneficiaries' right
to proceed in any other form of action or proceeding or against other parties
unless Beneficiaries have expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or proceeding by
Beneficiaries under any document or instrument evidencing the Guarantied
Obligations shall serve to diminish the liability of Guarantor under this
Guaranty except to the extent that Beneficiaries finally and unconditionally
shall have realized indefeasible payment by such action or proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be
considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Beneficiaries are no longer subject to any right on the part of any
person whomsoever, including Borrowers, either Borrower as a debtor in
possession, or any trustee (whether appointed under the Bankruptcy Code or
otherwise) of either Borrower's assets to invalidate or set aside such payments
or to seek to recoup the amount of such payments or any portion thereof, or to
declare same to be fraudulent or preferential. In the event that, for any
reason, all or any portion of such payments to Beneficiaries is set aside or
restored, whether voluntarily or involuntarily, after the making thereof, the
obligation or part thereof intended to be satisfied thereby shall be revived and
continued in full force and effect as if said payment or payments had not been
made and Guarantor shall be liable for the full amount Beneficiaries are
required to repay plus any and all costs and expenses (including attorneys'
fees) paid by Beneficiaries in connection therewith.
10. Financial Condition of Borrowers. Guarantor represents and warrants
to Beneficiaries that it is currently informed of the financial condition of
Borrowers and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Guarantied Obligations.
Guarantor further represents and warrants to Beneficiaries that
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it has read and understands the terms and conditions of the Credit Agreement,
the Notes, and the other Loan Documents. Guarantor hereby covenants that it will
continue to keep itself informed of Borrowers' financial condition, the
financial condition of other guarantors, if any, and of all other circumstances
which bear upon the risk of nonpayment or nonperformance of the Guarantied
Obligations.
11. Subordination. Guarantor hereby agrees that any and all present and
future indebtedness of Borrowers owing to Guarantor is postponed in favor of and
subordinated to payment in full of the Guarantied Obligations. Guarantor agrees
that amounts paid over to Beneficiaries pursuant to the subordination provisions
of this Section 11 shall be separate and apart from, and shall not be credited
to, the liability of Guarantor pursuant to Section 2.
12. Payments; Application. All payment to be made hereunder by
Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by Guarantor hereunder shall be applied as follows: first, to all reasonable
costs and expenses (including attorneys' fees) incurred by Beneficiaries in
enforcing this Guaranty or in collecting the Guarantied Obligations; second, to
all accrued and unpaid interest, premium, if any, and fees owing to
Beneficiaries constituting Guarantied Obligations; and third, to the balance of
the Guarantied Obligations.
13. Attorneys' Fees and Costs. Guarantor agrees to pay, on demand, all
reasonable attorneys' fees and all other reasonable costs and expenses which may
be incurred by Beneficiaries in the enforcement of this Guaranty or in any way
arising out of, or consequential to the protection, assertion, or enforcement of
the Guarantied Obligations (or any security therefor), irrespective of whether
suit is brought.
14. Notices. All notices and other communications provided to any party
hereto under this Guaranty shall be in writing or by facsimile and addressed,
delivered or transmitted to such party at its address or facsimile number set
forth below or at such other address or facsimile number as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by facsimile, shall be deemed given when transmitted.
If to Guarantor: Sam-Will, Inc.
c/o California Hotel and Casino
2950 South Industrial Road
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Las Vegas, Nevada 89109
Attn: Chief Financial Officer
Telefacsimile number: (702) 732-6220
With a copy to: Morrison & Foerster
5200 Republic Plaza
370 17th Street
Denver Colorado, 80202-5638
Attn: Carla H. Donelson, Esq.
Telefacsimile number: (303) 592-1510
If to Beneficiaries: Canadian Imperial Bank of Commerce,
as Agent
425 Lexington Avenue
New York, New York 10017
Attn: Syndications
Telefacsimile number: (212) 856-3763
With a copy to: Mayer, Brown & Platt
350 South Grand Avenue
Suite 2500
Los Angeles, California 90071
Attn: Brian E. Newhouse, Esq.
Telefacsimile number: (213) 625-0248
15. Cumulative Remedies. No remedy under this Guaranty, under the
Credit Agreement, the Notes, or any Loan Document is intended to be exclusive of
any other remedy, but each and every remedy shall be cumulative and in addition
to any and every other remedy given under this Guaranty, under the Credit
Agreement, the Notes, or any other Loan Document, and those provided by law. No
delay or omission by Beneficiaries to exercise any right under this Guaranty
shall impair any such right nor be construed to be a waiver thereof. No failure
on the part of Beneficiaries to exercise, and no delay in exercising, any right
under this Guaranty shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Guaranty preclude any other or further
exercise thereof or the exercise of any other right.
16. Collateral. The obligations of Guarantor under this Guaranty are
secured as provided for in the Security Agreement
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and that certain Deed of Trust, each executed by the Guarantor in favor of the
Collateral Agent, and each dated as of even date herewith.
17. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law, shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
18. Entire Agreement; Amendments. This Guaranty constitutes the entire
agreement between Guarantor and Beneficiaries pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or modified, nor
may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by Guarantor and Beneficiaries. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given. No
course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or
default or otherwise prejudice the rights and remedies hereunder.
19. Successors and Assigns. This Guaranty shall be binding upon
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of Beneficiaries; provided, however, Guarantor shall not
assign this Guaranty or delegate any of its duties hereunder without
Beneficiaries' prior written consent and any unconsented to assignment shall be
absolutely void. In the event of any assignment or other transfer of rights by
Beneficiaries, the rights and benefits herein conferred upon Beneficiaries shall
automatically extend to and be vested in such assignee or other transferee.
20. Choice of Law and Venue; Service of Process. THE VALIDITY OF THIS
GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF
GUARANTOR AND BENEFICIARIES, SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEVADA, AND BY EXECUTION
AND DELIVERY OF THIS GUARANTY, GUARANTOR ACCEPTS, FOR ITSELF AND IN CONNECTION
WITH ITS ASSETS, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY FROM WHICH NO APPEAL HAS BEEN
TAKEN OR IS AVAILABLE.
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21. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS GUARANTY, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF GUARANTOR AND BENEFICIARIES WITH RESPECT TO THIS GUARANTY, 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, GUARANTOR HEREBY AGREES THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A
COURT TRIAL WITHOUT A JURY AND THAT BENEFICIARIES MAY FILE AN ORIGINAL
COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE
OF THE CONSENT OF GUARANTOR TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the day and year first written above.
SAM-WILL, INC., a Nevada corporation
By______________________________________
Title:__________________________________
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EXHIBIT G
HAZARDOUS MATERIALS INDEMNITY
THIS HAZARDOUS MATERIALS INDEMNITY (the "Indemnity") is executed as of
June 19, 1996, by CALIFORNIA HOTEL AND CASINO, a Nevada corporation ("CH&C"),
SAM-WILL, INC., a Nevada corporation, MARE-BEAR INC., a Nevada corporation, BOYD
TUNICA, INC., a Mississippi corporation and BOYD KANSAS CITY, INC., a Missouri
corporation (collectively, the "Indemnitors"), in favor of Canadian Imperial
Bank of Commerce (the "Agent"), as agent for the commercial lending institutions
listed on Schedule 1 hereto (herein collectively, with their successors and
assigns, the "Lenders"); herein the Agent and the Lenders are collectively
referred to as the "Indemnified Parties"), with reference to the following
facts:
A. CH&C and Boyd Gaming Corporation, a Nevada corporation (together
with CH&C, the "Borrowers"), the Lenders and the Agent are concurrently herewith
entering into a Credit Agreement (as it may be amended, modified or supplemented
from time to time, the "Credit Agreement").
B. Pursuant to the terms of those certain General Continuing Guarantees
dated concurrently herewith (the "Guarantees"), the Guarantors are guarantying
the obligations of the Borrowers under the Credit Agreement.
C. The Loans, the Letters of Credit, and the Guarantees and the Hedging
Obligations owing to any of the Lenders are to be secured by, among other
things, all of the respective right, title and interest of the Indemnitors in
the real property underlying (i) Sam's Town Hotel, Gambling Hall and Bowling
Center in Las Vegas, Nevada, (ii) the California Hotel and Casino in Las Vegas,
Nevada, (iii) the Stardust Hotel and Casino in Las Vegas, Nevada, (iv) the
Fremont Hotel and Casino in Las Vegas, Nevada, (v) Sam's Town Hotel and Gambling
Hall in Tunica, Mississippi and (vi) Sam's Town Kansas City in Kansas City,
Missouri, and all fixtures, personal property and other improvements now
existing or to be constructed on any of such properties (collectively, the
"Casinos"), with respect to which the Indemnitors have executed certain Deeds of
Trust that have been recorded in the official records of Clark County, Nevada,
Tunica County, Mississippi and Clay County, Missouri.
In order to induce the Lenders to make the Loans and to issue the
Letters of Credit, and with the full intention and understanding that the
Indemnified Parties will rely hereon, the Indemnitors represent, warrant,
covenant and agree as follows:
149
1. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meanings specified in the Credit Agreement.
2. Representations and Warranties. Without limiting the generality of
any of the representations and warranties of any or all of the Indemnitors
contained in any other Loan Document, the Indemnitors individually and
collectively represent and warrant to the Agent and the Lenders, after
reasonable investigations and inquiry, that as of the date hereof and continuing
hereafter, and except as disclosed in the [Level I Environmental Site
Assessments prepared in [1996] for Boyd Gaming Corporation by Kleinfelder, Inc.
(numbered _____________________, and dated _______________), the Casinos and
each portion thereof (i) are not and have not been a site for the use,
generation, manufacture, storage, release, transportation or disposal of any oil
or petrochemical products, PCBs, asbestos, asbestos containing materials, urea
formaldehyde, salts, flammable explosives, radioactive materials, hazardous
wastes, or any toxic, mutagenic or pathogenic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
or "toxic substances" under any applicable federal, state or local laws,
ordinances, regulations, orders or directives (collectively, "Hazardous
Materials"), except in the ordinary course of Indemnitors' business, and only in
amounts that are properly contained, labeled and stored; and (ii) are presently
in compliance with all federal, state or local laws, ordinances, regulations,
orders and directives pertaining to Hazardous Materials or generally dealing
with the public health and safety and the protection of the environment
(collectively, "Environmental Laws"), including, without limitation, those
relating to air, soil and groundwater conditions.
3. Indemnity. The Indemnitors hereby agree to indemnify, hold harmless
and defend (by counsel reasonably satisfactory to the Agent) the Indemnified
Parties, their respective directors, officers, employees, agents, successors and
assigns from and against any and all claims, losses, damages, liabilities,
fines, penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith (including but not
limited to attorneys' and/or paralegals' fees and expenses), arising directly or
indirectly, in whole or in part, out of (i) the presence on or under all or any
portion of the Casinos of any Hazardous Materials, or any releases or discharges
of any Hazardous Materials on, under or from any portion of the Casinos, or (ii)
any activity carried on or undertaken on or off any portion of the Casinos,
whether prior to or while any of the Loans or
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Letters of Credit are outstanding, and whether by the Indemnitors or any of
their Affiliates, or any of their predecessors in title or in interest, or any
employees, agents, contractors or subcontractors of the Indemnitors or any of
their Affiliates, or any of their predecessors in title or in interest, or any
third persons at any time occupying or present on the Casinos or any portion
thereof, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials at
any time, or (iii) any remedial actions undertaken by the Indemnified Parties in
connection with items (i) or (ii), above which do not constitute gross
negligence or willful misconduct by the Indemnified Parties. The foregoing
indemnity shall further apply to any residual contamination on or under the
Casinos, or affecting any natural resources arising in connection with the
generation, use, handling, storage, transport or disposal of any such Hazardous
Materials at or from the Casinos, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable laws,
regulations, codes and ordinances. The Indemnitors hereby acknowledge and agree
that the obligations of the Indemnitors under this Indemnity shall be joint,
several and unlimited obligations of the Indemnitors, and that the Lenders would
not make the Loans or issue the Letters of Credit in the absence of such joint,
several and unlimited liability so undertaken. It is expressly understood and
agreed that the Indemnity provided for herein shall survive: (i) the repayment
of the Loans and the release of or reconveyance of the Deeds of Trust; or (ii)
the acquisition of title to any of the Casinos by the Agent, or any successor in
interest to the Agent, or any nominee or designee of it, by foreclosure under or
transfer in lieu of foreclosure of the Deeds of Trust, whether or not the same
is otherwise in satisfaction of the Borrowers' or the Guarantors' obligations in
connection with the Loans. Subject to clause (iii) above, the foregoing
indemnity shall not apply to the extent that the presence, use, release,
discharge or other activity involving Hazardous Materials was caused directly by
the Indemnified Parties.
4. Miscellaneous:
a. Following reasonable notice in all cases other than
emergencies (for which not notice shall be required) the Indemnitors
shall arrange for and provide to the Indemnified Parties reasonable
access to the Casinos for the purpose of determining compliance with
each of the Indemnitors' representations and warranties concerning
Hazardous Materials and Environmental Laws made in connection with this
Indemnity or any other Loan Document.
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b. This Indemnity shall be governed by and construed in
accordance with the laws of the State of Nevada, except to the extent
preempted by Federal Law.
c. The obligations and promises set forth herein shall be
joint, several and unlimited undertakings of each of the parties
executing this Indemnity and Indemnitor, and the Agent may proceed
hereunder against any one or more of said parties without waiving its
right to proceed against any of the others.
d. Each Indemnitor irrevocably agrees that any legal action or
proceeding with respect to this Indemnity may be brought in a court of
competent jurisdiction of the State of Nevada or of the United States
of America, as the Agent may elect, and by execution and delivery of
this Indemnity such Indemnitor hereby irrevocably submits to each such
jurisdiction; and agrees that final judgment against such Indemnitor in
any such action or proceeding shall be conclusive and may be enforced
in any jurisdiction within the United States including, without
limitation, the State of Nevada, by suit on the judgment, a certified
copy of which shall be conclusive evidence of the fact and of the
amount of the indebtedness owed.
e. This Indemnity may be executed in one or more counterparts
and each such counterpart shall have the same force and effect as a
fully executed Indemnity.
f. If any term or provision of this Indemnity is determined to
be invalid or unenforceable, the remaining terms and provisions shall
be binding and enforceable to the maximum extent permitted by law.
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"Indemnitors"
California Hotel and Casino,
a Nevada corporation
By____________________________
Its Senior Vice President
Sam-Will, Inc.,
a Nevada corporation
By____________________________
Its Senior Vice President
Mare-Bear, Inc.,
a Nevada corporation
By____________________________
Its Senior Vice President
Boyd Tunica, Inc., a
Mississippi corporation
By____________________________
Its Senior Vice President
Boyd Kansas City, Inc., a
Missouri corporation
By____________________________
Its Senior Vice President
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SCHEDULE I
TO
HAZARDOUS MATERIALS INDEMNITY
LENDERS
1. CIBC Inc.
2. Bank of America NT&SA
3. Wells Fargo Bank, National Association
4. Bankers Trust Company
5. Credit Lyonnais Los Angeles Branch
6. Societe Generale
7. ABN AMRO Bank N.V., San Francisco International Branch
8. The Mitsubishi Trust & Banking Corporation
9. The Sanwa Bank, Limited
10. Commerzbank AG, LOS ANGELES BRANCH
11. First Security Bank of Utah, N.A.
12. The Sumitomo Bank, Ltd.
13. The First National Bank of Boston
14. Bank of Hawaii
15. The Bank of New York
16. Banque Nationale De Paris
17. The Industrial Bank of Japan, Limited, Los Angeles Agency
18. NBD Bank
19. The Nippon Credit Bank, Ltd., Los Angeles Agency
20. U.S. Bank of Nevada
21. Whitney National Bank
22. Bank of America Nevada
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23. Deposit Guaranty National Bank
24. First Hawaiian Bank
25. GiroCredit Bank, Ag Der Sparkassen, Grand Cayman
Islands Branch
26. Imperial Bank
27. Trustmark National Bank
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EXHIBIT H
LENDER ASSIGNMENT AGREEMENT
To: BOYD GAMING CORPORATION
CALIFORNIA HOTEL AND CASINO
2950 South Industrial Road
Las Vegas, Nevada 89109
To: Canadian Imperial Bank of Commerce,
as the Agent
425 Lexington Avenue
New York, New York 10017
Re: BOYD GAMING CORPORATION / CALIFORNIA HOTEL AND CASINO
Gentlemen and Ladies:
We refer to Section 10.11.1 of the Credit Agreement, dated as of June
19, 1996 (together with all amendments and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among Boyd Gaming
Corporation and California Hotel and Casino, each a Nevada corporation (the
"Borrowers"), the various financial institutions (the "Lenders") as are, or
shall from time to time become, parties thereto, and Canadian Imperial Bank of
Commerce, as agent for the Lenders. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
This agreement is delivered to you pursuant to Section 10.11.1 of the
Credit Agreement and also constitutes notice to each of you, pursuant to Section
10.11.1 of the Credit Agreement, of the assignment and delegation to (the
"Assignee") of % of the Loans and Commitments of (the "Assignor") outstanding
under the Credit Agreement on the date hereof. After giving effect to the
foregoing assignment and delegation, the Assignor's and the Assignee's Revolving
Percentages and Revolving Loan Commitment Amounts for the purposes of the Credit
Agreement are set forth opposite such Person's name on the signature pages
hereof.
[Add paragraph dealing with accrued interest and fees with respect to
Loans assigned.]
The Assignee hereby acknowledges and confirms that it has received a
copy of the Credit Agreement and the exhibits related thereto, together with
copies of the documents which were required to be delivered under the Credit
Agreement as a condition to the making of the Loans thereunder. The Assignee
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further confirms and agrees that in becoming a Lender and in making its
Commitments and Loans under the Credit Agreement, such actions have and will be
made without recourse to, or representation or warranty by Agent or Assignor,
including any representation or warranty relating to the legality, validity,
genuineness, enforceability, collectability, interest rate, repayment schedule
or accrual status of the assigned loans or the assigned commitments, the
legality, validity, genuineness or enforceability of the Credit Agreement, the
related Notes, or any other Loan Document referred to in or delivered pursuant
to the Credit Agreement, or financial condition or creditworthiness of the
Borrowers. The Assignee acknowledges that it has made its own independent
investigation and credit evaluation of the Borrowers in connection with its
purchase of the assigned loans and the assigned commitments.
Except as otherwise provided in the Credit Agreement, effective as of
the date of acceptance hereof by the Agent
(a) the Assignee
(i) shall be deemed automatically to have become a
party to the Credit Agreement, have all the rights and
obligations of a "Lender" under the Credit Agreement and the
other Loan Documents as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof; and
(ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement and the other Loan Documents
as if it were an original signatory thereto; and
(b) the Assignor shall be released from its obligations under
the Credit Agreement and the other Loan Documents to the extent
specified in the second paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Administrative Agent the processing fee referred to
in Section 10.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and Commitments and requests the
Agent to acknowledge receipt of this document:
(A) Address for Notices:
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Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Eurodollar Office:
Telephone:
Facsimile:
(B) Payment Instructions:
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
Adjusted Revolving Loan [ASSIGNOR]
Commitment Amount: $___________
Adjusted Revolving
Percentage: ____%
By:______________________
Title:
Revolving Loan Commitment [ASSIGNEE]
Amount: $________________
Revolving Percentage: ____%
By:_________________________
Title:
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Accepted and Acknowledged this
___ day of ________, 19__
Canadian Imperial Bank of Commerce,
as Agent
By:___________________________
Title:_____________________
Accepted and Acknowledged this
day of , 19
BOYD GAMING CORPORATION
By:___________________________
Title:_____________________
CALIFORNIA HOTEL AND CASINO
By:___________________________
Title:_____________________
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EXHIBIT I
Recording Requested By
And When Recorded Mail To:
Mayer, Brown & Platt
350 South Grand Avenue
Suite 2500
Los Angeles, California 90071
ATTN: Brian Newhouse
ASSIGNMENT OF WARRANTIES, PERSONAL PROPERTY LEASES,
MANAGEMENT AND SERVICE CONTRACTS, PERMITS AND APPROVALS
AND INSURANCE PROCEEDS
THIS ASSIGNMENT OF WARRANTIES, PERSONAL PROPERTY LEASES, MANAGEMENT AND
SERVICE CONTRACTS, PERMITS AND APPROVALS AND INSURANCE PROCEEDS is made as of
June 19, 1996, by and among MARE-BEAR, INC., a corporation duly organized and
validly existing under the laws of the State of Nevada and having its offices at
2950 South Industrial Road, Las Vegas, Nevada 89109 (herein, together with its
successors and assigns, called the "Owner"), and CANADIAN IMPERIAL BANK OF
COMMERCE (the "Collateral Agent"), as collateral agent for the commercial
lending institutions listed on Schedule 1 hereto, (the Collateral Agent and the
Lenders, are sometimes collectively called the "Beneficiaries").
Boyd Gaming Corporation and California Hotel and Casino, each a
corporation duly organized and validly existing under the laws of the State of
Nevada (herein, together with their respective successors and assigns,
collectively called "Borrower"), the Lenders and the Collateral Agent are
parties to that certain Credit Agreement dated as of June 19, 1996 (such Credit
Agreement, as it may be amended, modified or supplemented, from time to time,
being herein called the "Credit Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
COVENANTS AND AGREEMENTS OF OWNER
1. FOR VALUE RECEIVED, Owner hereby assigns, sells, transfers and sets
over and grants to Collateral Agent for the benefit of the Beneficiaries, a
security interest in, all of Owner's right, title and interest in, to and under
the following, to the extent assignable by Laws:
[Stardust Hotel and Casino]
160
(a) All warranties and guarantees (the "Warranties and
Guarantees"), whether now existing or hereafter arising, relating to that
certain hotel/casino and all other improvements (all such improvements,
collectively, the "Hotel/Casino") now or hereafter located on that certain real
property more particularly described in Exhibit A attached hereto (the
"Property");
(b) All leases, whether now existing or hereafter arising
(collectively, the "Personal Property Leases"), of any furniture, fixtures,
equipment, signs and other tangible personal property under which Owner is the
lessee and which personal property is installed in, affixed to, placed upon, or
used or useful in connection with the Property or the operation of the
Hotel/Casino and all replacements thereof, additions thereto and substitutions
therefor (but only to the extent permitted by (i) applicable gaming laws and
(ii) the terms of such leases) (collectively, the "Personal Property Leases");
(c) All property management, maintenance, repair or other
service contracts or leasing agreements relating to the Property and the
personal property described in clause (b) above, whether now existing or
hereafter arising (collectively, the "Contracts");
(d) All licenses and governmental approvals and permits of any
nature now or hereafter relating to the Property or the Hotel/Casino (excluding
any gaming, liquor and other licenses, approvals and permits which pursuant to
applicable Laws may not be assigned or encumbered) (collectively, the
"Permits");
(e) Except as otherwise provided in the Deed of Trust, all
proceeds (collectively, the "Insurance Proceeds") of all insurance policies
relating to the Hotel/Casino or the Property, including, without limitation,
fire and hazard insurance, comprehensive general liability insurance and all
insurance required under Sections 5.1.11 and 7.1.4 of the Credit Agreement among
Borrower and the Beneficiaries (collectively, the "Insurance Policies"); and
(f) All additions to, substitutions for and replacements of
the Warranties and Guarantees, Personal Property Leases, Contracts, Permits and
Insurance Proceeds, and all proceeds thereof. (For purposes of this Agreement,
the term "proceeds" includes whatever is received or receivable if any of the
foregoing is sold, transferred, exchanged or otherwise disposed of, whether such
disposition is voluntary or involuntary.)
The Warranties and Guarantees, Personal Property Leases, Contracts,
Permits, Insurance Proceeds, and all other items referred to in paragraphs (a)
through (f) above are referred to
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herein as the "Collateral." As of the date hereof, Personal Property Leases and
Contracts now entered into, issued or in effect are set forth on Schedules 2 and
3 respectively, attached hereto and incorporated herein by this reference,
except any Personal Property Leases or Contracts which (i) may be terminated by
either party thereto without significant penalty, (ii) have a term of less than
one year from the date hereof and involve less than $250,000 per year, or (iii)
involve less than $250,000 per year.
2. This Assignment secures payment and performance of Owner's
obligations under (i) that certain General Continuing Guaranty dated of even
date herewith, from Owner in favor of the Collateral Agent and the other
Beneficiaries (the "Guaranty"), (ii) that certain Deed of Trust, Assignment of
Rents and Leases, Security Agreement and Financing Statement (the "Deed of
Trust") of even date herewith by Owner, as trustor/grantor, for the benefit of
the Collateral Agent and the other Beneficiaries, as beneficiaries, which Deed
of Trust encumbers the Property, and (iii) all other documents, instruments and
agreements evidencing or securing Owner's obligations under the Guaranty and the
Borrower's Obligations under the Credit Agreement (collectively, the "Loan
Documents"), other than the Hazardous Materials Indemnity.
3. Owner acknowledges and agrees that Collateral Agent and the other
Beneficiaries have not hereby assumed any of Owner's obligations or duties with
respect to any of the Collateral.
4. Until there shall have been an Event of Default (as defined in the
Credit Agreement), Owner shall be authorized to exercise all rights and
privileges relating to the Collateral and to the Insurance Policies.
5. Upon request by Collateral Agent from time to time, Owner shall
execute and deliver to Collateral Agent any financing and continuation
statements with respect to the Collateral in order to perfect or continue the
perfection of Collateral Agent's security interests therein.
6. Owner hereby represents and warrants to Collateral Agent and the
other Beneficiaries that, except as otherwise provided in the Credit Agreement:
(a) no assignment or hypothecation of its rights under or with respect to any of
the Collateral is currently effective, and (b) to the best of Owner's knowledge,
Owner has provided Collateral Agent and the other Beneficiaries with true and
accurate copies of all of the Collateral and all of the Insurance Policies
existing as of the date hereof, including all amendments to date.
7. To protect the security of this Assignment, Owner agrees:
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(a) Not to assign, sell or transfer or pledge, mortgage or otherwise
encumber in any manner Owner's interest in and rights under and to any of the
Collateral as long as this Assignment remains in effect, without the prior
written consent of Collateral Agent.
(b) Faithfully to abide by, perform and discharge each and every
material obligation of Owner with respect to the Collateral and all of the
Insurance Policies.
(c) At Owner's sole cost and expense, to appear in and defend any
action or proceeding arising under or connected with any of the Collateral or
any of the Insurance Policies or Owner's obligations and duties hereunder and to
pay all reasonable costs and expenses of Collateral Agent and the other
Beneficiaries, including reasonable attorneys' fees and costs in any action or
proceeding in which Collateral Agent or any other Beneficiary may be required to
appear.
(d) Owner shall inform Collateral Agent, by prompt written notice, of
(i) any Warranties and Guarantees arising, any Personal Property Leases,
Contracts and Insurance Policies entered into, and any permits issued subsequent
to the date hereof (to the extent that such Warranties, Guarantees, Personal
Property Leases, Contracts, Insurance Policies and permits have terms of one
year or more, or otherwise have a material effect on the Collateral) and, at
Collateral Agent's request, promptly provide Collateral Agent and Lenders with a
copy thereof and (ii) the termination, expiration or revocation of same.
(e) The acceptance of this Assignment shall not constitute a
satisfaction of any indebtedness, liability or obligation, or any part thereof,
now or hereafter owed by Owner to Beneficiaries. Nothing in this Assignment
shall be deemed to obligate Collateral Agent or the other Beneficiaries to
undertake or perform any of the terms or conditions applicable to any Collateral
or any of the Insurance Policies, or to enforce compliance therewith, and
Collateral Agent or the other Beneficiaries may institute such legal action and
otherwise exercise any of their respective rights and powers under the Loan
Documents, or otherwise, in such manner as they may deem advisable at any time
they shall see fit to do so, and for any cause for which the same might have
been instituted or done had this Assignment not been made, and that no waiver of
any breach or default of Owner and no waiver of any right of Collateral Agent or
the other Beneficiaries hereunder shall be deemed to constitute a waiver of any
other or subsequent breach or default, or to prevent subsequent exercise of any
such right or any other similar right.
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8. Owner shall pay to Collateral Agent or the other Beneficiaries or
reimburse Collateral Agent or the other Beneficiaries for any cost or expense
reasonably incurred by any Beneficiary hereunder within five (5) days after
written demand for payment is given to Owner by such Beneficiary.
9. Upon any Event of Default, Collateral Agent shall have the right to
enforce Owner's rights with respect to any or all of the Collateral. Upon the
occurrence of any Event of Default, Collateral Agent may, without affecting any
of Collateral Agent's or any other Beneficiary's rights or remedies against
Owner under any other document, instrument or agreement evidencing or securing
any of the Secured Obligations, exercise Collateral Agent's rights under this
Assignment as Owner's attorney-in-fact or in any other manner permitted by law,
and in addition, Collateral Agent shall have and possess any and all right and
remedies of a secured party under the Nevada Uniform Commercial Code or as
otherwise provided by law (including the Laws of any jurisdiction where the
Collateral is located) and may also elect to cause the Collateral to be sold
pursuant to the power of sale provided in the Deed of Trust in accordance with
the terms and provisions thereof.
10. Owner hereby agrees to indemnify Collateral Agent and each other
Beneficiary against, and to hold Collateral Agent and each other Beneficiary
harmless from and against any and all claims, demands, liabilities, losses
lawsuits, judgments and costs and expenses (including, without limitation,
attorneys' fees and costs, including reasonably allocated costs of any
Beneficiary's in-house counsel) which Collateral Agent or any Beneficiary may
incur by reason of this Assignment in exercising any of Collateral Agent's or
any other Beneficiary's rights under this Assignment (except those resulting
from Collateral Agent's or such other Beneficiary's gross negligence or willful
misconduct). This indemnification shall survive termination of the Loan
Documents and repayment of the Obligations.
11. Upon the reconveyance of the Deed of Trust encumbering the
Property, this Assignment shall become null and void, and thereupon Collateral
Agent shall execute and deliver to Owner, at Owner's expense, any instruments
which may be reasonably necessary or appropriate to terminate this Assignment.
12. The terms, covenants, agreements and conditions contained herein
shall extend to, include and inure to the benefit of and be binding upon Owner,
Collateral Agent and the other Beneficiaries and their respective successors and
assigns, as the case may be, and not be terminated, changed or amended orally.
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13. This Assignment, with respect to the perfection of the lien or
security interest in the Property, and the rights and remedies of Collateral
Agent and the other Beneficiaries as provided herein, 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, or, as required by the Laws of the
jurisdiction where the Collateral is located.
14. All notices and other communications provided to any party hereto
under this Assignment shall be in writing or by facsimile and addressed,
delivered or transmitted to such party at its address or facsimile number set
forth below or at such other address or facsimile number as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage pre-paid, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted.
Owner: MARE-BEAR, INC.
2950 South Industrial Road
Las Vegas, Nevada 89109
Attn: Chief Financial Officer
Facsimile No.: (702) 792-7313
Collateral Agent: Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, NY 10017
Attn: Syndications
Facsimile No.: (212) 856-3763
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IN WITNESS WHEREOF, Owner has caused this Assignment to be executed as
of the day indicated below.
Dated: June 19, 1996.
OWNER:
MARE-BEAR, INC.,
a Nevada corporation
By: _____________________________
Its: __________________________
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EXHIBIT A
Description of the Property
That certain real property in the City of Las Vegas, County of Clark, State of
Nevada, more particularly described as:
PARCEL I:
That portion of Section 9, Township 21 South, Range 61 East, M.D.B. & M., Clark
County, Nevada, described as follows:
COMMENCING at the point of intersection of the South line of the North Half (N
1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said
Section 9 with the West line of U.S. Highway 91 (the original alignment - 80
feet wide); thence North 28(degrees)00'00" East along the said West line a
distance of 1044.78 feet to the true point of beginning; thence continuing North
28(degrees)00'00" East a distance of 200.00 feet to a point; thence North
62(degrees)00'00" West a distance of 1917.07 feet to a point on the East line of
Industrial Road; thence from a tangent whose bearing is South 20(degrees)07'49"
West turning right along a curve of said East line having a radius of 1385.12
feet and subtending a central angle of 8(degrees)18'57" an arc length of 201.04
feet to a point; thence South 62(degrees)00'00" East a distance of 1936.59 feet
to the true point of beginning.
PARCEL II:
That portion of the South Half (S 1/2) of Section 9 Township 21 South, Range 61
East, M.D.M., described as follows:
COMMENCING at the point of intersection of the South line of the North Half (N
1/2) of the Southeast Quarter (S 1/4) of the Southwest quarter (SW 1/4) of said
Section 9 with the West line of U.S. Highway No 91 (original alignment - 80.00
feet wide); thence North 28(degrees)00' East along the said West line a distance
of 1044.79 feet to a point; thence North 62(degrees)00' West a distance of 10.00
feet to a point on the West line of U.S. Highway No. 91 (present alignment
100.00 feet wide), the TRUE POINT OF BEGINNING;
thence continuing North 62(degrees)00' West along the Northeasterly line of that
certain parcel of land conveyed by JESSIE N. HUNT to J.M. SMOOT, by deed
recorded June 1, 1948 as Document No. 286466, Clark County, Nevada records, and
continuing along the Northeasterly line of that certain parcel of land conveyed
by JESSIE N. HUNT to VEGAS VALLEY DEVELOPMENT CO., LTD., by Deed recorded May
23, 1950 as Document No. 340375, Clark County, Nevada records, a total distance
of 2111.95 feet, more or less, to a point distant South 62(degrees)00' East,
125.00 feet from the East
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line of the L.A. & S.L. (Union Pacific) Railroad right-of-way, 100.00 feet wide;
thence South 28(degrees)00' West, a distance of 75.00 feet to a point; thence
North 62(degrees)00' West, a distance of 125.00 feet to a point on the East line
of said railroad right of way; thence South 28(degrees)00' West along the last
mentioned East line a distance of 525.00 feet to a point; thence South
62(degrees)00' East, a distance of 2236.95 feet, more or less, to a point on the
said present highway right-of-way line; thence North 28(degrees)00' East a
distance of 600.00 feet to the TRUE POINT OF BEGINNING.
EXCEPT the interest in a strip of land 80.00 feet in width, conveyed to the
County of Clark, State of Nevada, for street, road and incidental purposes, by
Deed recorded July 13, 1962 as Document No. 301171 of official Records, Clark
County, Nevada records.
FURTHER EXCEPTING the interest in and to a 10.00 foot strip for Industrial Road,
conveyed to Clark County, for road purposes, by Deed recorded July 9, 1973 as
Document No 303474, Official Records.
AND FURTHER EXCEPTING therefrom any portion thereof, lying West of Industrial
Road, as conveyed by various documents of record.
PARCEL III:
That portion of the Southwest Quarter (SW 1/4) of Section 9, Township 21 South
Range 61 East, M.D.M., described as follows:
COMMENCING at a point of intersection of the South line of the North Half (N
1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said
Section 9, with the West line of U.S. Highway 91 (original alignment 80 feet
wide); thence North 28(degrees)00'00" East along the said West line, a distance
of 44.78 feet; thence continuing North 28(degrees)00'00" East along the said
West line, a distance of 400.30 feet to a point of intersection of the
prolongation of the Northeasterly line of that certain parcel of land conveyed
to KARAT, INC., on April 7, 1959, by Contract of Sale, recorded in Book 193,
Document No. 157127 in the Office of the County Recorder, Clark County, Nevada,
with the Westerly 80.00 foot right-of-way line of U.S. Highway 91 (now 100.00
feet wide), as shown by map thereof on file in the Office of the County
Recorder, at Page 17, File 3 of Professional Engineering Survey, Clark County,
Nevada; thence North 62(degrees)00'00"
West, a distance of 286.00 feet along the aforedescribed prolongation line, to
the TRUE POINT OF BEGINNING;
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thence South 28(degrees)00'00" West, a distance of 70.00 feet; thence North
62(degrees)00'00" West a distance of 245.00 feet; thence North 28(degrees)00'00"
East, a distance of 70.00 feet; thence South 62(degrees)00'00" East a distance
of 245.00 feet to the TRUE POINT OF BEGINNING.
PARCEL IV:
That portion of the Southwest Quarter (SW 1/4) of Section 9, Township 21 South,
Range 61 East, M.D.M. described as follows:
COMMENCING at the point of intersection of the South line of the North Half (N
1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said
Section 9 with the West line of U.S. Highway No 91 (original alignment - 80.00
feet wide); thence North 28(degrees)00' East along the said West line, a
distance of 44.78 feet to the TRUE POINT OF BEGINNING; thence continuing North
28(degrees)00' East along the said West line, a distance of 400.00 feet to a
point; thence North 62(degrees)00' West a distance of 2247.07 feet more or less
to a point on the East line of the Los Angeles and Salt Lake (Union Pacific)
Railroad right-of-way, 100.00 feet wide;
thence South 27(degrees)59'02" West along the last mentioned East line, a
distance of 840.44 feet, more or less, to a point on the North line of the
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) of said Section 9;
thence South 88(degrees)36'05" East, along the last mentioned North line a
distance of 1195.46 feet to the Northeast (NE) corner of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of said Section 9; thence North
28(degrees)00' East, a distance of 83.45 feet to a point; thence South
0(degrees)38 36" East, a distance of 689.00 feet to a point;
thence South 88(degrees)42'30" East parallel to and distant 40.00 feet North of
the South line of the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of
the Southwest Quarter (SW 1/4) of said Section 9, a distance of 948.84 feet to
the TRUE POINT OF BEGINNING.
EXCEPTING therefrom the interest in and to the Easterly 10.00 feet (measured at
right angles to the aforementioned highway right-of-way line) of the hereinabove
described parcel of land, as conveyed to the State of Nevada, for highway and
incidental purposes by Deed recorded March 15, 1951 as Document No. 365997,
Clark County, Nevada records.
FURTHER EXCEPTING THEREFROM the interest in and to the strip of land 80.00 feet
in width as conveyed to the County of Clark, for road and incidental purposes by
Deed recorded as Document No. 87732 of Official Records, Clark County, Nevada
records. The centerline of said strip of land being parallel to and distance
250.00 feet (measured at a right angle) from the East line of the
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Los Angeles and Salt Lake (Union Pacific) Railroad right-of-way, 100.00 feet
wide.
AND FURTHER EXCEPTING THEREFROM the interest in and to a strip of land 10.00
feet in width, as conveyed to County of Clark, for road and incidental purposes,
by Deed recorded June 28, 1967 as Document No. 647079 of Official Records, Clark
County, Nevada records.
ALSO EXCEPTING THEREFROM any portion thereof lying West of Industrial Road as
conveyed by various documents of record.
AND FURTHER EXCEPTING FROM PARCEL IV
That portion of the Southwest Quarter (SW 1/4) of Section 9, Township 21 South,
Range 61 East, M.D.M., described as follows:
COMMENCING at the point of intersection of the South line of the North Half (N
1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said
Section 9, with the West line of U.S. Highway 91 (original alignment - 80.00
feet wide); thence North 28(degrees)00'00" East along the said West line, a
distance of 44.78 feet; thence continuing North 28(degrees)00'00" East along the
said West line a distance of 400.30 feet to a point of intersection of the
prolongation of the Northeasterly line of that certain parcel of land conveyed
to KARAT, INC., on April 7, 1959, by Contract of Sale recorded in Book 193,
Document No. 157127, in the Office of the County Recorder, Clark County, Nevada,
with the Westerly 80.00 feet right-of-way line of U.S. Highway 91, (now 100.00
feet wide), as shown by map thereof on file in the Office of the County
Recorder, at Page 17, File 3 of Professional Engineering Survey, Clark County,
Nevada; thence North 62(degrees)00'00" West a distance of 286.00 feet along the
aforedescribed prolongated line, to the TRUE POINT OF BEGINNING;
Thence South 28(degrees)00'00" West, a distance of 70.00 feet; thence North
62(degrees)00'00" West, a distance of 245.00 feet; thence North
28(degrees)00'00" East, a distance of 70.00 feet; thence South 62(degrees)00'00"
East a distance of 245.00 feet to the TRUE POINT OF BEGINNING.
PARCEL V:
That portion of the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of the
Southwest Quarter (SW 1/4) of Section 9, Township 21 South, Range 61 East,
M.D.M., described as follows:
COMMENCING at the intersection of the North line of the South Half (S 1/2) of
the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said Section
9, with the West line of U.S. Highway No. 91, being 730.89 feet more or less
North of the South line of said Section 9, measured along the West line of said
U.S.
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Highway No. 91; thence continuing North 28(degrees)00' East along the West line
of U.S. Highway No. 91, a distance of 22.39 feet to the TRUE POINT OF BEGINNING;
being the Northeast corner of the Parcel of land conveyed to JESSIE K. HUNT, a
widow, to COUNTY OF CLARK for road purposes by Deed recorded May 17, 1945 in
Book 38 of Deeds, Page 321, Clark County, Nevada records; thence North
88(degrees)43'15" West parallel with and distant 20 feet Northerly, measured at
right angles to said North line of the South Half (S 1/2) of the Southeast
Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said Section 9, along the
North line of the parcel of land as conveyed to said County of Clark, to an
intersection with the West line of the North Half (N 1/2) of the Southeast
Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said Section 9; thence
North along the West line of the North Half (N 1/2) of the Southeast Quarter (SE
1/4) of the Southwest Quarter (SW 1/4) of said Section 9, a distance of 20 feet
to a point; thence South 88(degrees)43'15" East parallel with and distant 40
feet Northerly, measured at right angles to said North line of the South Half (S
1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said
Section 9 to an intersection with the West line of said U.S. Highway No. 91;
thence South 28(degrees)00' West along the West line of U.S. Highway No. 91; a
distance of 22.39 feet to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM the interest in and to a strip of land Ten (10.0) feet in
width with a spandrel area as conveyed by the County of Clark for road and
incidental purposes by deed recorded November 19, 1986 in Book 861119, as
Document No. 00555, of Official Records.
PARCEL VI:
That portion of the Southwest Quarter (SW 1/4) of Section 9, Township 21 South,
Range 61 East, M.D.B. & M., described as follows:
COMMENCING at the Southwest corner of the North Half (N 1/2) of the Southeast
Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of said Section 9; thence
North 0(degrees)38'36" West along the West line thereof a distance of 40.02 feet
to the TRUE POINT OF BEGINNING, thence continuing North 0(degrees)38'36" West
along the said West line a distance of 614.42 feet to the Northwest corner of
the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4) of said Section 9; thence North 28(degrees)00'00" East a
distance of 83.45 feet to a point thence South 0(degrees)38'36" East parallel to
the said West line and distant 40 feet therefrom a distance of 689.00 feet to a
point; thence North 88(degrees)42'30" West parallel to and distant 40 feet North
of the South line of the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of
the Southwest Quarter (SW 1/4) of said Section 9, a distance of 40.02 feet to
the TRUE POINT OF BEGINNING.
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SCHEDULE 1
Lenders
1. CIBC Inc.
2. Bank of America NT&SA
3. Wells Fargo Bank, National Association
4. Bankers Trust Company
5. Credit Lyonnais Los Angeles Branch
6. Societe Generale
7. ABN AMRO Bank N.V., San Francisco International Branch
8. The Mitsubishi Trust & Banking Corporation
9. The Sanwa Bank, Limited
10. Commerzbank AG, LOS ANGELES BRANCH
11. First Security Bank of Utah, N.A.
12. The Sumitomo Bank, Ltd.
13. The First National Bank of Boston
14. Bank of Hawaii
15. The Bank of New York
16. Banque Nationale De Paris
17. The Industrial Bank of Japan, Limited, Los Angeles Agency
18. NBD Bank
19. The Nippon Credit Bank, Ltd., Los Angeles Agency
20. U.S. Bank of Nevada
21. Whitney National Bank
22. Bank of America Nevada
23. Deposit Guaranty National Bank
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24. First Hawaiian Bank
25. GiroCredit Bank, Ag Der Sparkassen, Grand Cayman Islands Branch
26. Imperial Bank
27. Trustmark National Bank
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SCHEDULE 2 - PERSONAL PROPERTY LEASES
STARDUST HOTEL AND CASINO
A. All Leases of Furniture, Fixtures and Equipment, Signs and Other
Tangible Personal Property Affecting the Stardust as of June 19, 1996.
1. Comchek agreement regarding credit card transactions and money
order transactions - 3/14/89
2. Electronic Data Technology (EDT) contract to lease Keno
equipment - 5/25/87
3. Elsafe of Nevada contract for safes in guest rooms - 12/2/85
4. International Game Technology (IGT) Megabucks Progressive
Participation Agreement - 10/31/85
5. Interstate Public Telephone Co. agreement for public pay
telephones - 11/14/88
6. Lamb and One lease agreement - 11/21/89
7. Las Vegas Dissemination, Inc. agreement - 6/22/89
8. Western Union agreement-regarding credit card transactions and
money order transactions - 3/4/90
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ATTACHMENT A TO SCHEDULE 2
A. Space Leases Affecting Stardust Hotel as of June 19, 1996
TENANT NAME DATE OF
SHOP NAME UNDER LEASE LEASE
--------- ----------- -----
1. The Candy Store Etc. Etc. Bite, Inc. 7/19/77
(ice cream and candy Assigned to Cookie Chef 7/9/84
store)
2. Car Rental *National Car Rental 8/1/88
3. Dio's Bar N/A (Stardust Entity)
4. Ethel M. Chocolates Ethel M. Chocolates, Inc. 8/31/87
5. Gifts/News W.H. Smith Hotel Services, 2/1/86
Inc. (formerly "Elsons")
6. Marshall Rousse Marstar, Inc. dba Marshall 6/19/87
(women's clothing) Rousse
7. Men's Shop Monte Factor Stardust Men's Shop, Inc. 6/30/83
8. The Pewter Shop The Pewter Shop 6/10/83
9. The Pizzery Alice Dobson Sachs 1/10/80
3/18/80
10. Ralph's Diner N/A (Stardust Entity)
11. Special T's (T-Shirts) Special T's, Inc. 6/19/87
12. Stardust Barber Shop Johnny J. Trujillo 8/1/85
13. Stardust Barber Shop Annee of Paris Coiffures, 10/1/81
Inc.
14. Stardust kids (clothing Las Vegas Kids, Inc. dba 10/20/87
store for children) Stardust Kids
15. Stardust Liquor Sidney Stern 11/1/83
16. T-Bird Jewels (Jewelry Nevada Diamond Exchange 10/26/87
store) dba T-Bird Jewelers
17. Tony Roma's (rib R&B Service Company, Inc. 3/29/82
restaurant)
18. Video Arcade N/A (Stardust Entity)
19. William B's Steak House N/A (Stardust Entity)
- -------- * This lease covers the Stardust, Fremont, Sam's Town Hotels and
California Hotel and Casino
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B. Other Contracts Affecting the Stardust Hotel as of June 19, 1996.
1. Armor Pest Control service agreement - 4/27/89
2. First Choice Printing contract to purchase parlay cards
8/20/88
3. Gemaco contract to purchase playing cards - 5/5/88
4. Loomis Armored, Inc. agreement - 12/3/87
5. Mission Linen contract for linen/uniforms - 4/12/88
6. National Car Rental concession agreement - 1/l/90
7. Pagent Match agreement to purchase matches - 11/15/88
8. Universal Match Co. agreement to purchase matches - 7/l/89
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SCHEDULE 3 - CONTRACTS
STARDUST HOTEL AND CASINO
A. Service Contracts Affecting the Stardust Hotel as of June 19, 1996.
1. A-1 Office Supply maintenance agreements - 3/30/89, 11/23/89, and
6/9/90
2. American Fire Safety Co. maintenance agreement - 8/l/89
3. C&P Services maintenance agreement - varies
4. Carrier Corporation maintenance agreement - 9/l/87
5. Centel Communications Company Maintenance Agreement - 9/l/89
6. Commercial Fire maintenance agreement - 8/15/89
7. Computer Power Products maintenance agreement - 9/12/89
8. Dictaphone Corp. maintenance agreements - 11/l/89
9. Electronic Data Technology (EDT) agreement - 9/30/88
10. Microage maintenance contract - 3/16/90
11. Millar Elevator maintenance contract - 1/l/90
12. Nevada Copy Systems Sharp copier and fax machine maintenance agreements
(2) - 2/22/89 and 3/l/90
13. Page 900 maintenance agreement - varies
14. Sign Systems, Inc. maintenance agreement - 1/l/89
15. Statewide Fire Protection service agreements - 1/l/89
16. Statewide Fire Protection service agreements - 8/15/89
17. Statewide Fire Protection service agreements - 8/15/89
18. Xerox Corp. maintenance agreement on copier dated 6/l/88 and ending
6/l/90
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EXHIBIT J
OFFICER'S CERTIFICATE
REGARDING FINANCIAL MATTERS
In connection with execution and delivery of that certain Credit
Agreement dated as of June 19, 1996 ("Credit Agreement"), among BOYD GAMING
CORPORATION, CALIFORNIA HOTEL AND CASINO, each a Nevada corporation (the
"Borrowers"); CANADIAN IMPERIAL BANK OF COMMERCE, as agent ("Agent"), and the
financial institutions signatory thereto ("Lenders"), and each of the other
documents entered into in connection therewith (collectively, the "Loan
Documents"), and pursuant to Section 5.1.13 of the Credit Agreement, the
undersigned hereby certifies to the Agent and Lenders as follows:
1. I am the duly qualified and acting senior vice president of
Borrowers and their respective wholly-owned subsidiaries Eldorado, Inc., Boyd
Kansas City, Inc., Boyd Kenner, Inc., Boyd Mississippi, Inc., Boyd Tunica, Inc.,
Mare-Bear, Inc., MSW, Inc., and Sam-Will, Inc. (the "Guarantors"), I am familiar
with the assets, businesses, and liabilities of the Borrowers and their
Subsidiaries, and I am duly authorized to execute this Officer's Certificate
Regarding Financial Matters (this "Certificate") on behalf of Borrowers and the
Guarantors. Any and all capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Credit Agreement.
2. I have carefully reviewed the contents of this Certificate and I
have met with Morrison & Foerster, counsel for Borrowers and Guarantors, for the
purpose of discussing the meaning of its contents. I have carefully reviewed, or
have received information, data, and reports from officers or other employees of
Borrowers and their Subsidiaries who have carefully reviewed the Loan Documents
and the contents of this Certificate and, in connection therewith, have made
such investigation and inquiries as I deem necessary and prudent. The financial
information, assumptions, and valuation techniques, including present value
analyses using appropriate rates over appropriate periods, which underlie and
form the basis for the representations made in this Certificate were reasonable
when made and were made in good faith and continue to be reasonable as of the
date hereof.
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3. I understand that Agent and Lenders are relying on the truth and
accuracy of this Certificate in connection with extensions of credit under the
Credit Agreement.
4. In connection with the transactions contemplated by the Credit
Agreement and the other Loan Documents, I have reviewed consolidated income
projections, consolidated balance sheet projections, and consolidated cash flow
projections for Borrowers and the Guarantors (collectively, the "Projections")
for the five-year period ending June 30, 2001, which give effect to all of the
transactions contemplated by the Credit Agreement and the other Loan Documents,
and the payment of all fees and expenses in connection with the foregoing. The
Projections are attached hereto as Exhibit A and incorporated herein by this
reference.
5. The Projections were prepared based on information compiled by
employees and corporate staff members of Borrowers and include certain
assumptions regarding increasing revenues and costs and changes in the economy,
which I have no reason to believe are not reasonable and prudent. In addition,
the Projections were prepared based on information regarding Borrowers'
anticipated performance as provided by personnel of Borrowers and based on
discussions with personnel of Borrowers. Based thereon, and to the best of my
knowledge, the Projections are reasonable and prudent. The Projections are,
however, subject to the uncertainty and approximation inherent in projections,
and accordingly, they are not guarantees of the Borrowers' future performance.
6. I have reviewed the following financial statements which have been
prepared in accordance with GAAP:
(a) 1995 annual report for Boyd Gaming Corporation.
(b) March 31, 1996 quarterly report for Boyd Gaming
Corporation.
(c) Year-to-date income statements for the nine months
ended March 31, 1996 for Boyd Gaming Corporation and
its Subsidiaries (consolidated); Stardust Hotel and
Casino in Las Vegas, Nevada; Sam's Town Hotel,
Gambling Hall and Bowling Center in Las Vegas,
Nevada; and Fremont Hotel and Casino in Las Vegas,
Nevada, California Hotel and Casino in Las Vegas,
Nevada, Sam's Town Hotel and Gambling Hall in Tunica,
Mississippi and Sam's Town Kansas City in Kansas
City, Missouri.
(d) 1991, 1992, 1993, 1994 and 1995 consolidated income
statements for the Boyd Gaming Corporation and its
Subsidiaries.
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7. Based on the foregoing, and to the best of my knowledge, I conclude
as follows:
(a) Neither either Borrower nor any Guarantor is insolvent and
the execution and delivery of the Credit Agreement and the other Loan Documents,
and the consummation of the transactions contemplated under the foregoing,
including the granting by Borrowers and Guarantors of the Liens as contemplated
thereunder, or the payment by Borrowers of any fees incurred in connection with
the consummation of the transactions contemplated under any of the foregoing,
will not render either Borrower or any Guarantor insolvent. I understand that,
in this context, "insolvent" means that the present fair valuation of the assets
and properties of a Person is less than such Person's probable liability in
respect of existing debts. I understand that the "fair valuation" of the assets
and properties of a Person means the amount realizable within a reasonable time,
either through collection or sale of such assets at their regular market value,
which is the amount obtainable by a capable and diligent businessman from an
interested buyer willing to purchase such assets within a reasonable time under
ordinary selling conditions. I also understand that the term "debts" includes
and legal liability, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed, or contingent.
(b) The execution and delivery of the Credit Agreement and the
other Loan Documents, the consummation of the transactions contemplated
thereunder, including the granting by Borrowers and Guarantors of the Liens
contemplated thereunder, and the payment by Borrowers of any fees incurred in
connection with the consummation of the transactions contemplated under any of
the foregoing, will not leave either Borrower or any Guarantor with assets
remaining which would constitute unreasonably small capital or assets. In
reaching this conclusion, I understand that "unreasonably small capital or
assets" depends upon the nature of the particular business to be conducted, and
I have reached my conclusion in light of the needs and anticipated needs for
capital and assets of the business anticipated to be conducted by Borrowers and
Guarantors and based upon the Projections and other information described above.
(c) Borrowers do not intend to and do not believe that either
of them will, in connection with the execution and delivery of the Credit
Agreement and the other Loan Documents and the consummation of the transactions
contemplated thereunder, including the granting by Borrowers and Guarantors of
the Liens contemplated thereunder, and the payment of any fees in connection
with the consummation of the transactions contemplated under any of the
foregoing, incur debts beyond their respective ability to pay such debts as they
mature. This conclusion is based, in part, upon my review of the Projections
which project
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that Borrowers and Guarantors will have sufficient cash flow to pay all of their
scheduled and anticipated debts as they mature. I have concluded that Borrowers'
and Guarantors' cash flows will be sufficient to pay recurring current debt,
short term debt, and long term debt service as such debts require.
(d) Neither either Borrower nor any Guarantor has executed the
Credit Agreement or the other Loan Documents, or made any transfer or incurred
any obligations under any of the foregoing, with actual intent to hinder, delay,
or defraud either present or future creditors.
8. In reaching the conclusions set forth in this Certificate, I have
considered, among other things:
(a) the financial statements described in paragraph 6 above;
(b) all contingent liabilities of Borrowers and the
Guarantors, including claims arising out of, pending, or, to the best knowledge
of the undersigned, threatened, litigation against any such entity, and in so
doing, the undersigned has computed the amount of such liabilities as the amount
which, in light of all of the facts and circumstances existing on the date
hereof, represents the amount that can reasonably be expected to become an
actual or matured liability;
(c) the Projections;
(d) historical and anticipated growth in revenue of Borrowers
and the Guarantors;
(e) the customary terms of trade payables of Borrowers and the
Guarantors;
(f) the amount of credit extended by and to customers of
Borrowers and the Guarantors; and
(g) the level of capital customarily maintained by Borrowers
and the Guarantors and other entities engaged in the same or similar businesses
as the businesses of Borrowers and the Guarantors.
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I hereby certify that the foregoing information is true and correct and
execute this Officer's Certificate Regarding Financial Matters as of this 19th
day of June, 1996.
-----------------------------
Title: Senior Vice President
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EXHIBIT L
Form of Certificate of the
Borrowers of Compliance with the
Provisions of Section 7.2
Schedule of Compliance with the
Credit Agreement
dated as of June 19, 1996
as of _____________, 19__
The undersigned, _____________________________ of Boyd Gaming
Corporation and California Hotel and Casino (the "Borrowers"), pursuant to
Section 7.1.1(c) and (d) of the Credit Agreement, dated as of June 19, 1996 (the
"Credit Agreement"), among the Borrowers, Canadian Imperial Bank of Commerce, as
Agent, and the various financial institutions as are, or may become, parties
thereto, hereby certifies that as of the date hereof (defined terms in the
Credit Agreement being used herein with the same meanings as in the Credit
Agreement), the following computations were true and correct:
I. Calculation of EBITDA for four consecutive Fiscal Quarters
ending on the date set forth above:
a. Consolidated earnings of Boyd Gaming $___________
before: depreciation $___________
amortization $___________
interest expense $___________
pre-opening expenses $___________
extraordinary items $___________
taxes $___________
plus (if applicable without duplication)
b. Earnings of any New Venture which became a
direct or indirect Subsidiary of Boyd Gaming
during such period: $___________
before depreciation $___________
amortization $___________
interest expense $___________
pre-opening expenses $___________
extraordinary items $___________
taxes $___________
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plus (or minus)
c. any non-cash loss (or gain arising from
change in GAAP $___________
EBITDA $___________
II. Additional Indebtedness Test, Section 7.2.2
a. Aggregate notional principal amount of secured Hedging
Obligations under (iii):
[description]
Aggregate notional principal amount of such secured Hedging
Obligations shall not exceed $300,000,000.
b. Indebtedness outstanding under (v):
[description]
Total Indebtedness described above shall not exceed
$50,000,000.
III. Tangible Net Worth Test, Section 7.2.4(a)
a. Actual Tangible Net Worth
(i) consolidated net worth $___________
less (ii) intangible assets $___________
TOTAL $___________
b. Required Tangible Net Worth
(i) $210,000,000 $210,000,000
____________
plus (ii) 50% of Consolidated net income
(without giving effect to any losses)
for each Fiscal Quarter ending on or
after September 30, 1996 $___________
plus (iii) Amount of increased equity due
to stock issuances $___________
minus (iv) Amount of goodwill from proposed
Acquisition (not to exceed
$130,000,000) $___________
TOTAL $___________
c. Actual Tangible Net Worth shown
in (a) above must exceed (b) $___________
IV. Funded Debt to EBITDA Ratio, Section 7.2.4(b)
a. Funded Debt of Boyd Gaming and its Subsidiaries
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(i) obligations for borrowed money $
plus (ii) letter of credit and bankers
acceptances $
plus (iii) capitalized lease obligations $
plus (iv) deferred purchase price
indebtedness and secured
indebtedness $___________
plus (v) contingent liabilities $___________
TOTAL $___________
b. Twelve month trailing
EBITDA (from Section I above) $___________
c. Ratio of line (a) to line (b) ____ to ____
d. The ratio on line (c) must not exceed ____ to ____
V. Fixed Charge Coverage Test, Section 7.2.4(c)
a. Twelve-month trailing EBITDA (from
Section I above)
plus rental payments ($___________)
b. Fixed charges
(i) Twelve-month consolidated net
interest expense $___________
plus (ii) mandatory principal payments (other
than payment of Indebtedness pursuant
to Section 5.1.16 and mandatory
prepayments of Loans upon Commitment
reductions) $___________
plus (iii) provision for tax payments $___________
plus (iv) dividends and distributions $___________
plus (v) share redemptions and repurchases $___________
plus (vi) rental payments $___________
c. Ratio of line (a) to line (b) ____ to ____
d. The ratio on line (c) at the end of any
Fiscal Quarter must exceed ____ to ____
VI. Expansion Capital Expenditures, Section 7.2.7 (a)
a. Aggregate Expansion Capital Expenditures
during term of Agreement $___________
[List Expenditures by Venture]
b. Line (a) must not exceed $300,000,000
plus net cash proceeds from the issuance
or sale of Boyd Gaming capital
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stock ($__________) $___________
VII. Maintenance Capital Expenditures, Section 7.2.7(b)
a. Aggregate Maintenance Capital Expenditures
for current Fiscal Year $___________
b. Line (a) must not exceed $__,000,000.
VIII. New Venture Investments, Section 7.2.5
a. Aggregate New Venture Investments during
term of Agreement $___________
[List Investments by New Venture]
IX. Pledgor EBITDA (Fiscal Year test)
a. Consolidated earnings of all Pledgors
attributable to the Pledged Casinos $___________
before: depreciation $___________
amortization $___________
interest expense $___________
pre-opening expenses $___________
extraordinary items $___________
taxes $___________
plus
b. Consolidated earnings of any Venture that
becomes a Pledged Casino pursuant to
Section 7.1.11 $___________
before: depreciation $___________
amortization $___________
interest expense $___________
pre-opening expenses $___________
extraordinary items $___________
taxes $___________
plus (or minus)
c. Any non-cash loss (or gain) arising from
a change in GAAP $___________
Pledgor EBITDA $___________
I hereby further certify that no event has occurred or is continuing on the date
hereof which constitutes an Event of Default or a Default.
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IN WITNESS WHEREOF, I have hereunto set my hand as of the date first
above written.
BOYD GAMING CORPORATION
By_______________________________
Its:
CALIFORNIA HOTEL AND CASINO
By_______________________________
Its:
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EXHIBIT M
NOTICE OF PREPAYMENT
Canadian Imperial Bank of Commerce, as Agent
425 Lexington Avenue
New York, New York 10017
Attention: Loan Syndication
Re: Credit Agreement, dated as of June 19, 1996
Gentlemen and Ladies:
This notice of prepayment is delivered to you pursuant to Section 3.1.1
of the Credit Agreement, dated as of June 19, 1996 (together with all
amendments, if any, from time to time made thereto, the "Credit Agreement"),
among BOYD GAMING CORPORATION and CALIFORNIA HOTEL AND CASINO, a Nevada
corporation (the "Borrowers"), certain financial institutions, and Canadian
Imperial Bank of Commerce, as agent. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
1. We hereby notify you that a [voluntary] [mandatory] prepayment of
principal on the Revolving Notes in the amount of $________ will be made on
_____ __, _____.(2) This prepayment shall be applied to the [Base Rate]
[Eurodollar Rate] Loans maturing on _________________________, 19 .
2. As of the date hereof, the aggregate unpaid principal balance of the
Revolving Notes is $____________.
Very truly yours,
BOYD GAMING CORPORATION
By:__________________________
Title:____________________
- --------
(2) Five Business Days' notice required for voluntary prepayments.
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CALIFORNIA HOTEL AND CASINO
By:__________________________
Title:____________________
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EXHIBIT N
Joint Borrower Provisions.
1. For the purpose of implementing the joint borrower provisions of the
Loan Documents, the Borrowers hereby irrevocably appoint each other as their
agent and attorney-in-fact for all purposes of the Loan Documents, including the
giving and receiving of notices and other communications.
2. To induce the Agent and the Lenders to permit the Borrowers to be
joint Borrowers under this Agreement, and in consideration thereof, the
Borrowers hereby agree to indemnify the Agent and the Lenders and hold the Agent
and the Lenders harmless from and against any and all liabilities, expenses,
losses, damages and/or claims of damage or injury asserted against the Agent or
any Lender by the Borrowers or by any other Person arising from or incurred by
reason of the Agent's or any Lender's handling of the financing arrangement of
the Borrowers as herein provided and reliance by the Agent and the Lenders on
any requests or instructions from the Borrowers, or any other action taken by
the Agent or any Lender in good faith with respect to this Agreement or the
other Loan Documents.
3. Each Borrower acknowledges that the Liens created or granted herein
and by the other Loan Documents will or may secure obligations of Persons other
than such Borrower and, in full recognition of that fact, the Borrowers consent
and agree that the Agent for the benefit of the Lenders may, at any time and
from time to time, without notice or demand, and without affecting the
enforceability or security hereof or of any other Loan Document:
(a) supplement, modify, amend, extend, renew, accelerate, or
otherwise change the time for payment or the terms of the Obligations
or any part thereof, including any increase or decrease of the rate(s)
of interest thereon;
(b) supplement, modify, amend or waive, or enter into or give
any agreement, approval or consent with respect to, the Obligations or
any part thereof or any of the Loan Documents or any additional
security or guaranties, or any condition, covenant, default, remedy,
right, representation or term thereof or thereunder;
(c) accept new or additional instruments, documents or
agreements in exchange for or relative to any of the Loan
Documents or the Obligations or any part thereof;
(d) accept partial payments on the Obligations;
190
(e) receive and hold additional security or guaranties for the
Obligations or any part thereof;
(f) release, reconvey, terminate, waive, abandon, subordinate,
exchange, substitute, transfer and enforce any security or guaranties,
and apply any security and direct the order or manner of sale thereof
as the Agent, on behalf of the Lenders, in its sole and absolute
discretion may determine;
(g) release any Person or any guarantor from any personal
liability with respect to the Obligations or any part thereof;
(h) settle, release on terms satisfactory to the Agent and the
Lenders or by operation of applicable Laws or otherwise liquidate or
enforce any Obligations and any security or guaranty therefor in any
manner, or consent to the transfer of any security and bid and purchase
at any sale; and
(i) consent to the merger, change or any other restructuring
or termination of the corporate existence of any Borrower or any other
Person, and correspondingly restructure the Obligations, and any such
merger, change restructuring or termination shall not affect the
liability of the Borrowers or the continuing existence of any Lien
hereunder, under any other Loan Document to which a Borrower is a party
or the enforceability hereof or thereof with respect to all or any part
of the Obligations.
Upon the occurrence of and during the continuance of any Event of
Default, the Agent and the Lenders may enforce this Agreement and the other Loan
Documents independently as to each Borrower and independently of any other
remedy or security the Agent and the Lenders at any time may have or hold in
connection with the Obligations, and it shall not be necessary for the Agent and
the Lenders to marshal assets in favor of any of the Borrowers or any other
Person or to proceed upon or against and/or exhaust any other security or remedy
before proceeding to enforce this Agreement and the other Loan Documents. Each
of the Borrowers expressly waives any right to require the Agent or any Lender
to marshal assets in favor of any Borrower or any other Person or to proceed
against any other Person or any Collateral provided by any other Person, and
agrees that the Agent and the Lenders may proceed against any Persons and/or
Collateral in such order as they shall determine in their sole and absolute
discretion. The Agent and the Lenders may file a separate action or actions
against any Borrower, whether action is brought or prosecuted with respect to
any other security or against any other Person, or whether any other Person is
joined in any such
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action or actions. Each of the Borrowers agrees that the Agent and the Lenders
and each of the Borrowers and any other Person may deal with each other in
connection with the Obligations or otherwise, or alter any contracts or
agreements now or hereafter existing between any of them, in any manner
whatsoever, all without in any way altering or affecting the security of this
Agreement or the other Loan Documents. The rights of the Agent and the Lenders
hereunder and under the other Loan Documents shall be reinstated and revived,
and the enforceability of this Agreement and the other Loan Documents shall
continue, with respect to any amount at any time paid on account of the
Obligations which thereafter shall be required to be restored or returned by the
Agent or any Lender upon the bankruptcy, insolvency or reorganization of any
Borrower or any other Person, or otherwise, all as though such amount had not
been paid. The enforceability of this Agreement and the other Loan Documents at
all times shall remain effective even though the Obligations, including any part
thereof or any other security or guaranty therefor, may be or hereafter may
become invalid or otherwise unenforceable as against any of the Borrowers or any
other Person and whether or not any of the Borrowers or any other Person shall
have any personal liability with respect thereto. Each of the Borrowers
expressly waives any and all defenses now or hereafter arising or asserted by
reason of (a) any disability or other defense of the other Borrower or any other
Person with respect to the Obligations, (b) the unenforceability or invalidity
of any security or guaranty for the Obligations or the lack of perfection or
continuing perfection or failure of priority of any security for the
Obligations, (c) the cessation for any cause whatsoever of the liability of any
other Borrower or any other Person (other than by reason of the full payment and
performance of all Obligations), (d) any failure of the Agent or any Lender to
marshal assets in favor of any of the Borrowers or any other Person, (e) except
as otherwise provided in any Loan Document, any failure of the Agent or any
Lender to give notice of sale or other disposition of Collateral to any of the
other Borrowers or any other Person or any defect in any notice that may be
given in connection with any sale or disposition of Collateral, (f) except as
otherwise provided in any Loan Document, any failure of the Agent or any Lender
to comply with applicable Laws in connection with the sale or other disposition
of any Collateral or other security for any Obligation, including without
limitation, any failure of Agent or any Lender to conduct a commercially
reasonable sale or other disposition of any Collateral or other security for any
Obligation, (g) any act or omission of the Agent or any Lender or others that
directly or indirectly results in or aids the discharge or release of any
Borrower or any other Person or the Obligations or any other security or
guaranty therefor by operation of law or otherwise, (h) any Law which provides
that the obligation of a surety or guarantor must neither be larger in amount
nor in other respects more burdensome than that of the
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principal or which reduces a surety's or guarantor's obligation in proportion to
the principal obligation, (i) any failure of the Agent or any Lender to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person, (j) the election by the Agent or any Lender, in any bankruptcy
proceeding of any Person, of the application or non-application of Section
1111(b)(2) of the United States Bankruptcy Code, (k) any extension of credit or
the grant of any Lien under Section 364 of the United States Bankruptcy Code,
(l) any use of cash collateral under Section 363 of the United States Bankruptcy
Code, (m) any agreement or stipulation with respect to the provision of adequate
protection in any bankruptcy proceeding of any Person, (n) the avoidance of any
Lien in favor of the Agent or the Lenders for any reason, (o) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of the Obligations
(or any interest thereon) in or as a result of any such proceeding, or (p) to
the extent permitted in paragraph 40.495(4) of the Nevada Revised Statutes
("NRS"), the benefits of the one-action rule under NRS Section 40.430.
4. Each of the Borrowers represents and warrants to the Agent and the
Lenders that such Borrower has established adequate means of obtaining from the
other Borrower, on a continuing basis, financial and other information
pertaining to the businesses, operations and condition (financial and otherwise)
of the other Borrower and its properties, and each of the Borrowers now is and
hereafter will be completely familiar with the businesses, operations and
condition (financial and otherwise) of the other Borrower and its respective
properties. Each of the Borrowers hereby expressly waives and relinquishes any
duty on the part of the Agent and the Lenders to disclose to such Borrower any
matter, fact or thing related to the businesses, operations or condition
(financial or otherwise) of any other Borrower or such other Borrower's
Properties, whether now known or hereafter known by the Agent and the Lenders
during the life of this Agreement. With respect to any of the Obligations, the
Agent and the Lenders need not inquire into the powers of any of the Borrowers
or the officers or employees acting or purporting to act on its behalf.
5. In the event that all or any part of the Obligations at any time are
secured by any one or more deeds of trust or mortgages creating or granting
Liens on any interests in real property, each of the Borrowers authorizes the
Agent and the Lenders, upon the occurrence of and during the continuance of any
Event of Default, at their sole option, without notice or demand and without
affecting any Obligations, the enforceability of this Agreement, or the validity
or enforceability of any Liens of the Agent and the Lenders on any Collateral,
to foreclose any or all
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of such deeds of trust or mortgages by judicial or nonjudicial sale. Each of the
Borrowers expressly waives any defenses to the enforcement of this Agreement or
the other Loan Documents or any Liens created or granted hereby or by the other
Loan Documents or to the recovery by the Agent and the Lenders against any other
Borrower or any other Person liable therefor of any deficiency after a judicial
or nonjudicial foreclosure or sale, even though such a foreclosure or sale may
impair the subrogation rights of such Borrower and may preclude any of them from
obtaining reimbursement or contribution from any other Person. Each of the
Borrowers expressly waives any defenses or benefits that may be derived from NRS
Section 40.430 and judicial decisions relating thereto, any provision of Nevada
Law which is comparable to California Code of Civil Procedure SectionSection
580a, 580b, 580d or 726, or comparable provisions of the Laws of any other
jurisdiction, including, without limitation, NRS Sections 40.451, 40.455, 40.457
and 40.459, and all other suretyship defenses it otherwise might or would have
under Nevada Law or other applicable Law. Each of the Borrowers expressly waives
any right to receive notice of any judicial or nonjudicial foreclosure or sale
of any real property or interest therein subject to any such deeds of trust or
mortgages and failure of Borrowers to receive any such notice shall not impair
or affect Borrowers' Obligations hereunder or the enforceability of this
Agreement or the other Loan Documents or any Liens created or granted hereby or
thereby.
6. (a) Notwithstanding anything to the contrary elsewhere contained
herein or in any other Loan Document to which any Borrower is a Party, each of
the Borrowers hereby waives with respect to each other Borrower and its
respective successors and assigns (including any surety) and any other party any
and all rights at Law or in equity, to subrogation, to reimbursement, to
exoneration, to contribution, to setoff or to any other rights that could accrue
to a surety against a principal, to a guarantor against a maker or obligor, to
an accommodation party against the party accommodated, or to a holder or
transferee against a maker and which each of the Borrowers may have or hereafter
acquire against any other Borrower or any other party in connection with or as a
result of any Borrower's execution, delivery and/or performance of this
Agreement or any other Loan Document to which any such Borrower is a party. Each
of the Borrowers agrees that it shall not have or assert any such rights against
any other Borrower or any such Borrower's successors and assigns or any other
Person (including any surety), either directly or as an attempted setoff to any
action commenced against such Borrower by the other such Borrower (as borrower
or in any other capacity) or any other Person. Each of the Borrowers hereby
acknowledges and agrees that this waiver is intended to benefit the Agent and
the Lenders and shall not limit or otherwise affect any of the Borrowers'
liability hereunder, under any other Loan Document to
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which any Borrower is a party, or the enforceability hereof or thereof.
(b) To the extent any waiver of subrogation contained in
subparagraph 6(a) is unenforceable, each Borrower agrees that it shall, until
the Obligations shall have been paid in full and the Commitments shall have
terminated and all Letters of Credit shall have expired or been terminated or
cancelled, withhold exercise of (a) any claim, right or remedy, direct or
indirect, that such Borrower now has or may hereafter have against any Borrower
or any of its assets in connection with the Credit Agreement or the other Loan
Documents or the performance by such Borrower of its obligations thereunder, in
each case whether such claim, right or remedy arises in equity, under contract,
by statute, under common law or otherwise and including without limitation (i)
any right of subrogation, reimbursement or indemnification that such Borrower
now has or may hereafter have against any Borrower, (ii) any right to enforce,
or to participate in, any claim, right or remedy that the Agent or any Lender
now has or may hereafter have against any Borrower, and (iii) any benefit of,
and any right to participate in, any collateral or security now or hereafter
held by the Agent or any Lender, and (b) any right of contribution such Borrower
may have against any Guarantor of any of the Obligations (including without
limitation any such right of contribution). Each Borrower further agrees that,
to the extent the agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification such
Borrower may have against any Borrower or against any collateral or security,
and any rights of contribution such Borrower may have against any Guarantor,
shall be junior and subordinate to any rights the Agent or Lenders may have
against any Borrower, to all right, title and interest the Agent or Lenders may
have in any such collateral or security, and to any right the Agent or Lenders
may have against such Guarantor. The Agent, on behalf of Lenders, may use, sell
or dispose of any item of collateral or security as it sees fit without regard
to any subrogation rights any Borrower may have, and upon any such disposition
or sale any rights of subrogation such Borrower may have shall terminate. If any
amount shall be paid to any Borrower on account of any such subrogation,
reimbursement or indemnification rights at any time when all Obligations shall
not have been paid in full, such amount shall be held in trust for the Agent on
behalf of Lenders and shall forthwith be paid over to the Agent for the benefit
of Lenders to be credited and applied against the Obligations, whether matured
or unmatured, in accordance with the Credit Agreement.
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7. Without limiting the generality of the foregoing, each of the
Borrowers hereby waives discharge under NRS Section 104.3605 by waiving all
defenses based on suretyship or impairment of collateral.
8. Each of the Borrowers warrants and agrees that each of the waivers
and consents set forth herein is made with full knowledge of its significance
and consequences, with the understanding that events giving rise to any defense
waived may diminish, destroy or otherwise adversely affect rights which each of
the Borrowers otherwise may have against the other Borrowers, the Agent, the
Lenders, or others, or against any Collateral. If any of the waivers or consents
herein are determined to be contrary to any applicable Law or public policy,
such waivers and consents shall be effective to the maximum extent permitted by
Law.
9. For purposes of this Agreement, the provisions of Sections 5 and 6
above shall apply and be effective only to the extent that any court, tribunal
or other governmental agency shall have deemed Borrowers to be sureties of one
another rather than co-borrowers.
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