Published CUSIP Number: 76962RAA4
WACHOVIA
- -------------------------------------------------------------------------------
$245,000,000
CREDIT AGREEMENT
among
RIVIERA HOLDINGS CORPORATION,
as Borrower,
CERTAIN DOMESTIC SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE LENDERS PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
WELLS FARGO FOOTHILL, INC.,
as Syndication Agent
and
CIT LENDING SERVICES CORPORATION,
as Documentation Agent
Dated as of June 8, 2007
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Sole Bookrunner
Prepared by:
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................1
Section 1.1 Defined Terms.....................................................1
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Section 1.2 Other Definitional Provisions....................................33
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Section 1.3 Accounting Terms.................................................34
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Section 1.4 Time References..................................................35
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Section 1.5 Execution of Documents...........................................35
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ARTICLE II THE LOANS; AMOUNT AND TERMS...............................................35
Section 2.1 Revolving Loans..................................................35
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Section 2.2 Term Loan; Incremental Term Loan.................................37
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Section 2.3 Letter of Credit Subfacility.....................................40
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Section 2.4 Swingline Loan Subfacility.......................................44
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Section 2.5 Fees.............................................................46
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Section 2.6 Commitment Reductions............................................46
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Section 2.7 Prepayments......................................................47
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Section 2.8 Default Rate and Payment Dates...................................49
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Section 2.9 Conversion Options...............................................50
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Section 2.10 Computation of Interest and Fees; Usury..........................51
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Section 2.11 Pro Rata Treatment and Payments..................................52
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Section 2.12 Non-Receipt of Funds by the Administrative Agent.................54
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Section 2.13 Inability to Determine Interest Rate.............................56
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Section 2.14 Yield Protection.................................................56
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Section 2.15 Indemnity; Eurocurrency Liabilities..............................58
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Section 2.16 Taxes............................................................58
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Section 2.17 Indemnification; Nature of Issuing Lender's Duties...............61
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Section 2.18 Illegality.......................................................62
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Section 2.19 Replacement of Lenders...........................................63
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ARTICLE III REPRESENTATIONS AND WARRANTIES...........................................64
Section 3.1 Financial Condition..............................................64
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Section 3.2 No Material Adverse Effect; Internal Control Event...............64
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Section 3.3 Corporate Existence; Compliance with Law.........................65
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Section 3.4 Corporate Power; Authorization; Enforceable Obligations..........65
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Section 3.5 No Legal Bar; No Default.........................................66
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Section 3.6 No Material Litigation...........................................66
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Section 3.7 Investment Company Act; etc......................................66
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Section 3.8 Margin Regulations...............................................66
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Section 3.9 ERISA............................................................67
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Section 3.10 Environmental Matters............................................67
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Section 3.11 Use of Proceeds..................................................68
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Section 3.12 Subsidiaries; Joint Ventures; Partnerships.......................68
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Section 3.13 Ownership........................................................69
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Section 3.14 Indebtedness.....................................................69
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Section 3.15 Taxes............................................................69
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Section 3.16 Intellectual Property Rights.....................................69
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Section 3.17 Solvency.........................................................70
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Section 3.18 Investments......................................................70
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Section 3.19 Location of Collateral...........................................71
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Section 3.20 No Burdensome Restrictions.......................................71
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Section 3.21 Brokers' Fees....................................................71
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Section 3.22 Labor Matters....................................................71
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Section 3.23 Accuracy and Completeness of Information.........................71
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Section 3.24 Material Contracts...............................................72
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Section 3.25 Insurance........................................................72
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Section 3.26 Security Documents...............................................72
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Section 3.27 Regulation H.....................................................72
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Section 3.28 Classification of Senior Indebtedness............................72
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Section 3.29 Anti-Terrorism Laws..............................................73
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Section 3.30 Compliance with OFAC Rules and Regulations.......................73
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Section 3.31 Compliance with FCPA.............................................73
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Section 3.32 Consent; Governmental Authorizations.............................73
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ARTICLE IV CONDITIONS PRECEDENT......................................................74
Section 4.1 Conditions to Closing Date.......................................74
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Section 4.2 Conditions to All Extensions of Credit...........................80
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ARTICLE V AFFIRMATIVE COVENANTS......................................................81
Section 5.1 Financial Statements.............................................82
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Section 5.2 Certificates; Other Information..................................83
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Section 5.3 Payment of Taxes and Other Obligations...........................85
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Section 5.4 Conduct of Business and Maintenance of Existence.................85
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Section 5.5 Maintenance of Property; Insurance...............................85
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Section 5.6 Inspection of Property; Books and Records; Discussions...........86
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Section 5.7 Notices..........................................................86
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Section 5.8 Environmental Laws...............................................87
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Section 5.9 Financial Covenant...............................................88
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Section 5.10 Additional Guarantors............................................89
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Section 5.11 Compliance with Law..............................................89
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Section 5.12 Pledged Assets...................................................89
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Section 5.13 Hedging Agreements...............................................90
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Section 5.14 Covenants Regarding Patents, Trademarks and Copyrights...........90
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Section 5.15 Ratings..........................................................92
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Section 5.16 Landlord Waivers.................................................92
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Section 5.17 Appraisals.......................................................92
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Section 5.18 Additional Matters...............................................92
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ARTICLE VI NEGATIVE COVENANTS........................................................94
Section 6.1 Indebtedness.....................................................94
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Section 6.2 Liens............................................................95
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Section 6.3 Nature of Business...............................................95
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Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc...........96
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Section 6.5 Advances, Investments and Loans..................................97
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Section 6.6 Transactions with Affiliates.....................................97
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Section 6.7 Ownership of Subsidiaries; Restrictions..........................97
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Section 6.8 Corporate Changes; Material Contracts............................97
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Section 6.9 Limitation on Restricted Actions.................................98
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Section 6.10 Restricted Payments..............................................98
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Section 6.11 Amendment of Subordinated Debt...................................98
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Section 6.12 Sale Leasebacks..................................................98
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Section 6.13 No Further Negative Pledges......................................99
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Section 6.14 Account Control Agreements; Additional Bank Accounts.............99
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ARTICLE VII EVENTS OF DEFAULT........................................................99
Section 7.1 Events of Default................................................99
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Section 7.2 Acceleration; Remedies..........................................103
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ARTICLE VIII THE ADMINISTRATIVE AGENT...............................................104
Section 8.1 Appointment and Authority.......................................104
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Section 8.2 Nature of Duties................................................105
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Section 8.3 Exculpatory Provisions..........................................105
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Section 8.4 Reliance by Administrative Agent................................106
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Section 8.5 Notice of Default...............................................106
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Section 8.6 Non-Reliance on Administrative Agent and Other Lenders..........107
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Section 8.7 Indemnification.................................................107
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Section 8.8 Administrative Agent in Its Individual Capacity.................108
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Section 8.9 Successor Administrative Agent..................................108
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Section 8.10 Collateral and Guaranty Matters.................................109
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ARTICLE IX MISCELLANEOUS............................................................109
Section 9.1 Amendments, Waivers and Release of Collateral...................109
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Section 9.2 Notices.........................................................113
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Section 9.3 No Waiver; Cumulative Remedies..................................114
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Section 9.4 Survival of Representations and Warranties......................115
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Section 9.5 Payment of Expenses and Taxes; Indemnity........................115
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Section 9.6 Successors and Assigns; Participations..........................117
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Section 9.7 Right of Set-off; Sharing of Payments...........................120
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Section 9.8 Table of Contents and Section Headings..........................121
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Section 9.9 Counterparts; Integration; Effectiveness; Electronic Execution..121
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Section 9.10 Severability....................................................122
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Section 9.11 Integration.....................................................122
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Section 9.12 Governing Law...................................................122
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Section 9.13 Consent to Jurisdiction; Service of Process and Venue...........122
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Section 9.14 Confidentiality.................................................123
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Section 9.15 Acknowledgments.................................................124
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Section 9.16 Waivers of Jury Trial; Waiver of Consequential Damages..........124
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Section 9.17 Patriot Act Notice..............................................125
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Section 9.18 Resolution of Drafting Ambiguities..............................125
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Section 9.19 Continuing Agreement............................................125
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Section 9.20 Regulatory Matters..............................................125
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Section 9.21 Lender Consent..................................................126
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ARTICLE X GUARANTY..................................................................126
Section 10.1 The Guaranty....................................................126
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Section 10.2 Bankruptcy......................................................127
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Section 10.3 Nature of Liability.............................................128
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Section 10.4 Independent Obligation..........................................128
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Section 10.5 Authorization...................................................128
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Section 10.6 Reliance........................................................128
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Section 10.7 Waiver..........................................................129
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Section 10.8 Limitation on Enforcement.......................................130
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Section 10.9 Confirmation of Payment.........................................130
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ARTICLE XI SUBORDINATION OF INTERCOMPANY DEBT.......................................130
Section 11.1 Subordination...................................................130
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Section 11.2 Priority and Payment of Proceeds in Certain Events..............131
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Section 11.3 Restrictions on Actions by Credit Parties.......................131
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Section 11.4 Miscellaneous...................................................132
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Schedules
Schedule 1.1(a) Investments
Schedule 1.1(b) Liens
Schedule 3.3 Jurisdictions of Organization and Qualification
Schedule 3.12 Subsidiaries
Schedule 3.16 Intellectual Property
Schedule 3.19(a) Location of Real Property
Schedule 3.19(b) Location of Collateral
Schedule 3.19(c) Chief Executive Offices
Schedule 3.19(d) Mortgaged Properties
Schedule 3.22 Labor Matters
Schedule 3.24 Material Contracts
Schedule 3.25 Insurance
Schedule 6.1(b) Indebtedness
Schedule 6.14 Accounts
Exhibits
Exhibit 1.1(a) Form of Account Designation Notice
Exhibit 1.1(b) Form of Assignment and Assumption
Exhibit 1.1(c) Form of Deposit Account Control Agreement
Exhibit 1.1(d) Form of Joinder Agreement
Exhibit 1.1(e) Form of Notice of Borrowing
Exhibit 1.1(f) Form of Notice of Conversion/Extension
Exhibit 1.1(g) Form of Securities Account Control Agreement
Exhibit 2.1(a) Form of Funding Indemnity Letter
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.2(d) Form of Term Loan Note
Exhibit 2.4(d) Form of Swingline Note
Exhibit 4.1(a) Form of Lender Consent
Exhibit 4.1(b) Form of Officer's Certificate
Exhibit 4.1(d) Form of Landlord Waiver
Exhibit 4.1(g) Form of Solvency Certificate
Exhibit 4.1(p) Form of Financial Condition Certificate
Exhibit 4.1(q) Form of Patriot Act Certificate
Exhibit 5.2(b) Form of Officer's Compliance Certificate
CREDIT AGREEMENT, dated as of June 8, 2007 among RIVIERA HOLDINGS
CORPORATION, a Nevada corporation (the "Borrower"), each of those Domestic
Subsidiaries of the Borrower identified as a "Guarantor" on the signature pages
hereto and such other Domestic Subsidiaries of the Borrower as may from time to
time become a party hereto (such Subsidiaries, each a "Guarantor" and
collectively, the "Guarantors"), the several banks and other financial
institutions as are, or may from time to time become parties to this Agreement
(each a "Lender" and, collectively, the "Lenders"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative agent for the
Lenders hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Credit Parties (as hereinafter defined) have requested
that the Lenders make loans and other financial accommodations to the Credit
Parties in an aggregate amount of up to $245,000,000, as more particularly
described herein; and
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Credit Parties on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble to this
Agreement have the meanings therein indicated, and the following terms have the
following meanings:
"ABR Default Rate" shall have the meaning set forth in Section 2.8.
"Account Designation Notice" shall mean the Account Designation Notice
dated as of the Closing Date from the Borrower to the Administrative Agent in
substantially the form attached hereto as Exhibit 1.1(a).
"Additional Credit Party" shall mean each Person that becomes a
Guarantor by execution of a Joinder Agreement in accordance with Section 5.10.
"Additional Term Loan" shall have the meaning set forth in Section
2.2(e).
"Administrative Agent" or "Agent" shall have the meaning set forth in
the first paragraph of this Agreement and shall include any successors in such
capacity.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, with respect to a specified Person, another
Person that directly or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement" or "Credit Agreement" shall mean this Agreement, as
amended, modified, extended, restated, replaced, or supplemented from time to
time in accordance with its terms.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean, at any time, the rate of interest per annum publicly
announced or otherwise identified from time to time by Wachovia at its principal
office in Charlotte, North Carolina as its prime rate. Each change in the Prime
Rate shall be effective as of the opening of business on the day such change in
the Prime Rate occurs. The parties hereto acknowledge that the rate announced
publicly by Wachovia as its Prime Rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers or other banks;
and "Federal Funds Effective Rate" shall mean, for any day, 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 on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published on the next succeeding Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive in the absence of manifest error) that it is unable to
ascertain the Federal Funds Effective Rate, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms above, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the opening of
business on the date of such change.
"Alternate Base Rate Loans" shall mean Loans that bear interest at an
interest rate based on the Alternate Base Rate.
"Applicable Percentage" shall mean, (a) for any day with respect to
Revolving Loans, the rate per annum set forth below opposite the applicable
level then in effect (based on the Consolidated Leverage Ratio), it being
understood that the Applicable Percentage for (i) Revolving Loans that are
Alternate Base Rate Loans shall be the percentage set forth under the column
"Base Rate Margin", (ii) Revolving Loans that are LIBOR Rate Loans shall be the
percentage set forth under the column "LIBOR Margin & L/C Fee", and (iii) the
Commitment Fee shall be the percentage set forth under the column "Commitment
Fee":
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Applicable Percentage
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LIBOR Margin
Consolidated Leverage & L/C Fee Base Rate Commitment Fee
Level Ratio Margin
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I => 5.00 to 1.00 2.00% 1.00% 0.50%
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II => 4.00 to 1.00 but < 1.75% 0.75% 0.50%
5.00 to 1.00
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III < 4.00 to 1.00 1.50% 0.50% 0.375%
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(b) for any day with respect to the Term Loan, the following rate per annum, (i)
so long as the Consolidated Leverage Ratio is greater than or equal to 4.75 to
1.0 as of the last day of the most recently ended fiscal quarter, that portion
of the Term Loan comprised of Alternate Base Rate Loans shall be 1.00% at all
times, (ii) so long as the Consolidated Leverage Ratio is less than 4.75 to 1.0
as of the last day of the most recently ended fiscal quarter, that portion of
the Term Loan comprised of Alternate Base Rate Loans shall be 0.75% at all
times, (iii) so long as the Consolidated Leverage Ratio is greater than or equal
to 4.75 to 1.0 as of the last day of the most recently ended fiscal quarter,
that portion of the Term Loan comprised of LIBOR Rate Loans shall be 2.00% at
all times and (iv) so long as the Consolidated Leverage Ratio is less than 4.75
to 1.0 as of the last day of the most recently ended fiscal quarter, that
portion of the Term Loan comprised of LIBOR Rate Loans shall be 1.75%.
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date on which
the Administrative Agent has received from the Borrower the quarterly financial
information (in the case of the first three fiscal quarters of the Borrower's
fiscal year), the annual financial information (in the case of the fourth fiscal
quarter of the Borrower's fiscal year) and the certifications required to be
delivered to the Administrative Agent and the Lenders in accordance with the
provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each an "Interest
Determination Date"). Such Applicable Percentage shall be effective from such
Interest Determination Date until the next such Interest Determination Date.
After the Closing Date, if the Credit Parties shall fail to provide the
financial information or certifications in accordance with the provisions of
Sections 5.1(a), 5.1(b) and 5.2(b), the Applicable Percentage shall, on the date
five (5) Business Days after the date by which the Credit Parties were so
required to provide such financial information or certifications to the
Administrative Agent and the Lenders, be based on (a) with respect to Revolving
Loans, Level I and (b) with respect to the Term Loans, clauses (i) and (iii) set
forth above, in each case until such time as such information or certifications
or corrected information or corrected certificates are provided, whereupon the
level shall be determined by the then current Consolidated Leverage Ratio.
Notwithstanding the foregoing, the initial Applicable Percentages for the
Revolving Loans and the Commitment Fee shall be set at Level I until the
financial information and certificates required to be delivered pursuant to
Sections 5.1 and 5.2 for the first full fiscal quarter to occur after the
Closing Date have been delivered to the Administrative Agent. In the event that
any financial statement or certification delivered pursuant to Section 5.1 is
shown to be inaccurate (regardless of whether this Agreement or the Commitments
are in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Percentage
for any period (an "Applicable Period") than the Applicable Percentage applied
for such Applicable Period, then the Borrower shall immediately (i) deliver to
the Administrative Agent a corrected compliance certificate for such Applicable
Period, (ii) determine the Applicable Percentage for such Applicable Period
based upon the corrected compliance certificate, and (iii) immediately pay to
the Administrative Agent the accrued additional interest owing as a result of
such increased Applicable Percentage for such Applicable Period, which payment
shall be promptly applied by the Administrative Agent in accordance with Section
2.11. It is acknowledged and agreed that nothing contained herein shall limit
the rights of the Administrative Agent and the Lenders under the Credit
Documents, including their rights under Sections 2.8 and 7.1 and other of their
respective rights under this Agreement.
"Approval" shall mean all approvals, consents, licenses, permits,
authorizations, registrations, declarations, concessions, orders, filings,
notices, findings of suitability, franchises, waivers, exemptions and other
similar authorizations.
"Approved Bank" shall have the meaning set forth in the definition of
"Cash Equivalents."
"Approved Fund" shall mean any Fund that is administered, managed or
underwritten by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of an entity that administers or manages a Lender.
"Arranger" shall mean Wachovia Capital Markets, LLC, together with its
successors and assigns.
"Asset Disposition" shall mean the disposition of any or all of the
assets (including, without limitation, the Equity Interest of a Subsidiary or
any ownership interest in a joint venture) of any Credit Party or any Subsidiary
whether by sale, lease, transfer or otherwise, in a single transaction or in a
series of transactions. The term "Asset Disposition" shall not include (a) the
sale, lease, transfer or other disposition of assets permitted by Subsections
6.4(a)(i) through (v), or (b) any Equity Issuance.
"Assignment and Assumption" shall mean an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any party
whose consent is required by the definition of Eligible Assignee and Section
9.6), and accepted by the Administrative Agent, in substantially the form of
Exhibit 1.1(b) or any other form approved by the Administrative Agent.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Bankruptcy Event" shall mean any of the events described in Section
7.1(f).
"Bankruptcy Event of Default" shall mean an Event of Default specified
in Section 7.1(f).
"Board of Directors" shall mean the board of directors (or comparable
managers) of the Borrower or any committee thereof duly authorized to act on
behalf of the Borrower.
"Borrower" shall have the meaning set forth in the first paragraph of
this Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the date such Loan
is made.
"Business" shall have the meaning set forth in Section 3.10.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or New York,
New York are authorized or required by law to close; provided, however, that
when used in connection with a rate determination, borrowing or payment in
respect of a LIBOR Rate Loan, the term "Business Day" shall also exclude any day
on which banks in London, England are not open for dealings in Dollar deposits
in the London interbank market.
"Capital Lease" shall mean any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" shall mean the capitalized lease
obligations relating to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("Government Obligations"), (b)
Dollar denominated time deposits, certificates of deposit, Eurodollar time
deposits and Eurodollar certificates of deposit of (i) any domestic commercial
bank of recognized standing having capital and surplus in excess of $250,000,000
or (ii) any bank whose short-term commercial paper rating at the time of the
acquisition thereof is at least A-1 or the equivalent thereof from S&P or from
Moody's is at least P-1 or the equivalent thereof from Moody's (any such bank
being an "Approved Bank"), in each case with maturities of not more than 364
days from the date of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by any domestic corporation rated
A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of the date of
acquisition, (d) repurchase agreements with a bank or trust company (including a
Lender) or a recognized securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America, (e) obligations of any state of the United States or
any political subdivision thereof for the payment of the principal and
redemption price of and interest on which there shall have been irrevocably
deposited Government Obligations maturing as to principal and interest at times
and in amounts sufficient to provide such payment, (f) auction preferred stock
rated in the highest short-term credit rating category by S&P or Moody's, (g)
money market accounts subject to Rule 2a-7 of the Exchange Act ("SEC Rule 2a-7")
which consist primarily of cash and cash equivalents set forth in clauses (a)
through (f) above and of which 95% shall at all times be comprised of First Tier
Securities (as defined in SEC Rule 2a-7) and any remaining amount shall at all
times be comprised of Second Tier Securities (as defined in SEC Rule 2a-7) and
(h) shares of any so-called "money market fund," provided that such fund is
registered under the Investment Company Act of 1940, has net assets of at least
$100,000,000 and has an investment portfolio with an average maturity of 365
days or less.
"Casino" shall mean a gaming establishment owned, directly or
indirectly, by the Borrower or any of the Guarantors and any hotel, building,
restaurant, theater, amusement park, other entertainment facility, sport
facility, parking facilities, retail shops, convention or meeting facilities,
land, equipment, and other property asset directly ancillary thereto and used or
to be used in connection therewith.
"Casino Licenses" shall mean any material license, franchise or other
approval or authorization required to own, lease or operate a Casino or
otherwise conduct gaming in any jurisdiction in which the Borrower or any
Guarantor conducts or proposes in good faith to conduct a gaming business,
including any applicable liquor license.
"CDG" shall mean the Colorado Division of Gaming.
"Change in Law" shall mean the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.
"Change of Control" shall mean (a) any "person" or "group" (within the
meaning of Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 35%, or more, of the Voting Stock of the Borrower and has obtained all
necessary permits, licenses and/or approvals from the applicable Gaming
Authorities for purposes of directing operations and ownership of the Credit
Parties or (b) a majority of the members of the Board of Directors do not
constitute Continuing Directors or (c) the Borrower or any Guarantor ceases to
directly own and control 100% of the outstanding Capital Stock of each of its
Subsidiaries (other than the Excluded Subsidiaries) which it owns or controls as
of the Closing Date or (d) a "Change of Control" (as that term is defined in the
Senior Indenture) has occurred to the extent the Senior Indenture is then in
effect.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean a collective reference to the collateral which
is identified in, and at any time will be covered by, the Security Documents and
any other property or assets of a Credit Party, whether tangible or intangible
and whether real or personal, that may from time to time secure the Credit Party
Obligations, but specifically excluding the Excluded Assets.
"Collection Action" shall mean (a) to accelerate the Intercompany Debt
or (b) to initiate or participate with others in any Bankruptcy Event or any
other suit, action or proceeding against any Credit Party to (i) enforce payment
of or to collect the whole or any part of the Intercompany Debt or (ii) commence
enforcement (judicial or otherwise) of any of the rights and remedies with
respect to the Intercompany Debt.
"Colorado Commission" shall mean the Colorado Limited Gaming Control Commission.
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"Colorado Gaming Authorities" shall mean the CDG, the Colorado
Commission, the local liquor licensing authority (e.g., the City of Black Hawk)
and the Colorado Department of Revenue's Liquor Enforcement Division.
"Colorado Gaming Notice" shall have the meaning set forth in Section 5.18(b)
----------------------
"Commitment" shall mean the Revolving Commitments, the LOC Commitment,
the Term Loan Commitments and the Swingline Commitment, individually or
collectively, as appropriate.
"Commitment Fee" shall have the meaning set forth in Section 2.5(a).
"Commitment Percentage" shall mean the Revolving Commitment Percentage
and/or the Term Loan Commitment Percentage, as appropriate.
"Commitment Period" shall mean (a) with respect to Revolving Loans and
Swingline Loans, the period from and including the Closing Date to but excluding
the Revolver Maturity Date and (b) with respect to Letters of Credit, the period
from and including the Closing Date to but excluding the date that is thirty
(30) days prior to the Revolver Maturity Date.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001(b)(1) of ERISA or is part of a group which includes the Borrower
and which is treated as a single employer under Section 414(b) or 414(c) of the
Code or, solely for purposes of Section 412 of the Code to the extent required
by such section, Section 414(m) or 414(o) of the Code.
"Consolidated" shall mean, when used with reference to financial
statements or financial statement items of the Borrower and its Subsidiaries or
any other Person, such statements or items on a consolidated basis in accordance
with the consolidation principles of GAAP.
"Consolidated Capital Expenditures" shall mean, as of any date of
determination for the four consecutive fiscal quarter period ending on such
date, all expenditures of the Borrower and its Subsidiaries on a Consolidated
basis for such period that in accordance with GAAP would be classified as
capital expenditures, including, without limitation, Capital Lease Obligations.
The term "Consolidated Capital Expenditures" shall not include capital
expenditures in respect of the reinvestment of proceeds from Extraordinary
Receipts in accordance with the terms of Section 2.7(b)(vi).
"Consolidated Adjusted EBITDA" shall mean, as of any date of
determination for the four consecutive fiscal quarter period ending on such
date, without duplication, (a) Consolidated Net Income for such period plus (b)
the sum of the following to the extent deducted in calculating Consolidated Net
Income: (i) Consolidated Interest Expense for such period, (ii) tax expense
(including, without limitation, any federal, state, local and foreign income and
similar taxes) of the Borrower and its Subsidiaries for such period, (iii)
depreciation and amortization expense of the Borrower and its Subsidiaries for
such period, (iv) other non-cash charges (excluding reserves for future cash
charges) of the Borrower and its Subsidiaries for such period in an amount not
to exceed $2,000,000, (v) legal costs and expenses associated with merger
transactions paid during such period in an amount not to exceed $1,000,000 per
fiscal year, and (vi) amounts paid by the Credit Parties in the form of a
topping fee to Riviera Acquisition Holdings, Inc. in an aggregate amount not to
exceed $8,000,000 minus (c) non-cash charges previously added back to
Consolidated Net Income in determining Consolidated EBITDA to the extent such
non-cash charges have become cash charges during such period minus (d) any other
non-recurring cash or non-cash gains during such period.
"Consolidated EBITDA" shall mean, as of any date of determination for
the four consecutive fiscal quarter period ending on such date, without
duplication, (a) Consolidated Net Income for such period plus (b) the sum of the
following to the extent deducted in calculating Consolidated Net Income: (i)
Consolidated Interest Expense for such period, (ii) tax expense (including,
without limitation, any federal, state, local and foreign income and similar
taxes) of the Borrower and its Subsidiaries for such period, (iii) depreciation
and amortization expense of the Borrower and its Subsidiaries for such period,
and (iv) other non-cash charges (excluding reserves for future cash charges) of
the Borrower and its Subsidiaries for such period in an amount not to exceed
$2,000,000 minus (c) non-cash charges previously added back to Consolidated Net
Income in determining Consolidated EBITDA to the extent such non-cash charges
have become cash charges during such period minus (d) any other non-recurring
cash or non-cash gains during such period.
"Consolidated Funded Debt" shall mean, as of any date of determination,
Funded Debt of the Borrower and its Subsidiaries on a Consolidated basis.
"Consolidated Interest Expense" shall mean, as of any date of
determination for the four consecutive fiscal quarter period ending on such
date, all interest expense (excluding amortization of debt discount and premium,
but including (a) the interest component under Capital Leases and synthetic
leases, (b) tax retention operating leases, (c) off-balance sheet loans and
similar off-balance sheet financing products and (d) interest obligations in
respect of the Westerman Retirement Obligation for such period, in each case for
such period of the Borrower and its Subsidiaries on a Consolidated basis.
"Consolidated Leverage Ratio" shall mean, as of the last day of any
fiscal quarter of the Borrower, for the Borrower and its Subsidiaries on a
Consolidated basis, the ratio of (a) Consolidated Funded Debt of the Borrower
and its Subsidiaries on such date to (b) Consolidated Adjusted EBITDA.
"Consolidated Leverage Incurrence Test" shall mean the requirement that
the Consolidated Leverage Ratio shall be less than or equal to the applicable
Consolidated Leverage Ratio levels set forth in Section 5.9, notwithstanding
whether the Consolidated Leverage Ratio is required to be calculated pursuant to
Section 5.9.
"Consolidated Net Income" shall mean, as of any date of determination
for the four consecutive fiscal quarter period ending on such date, the net
income (excluding extraordinary losses and gains and all non-cash income,
interest income and tax credits, rebates and other benefits) of the Borrower and
its Subsidiaries on a Consolidated basis for such period, all as determined in
accordance with GAAP.
"Consolidated Working Capital" shall mean, as of any date of
determination, the excess of (a) current assets (excluding cash and Cash
Equivalents) of the Borrower and its Subsidiaries on a Consolidated basis as of
such date of determination less (b) current liabilities (excluding the current
portion of long term Indebtedness) of the Borrower and its Subsidiaries on a
Consolidated basis as of such date of determination, all as determined in
accordance with GAAP.
"Continuing Director" shall mean (a) any member of the Board of
Directors who was a director (or comparable manager) of the Borrower on the
Closing Date and (b) any individual who becomes a member of the Board of
Directors after the Closing Date if such individual was appointed or nominated
for election to the Board of Directors by a majority of the Continuing
Directors, but excluding any such individual originally proposed for election in
opposition to the Board of Directors in office at the Closing Date in an actual
or threatened election contest relating to the election of the directors (or
comparable managers) of the Borrower (as such terms are used in Rule 14a-11
under the Exchange Act) and whose initial assumption of office resulted from
such contest or settlement thereof.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any contract, agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Copyright Licenses" shall mean any agreement, whether written or oral,
providing for the grant by or to a Person of any right under any Copyright,
including, without limitation, any such agreement referred to in Schedule 3.16.
"Copyrights" shall mean all copyrights of the Credit Parties and their
Subsidiaries in all Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Copyright Office or in any similar office or
agency of the United States, any state thereof or any other country or any
political subdivision thereof, or otherwise, including, without limitation, any
such agreement referred to in Schedule 3.16 and all renewals thereof.
"Credit Documents" shall mean this Agreement, each of the Notes, any
Joinder Agreement, the Custodian Agreement, the Letters of Credit, LOC
Documents, each Environmental Indemnity and the Security Documents and all other
agreements, documents, certificates and instruments delivered to the
Administrative Agent or any Lender by any Credit Party in connection therewith
(other than any agreement, document, certificate or instrument related to a
Hedging Agreement).
"Credit Party" shall mean any of the Borrower or the Guarantors.
"Credit Party Pledge Agreement" shall mean that Pledge Agreement dated
as of the Closing Date executed by the Credit Parties and Riviera Gaming
Management, Inc., a Nevada corporation in favor of the Administrative Agent, for
the benefit of the Secured Parties, as the same may from time to time be
amended, modified, extended, restated, replaced, or supplemented from time to
time in accordance with the terms hereof and thereof.
"Credit Party Obligations" shall mean, without duplication, (a) all of
the obligations, indebtedness and liabilities of the Credit Parties to the
Lenders (including the Issuing Lender) and the Administrative Agent, whenever
arising, under this Agreement, the Notes or any of the other Credit Documents,
including principal, interest, fees, reimbursements and indemnification
obligations and other amounts (including, but not limited to, any interest
accruing after the occurrence of a filing of a petition of bankruptcy under the
Bankruptcy Code with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and (b) all liabilities
and obligations, whenever arising, owing from any Credit Party or any of their
Subsidiaries to any Hedging Agreement Provider arising under any Secured Hedging
Agreement.
"Custodian Agreement" shall mean that certain Custodial Agreement by
and among the Administrative Agent, a custodian reasonably acceptable to the
Administrative Agent and the Borrower, whereby the custodian agrees, after
receipt of Pledge Approval, to hold the stock certificate or stock certificates
evidencing the Borrower's Equity Interest in ROC, along with undated stock
powers related thereto, in Nevada on behalf of the Administrative Agent for the
benefit of the Secured Parties.
"Debt Issuance" shall mean the issuance of any Indebtedness by any
Credit Party or any of its Subsidiaries (excluding any Equity Issuance or any
Indebtedness of any Credit Party and its Subsidiaries permitted to be incurred
pursuant to Sections 6.1(a)-(i) hereof).
"Default" shall mean any of the events specified in Section 7.1,
whether or not any requirement for the giving of notice or the lapse of time, or
both, or any other condition, has been satisfied.
"Defaulting Lender" shall mean, at any time, any Lender that, at such
time (a) has failed to make a Loan required pursuant to the terms of this
Agreement or failed to fund a Participation Interest in accordance with the
terms of this Agreement, (b) has failed to pay to the Administrative Agent or
any Lender an amount owed by such Lender pursuant to the terms of this Agreement
and such default remains uncured, or (c) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.
"Deposit Account Control Agreement" shall mean an agreement, among a
Credit Party, a depository institution, and the Administrative Agent, which
agreement is either substantially in the form of Exhibit 1.1(c) or in a form
acceptable to the Administrative Agent and which provides the Administrative
Agent with "control" (as such term is used in Article 9 of the Uniform
Commercial Code) over the deposit account(s) described therein, as the same may
be amended, modified, extended, restated, replaced, or supplemented from time to
time.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Lending Office" shall mean, initially, the office of each
Lender designated as such Lender's Domestic Lending Office shown in such
Lender's Administrative Questionnaire; and thereafter, such other office of such
Lender as such Lender may from time to time specify to the Administrative Agent
and the Borrower as the office of such Lender at which Alternate Base Rate Loans
of such Lender are to be made.
"Domestic Subsidiary" shall mean any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Eligible Assignee" shall mean (a) a Lender, (b) an Affiliate of a
Lender, (c) an Approved Fund, and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, (ii) in the case of any
assignment of a Revolving Commitment, the Issuing Lender, and (iii) unless an
Event of Default has occurred and is continuing and so long as the primary
syndication of the Loans has been completed as determined by Wachovia, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Indemnity" shall mean, individually and collectively,
(a) that certain Environmental Indemnity by the Borrower and RBH in favor of the
Administrative Agent for the benefit of the Lenders relative to the Riviera
Black Hawk Facility and (b) that certain Environmental Indemnity by the Borrower
in favor of the Administrative Agent for the benefit of the Lenders relative to
the Riviera Las Vegas Facility.
"Environmental Laws" shall mean any and all applicable foreign,
federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Agreement.
"Equity Interest" shall mean (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Equity Issuance" shall mean any issuance by any Credit Party or any
Subsidiary to any Person which is not a Credit Party or a Subsidiary of (a)
shares or interests of its Equity Interest, (b) any shares or interests of its
Equity Interest pursuant to the exercise of options or warrants or similar
rights, (c) any shares or interests of its Equity Interest pursuant to the
conversion of any debt securities to equity or (d) warrants or options or
similar rights that are exercisable or convertible into shares or interests of
its Equity Interest. The term "Equity Issuance" shall not include (i) any Asset
Disposition or (ii) any Debt Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of Eurocurrency liabilities, as
defined in Regulation D of such Board as in effect from time to time, or any
similar category of liabilities for a member bank of the Federal Reserve System
in New York City.
"Event of Default" shall mean any of the events specified in Section
7.1; provided, however, that any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been satisfied.
"Excess Cash Flow" shall mean, with respect to any fiscal year of the
Borrower, for the Borrower and its Subsidiaries on a Consolidated basis, an
amount equal to (a) Consolidated EBITDA for such period minus (b) Consolidated
Capital Expenditures for such period minus (c) Scheduled Funded Debt Payments
made during such period minus (d) Consolidated Interest Expense (excluding any
Consolidated Interest Expense associated with intercompany indebtedness) for
such period minus (e) amounts paid in cash in respect of federal, state, local
and foreign income taxes of the Borrower and its Subsidiaries with respect to
such period minus (f) increases in Consolidated Working Capital plus (g)
decreases in Consolidated Working Capital minus (h) optional prepayments of the
Term Loan and of the Revolving Loans (to the extent accompanied by a
corresponding reduction of the Revolving Commitments).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Assets" shall mean any Approval issued by any Gaming
Authority or any other Governmental Authority or any other personal property,
including, without limitation, cash reserves, solely to the extent that any
Gaming Law, directive of the Gaming Authorities or other Requirement of Law
prohibits the applicable Credit Party from granting a Lien therein.
"Excluded Subsidiaries" shall mean Riviera Gaming Management, Inc.,
---------------------
Riviera Gaming Management of Missouri, Inc. and Riviera
Gaming Management of New Mexico, Inc.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Lender or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) taxes imposed
on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender, any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new lending office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 2.16, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.16.
"Extension of Credit" shall mean, as to any Lender, the making of a
Loan by such Lender, any conversion of a Loan from one Type to another Type, any
extension of any Loan or the issuance of, or participation in, a Letter of
Credit or Swingline Loan by such Lender.
"Extraordinary Receipt" shall mean any cash received by or paid to or
for the account of any Person not in the ordinary course of business, including
tax refunds, pension plan reversions, proceeds of insurance (other than proceeds
of business interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price adjustments; provided,
however, that an Extraordinary Receipt shall not include cash receipts from tax
refunds, proceeds of insurance, condemnation awards (or payments in lieu
thereof) or indemnity payments to the extent that such proceeds, awards or
payments (a) in respect of loss or damage to equipment, fixed assets or real
property are applied (or in respect of which expenditures were previously
incurred) to replace or repair the equipment, fixed assets or real property in
respect of which such proceeds were received in accordance with the terms of
Section 2.7 or (b) are received by any Person in respect of any third party
claim against such Person and applied to pay (or to reimburse such Person for
its prior payment of) such claim and the costs and expenses of such Person with
respect thereto.
"Facility" shall mean one or more of (a) the Riviera Las Vegas Facility
and (b) the Riviera Black Hawk Facility.
"Federal Funds Effective Rate" shall have the meaning set forth in the
definition of "Alternate Base Rate".
"Fee Letter" shall mean the letter agreement dated April 27, 2007,
addressed to the Borrower from Wachovia and the Arranger, as amended, modified,
extended, restated, replaced, or supplemented from time to time.
"Flood Hazard Property" shall mean any Mortgaged Property that is in an
area designated by the Federal Emergency Management Agency as having special
flood or mudslide hazards.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is resident for tax
purposes. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Fund" shall mean any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"Funded Debt" shall mean, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations (including, without
limitation, earnout obligations) of such Person incurred, issued or assumed as
the deferred purchase price of property or services purchased by such Person
(other than trade debt incurred in the ordinary course of business and due
within six months of the incurrence thereof) which would appear as liabilities
on a balance sheet of such Person prepared in accordance with GAAP, (e) the
principal portion of all obligations of such Person under Capital Leases, (f)
the maximum amount of all letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (g) all preferred Equity
Interest or other equity interests issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption or other acceleration, (h) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product,
(i) obligations of such Person under non-compete agreements to the extent such
obligations are quantified contingent obligations of such Person under GAAP
principles, (j) all obligations of such Person under Hedging Agreements,
excluding any portion thereof which would be accounted for as interest expense
under GAAP, (k) all Indebtedness of others of the type described in clauses (a)
through (j) hereof secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed,
(l) all Guaranty Obligations of such Person with respect to Indebtedness of
another Person of the type described in clauses (a) through (j) hereof, and (m)
all Indebtedness of the type described in clauses (a) through (j) hereof of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer. Notwithstanding the foregoing, Funded Debt shall
not include the Satisfaction and Discharge Deposit.
"GAAP" shall mean generally accepted accounting principles in effect in
the United States of America (or, in the case of Foreign Subsidiaries with
significant operations outside the United States of America, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of organization or formation) applied on a consistent basis,
subject, however, in the case of determination of compliance with the financial
covenants set out in Section 5.9 to the provisions of Section 1.3.
"Gaming Authority" shall mean any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States of America or foreign government (including Native American
governments), any state, province, city or other political subdivision thereof,
whether now or hereafter existing, or any officer or official thereof, including
the Nevada Gaming Commission, the Nevada State Gaming Control Board, the Clark
County Liquor and Gaming Licensing Board, the Colorado Limited Gaming Control
Commission, the Colorado Division of Gaming, the local liquor licensing
authority in Colorado (e.g., the City of Black Hawk), the Colorado Department of
Revenue's Enforcement Divisions, and any other agency with authority to regulate
any gaming or liquor operation (or proposed gaming or liquor operation) owned,
managed or operated by the Borrower or any of its Subsidiaries.
"Gaming Laws" shall mean all applicable federal, state and local laws,
rules and regulations pursuant to which any Gaming Authority possesses
regulatory, licensing or permit authority over gaming or liquor within any
jurisdiction: and (i) within the State of Nevada, specifically, the Nevada
Gaming Control Act, as codified in Chapter 463 of the Nevada Revised Statutes,
as amended from time to time, the regulations of the NGC promulgated thereunder
and the Clark County Code, as amended from time to time and (ii) within the
State of Colorado, specifically, the Colorado Limited Gaming Act, as codified in
Title 12 Article 47.1 of the Colorado Revised Statutes, and regulations and
orders promulgated thereunder by the Colorado Commission, and the Colorado
Liquor Code, as codified in Title 12 Article 47 of the Colorado Revised
Statutes, and regulations and orders promulgated thereunder.
"Gaming Pledge Agreement" shall mean the Pledge Agreement dated as of
the Closing Date executed by the Borrower in favor of the Administrative Agent,
for the benefit of the Secured Parties, whereby the Borrower pledges its Equity
Interests in ROC, as the same may from time to time be amended, modified,
extended, restated, replaced, or supplemented from time to time in accordance
with the terms hereof and thereof.
"Government Acts" shall have the meaning set forth in Section 2.17.
"Government Obligations" shall have the meaning set forth in the
definition of "Cash Equivalents."
"Governmental Authority" shall mean the government of the United States
of America or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantor" shall mean each Domestic Subsidiary of the Borrower from
time to time party hereto other than the Excluded Subsidiaries.
"Guaranty" shall mean the guaranty of the Guarantors set forth in
Article X.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such Indebtedness or
any property constituting security therefor, (b) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
"Hedging Agreement Provider" shall mean any Person that enters into a
Secured Hedging Agreement with a Credit Party or any of its Subsidiaries that is
permitted by Section 6.1(e) to the extent such Person is a Lender, an Affiliate
of a Lender or any other Person that was a Lender (or an Affiliate of a Lender)
at any time (or whose Affiliate has ceased to be a Lender) under the Credit
Agreement; provided, in the case of a Secured Hedging Agreement with a Person
who is no longer a Lender, such Person shall be considered a Hedging Agreement
Provider only through the stated maturity date (without extension or renewal) of
such Secured Hedging Agreement.
"Hedging Agreements" shall mean, with respect to any Person, any
agreement entered into to protect such Person against fluctuations in interest
rates, or currency or raw materials values, including, without limitation, any
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate hedging agreements.
"Incremental Term Facility" shall have the meaning set forth in Section
2.2(e).
"Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations (including, without
limitation, earnout obligations) of such Person incurred, issued or assumed as
the deferred purchase price of property or services purchased by such Person
(other than trade debt incurred in the ordinary course of business and due
within six months of the incurrence thereof) which would appear as liabilities
on a balance sheet of such Person, (e) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed,
(g) all Guaranty Obligations of such Person with respect to Indebtedness of
another Person, (h) the principal portion of all Capital Lease Obligations plus
any accrued interest thereon, (i) all obligations of such Person under Hedging
Agreements, excluding any portion thereof which would be accounted for as
interest expense under GAAP, (j) the maximum amount of all letters of credit
issued or bankers' acceptances facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Equity Interest issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration, (l) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product plus any accrued interest thereon, (m) all indebtedness
of the type described in clauses (a) through (i) of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer and (n) obligations of such Person under non-compete agreements
to the extent such obligations are quantified contingent obligations of such
Person under GAAP principles. Notwithstanding the foregoing, Indebtedness shall
not include the Satisfaction and Discharge Deposit.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
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"Indemnitee" shall have the meaning set forth in Section 9.5(b).
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Intellectual Property" shall mean, collectively, all Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses
of the Credit Parties and their Subsidiaries, all goodwill associated therewith
and all rights to sue for infringement thereof.
"Intercompany Debt" shall mean all Indebtedness, whether now existing
or hereafter acquired, owing by a Credit Party to another Credit Party whether
for principal, interest (including interest accruing after the occurrence of an
Bankruptcy Event, whether or not the same is allowed as a claim) prepayment
premium, fees, expenses or otherwise.
"Interest Determination Date" shall have the meaning specified in the
definition of "Applicable Percentage".
"Interest Payment Date" shall mean (a) as to any Alternate Base Rate
Loan, the last Business Day of each March, June, September and December and on
the applicable Maturity Date, (b) as to any LIBOR Rate Loan having an Interest
Period of three months or less, the last day of such Interest Period, (c) as to
any LIBOR Rate Loan having an Interest Period longer than three months, (i) each
three (3) month anniversary following the first day of such Interest Period and
(ii) the last day of such Interest Period and (d) as to any Loan which is the
subject of a mandatory prepayment required pursuant to Section 2.7(b), the date
on which such mandatory prepayment is due.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan,
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(a) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such LIBOR Rate
Loan and ending one, two, three or six months thereafter, subject to
availability to all applicable Lenders, as selected by the Borrower in
the Notice of Borrowing or Notice of Conversion given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR Rate
Loan and ending one, two, three or six months thereafter, subject to
availability to all applicable Lenders, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that the foregoing provisions are
subject to the following:
(i) if any Interest Period pertaining to a LIBOR Rate
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period pertaining to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar
month;
(iii) if the Borrower shall fail to give notice as
provided above, the Borrower shall be deemed to have selected
an Alternate Base Rate Loan to replace the affected LIBOR Rate
Loan;
(iv) no Interest Period in respect of any Loan shall
extend beyond the applicable Maturity Date and, further with
regard to the Term Loan, no Interest Period shall extend
beyond any principal amortization payment date with respect to
such Term Loan unless the portion of such Term Loan consisting
of Alternate Base Rate Loans together with the portion of such
Term Loan consisting of LIBOR Rate Loans with Interest Periods
expiring prior to or concurrently with the date such principal
amortization payment date is due, is at least equal to the
amount of such principal amortization payment due on such
date; and
(v) no more than ten (10) LIBOR Rate Loans may be in
effect at any time. For purposes hereof, LIBOR Rate Loans with
different Interest Periods shall be considered as separate
LIBOR Rate Loans, even if they shall begin on the same date
and have the same duration, although borrowings, extensions
and conversions may, in accordance with the provisions hereof,
be combined at the end of existing Interest Periods to
constitute a new LIBOR Rate Loan with a single Interest
Period.
"Internal Control Event" shall mean a material weakness in, or fraud
that involves management or other employees who have a significant role in, any
Credit Party's internal controls over financial reporting, in each case as
described in the Securities Laws.
"Investment" shall mean (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
shares of Equity Interest, other ownership interests or other securities of any
Person or bonds, notes, debentures or all or substantially all of the assets of
any Person, (b) any deposit with, or advance, loan or other extension of credit
to, any Person (other than deposits made in the ordinary course of business) or
(c) any other capital contribution to or investment in any Person, including,
without limitation, any Guaranty Obligation (including any support for a letter
of credit issued on behalf of such Person) incurred for the benefit of such
Person.
"Issuing Lender" shall mean, Wachovia together with any successor.
"Issuing Lender Fees" shall have the meaning set forth in Section
2.5(c).
"Joinder Agreement" shall mean a Joinder Agreement in substantially the
form of Exhibit 1.1(d), executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 5.10.
"Lender" shall have the meaning set forth in the first paragraph of
this Agreement and shall include the Revolving Lenders, the Term Loan Lenders,
the Issuing Lender and the Swingline Lender.
"Lender Commitment Letter" shall mean, with respect to any Lender, the
letter (or other correspondence) to such Lender from the Administrative Agent
notifying such Lender of its LOC Commitment, Revolving Commitment Percentage
and/or Term Loan Commitment Percentage.
"Lender Consent" shall mean any lender consent delivered by a Lender on
the Closing Date in the form of Exhibit 4.1(a).
"Letter of Credit" shall mean any standby letter of credit issued by
the Issuing Lender pursuant to the terms hereof, as such letter of credit may be
amended, modified, restated, extended, renewed, increased, replaced or
supplemented from time to time.
"Letter of Credit Facing Fee" shall have the meaning set forth in
Section 2.5(c).
"Letter of Credit Fee" shall have the meaning set forth in Section
2.5(b).
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Reuters Screen LIBOR01 Page (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, then "LIBOR" shall mean the rate per annum at which, as
determined by the Administrative Agent in accordance with its customary
practices, Dollars in an amount comparable to the Loans then requested are being
offered to leading banks at approximately 11:00 A.M. London time, two (2)
Business Days prior to the commencement of the applicable Interest Period for
settlement in immediately available funds by leading banks in the London
interbank market for a period equal to the Interest Period selected.
"LIBOR Lending Office" shall mean, initially, the office(s) of each
Lender designated as such Lender's LIBOR Lending Office in such Lender's
Administrative Questionnaire; and thereafter, such other office of such Lender
as such Lender may from time to time specify to the Administrative Agent and the
Borrower as the office of such Lender at which the LIBOR Rate Loans of such
Lender are to be made.
"LIBOR Rate" shall mean a LIBOR rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) determined by the Administrative
Agent in accordance with the definition of "LIBOR".
"LIBOR Rate Loan" shall mean Loans the rate of interest applicable to
which is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Capital Lease having substantially the same economic effect as any of the
foregoing).
"Loan" shall mean a Revolving Loan, the Term Loan and/or a Swingline
Loan, as appropriate.
"LOC Commitment" shall mean the commitment of the Issuing Lender to
issue Letters of Credit and with respect to each Revolving Lender, the
commitment of such Revolving Lender to purchase Participation Interests in the
Letters of Credit up to such Lender's LOC Committed Amount as specified in the
Lender Commitment Letter or in the Register, or in the applicable Assignment and
Assumption, as such amount may be reduced from time to time in accordance with
the provisions hereof.
"LOC Committed Amount" shall have the meaning set forth in Section
2.3(a).
"LOC Documents" shall mean, with respect to each Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or (b) any Collateral for such obligations.
"LOC Obligations" shall mean, at any time, the sum of (a) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"Mandatory LOC Borrowing" shall have the meaning set forth in Section
2.3(e).
"Mandatory Swingline Borrowing" shall have the meaning set forth in
Section 2.4(b)(ii).
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, operations, property, assets, condition (financial or otherwise)
or prospects of the Borrower or of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower or any Guarantor to perform its
obligations, when such obligations are required to be performed, under this
Agreement, any of the Notes or any other Credit Document or (c) the validity or
enforceability of this Agreement, any of the Notes or any of the other Credit
Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Material Contract" shall mean (a) any contract or other agreement
listed on Schedule 3.24, (b) any contract or other agreement, written or oral,
of the Credit Parties or any of their Subsidiaries involving monetary liability
of or to any such Person in an amount in excess of $3,000,000 per annum, (c) any
contract or other agreement, written or oral, of the Credit Parties or any of
their Subsidiaries representing at least $3,000,000 of the total Consolidated
revenues of the Borrower and its Subsidiaries for any fiscal year and (d) any
other contract, agreement, permit or license, written or oral, of the Credit
Parties or any of their Subsidiaries as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum (including crude oil or any extraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, perchlorate, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Maturity Date" shall mean the Revolver Maturity Date and/or the Term
Loan Maturity Date, as applicable.
"Moody's" shall mean Moody's Investors Service, Inc.
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"Mortgage Instrument" shall mean any mortgage, deed of trust or deed to
secure debt executed by a Credit Party in favor of the Administrative Agent, for
the benefit of the Secured Parties, pursuant to the terms of Section 4.1(e)(i),
5.10 or 5.12, as the same may be amended, modified, extended, restated,
replaced, or supplemented from time to time.
"Mortgage Policy" shall mean, with respect to any Mortgage Instrument,
an ALTA mortgagee title insurance policy issued by a title insurance company
(the "Title Insurance Company") selected by the Administrative Agent in an
amount satisfactory to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
"Mortgaged Property" shall mean any owned or leased real property of a
Credit Party listed on Schedule 3.19(d).
"Multiemployer Plan" shall mean a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean the aggregate cash proceeds received by
any Credit Party or any Subsidiary in respect of any Asset Disposition, Equity
Issuance, Debt Issuance or Extraordinary Receipt, net of (a) direct costs
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) associated therewith, (b) amounts held in escrow to be
applied as part of the purchase price of any Asset Disposition and (c) taxes
paid or payable as a result thereof; it being understood that "Net Cash
Proceeds" shall include, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received by any Credit Party or
any Subsidiary in any Asset Disposition, Equity Issuance, Debt Issuance or
Extraordinary Receipt and any cash released from escrow as part of the purchase
price in connection with any Asset Disposition.
"Nevada Gaming Authorities" shall mean the NGC, NGCB and the Clark
County Liquor and Gaming Licensing Board.
"NGC" shall mean the Nevada Gaming Commission.
"NGCB" shall mean the Nevada State Gaming Control Board.
"Note" or "Notes" shall mean the Revolving Notes, the Term Loan Notes
and/or the Swingline Note, collectively, separately or individually, as
appropriate.
"Notice of Borrowing" shall mean a request for a Revolving Loan
borrowing pursuant to Section 2.1(b)(i) or a request for a Swingline Loan
borrowing pursuant to Section 2.4(b)(i), as appropriate. A Form of Notice of
Borrowing is attached as Exhibit 1.1(e).
"Notice of Conversion/Extension" shall mean the written notice of
conversion of a LIBOR Rate Loan to an Alternate Base Rate Loan or an Alternate
Base Rate Loan to a LIBOR Rate Loan, or extension of a LIBOR Rate Loan, in each
case substantially in the form of Exhibit 1.1(f).
"Obligations" shall mean, collectively, Loans, LOC Obligations, and all
other obligations of the Credit Parties to the Administrative Agent and the
Lenders under the Credit Documents.
"OFAC" shall mean the U.S. Department of the Treasury's Office of
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Foreign Assets Control.
"Operating Lease" shall mean, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Other Taxes" shall mean all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or under any other Credit Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Credit Document.
"Participant" has the meaning assigned to such term in clause (d) of
Section 9.6.
"Participation Interest" shall mean a participation interest purchased
by a Revolving Lender in LOC Obligations as provided in Section 2.3(c) and in
Swingline Loans as provided in Section 2.4.
"Patent Licenses" shall mean all agreements, whether written or oral,
providing for the grant by or to a Person of any right to manufacture, use or
sell any invention covered by a Patent, including, without limitation, any such
agreement referred to in Schedule 3.16.
"Patents" shall mean (a) all letters patent of the United States or any
other country, now existing or hereafter arising, and all improvement patents,
reissues, reexaminations, patents of additions, renewals and extensions thereof,
including, without limitation, any such agreement referred to in Schedule 3.16,
and (b) all applications for letters patent of the United States or any other
country, now existing or hereafter arising, and all provisionals, divisions,
continuations and continuations-in-part and substitutes thereof, including,
without limitation, any such agreement referred to in Schedule 3.16.
"Patriot Act" shall mean The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as
amended or modified from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Investments" shall mean:
(a) cash and Cash Equivalents;
(b) Investments set forth on Schedule 1.1(a);
(c) receivables owing to the Credit Parties or any of their
Subsidiaries or any receivables and advances to suppliers, in each case
if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(d) Investments in and loans to any Credit Party;
(e) loans and advances to officers, directors and employees in
an aggregate amount not to exceed $500,000 at any time outstanding;
provided that such loans and advances shall comply with all applicable
Requirements of Law (including Sarbanes-Oxley);
(f) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(g) Investments, acquisitions or transactions permitted under
Section 6.4(b);
(h) [Reserved];
(i) [Reserved];
(j) Hedging Agreements to the extent permitted hereunder; and
(k) additional loan advances and/or Investments of a nature
not contemplated by the foregoing clauses hereof; provided that such
loans, advances and/or Investments made after the Closing Date pursuant
to this clause shall not exceed an aggregate amount of $3,000,000 at
any one time outstanding.
"Permitted Liens" shall mean:
(a) Liens created by or otherwise existing under or in
connection with this Agreement or the other Credit Documents in favor
of the Administrative Agent on behalf of the Secured Parties;
(b) Liens in favor of a Hedging Agreement Provider in
connection with a Secured Hedging Agreement; provided that such Liens
shall secure the Credit Party Obligations and the obligations under
such Secured Hedging Agreement on a pari passu basis;
(c) Liens securing purchase money Indebtedness and Capital
Lease Obligations to the extent permitted under Section 6.1(c);
provided, that (i) any such Lien attaches to such property concurrently
with or within thirty (30) days after the acquisition thereof and (ii)
such Lien attaches solely to the property so acquired in such
transaction;
(d) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of grace (not
to exceed sixty (60) days), if any, related thereto has not expired or
which are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on
the books of any Credit Party or its Subsidiaries, as the case may be,
in conformity with GAAP;
(e) statutory Liens such as carriers', warehousemen's,
mechanics', materialmen's, landlords', repairmen's or other like Liens
arising in the ordinary course of business which are not overdue for a
period of more than thirty (30) days or which are being contested in
good faith by appropriate proceedings; provided that a reserve or other
appropriate provision shall have been made therefor and the aggregate
amount of such Liens outstanding at any given time is less than
$500,000;
(f) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in an aggregate amount not to
exceed $500,000;
(g) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(h) easements, rights of way, restrictions and other similar
encumbrances affecting real property which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
applicable Person;
(i) Liens existing on the Closing Date and set forth on
Schedule 1.1(b); provided that (i) no such Lien shall at any time be
extended to cover property or assets other than the property or assets
subject thereto on the Closing Date and improvements thereon and (ii)
the principal amount of the Indebtedness secured by such Lien shall not
be extended, renewed, refunded or refinanced;
(j) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in this definition (other than Liens set forth on Schedule
1.1(b)); provided that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which secured the
Lien so extended, renewed or replaced (plus improvements on such
property);
(k) Liens arising in the ordinary course of business by virtue
of any contractual, statutory or common law provision relating to
banker's Liens, rights of set-off or similar rights and remedies
covering deposit or securities accounts (including funds or other
assets credited thereto) or other funds maintained with a depository
institution or securities intermediary;
(l) any zoning, building or similar laws or rights reserved to
or vested in any Governmental Authority;
(m) restrictions on transfers of securities imposed by
applicable Securities Laws;
(n) Liens arising out of judgments or awards not resulting in
an Event of Default; provided that the applicable Credit Party or
Subsidiary shall in good faith be prosecuting an appeal or proceedings
for review;
(o) Liens in connection with the City of Blackhawk Special
Improvement District Bonds in an aggregate amount not to exceed
$2,800,000;
(p) any interest or title of a lessor, licensor or sublessor
under any lease, license or sublease entered into by any Credit Party
or any Subsidiary thereof in the ordinary course of its business and
covering only the assets so leased, licensed or subleased;
(q) assignments of insurance or condemnation proceeds provided
to landlords (or their mortgagees) pursuant to the terms of any lease
and Liens or rights reserved in any lease for rent or for compliance
with the terms of such lease; and
(r) additional Liens so long as the principal amount of
Indebtedness and other obligations secured thereby does not exceed
$2,500,000 in the aggregate.
"Person" shall mean any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" shall mean, as of any date of determination, any employee
benefit plan which is covered by Title IV of ERISA and in respect of which any
Credit Party or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements" shall mean the Gaming Pledge Agreement and Credit
Party Pledge Agreement.
"Pledge Approval" shall mean the prior approval of the NGC upon the
recommendation of the NGCB of the Gaming Pledge Agreement, the pledge of the
Pledged Collateral (as defined in the Gaming Pledge Agreement), and any
restrictions on the transfer of and agreements not to encumber the Pledged
Collateral or other equity securities of any corporation that is a licensee or
registered holding company, contained in the Gaming Pledge Agreement or in the
Credit Agreement.
"Prime Rate" shall have the meaning set forth in the definition of
Alternate Base Rate.
"Pro Forma Basis" shall mean, with respect to any transaction, that
such transaction shall be deemed to have occurred as of the first day of the
applicable period of measurement in such test or covenant.
"Properties" shall have the meaning set forth in Section 3.10(a).
"Ratings" shall mean, as of any date of determination, the corporate
credit rating as determined by S&P or the corporate family rating as determined
by Moody's, as applicable, of the Borrower.
"RBH" shall mean Riviera Black Hawk, Inc., a Colorado corporation.
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"Real Estate Appraisal" shall mean an appraisal of the Credit Parties'
real estate performed by an appraiser selected by the Administrative Agent, in
form and substance reasonably satisfactory to the Administrative Agent.
"Register" shall have the meaning set forth in Section 9.6(c).
"Reimbursement Obligation" shall mean the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 2.3(d) for amounts drawn under
Letters of Credit.
"Related Parties" shall mean, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agent, trustees and
advisors of such Person and of such Person's Affiliates.
"Reorganization" shall mean, with respect to any Multiemployer Plan,
the condition that such Plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day notice
period is waived under PBGC Reg. ss.4043.
"Required Lenders" shall mean, as of any date of determination, a
minimum of three (3) Lenders holding at least a majority of (a) the outstanding
Revolving Commitments and Term Loan or (b) if the Revolving Commitments have
been terminated, the outstanding Loans and Participation Interests; provided,
however, that if any Lender shall be a Defaulting Lender at such time, then
there shall be excluded from the determination of Required Lenders, Obligations
(including Participation Interests) owing to such Defaulting Lender and such
Defaulting Lender's Commitments.
"Required Revolving Lenders" shall mean, as of any date of
determination, a minimum of three (3) Revolving Lenders holding at least a
majority of (a) the outstanding Revolving Commitments or (b) if the Revolving
Commitments have been terminated, the outstanding Revolving Loans and
Participation Interests; provided, however, that if any Revolving Lender shall
be a Defaulting Lender at such time, then there shall be excluded from the
determination of Required Revolving Lenders, Obligations (including
Participation Interests) owing to such Defaulting Lender and such Defaulting
Lender's Revolving Commitments.
"Required Term Loan Lenders" shall mean, as of any date of
determination, a minimum of three (3) Lenders holding at least a majority of the
outstanding Term Loans; provided, however, that if any such Lender shall be a
Defaulting Lender at such time, then there shall be excluded from the
determination of Required Term Loan Lenders, Obligations owing to such
Defaulting Lender and such Defaulting Lender's Term Loan Commitments.
"Requirement of Law" shall mean, as to any Person, the articles or
certificate of incorporation, by-laws or other organizational or governing
documents of such Person, and each law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" shall mean, for any Credit Party, any duly
authorized officer thereof and in which the Administrative Agent has an
incumbency certificate indicating such officer is a duly authorized officer
thereof.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares (or equivalent) of any class of
Equity Interest of any Credit Party or any of its Subsidiaries, now or hereafter
outstanding, (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares (or
equivalent) of any class of Equity Interest of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Equity Interest of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (d) any payment with respect to any
earnout obligation, (e) any payment or prepayment of principal of, premium, if
any, or interest on, redemption, purchase, retirement, defeasance, sinking fund
or similar payment with respect to, any Subordinated Debt of any Credit Party or
any of its Subsidiaries and (f) the payment by any Credit Party or any of its
Subsidiaries of any management, advisory, retirement or consulting fee to any
Person or the payment of any extraordinary salary, bonus or other form of
compensation to any Person who is directly or indirectly a significant partner,
shareholder, owner or executive officer of any such Person, to the extent such
extraordinary salary, bonus or other form of compensation is not included in the
corporate overhead of such Credit Party or such Subsidiary.
"Revolver Maturity Date" shall mean the date that is five (5) years
following the Closing Date.
"Revolving Commitment" shall mean, with respect to each Revolving
Lender, the commitment of such Revolving Lender to make Revolving Loans in an
aggregate principal amount at any time outstanding up to an amount equal to such
Revolving Lender's Revolving Commitment Percentage of the Revolving Committed
Amount.
"Revolving Commitment Percentage" shall mean, for each Lender, the
percentage identified as its Revolving Commitment Percentage in its Lender
Commitment Letter or in the Assignment and Assumption pursuant to which such
Lender became a Lender hereunder, as such percentage may be modified in
connection with any assignment made in accordance with the provisions of Section
9.6(c).
"Revolving Committed Amount" shall have the meaning set forth in
Section 2.1(a).
"Revolving Facility" shall mean Revolving Commitments and the
-------------------
Extensions of Credit made pursuant to Sections 2.1, 2.3 and
2.4.
"Revolving Lender" shall mean, as of any date of determination, a
Lender holding a Revolving Commitment, a Revolving Loan or a Participation
Interest on such date.
"Revolving Loan" shall have the meaning set forth in Section 2.1.
"Revolving Note" or "Revolving Notes" shall mean the promissory notes
of the Borrower provided pursuant to Section 2.1(e) in favor of any of the
Revolving Lenders evidencing the Revolving Loan provided by any such Revolving
Lender pursuant to Section 2.1(a), individually or collectively, as appropriate,
as such promissory notes may be amended, modified, extended, restated, replaced,
or supplemented from time to time.
"Riviera Black Hawk Facility" shall mean the Riviera Black Hawk Casino
of Black Hawk, Colorado, the real property, equipment and personal property
related thereto.
"Riviera Las Vegas Facility" shall mean the Riviera Hotel & Casino of
Las Vegas, Nevada, the real property, equipment and personal property related
thereto.
"ROC" shall mean Riviera Operating Corporation, a Nevada corporation.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sanctioned Country" shall mean a country subject to a sanctions
program identified on the list maintained by OFAC and made publicly available
from time to time.
"Sanctioned Person" shall mean (a) a Person named on the list of
"Specially Designated Nationals and Blocked Persons" maintained by OFAC and made
publicly available from time to time, or (b) (i) an agency of the government of
a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country,
or (iii) a person resident in a Sanctioned Country, to the extent subject to a
sanctions program administered by OFAC.
"Sarbanes-Oxley" shall mean the Sarbanes-Oxley Act of 2002.
"Satisfaction and Discharge Deposit" shall mean a deposit of funds made
to the Trustee in an amount sufficient to redeem all obligations outstanding
under the Senior Notes as of the redemption date on terms and conditions
satisfactory to the Administrative Agent.
"Scheduled Funded Debt Payments" shall mean, as of any date of
determination for the Borrower and its Subsidiaries, the sum of all scheduled
payments of principal on Funded Debt for the applicable period ending on the
date of determination (including the principal component of payments due on
Capital Leases during the applicable period ending on the date of
determination).
"SEC" shall mean the Securities and Exchange Commission or any
successor Governmental Authority.
"Secured Hedging Agreement" shall mean any Hedging Agreement between a
Credit Party and a Hedging Agreement Provider, as amended, modified, extended,
restated, replaced, or supplemented from time to time.
"Secured Parties" shall mean the Administrative Agent, the Lenders and
the Hedging Agreement Providers.
"Securities Account Control Agreement" shall mean an agreement, among a
Credit Party, a securities intermediary, and the Administrative Agent, which
agreement is either substantially in the form of Exhibit 1.1(g) or in a form
acceptable to the Administrative Agent and which provides the Administrative
Agent with "control" (as such term is used in Articles 8 and 9 of the Uniform
Commercial Code) over the securities account(s) described therein, as the same
may be as amended, modified, extended, restated, replaced, or supplemented from
time to time.
"Securities Act" shall mean the Securities Act of 1933, together with
any amendment thereto or replacement thereof and any rules or regulations
promulgated thereunder.
"Securities Laws" shall mean the Securities Act, the Exchange Act,
Sarbanes-Oxley and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the
Public Company Accounting Oversight Board, as each of the foregoing may be
amended and in effect on any applicable date hereunder.
"Security Agreement" shall mean the Security Agreement dated as of the
Closing Date executed by the Credit Parties in favor of the Administrative
Agent, for the benefit of the Secured Parties, as amended, modified, extended,
restated, replaced, or supplemented from time to time in accordance with its
terms.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreements, the Mortgage Instruments and all other agreements, documents and
instruments relating to, arising out of, or in any way connected with any of the
foregoing documents or granting to the Administrative Agent, Liens or security
interests to secure, inter alia, the Credit Party Obligations whether now or
hereafter executed and/or filed, each as may be amended from time to time in
accordance with the terms hereof, executed and delivered in connection with the
granting, attachment and perfection of the Administrative Agent's security
interests and liens arising thereunder, including, without limitation, UCC
financing statements.
"Senior Indenture" shall mean that certain Indenture, dated as of June
26, 2002, among the Borrower, Riviera Operating Corporation, Riviera Blackhawk,
Inc. and the Trustee.
"Senior Notes" shall mean those certain 11% Senior Notes due June 15,
2010 in an original principal amount of $215,000,000 issued pursuant to the
Senior Indenture.
"Single Employer Plan" shall mean any Plan that is not a Multiemployer
Plan.
"Subordinated Debt" shall mean any Indebtedness incurred by any Credit
Party which by its terms is specifically subordinated in right of payment to the
prior payment of the Credit Party Obligations and contains subordination and
other terms acceptable to the Administrative Agent.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, limited liability company, partnership or other entity are at
the time owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower other
than the Excluded Subsidiaries.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding up to the Swingline Committed Amount, and the commitment of the
Revolving Lenders to purchase participation interests in the Swingline Loans as
provided in Section 2.4(b)(ii), as such amounts may be reduced from time to time
in accordance with the provisions hereof.
"Swingline Committed Amount" shall mean the amount of the Swingline
Lender's Swingline Commitment as specified in Section 2.4(a).
"Swingline Lender" shall mean Wachovia and any successor swingline
lender.
"Swingline Loan" shall have the meaning set forth in Section 2.4(a).
"Swingline Note" shall mean the promissory note of the Borrower in
favor of the Swingline Lender evidencing the Swingline Loans provided pursuant
to Section 2.4(d), as such promissory note may be amended, modified, extended,
restated, replaced, or supplemented from time to time.
"Taxes" shall mean all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
"Term Loan" shall have the meaning set forth in Section 2.2(a).
"Term Loan Commitment" shall mean, with respect to each Term Loan
Lender, the commitment of such Term Loan Lender to make its portion of the Term
Loan in a principal amount equal to such Term Loan Lender's Term Loan Commitment
Percentage of the Term Loan Committed Amount.
"Term Loan Commitment Percentage" shall mean, for any Term Loan Lender,
the percentage identified as its Term Loan Commitment Percentage in its Lender
Commitment Letter, or in the Assignment and Assumption pursuant to which such
Lender became a Lender hereunder, as such percentage may be modified in
connection with any assignment made in accordance with the provisions of Section
9.6(c).
"Term Loan Committed Amount" shall have the meaning set forth in
Section 2.2(a).
"Term Loan Lender" shall mean a Lender holding a Term Loan Commitment
or a portion of the outstanding Term Loan.
"Term Loan Maturity Date" shall mean the date that is seven (7) years
following the Closing Date.
"Term Loan Note" or "Term Loan Notes" shall mean the promissory notes
of the Borrower (if any) in favor of any of the Term Loan Lenders evidencing the
portion of the Term Loan provided by any such Term Loan Lender pursuant to
Section 2.2(a), individually or collectively, as appropriate, as such promissory
notes may be amended, modified, extended, restated, replaced, or supplemented
from time to time.
"Title Insurance Company" shall have the meaning set forth in the
definition of "Mortgage Policy".
"Trademark License" shall mean any agreement, whether written or oral,
providing for the grant by or to a Person of any right to use any Trademark,
including, without limitation, any such agreement referred to in Schedule 3.16.
"Trademarks" shall mean (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, service marks,
elements of package or trade dress of goods or services, logos and other source
or business identifiers, together with the goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, including, without limitation, any such agreement referred
to in Schedule 3.16 and (b) all renewals thereof including, without limitation,
any such agreement referred to in Schedule 3.16.
"Tranche" shall mean the collective reference to (a) LIBOR Rate Loans
whose Interest Periods begin and end on the same day and (b) Alternate Base Rate
Loans made on the same day.
"Transactions" shall mean the closing of this Agreement, the other
Credit Documents and the other transactions contemplated hereby to occur in
connection with such closing (including, without limitation, the initial
borrowings under the Credit Documents and the payment of fees and expenses in
connection with all of the foregoing).
"Transfer Effective Date" shall have the meaning set forth in each
Assignment and Assumption.
"Trustee" shall mean The Bank of New York, in its capacity as trustee
under the Senior Indenture.
"Type" shall mean, as to any Loan, its nature as an Alternate Base Rate
Loan or LIBOR Rate Loan, as the case may be.
"UCC" shall mean the Uniform Commercial Code from time to time in
effect in any applicable jurisdiction.
"Voting Stock" shall mean, with respect to any Person, Equity Interest
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
may be or have been suspended by the happening of such a contingency.
"Wachovia" shall mean Wachovia Bank, National Association, a national
banking association, together with its successors and/or assigns.
"Westerman Retirement Obligation" shall mean the nonqualified pension
plan obligation of the Borrower owing to William L. Westerman, Chief Executive
Officer of the Borrower ("WLW") pursuant to the terms of that certain Employment
Agreement, dated as of November 21, 1996 (as previously amended) between the
Borrower, Riviera Operating Corporation and WLW which provides for the Borrower
to make quarterly distributions from the principal of the retirement account
plus the quarterly interest credited on such account to WLW.
"Works" shall mean all works which are subject to copyright protection
pursuant to Title 17 of the United States Code.
Section 1.2 Other Definitional Provisions.
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein," "hereof"
and "hereunder," and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) any reference to any law or regulation herein shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time and (f) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
Consolidated financial statements of the Borrower delivered to the Lenders;
provided that, if the Borrower shall notify the Administrative Agent that it
wishes to amend any definitions or covenant incorporated in Section 5.9 to
eliminate the effect of any change in GAAP on the operation of any such
definition or provision (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend any such definition or provision for
such purpose), then the Borrower's compliance with such provisions shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such
definition or provision is amended in a manner satisfactory to the Borrower and
the Required Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender
at the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (a) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (b) a reasonable estimate of the effect on the financial statements on
account of such changes in application.
For purposes of computing the financial covenants set forth in Section
5.9 for any applicable test period, any permitted sale of assets (including a
stock sale) shall be given pro forma effect as if such transaction had taken
place as of the first day of such applicable test period.
Section 1.4 Time References.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
Section 1.5 Execution of Documents.
Unless otherwise specified, all Credit Documents and all other
certificates executed in connection therewith must be signed by a Responsible
Officer.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period,
subject to the terms and conditions hereof, each Revolving Lender
severally, but not jointly, agrees to make revolving credit loans in
Dollars ("Revolving Loans") to the Borrower from time to time in an
aggregate principal amount of up to TWENTY MILLION DOLLARS
($20,000,000) (as such aggregate maximum amount may be reduced from
time to time as provided in Section 2.6, the "Revolving Committed
Amount") for the purposes hereinafter set forth; provided, however,
that (i) with regard to each Revolving Lender individually, the sum of
such Revolving Lender's Revolving Commitment Percentage of the
aggregate principal amount of outstanding Revolving Loans plus such
Revolving Lender's Revolving Commitment Percentage of outstanding
Swingline Loans plus such Revolving Lender's Revolving Commitment
Percentage of outstanding LOC Obligations shall not exceed such
Revolving Lender's Revolving Commitment and (ii) with regard to the
Revolving Lenders collectively, the sum of the aggregate principal
amount of outstanding Revolving Loans plus outstanding Swingline Loans
plus outstanding LOC Obligations shall not exceed the Revolving
Committed Amount then in effect. Revolving Loans may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination
thereof, as the Borrower may request, and may be repaid and reborrowed
in accordance with the provisions hereof; provided, however, the
Revolving Loans made on the Closing Date or any of the three (3)
Business Days following the Closing Date, may only consist of Alternate
Base Rate Loans unless the Borrower delivers a funding indemnity
letter, substantially in the form of Exhibit 2.1(a), reasonably
acceptable to the Administrative Agent not less than three (3) Business
Days prior to the Closing Date. LIBOR Rate Loans shall be made by each
Revolving Lender at its LIBOR Lending Office and Alternate Base Rate
Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by delivering a written Notice of
Borrowing (or telephone notice promptly confirmed in writing
by delivery of a written Notice of Borrowing, which delivery
may be by fax) to the Administrative Agent not later than 1:00
P.M. on the Business Day prior to the date of the requested
borrowing in the case of Alternate Base Rate Loans, and on the
third Business Day prior to the date of the requested
borrowing in the case of LIBOR Rate Loans. Each such Notice of
Borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed and (D) whether the borrowing
shall be comprised of Alternate Base Rate Loans, LIBOR Rate
Loans or a combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor. If the Borrower
shall fail to specify in any such Notice of Borrowing (1) an
applicable Interest Period in the case of a LIBOR Rate Loan,
then such notice shall be deemed to be a request for an
Interest Period of one month, or (2) the Type of Revolving
Loan requested, then such notice shall be deemed to be a
request for an Alternate Base Rate Loan hereunder. The
Administrative Agent shall give notice to each Revolving
Lender promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Revolving Lender's share
thereof.
(ii) Minimum Amounts. Each Revolving Loan that is
made as an Alternate Base Rate Loan shall be in a minimum
aggregate amount of $1,000,000 and in integral multiples of
$500,000 in excess thereof (or the remaining amount of the
Revolving Committed Amount, if less). Each Revolving Loan that
is made as a LIBOR Rate Loan shall be in a minimum aggregate
amount of $5,000,000 and in integral multiples of $1,000,000
in excess thereof (or the remaining amount of the Revolving
Committed Amount, if less).
(iii) Advances. Each Revolving Lender will make its
Revolving Commitment Percentage of each Revolving Loan
borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative
Agent specified in Section 9.2, or at such other office as the
Administrative Agent may designate in writing, by 3:00 P.M. on
the date specified in the applicable Notice of Borrowing, in
Dollars and in funds immediately available to the
Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent by
crediting the account of the Borrower on the books of such
office (or such other account that the Borrower may designate
in writing to the Administrative Agent) with the aggregate of
the amounts made available to the Administrative Agent by the
Revolving Lenders and in like funds as received by the
Administrative Agent.
(c) Repayment. Subject to the terms of this Agreement,
Revolving Loans may be borrowed, repaid and reborrowed during the
Commitment Period. The principal amount of all Revolving Loans shall be
due and payable in full on the Revolver Maturity Date, unless
accelerated sooner pursuant to Section 7.2. The Borrower shall have the
right to repay Revolving Loans in whole or in part from time to time
without premium or penalty other than as provided in this Agreement;
provided, however; that each partial repayment of a Revolving Loan
shall be in a minimum principal amount of $1,000,000 and integral
multiples of $500,000 in excess thereof (or the remaining outstanding
principal amount).
(d) Interest. Subject to the provisions of Section 2.8,
Revolving Loans shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as
any Revolving Loans shall be comprised of Alternate Base Rate
Loans, each such Alternate Base Rate Loan shall bear interest
at a per annum rate equal to the sum of the Alternate Base
Rate plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as
Revolving Loans shall be comprised of LIBOR Rate Loans, each
such LIBOR Rate Loan shall bear interest at a per annum rate
equal to the sum of the LIBOR Rate plus the Applicable
Percentage.
Interest on Revolving Loans shall be payable in arrears on
each Interest Payment Date.
(e) Revolving Notes; Covenant to Pay. The Borrower's
obligation to pay each Revolving Lender shall be evidenced by this
Agreement and, upon such Revolving Lender's request, by a duly executed
promissory note of the Borrower to such Revolving Lender in
substantially the form of Exhibit 2.1(e). The Borrower covenants and
agrees to pay the Revolving Loans in accordance with the terms of this
Agreement.
Section 2.2 Term Loan; Incremental Term Loan.
(a) Term Loan. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein,
each Term Loan Lender severally, but not jointly, agrees to make
available to the Borrower (through the Administrative Agent) on the
Closing Date such Term Loan Lender's Term Loan Commitment Percentage of
a term loan in Dollars (the "Term Loan") in the aggregate principal
amount of TWO HUNDRED TWENTY-FIVE MILLION DOLLARS ($225,000,000) (the
"Term Loan Committed Amount") for the purposes hereinafter set forth.
Upon receipt by the Administrative Agent of the proceeds of the Term
Loan, such proceeds will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the
books of the office of the Administrative Agent specified in Section
9.2, or at such other office as the Administrative Agent may designate
in writing, with the aggregate of such proceeds made available to the
Administrative Agent by the Term Loan Lenders and in like funds as
received by the Administrative Agent (or by crediting such other
account(s) as directed by the Borrower). The Term Loan may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination
thereof, as the Borrower may request; provided, however, that the Term
Loan made on the Closing Date or any of the two (2) Business Days
following the Closing Date, may only consist of Alternate Base Rate
Loans unless the Borrower delivers a funding indemnity letter,
substantially in the form of Exhibit 2.1(a), reasonably acceptable to
the Administrative Agent not less than three (3) Business Days prior to
the Closing Date. LIBOR Rate Loans shall be made by each Term Loan
Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its
Domestic Lending Office. Amounts repaid or prepaid on the Term Loan may
not be reborrowed.
(b) Repayment of Term Loan. The principal amount of the Term
Loan shall be repaid in consecutive quarterly installments as follows,
unless accelerated sooner pursuant to Section 7.2:
-----------------------------------------------------------------------------
Principal Amortization Payment Dates Term Loan Principal Amortization
Payment
-----------------------------------------------------------------------------
September 30, 2007 $ 0
-----------------------------------------------------------------------------
December 31, 2007 $ 0
-----------------------------------------------------------------------------
March 31, 2008 $ 0
-----------------------------------------------------------------------------
June 30, 2008 $ 0
-----------------------------------------------------------------------------
September 30, 2008 $ 0
-----------------------------------------------------------------------------
December 31, 2008 $ 0
-----------------------------------------------------------------------------
March 31, 2009 $ 0
-----------------------------------------------------------------------------
June 30, 2009 $ 0
-----------------------------------------------------------------------------
September 30, 2009 $ 0
-----------------------------------------------------------------------------
December 31, 2009 $ 0
-----------------------------------------------------------------------------
March 31, 2010 $ 0
-----------------------------------------------------------------------------
June 30, 2010 $ 0
-----------------------------------------------------------------------------
September 30, 2010 $ 562,500
-----------------------------------------------------------------------------
December 31, 2010 $ 562,500
-----------------------------------------------------------------------------
March 31, 2011 $ 562,500
-----------------------------------------------------------------------------
June 30, 2011 $ 562,500
-----------------------------------------------------------------------------
September 30, 2011 $ 562,500
-----------------------------------------------------------------------------
December 31, 2011 $ 562,500
-----------------------------------------------------------------------------
March 31, 2012 $ 562,500
-----------------------------------------------------------------------------
June 30, 2012 $ 562,500
-----------------------------------------------------------------------------
September 30, 2012 $ 562,500
-----------------------------------------------------------------------------
December 31, 2012 $ 562,500
-----------------------------------------------------------------------------
March 31, 2013 $ 562,500
-----------------------------------------------------------------------------
June 30, 2013 $ 562,500
-----------------------------------------------------------------------------
September 30, 2013 $ 54,562,500
-----------------------------------------------------------------------------
December 31, 2013 $ 54,562,500
-----------------------------------------------------------------------------
March 31, 2014 $ 54,562,500
-----------------------------------------------------------------------------
Term Loan Maturity Date The remaining outstanding principal
amount of the
Term Loan
-----------------------------------------------------------------------------
(c) Interest on the Term Loan. Subject to the provisions of
Section 2.8, the Term Loan shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as
the Term Loan shall be comprised of Alternate Base Rate Loans,
each such Alternate Base Rate Loan shall bear interest at a
per annum rate equal to the sum of the Alternate Base Rate
plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as the
Term Loan shall be comprised of LIBOR Rate Loans, each such
LIBOR Rate Loan shall bear interest at a per annum rate equal
to the sum of the LIBOR Rate plus the Applicable Percentage.
Interest on the Term Loan shall be payable in arrears
on each Interest Payment Date.
(d) Term Loan Notes; Covenant to Pay. The Borrower's
obligation to pay each Term Loan Lender shall be evidenced by this
Agreement and, upon such Term Loan Lender's request, by a duly executed
promissory note of the Borrower to such Term Loan Lender in
substantially the form of Exhibit 2.2(d). The Borrower covenants and
agrees to pay the Term Loan in accordance with the terms of this
Agreement.
(e) Incremental Term Loan. Subject to the terms and conditions
set forth herein, the Borrower shall have the right, at any time and
from time to time (but not to exceed two (2) increases in the
aggregate) prior to the Term Loan Maturity Date, to incur additional
Indebtedness under this Credit Agreement in the form of an increase to
the Term Loan Committed Amount (each an "Incremental Term Facility") by
an aggregate amount of up to SEVENTY-FIVE MILLION DOLLARS
($75,000,000). The following terms and conditions shall apply to each
Incremental Term Facility: (i) the loans made under any such
Incremental Term Facility (each an "Additional Term Loan") shall
constitute Credit Party Obligations and will be secured and guaranteed
with the other Credit Party Obligations on a pari passu basis, (ii) the
yield on such Incremental Term Facility (taking into account upfront
fees payable to the Lenders making such Incremental Term Facility) may
be higher than the then-current interest rate margin on the Term Loans,
but by no more than 0.50% (it being understood that the existing Term
Loan pricing will be increased and/or additional fees will be paid to
existing Term Loan Lenders to the extent necessary to satisfy such
requirement), (iii) any such Incremental Term Facility shall have a
maturity date no sooner than, and a weighted average life to maturity
no shorter than, the Term Loan Maturity Date and the weighted average
life to maturity of the Term Loans, respectively, (iv) any such
Incremental Term Facility shall be entitled to the same voting rights
as the existing Term Loans and shall be entitled to receive proceeds of
prepayments on the same basis as the existing Term Loans, (v) any such
Incremental Term Facility shall be obtained from existing Lenders or
from other banks, financial institutions or investment funds, in each
case in accordance with the terms set forth below, (vi) any such
Incremental Term Facility shall be in a minimum principal amount of
$20,000,000 and integral multiples of $1,000,000 in excess thereof,
(vii) the proceeds of any Additional Term Loan will be used for the
purposes set forth in Section 3.11, (viii) the Borrower shall execute a
Term Note in favor of any new Lender or any existing Lender requesting
a Term Note whose Term Loan Committed Amount is increased, (ix) the
conditions to Extensions of Credit in Section 4.2 shall have been
satisfied, (x) the Administrative Agent shall have received an opinion
or opinions (including, if reasonably requested by the Administrative
Agent, local counsel opinions) of counsel for the Credit Parties,
addressed to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent, and (xi)
the Administrative Agent shall have received from the Borrower updated
financial projections and an officer's certificate, in each case in
form and substance reasonably satisfactory to the Administrative Agent,
demonstrating that, after giving effect to any such Incremental Term
Facility on a Pro Forma Basis, the Borrower will be in compliance with
the financial covenants set forth in Section 5.9 notwithstanding
whether the Consolidated Leverage Ratio is otherwise required to be
calculated pursuant to Section 5.9 at such time. The Administrative
Agent is authorized to enter into, on behalf of the Lenders, any
amendment to this Credit Agreement or any other Credit Document as may
be necessary to incorporate the terms of any new Incremental Term
Facility therein.
Section 2.3 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, during the Commitment Period
the Issuing Lender shall issue, and the Revolving Lenders shall
participate in, standby Letters of Credit for the account of the
Borrower from time to time upon request in a form reasonably acceptable
to the Issuing Lender; provided, however, that (i) the aggregate amount
of LOC Obligations shall not at any time exceed FIVE MILLION DOLLARS
($5,000,000) (the "LOC Committed Amount"), (ii) the sum of the
aggregate principal amount of outstanding Revolving Loans plus
outstanding Swingline Loans plus outstanding LOC Obligations shall not
at any time exceed the Revolving Committed Amount then in effect, (iii)
all Letters of Credit shall be denominated in Dollars and (iv) Letters
of Credit shall be issued for any lawful corporate purposes and shall
be issued as standby letters of credit, including in connection with
workers' compensation and other insurance programs. Except as otherwise
expressly agreed upon by all the Revolving Lenders, no Letter of Credit
shall have an original expiry date more than twelve (12) months from
the date of issuance; provided, however, so long as no Default or Event
of Default has occurred and is continuing and subject to the other
terms and conditions to the issuance of Letters of Credit hereunder,
the expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Borrower or by
operation of the terms of the applicable Letter of Credit to a date not
more than twelve (12) months from the date of extension; provided,
further, that no Letter of Credit, as originally issued or as extended,
shall have an expiry date extending beyond the date that is thirty (30)
days prior to the Revolver Maturity Date. Each Letter of Credit shall
comply with the related LOC Documents. The issuance and expiry date of
each Letter of Credit shall be a Business Day. Each Letter of Credit
issued hereunder shall be in a minimum original face amount of $500,000
or such lesser amount as approved by the Issuing Lender.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least five
(5) Business Days prior to the requested date of issuance. The Issuing
Lender will promptly upon request provide to the Administrative Agent
for dissemination to the Revolving Lenders a detailed report specifying
the Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, expiry date as well as
any payments or expirations which may have occurred. The Issuing Lender
will further provide to the Administrative Agent promptly upon request
copies of the Letters of Credit. The Issuing Lender will provide to the
Administrative Agent promptly upon request a summary report of the
nature and extent of LOC Obligations then outstanding.
(c) Participations. Each Revolving Lender upon issuance of a
Letter of Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Letter of Credit and
the obligations arising thereunder and any Collateral relating thereto,
in each case in an amount equal to its Revolving Commitment Percentage
of the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and be obligated to pay to the Issuing Lender therefor and
discharge when due, its Revolving Commitment Percentage of the
obligations arising under such Letter of Credit; provided that any
Person that becomes a Revolving Lender after the Closing Date shall be
deemed to have purchased a Participation Interest in all outstanding
Letters of Credit on the date it becomes a Lender hereunder and any
Letter of Credit issued on or after such date, in each case in
accordance with the foregoing terms. Without limiting the scope and
nature of each Revolving Lender's participation in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed
as required hereunder or under any LOC Document, each such Revolving
Lender shall pay to the Issuing Lender its Revolving Commitment
Percentage of such unreimbursed drawing in same day funds pursuant to
and in accordance with the provisions of subsection (d) hereof. The
obligation of each Revolving Lender to so reimburse the Issuing Lender
shall be absolute and unconditional and shall not be affected by the
occurrence of a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower
and the Administrative Agent. The Borrower shall reimburse the Issuing
Lender on the day of drawing under any Letter of Credit if notified
prior to 3:00 P.M. on a Business Day or, if after 3:00 P.M., on the
following Business Day (either with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds as provided herein
or in the LOC Documents. If the Borrower shall fail to reimburse the
Issuing Lender as provided herein, the unreimbursed amount of such
drawing shall bear interest at a per annum rate equal to the ABR
Default Rate. Unless the Borrower shall immediately, and in any event
within one (1) hour of the receipt by the Borrower of notification of
any drawing, notify the Issuing Lender and the Administrative Agent of
its intent to otherwise reimburse the Issuing Lender, the Borrower
shall be deemed to have requested a Mandatory LOC Borrowing in the
amount of the drawing as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the Reimbursement
Obligations. The Borrower's Reimbursement Obligations hereunder shall
be absolute and unconditional under all circumstances irrespective of
any rights of set-off, counterclaim or defense to payment the Borrower
may claim or have against the Issuing Lender, the Administrative Agent,
the Lenders, the beneficiary of the Letter of Credit drawn upon or any
other Person, including without limitation any defense based on any
failure of the Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the other Revolving Lenders of the
amount of any unreimbursed drawing and each Revolving Lender shall
promptly pay to the Administrative Agent for the account of the Issuing
Lender, in Dollars and in immediately available funds, the amount of
such Revolving Lender's Revolving Commitment Percentage of such
unreimbursed drawing. Such payment shall be made on the day such notice
is received by such Revolving Lender from the Issuing Lender if such
notice is received at or before 2:00 P.M., otherwise such payment shall
be made at or before 12:00 P.M. on the Business Day next succeeding the
day such notice is received. If such Revolving Lender does not pay such
amount to the Issuing Lender in full upon such request, such Revolving
Lender shall, on demand, pay to the Administrative Agent for the
account of the Issuing Lender interest on the unpaid amount during the
period from the date of such drawing until such Revolving Lender pays
such amount to the Issuing Lender in full at a rate per annum equal to,
if paid within two (2) Business Days of the date of drawing, the
Federal Funds Effective Rate and thereafter at a rate equal to the
Alternate Base Rate. Each Revolving Lender's obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
Credit Party Obligations hereunder and shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the Revolving Lenders that a
Revolving Loan has been requested or deemed requested in connection
with a drawing under a Letter of Credit, in which case a Revolving Loan
borrowing comprised entirely of Alternate Base Rate Loans (each such
borrowing, a "Mandatory LOC Borrowing") shall be made (without giving
effect to any termination of the Commitments pursuant to Section 7.2)
pro rata based on each Revolving Lender's respective Revolving
Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 7.2) and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans on the day such
notice is received by the Revolving Lenders from the Administrative
Agent if such notice is received at or before 2:00 P.M., otherwise such
payment shall be made at or before 12:00 P.M. on the Business Day next
succeeding the day such notice is received, in each case
notwithstanding (i) the amount of Mandatory LOC Borrowing may not
comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 4.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or deemed
request for Revolving Loan to be made by the time otherwise required in
Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or (vi)
any reduction in the Revolving Committed Amount after any such Letter
of Credit may have been drawn upon. In the event that any Mandatory LOC
Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the occurrence of
a Bankruptcy Event), then each such Revolving Lender hereby agrees that
it shall forthwith fund (as of the date the Mandatory LOC Borrowing
would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) its
Participation Interests in the outstanding LOC Obligations; provided,
further, that in the event any Revolving Lender shall fail to fund its
Participation Interest on the day the Mandatory LOC Borrowing would
otherwise have occurred, then the amount of such Revolving Lender's
unfunded Participation Interest therein shall bear interest payable by
such Revolving Lender to the Issuing Lender upon demand, at the rate
equal to, if paid within two (2) Business Days of such date, the
Federal Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate.
(f) Modification, Extension. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) ISP98. Unless otherwise expressly agreed by the Issuing
Lender and the Borrower, when a Letter of Credit is issued, the rules
of the "International Standby Practices 1998," published by the
Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance) shall
apply to each standby Letter of Credit.
(h) Conflict with LOC Documents. In the event of any conflict
between this Agreement and any LOC Document (including any letter of
credit application), this Agreement shall control.
(i) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement,
including without limitation Section 2.3(a), a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Subsidiary of the Borrower;
provided that, notwithstanding such statement, the Borrower shall be
the actual account party for all purposes of this Agreement for such
Letter of Credit and such statement shall not affect the Borrower's
Reimbursement Obligations hereunder with respect to such Letter of
Credit.
Section 2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period,
subject to the terms and conditions hereof, the Swingline Lender, in
its individual capacity, agrees to make certain revolving credit loans
to the Borrower (each a "Swingline Loan" and, collectively, the
"Swingline Loans") for the purposes hereinafter set forth; provided,
however, (i) the aggregate principal amount of Swingline Loans
outstanding at any time shall not exceed FIVE MILLION DOLLARS
($5,000,000) (the "Swingline Committed Amount"), and (ii) the sum of
the aggregate principal amount of outstanding Revolving Loans plus
outstanding Swingline Loans plus outstanding LOC Obligations shall not
exceed the Revolving Committed Amount then in effect. Swingline Loans
hereunder may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. Upon
receiving a Notice of Borrowing from the Borrower not later
than 1:00 P.M. on any Business Day requesting that a Swingline
Loan be made, the Swingline Lender will make Swingline Loans
available to the Borrower on the same Business Day such
request is received by the Administrative Agent. Swingline
Loan borrowings hereunder shall be made in minimum amounts of
$500,000 (or the remaining available amount of the Swingline
Committed Amount if less) and in integral amounts of $100,000
in excess thereof.
(ii) Repayment of Swingline Loans. Each Swingline
Loan borrowing shall be due and payable on the Revolver
Maturity Date. The Swingline Lender may, at any time, in its
sole discretion, by written notice to the Borrower and the
Administrative Agent, demand repayment of its Swingline Loans
by way of a Revolving Loan borrowing, in which case the
Borrower shall be deemed to have requested a Revolving Loan
borrowing comprised entirely of Alternate Base Rate Loans in
the amount of such Swingline Loans; provided, however, that,
in the following circumstances, any such demand shall also be
deemed to have been given one Business Day prior to each of
(A) the Revolver Maturity Date, (B) the occurrence of any
Bankruptcy Event, (C) upon acceleration of the Credit Party
Obligations hereunder, whether on account of a Bankruptcy
Event or any other Event of Default, and (D) the exercise of
remedies in accordance with the provisions of Section 7.2
hereof (each such Revolving Loan borrowing made on account of
any such deemed request therefor as provided herein being
hereinafter referred to as "Mandatory Swingline Borrowing").
Each Revolving Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed
request on account of each Mandatory Swingline Borrowing in
the amount and in the manner specified in the preceding
sentence on the date such notice is received by the Revolving
Lenders from the Administrative Agent if such notice is
received at or before 2:00 P.M., otherwise such payment shall
be made at or before 12:00 P.M. on the Business Day next
succeeding the date such notice is received notwithstanding
(1) the amount of Mandatory Swingline Borrowing may not comply
with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (2) whether any conditions
specified in Section 4.2 are then satisfied, (3) whether a
Default or an Event of Default then exists, (4) failure of any
such request or deemed request for Revolving Loans to be made
by the time otherwise required in Section 2.1(b)(i), (5) the
date of such Mandatory Swingline Borrowing, or (6) any
reduction in the Revolving Committed Amount or termination of
the Revolving Commitments immediately prior to such Mandatory
Swingline Borrowing or contemporaneously therewith. In the
event that any Mandatory Swingline Borrowing cannot for any
reason be made on the date otherwise required above
(including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code), then
each Revolving Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Swingline Borrowing
would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to
such purchase) from the Swingline Lender such Participation
Interest in the outstanding Swingline Loans as shall be
necessary to cause each such Revolving Lender to share in such
Swingline Loans ratably based upon its respective Revolving
Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 7.2);
provided that (x) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the
date as of which the respective Participation Interest is
purchased, and (y) at the time any purchase of a Participation
Interest pursuant to this sentence is actually made, the
purchasing Revolving Lender shall be required to pay to the
Swingline Lender interest on the principal amount of such
Participation Interest purchased for each day from and
including the day upon which the Mandatory Swingline Borrowing
would otherwise have occurred to but excluding the date of
payment for such Participation Interest, at the rate equal to,
if paid within two (2) Business Days of the date of the
Mandatory Swingline Borrowing, the Federal Funds Effective
Rate, and thereafter at a rate equal to the Alternate Base
Rate. The Borrower shall have the right to repay the Swingline
Loan in whole or in part from time to time without premium or
penalty; provided, however; that each partial repayment of a
Swingline Loan shall be in a minimum principal amount of
$500,000 and integral multiples of $100,000 in excess thereof
(or the remaining outstanding principal amount).
(c) Interest on Swingline Loans. Subject to the provisions of
Section 2.8, Swingline Loans shall bear interest at a per annum rate
equal to the Alternate Base Rate plus the Applicable Percentage for
Revolving Loans that are Alternate Base Rate Loans. Interest on
Swingline Loans shall be payable in arrears on each Interest Payment
Date.
(d) Swingline Note; Covenant to Pay. The Swingline Loans shall
be evidenced by this Agreement and, upon request of the Swingline
Lender, by a duly executed promissory note of the Borrower in favor of
the Swingline Lender in the original amount of the Swingline Committed
Amount and substantially in the form of Exhibit 2.4(d). The Borrower
covenants and agrees to pay the Swingline Loans in accordance with the
terms of this Agreement.
Section 2.5 Fees.
(a) Commitment Fee. In consideration of the Revolving
Commitments, the Borrower agrees to pay to the Administrative Agent,
for the ratable benefit of the Revolving Lenders, a commitment fee (the
"Commitment Fee") in an amount equal to the Applicable Percentage per
annum on the average daily unused amount of the Revolving Committed
Amount. For purposes of computation of the Commitment Fee, LOC
Obligations shall be considered usage of the Revolving Committed Amount
but Swingline Loans shall not be considered usage of the Revolving
Committed Amount. The Commitment Fee shall be (i) payable quarterly in
arrears on the last Business Day of each calendar quarter and on the
Revolver Maturity Date and (ii) non-refundable.
(b) Letter of Credit Fees. In consideration of the LOC
Commitments, the Borrower agrees to pay to the Administrative Agent,
for the ratable benefit of the Revolving Lenders, a fee (the "Letter of
Credit Fee") equal to the Applicable Percentage for Revolving Loans
that are LIBOR Rate Loans per annum on the average daily maximum amount
available to be drawn under each Letter of Credit from the date of
issuance to the date of expiration. The Letter of Credit Fee shall be
(i) payable quarterly in arrears on the last Business Day of each
calendar quarter and on the Revolver Maturity Date and (ii)
non-refundable.
(c) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (b) hereof, the Borrower shall pay
to the Issuing Lender for its own account without sharing by the other
Lenders the reasonable and customary charges from time to time of the
Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of
Credit (collectively, the "Issuing Lender Fees"). The Issuing Lender
may charge, and retain for its own account without sharing by the other
Lenders, an additional facing fee (the "Letter of Credit Facing Fee")
of 0.25% per annum on the average daily maximum amount available to be
drawn under each such Letter of Credit issued by it. The Issuing Lender
Fees and the Letter of Credit Facing Fee shall be (i) payable quarterly
in arrears on the last Business Day of each calendar quarter and on the
Revolver Maturity Date and (ii) non-refundable.
(d) Administrative Fee. The Borrower agrees to pay to the
Administrative Agent the annual administrative fee as described in the
Fee Letter.
Section 2.6 Commitment Reductions.
(a) Voluntary Reductions. The Borrower shall have the right to
terminate or permanently reduce the unused portion of the Revolving
Committed Amount at any time or from time to time upon not less than
five (5) Business Days' prior written notice to the Administrative
Agent (which shall notify the Lenders thereof as soon as practicable)
of each such termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction which shall
be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof and shall be irrevocable and effective upon receipt
by the Administrative Agent; provided that no such reduction or
termination shall be permitted if after giving effect thereto, and to
any prepayments of the Revolving Loans made on the effective date
thereof, the sum of the aggregate principal amount of outstanding
Revolving Loans plus outstanding Swingline Loans plus outstanding LOC
Obligations would exceed the Revolving Committed Amount then in effect.
(b) Swingline Committed Amount. If the Revolving Committed
Amount is reduced below the then current Swingline Committed Amount,
the Swingline Committed Amount shall automatically be reduced by an
amount such that the Swingline Committed Amount equals the Revolving
Committed Amount.
(c) Maturity Date. The Revolving Commitments, the Swingline
Commitment and the LOC Commitment shall automatically terminate on the
Revolver Maturity Date.
Section 2.7 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right to
prepay Loans in whole or in part from time to time; provided, however,
that each partial prepayment of a Term Loan shall be in a minimum
principal amount of $1,000,000 and integral multiples of $1,000,000 in
excess thereof (or the remaining outstanding principal amount). The
Borrower shall give three Business Days' irrevocable notice of
prepayment in the case of LIBOR Rate Loans and same-day irrevocable
notice on any Business Day in the case of Alternate Base Rate Loans, to
the Administrative Agent (which shall notify the Lenders thereof as
soon as practicable). To the extent that the Borrower elects to prepay
the Term Loans, amounts prepaid under this Section shall be applied
ratably to the remaining principal installments thereof. Within the
foregoing parameters, prepayments under this Section shall be applied
first to Alternate Base Rate Loans and then to LIBOR Rate Loans in
direct order of Interest Period maturities. All prepayments under this
Section shall be subject to Section 2.14, but otherwise without premium
or penalty. Interest on the principal amount prepaid shall be payable
on the next occurring Interest Payment Date that would have occurred
had such loan not been prepaid or, at the request of the Administrative
Agent, interest on the principal amount prepaid shall be payable on any
date that a prepayment is made hereunder through the date of
prepayment.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time after
the Closing Date, the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans
plus outstanding LOC Obligations shall exceed the Revolving
Committed Amount, the Borrower shall immediately prepay the
Revolving Loans and Swingline Loans and (after all Revolving
Loans and Swingline Loans have been repaid) cash collateralize
the LOC Obligations in an amount sufficient to eliminate such
excess (such prepayment to be applied as set forth in clause
(vii) below.
(ii) Asset Dispositions. Promptly following any Asset
Disposition (or related series of Asset Dispositions), the
Borrower shall prepay the Loans and/or cash collateralize the
LOC Obligations in an aggregate amount equal to one hundred
percent (100%) of the Net Cash Proceeds derived from such
Asset Disposition (or related series of Asset Dispositions)
(such prepayment to be applied as set forth in clause (vii)
below); provided, however, that, so long as no Default or
Event of Default has occurred and is continuing, such Net Cash
Proceeds shall not be required to be so applied to the extent
the Borrower delivers to the Administrative Agent a
certificate stating that the Credit Parties intend to use such
Net Cash Proceeds to acquire like assets useful to the
business of the Credit Parties within 180 days of the receipt
of such Net Cash Proceeds, it being expressly agreed that Net
Cash Proceeds not so reinvested shall be applied to prepay the
Loans and/or cash collateralize the LOC Obligations
immediately thereafter (such prepayment to be applied as set
forth in clause (vii) below).
(iii) Debt Issuances. Immediately upon receipt by any
Credit Party or any of its Subsidiaries of proceeds from any
Debt Issuance, the Borrower shall prepay the Loans and/or cash
collateralize the LOC Obligations in an aggregate amount equal
to one hundred percent (100%) of the Net Cash Proceeds of such
Debt Issuance (such prepayment to be applied as set forth in
clause (vii) below).
(iv) Issuances of Equity. Immediately upon receipt by
any Credit Party or any of its Subsidiaries of proceeds from
any Equity Issuance, the Borrower shall prepay the Loans
and/or cash collateralize the LOC Obligations in an aggregate
amount equal to fifty percent (50%) of the Net Cash Proceeds
of such Equity Issuance (such prepayment to be applied as set
forth in clause (vii) below).
(v) Excess Cash Flow. Within 90 days after the end of
each fiscal year (commencing with the fiscal year ending
2007), if the Borrower's Consolidated Leverage Ratio as of the
end of such fiscal year is (A) equal to or greater than 5.00
to 1.0, the Borrower shall prepay the Loans and cash
collateralize the LOC Obligations in an aggregate amount equal
to 50% of the Excess Cash Flow for such fiscal year (such
prepayments to be applied as set forth in clause (vii) below),
(B) equal to or greater than 4.00 to 1.0 but less than 5.00 to
1.0, the Borrower shall prepay the Loans and cash
collateralize the LOC Obligations in an aggregate amount equal
to 25% of the Excess Cash Flow for such fiscal year (such
prepayments to be applied as set forth in clause (vii) below),
and (C) less than 4.00 to 1.0, then no annual Excess Cash Flow
prepayment shall be required.
(vi) Extraordinary Receipt. Immediately upon receipt
by any Credit Party or any of its Subsidiaries of proceeds
from any Extraordinary Receipt, the Borrower shall prepay the
Loans and/or cash collateralize LOC Obligations in an
aggregate amount equal to one hundred percent (100%) of the
Net Cash Proceeds of such Extraordinary Receipt (such
prepayment to be applied as set forth in clause (vii) below);
provided, however, that, so long as no Default or Event of
Default has occurred and is continuing, such Net Cash Proceeds
shall not be required to be so applied to the extent the
Borrower delivers to the Administrative Agent a certificate
stating that Credit Parties intend to use such Net Cash
Proceeds to acquire assets useful to the business of the
Credit Parties within 180 days of the receipt of such Net Cash
Proceeds, it being expressly agreed that any Net Cash Proceeds
not so reinvested shall be applied to prepay the Loans and/or
cash collateralize the LOC Obligations immediately thereafter
(such prepayment to be applied as set forth in clause (vii)
below).
(vii) Application of Mandatory Prepayments. All
amounts required to be paid pursuant to this Section shall be
applied as follows:
(A) with respect to all amounts prepaid
pursuant to Section 2.7(b)(i), (1) first to the
outstanding Swingline Loans, (2) second to the
outstanding Revolving Loans and (3) third to cash
collateralize the LOC Obligations; and
(B) with respect to all amounts prepaid
pursuant to Sections 2.7(b)(ii) through (vi), (1)
first to the Term Loan (ratably to the remaining
amortization payments thereof), (2) second to the
Swingline Loans (without a corresponding reduction of
the Swingline Committed Amount), (3) third to the
Revolving Loans (without a corresponding reduction of
the Revolving Committed Amount) and (4) fourth to a
cash collateral account in respect of LOC Obligations
(without a corresponding reduction of the LOC
Committed Amount). Within the parameters of the
applications set forth above, prepayments shall be
applied first to Alternate Base Rate Loans and then
to LIBOR Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section
shall be subject to Section 2.14 and be accompanied
by interest on the principal amount prepaid through
the date of prepayment, but otherwise without premium
or penalty.
(c) Hedging Obligations Unaffected. Any repayment or
prepayment made pursuant to this Section shall not affect the
Borrower's obligation to continue to make payments under any Secured
Hedging Agreement, which shall remain in full force and effect
notwithstanding such repayment or prepayment, subject to the terms of
such Secured Hedging Agreement.
Section 2.8 Default Rate and Payment Dates.
(a) If all or a portion of the principal amount of any Loan
which is a LIBOR Rate Loan shall not be paid when due or continued as a
LIBOR Rate Loan in accordance with the provisions of Section 2.9
(whether at the stated maturity, by acceleration or otherwise), such
overdue principal amount of such Loan shall be converted to an
Alternate Base Rate Loan at the end of the Interest Period applicable
thereto.
(b) (i) If all or a portion of the principal amount of any
LIBOR Rate Loan shall not be paid when due, such overdue amount shall
bear interest at a rate per annum which is equal to the rate that would
otherwise be applicable thereto plus 2%, until the end of the Interest
Period applicable thereto, and thereafter at a rate per annum which is
equal to the Alternate Base Rate plus the sum of the Applicable
Percentage then in effect for Alternate Base Rate Loans and 2% (the
"ABR Default Rate") or (ii) if any interest payable on the principal
amount of any Loan or any fee or other amount, including the principal
amount of any Alternate Base Rate Loan, payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
which is equal to the ABR Default Rate, in each case from the date of
such non-payment until such amount is paid in full (after as well as
before judgment). Upon the occurrence, and during the continuance, of
any other Event of Default hereunder, at the option of the Required
Lenders, the principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under the other
Credit Documents shall bear interest, payable on demand, at a per annum
rate which is (A) in the case of principal, the rate that would
otherwise be applicable thereto plus 2% or (B) in the case of interest,
fees or other amounts, the ABR Default Rate (after as well as before
judgment).
(c) Interest on each Loan shall be payable in arrears on each
Interest Payment Date; provided that interest accruing pursuant to
paragraph (b) of this Section shall be payable from time to time on
demand.
Section 2.9 Conversion Options.
(a) The Borrower may, in the case of Revolving Loans and the
Term Loan, elect from time to time to convert Alternate Base Rate Loans
to LIBOR Rate Loans, by delivering a Notice of Conversion/Extension to
the Administrative Agent at least three Business Days prior to the
proposed date of conversion. In addition, the Borrower may elect from
time to time to convert all or any portion of a LIBOR Rate Loan to an
Alternate Base Rate Loan by giving the Administrative Agent irrevocable
written notice thereof by 1:00 P.M. one (1) Business Day prior to the
proposed date of conversion. If the date upon which an Alternate Base
Rate Loan is to be converted to a LIBOR Rate Loan is not a Business
Day, then such conversion shall be made on the next succeeding Business
Day and during the period from such last day of an Interest Period to
such succeeding Business Day such Loan shall bear interest as if it
were an Alternate Base Rate Loan. LIBOR Rate Loans may only be
converted to Alternate Base Rate Loans on the last day of the
applicable Interest Period. If the date upon which a LIBOR Rate Loan is
to be converted to an Alternate Base Rate Loan is not a Business Day,
then such conversion shall be made on the next succeeding Business Day
and during the period from such last day of an Interest Period to such
succeeding Business Day such Loan shall bear interest as if it were an
Alternate Base Rate Loan. All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein; provided that (i) no
Loan may be converted into a LIBOR Rate Loan when any Default or Event
of Default has occurred and is continuing and (ii) partial conversions
shall be in an aggregate principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof. All or any part of outstanding
LIBOR Rate Loans may be converted as provided herein; provided that
partial conversions shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by
the Borrower with the notice provisions contained in Section 2.9(a);
provided, that no LIBOR Rate Loan may be continued as such when any
Default or Event of Default has occurred and is continuing, in which
case such Loan shall be automatically converted to an Alternate Base
Rate Loan at the end of the applicable Interest Period with respect
thereto. If the Borrower shall fail to give timely notice of an
election to continue a LIBOR Rate Loan, or the continuation of LIBOR
Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall be
automatically converted to Alternate Base Rate Loans at the end of the
applicable Interest Period with respect thereto.
Section 2.10 Computation of Interest and Fees; Usury.
(a) Interest payable hereunder with respect to any Alternate
Base Rate Loan based on the Prime Rate shall be calculated on the basis
of a year of 365 days (or 366 days, as applicable) for the actual days
elapsed. All other fees, interest and all other amounts payable
hereunder shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination
of a LIBOR Rate on the Business Day of the determination thereof. Any
change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate
shall become effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date
and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing
the computations used by the Administrative Agent in determining any
interest rate.
(c) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Credit Parties are hereby limited by the provisions of this subsection
which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way,
nor in any event or contingency (including, but not limited to,
prepayment or acceleration of the maturity of any Credit Party
Obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall
be subject to the provisions of this paragraph and such interest shall
be automatically reduced to the maximum nonusurious amount permitted
under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything of
value which is characterized as interest on the Loans under applicable
law and which would, apart from this provision, be in excess of the
maximum nonusurious amount, an amount equal to the amount which would
have been excessive interest shall, without penalty, be applied to the
reduction of the principal amount owing on the Loans and not to the
payment of interest, or refunded to the Borrower or the other payor
thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right
to demand payment of the Loans or any other Indebtedness evidenced by
any of the Credit Documents does not include the right to receive any
interest which has not otherwise accrued on the date of such demand,
and the Lenders do not intend to charge or receive any unearned
interest in the event of such demand. All interest paid or agreed to be
paid to the Lenders with respect to the Loans shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term (including any renewal or
extension) of the Loans so that the amount of interest on account of
such Indebtedness does not exceed the maximum nonusurious amount
permitted by applicable law.
Section 2.11 Pro Rata Treatment and Payments.
(a) Allocation of Payments Prior to Exercise of Remedies. Each
borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective
Revolving Commitment Percentages of the Revolving Lenders. Unless
otherwise required by the terms of this Agreement, each payment under
this Agreement or any Note shall be applied, first, to any fees then
due and owing by the Borrower pursuant to Section 2.5, second, to
interest then due and owing hereunder and under the Notes of the
Borrower and, third, to principal then due and owing hereunder and
under the Notes of the Borrower. Each payment on account of any fees
pursuant to Section 2.5 shall be made pro rata in accordance with the
respective amounts due and owing (except as to the Letter of Credit
Facing Fees and the Issuing Lender Fees). Each payment (other than
prepayments) by the Borrower on account of principal of and interest on
the Revolving Loans and on the Term Loan, as applicable, shall be
applied to such Loans, as applicable, on a pro rata basis in accordance
with the terms of Section 2.7(a) hereof. Each optional prepayment on
account of principal of the Loans shall be applied in accordance with
Section 2.7(a). Each mandatory prepayment on account of principal of
the Loans shall be applied in accordance with Section 2.7(b). All
payments (including prepayments) to be made by the Borrower on account
of principal, interest and fees shall be made without defense, set-off
or counterclaim (except as provided in Section 2.16(b)) and shall be
made to the Administrative Agent for the account of the Lenders at the
Administrative Agent's office specified on Section 9.2 in Dollars and
in immediately available funds not later than 1:00 P.M. on the date
when due. The Administrative Agent shall distribute such payments to
the Lenders entitled thereto promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the LIBOR
Rate Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any
payment on a LIBOR Rate Loan becomes due and payable on a day other
than a Business Day, such payment date shall be extended to the next
succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
(b) Allocation of Payments After Exercise of Remedies.
Notwithstanding any other provisions of this Agreement to the contrary,
after the exercise of remedies (other than the invocation of default
interest pursuant to Section 2.8) by the Administrative Agent or the
Lenders pursuant to Section 7.2 (or after the Commitments shall
automatically terminate and the Loans (with accrued interest thereon)
and all other amounts under the Credit Documents (including without
limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall automatically become due and payable in
accordance with the terms of such Section), all amounts collected or
received by the Administrative Agent or any Lender on account of the
Credit Party Obligations or any other amounts outstanding under any of
the Credit Documents or in respect of the Collateral shall be paid over
or delivered as follows (irrespective of whether the following costs,
expenses, fees, interest, premiums, scheduled periodic payments or
Credit Party Obligations are allowed, permitted or recognized as a
claim in any proceeding resulting from the occurrence of a Bankruptcy
Event):
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Administrative Agent in connection
with enforcing the rights of the Lenders under the Credit
Documents and any protective advances made by the
Administrative Agent with respect to the Collateral under or
pursuant to the terms of the Security Documents;
SECOND, to the payment of any fees owed to the
Administrative Agent and the Issuing Lender
THIRD, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation, reasonable
attorneys' fees) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise
with respect to the Credit Party Obligations owing to such
Lender;
FOURTH, to the payment of all of the Credit Party
Obligations consisting of accrued fees and interest, and
including, with respect to any Secured Hedging Agreement, any
fees, premiums and scheduled periodic payments due under such
Secured Hedging Agreement and any interest accrued thereon;
FIFTH, to the payment of the outstanding principal
amount of the Credit Party Obligations and the payment or cash
collateralization of the outstanding LOC Obligations, and
including with respect to any Secured Hedging Agreement, any
breakage, termination or other payments due under such Secured
Hedging Agreement and any interest accrued thereon;
SIXTH, to all other Credit Party Obligations and
other obligations which shall have become due and payable
under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to
whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be
applied in the numerical order provided until exhausted prior to
application to the next succeeding category; (b) each of the Lenders
and any Hedging Agreement Provider shall receive an amount equal to its
pro rata share (based on the proportion that the then outstanding Loans
and LOC Obligations held by such Lender or the outstanding obligations
payable to such Hedging Agreement Provider bears to the aggregate then
outstanding Loans and LOC Obligations and obligations payable under all
Secured Hedging Agreements) of amounts available to be applied pursuant
to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (c) to the
extent that any amounts available for distribution pursuant to clause
"FIFTH" above are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (i)
first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (ii) then, following the
expiration of all Letters of Credit, to all other obligations of the
types described in clauses "FIFTH" and "SIXTH" above in the manner
provided in this Section. Notwithstanding the foregoing terms of this
Section, only Collateral proceeds and payments under the Guaranty (as
opposed to ordinary course principal, interest and fee payments
hereunder) shall be applied to obligations under any Secured Hedging
Agreement.
Section 2.12 Non-Receipt of Funds by the Administrative Agent.
(a) Funding by Lenders; Presumption by Administrative Agent.
Unless the Administrative Agent shall have received written notice from
a Lender prior to the proposed date of any Extension of Credit that
such Lender will not make available to the Administrative Agent such
Lender's share of such Extension of Credit, the Administrative Agent
may assume that such Lender has made such share available on such date
in accordance with this Agreement and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the
applicable Extension of Credit available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of a payment to
be made by such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (ii) in the case
of a payment to be made by the Borrower, the interest rate applicable
to Alternate Base Rate Loans. If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to
the Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the applicable Extension of
Credit to the Administrative Agent, then the amount so paid shall
constitute such Lender's Loan included in such Extension of Credit. Any
payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(b) Payments by Borrower; Presumptions by Administrative
Agent. Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing
Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Lender, as the
case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Lender,
as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or
the Issuing Lender, with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Administrative Agent to any Lender or the
Borrower with respect to any amount owing under subsections (a) and (b)
of this Section shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender
makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by
the Administrative Agent because the conditions to the applicable
Extension of Credit set forth in Article IV are not satisfied or waived
in accordance with the terms thereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the
Lenders hereunder to make Term Loans and Revolving Loans, to fund
participations in Letters of Credit and Swingline Loans and to make
payments pursuant to Section 9.5(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation
or to make any such payment under Section 9.5(c) on any date required
hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment under Section 9.5(c).
(e) Funding Source. Nothing herein shall be deemed to obligate
any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular place
or manner.
Section 2.13 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if (a) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining the LIBOR Rate for such Interest Period, or (b) the Required
Lenders shall reasonably determine (which determination shall be conclusive and
binding absent manifest error) that the LIBOR Rate does not adequately and
fairly reflect the cost to such Lenders of funding LIBOR Rate Loans that the
Borrower has requested be outstanding as a LIBOR Tranche during such Interest
Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two (2) Business Days prior to the first day of such Interest Period. Unless the
Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such
LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans
shall be made as Alternate Base Rate Loans and any Loans that were requested to
be converted into or continued as LIBOR Rate Loans shall remain as or be
converted into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
Section 2.14 Yield Protection.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any
Lender (except any reserve requirement reflected in the LIBOR
Rate) or the Issuing Lender;
(ii) subject any Lender or the Issuing Lender to any
tax of any kind whatsoever with respect to this Agreement, any
Letter of Credit, any participation in a Letter of Credit or
any LIBOR Rate Loan made by it, or change the basis of
taxation of payments to such Lender or the Issuing Lender in
respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 2.16 and the imposition of, or any change
in the rate of, any Excluded Tax payable by such Lender or the
Issuing Lender); or
(iii) impose on any Lender or the Issuing Lender or
the London interbank market any other condition, cost or
expense affecting this Agreement or LIBOR Rate Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Lender hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or the Issuing Lender, the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law affecting such Lender or the Issuing
Lender or any lending office of such Lender or such Lender's or the
Issuing Lender's holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of
return on such Lender's or the Issuing Lender's capital or on the
capital of such Lender's or the Issuing Lender's holding company, if
any, as a consequence of this Agreement, the Commitments of such Lender
or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the Issuing Lender, to
a level below that which such Lender or the Issuing Lender or such
Lender's or the Issuing Lender's holding company could have achieved
but for such Change in Law (taking into consideration such Lender's or
the Issuing Lender's policies and the policies of such Lender's or the
Issuing Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender or the
Issuing Lender, as the case may be, such additional amount or amounts
as will compensate such Lender or the Issuing Lender or such Lender's
or the Issuing Lender's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender
or the Issuing Lender setting forth, in reasonable detail, the amount
or amounts necessary to compensate such Lender or the Issuing Lender or
its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or
the Issuing Lender, as the case may be, the amount shown as due on any
such certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or the Issuing Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender's or the Issuing
Lender's right to demand such compensation, provided that the Borrower
shall not be required to compensate a Lender or the Issuing Lender
pursuant to this Section for any increased costs incurred or reductions
suffered, as the case may be, to the extent that such Lender or the
Issuing Lender fails to make a demand for such compensation more than
nine (9) months after becoming aware of such Change in Law giving arise
to such increased costs or reductions.
Section 2.15 Indemnity; Eurocurrency Liabilities.
(a) The Credit Parties hereby agree to indemnify each Lender
and to hold such Lender harmless from any funding loss or expense which
such Lender may sustain or incur as a consequence of (a) the failure by
the Borrower to pay the principal amount of or interest on any Loan by
such Lender in accordance with the terms hereof, (b) the failure by the
Borrower to accept a borrowing after the Borrower has given a notice in
accordance with the terms hereof, (c) default by the Borrower in making
any prepayment after the Borrower has given a notice in accordance with
the terms hereof, and/or (d) the making by the Borrower of a prepayment
of a Loan, or the conversion thereof, on a day which is not the last
day of the Interest Period with respect thereto, in each case
including, but not limited to, any such loss or expense arising from
interest or fees payable by such Lender to lenders of funds obtained by
it in order to maintain its Loans hereunder. A certificate setting
forth in reasonable detail as to any additional amounts payable
pursuant to this Section submitted by any Lender, through the
Administrative Agent, to the Borrower (which certificate must be
delivered to the Administrative Agent within thirty days following such
default, prepayment or conversion) shall be conclusive in the absence
of manifest error. The agreements in this Section shall survive
termination of this Agreement and payment of the Credit Party
Obligations.
(b) The Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves under Regulation D with
respect to "Eurocurrency liabilities" within the meaning of Regulation
D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding, additional interest
on the unpaid principal amount of each LIBOR Loan equal to the actual
costs of such reserves allocated to such LIBOR Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which
interest is payable on such LIBOR Loan, provided the Borrower shall
have received at least fifteen (15) days prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice fifteen (15) days prior to the
relevant interest payment date, such additional interest shall be due
and payable fifteen (15) days from receipt of such notice.
Section 2.16 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other
Credit Document shall be made free and clear of and without reduction
or withholding for any Indemnified Taxes or Other Taxes, provided that
if the Borrower shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent,
any Lender or Issuing Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting
the provisions of paragraph (a) above, the Borrower shall timely pay
any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent, each Lender and the Issuing Lender,
within ten (10) days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid by the Administrative Agent, such Lender or the
Issuing Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the Issuing Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Lender, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Credit Document shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or
the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or
the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject
to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States of America, any
Foreign Lender shall deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service
Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States of America is a party,
(ii) duly completed copies of Internal Revenue
Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section
881(c) of the Code, (i) a certificate to the effect that such
Foreign Lender is not (A) a "bank" within the meaning of
section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign
corporation" described in section 881(c)(3)(C) of the Code and
(ii) duly completed copies of Internal Revenue Service Form
W-8BEN, or
(iii) any other form prescribed by applicable law as
a basis for claiming exemption from or a reduction in United
States Federal withholding tax duly completed together with
such supplementary documentation as may be prescribed by
applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent,
a Lender or the Issuing Lender determines, in its sole discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower
under this Section with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Lender, as the case
may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided
that the Borrower, upon the request of the Administrative Agent, such
Lender or the Issuing Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent, such
Lender or the Issuing Lender in the event the Administrative Agent,
such Lender or the Issuing Lender is required to repay such refund to
such Governmental Authority. This paragraph shall not be construed to
require the Administrative Agent, any Lender or the Issuing Lender to
make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower or any other
Person.
Section 2.17 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 2.3,
the Credit Parties hereby agree to protect, indemnify, pay and save the
Issuing Lender and each Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing Lender
or such Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit or (ii) the
failure of the Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called
"Government Acts").
(b) As between the Credit Parties, the Issuing Lender and each
Lender, the Credit Parties shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary thereof.
Neither the Issuing Lender nor any Lender shall be responsible: (i) for
the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer
or assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to
draw upon a Letter of Credit; (iv) for errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (v)
for errors in interpretation of technical terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds
thereof; and (vii) for any consequences arising from causes beyond the
control of the Issuing Lender or any Lender, including, without
limitation, any Government Acts. None of the above shall affect,
impair, or prevent the vesting of the Issuing Lender's rights or powers
hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuing Lender or any Lender, under or in connection with any
Letter of Credit or the related certificates, if taken or omitted in
the absence of gross negligence, bad faith or willful misconduct, shall
not put such Issuing Lender or such Lender under any resulting
liability to the Credit Parties. It is the intention of the parties
that this Agreement shall be construed and applied to protect and
indemnify the Issuing Lender and each Lender against any and all risks
involved in the issuance of the Letters of Credit, all of which risks
are hereby assumed by the Credit Parties, including, without
limitation, any and all risks of the acts or omissions, whether
rightful or wrongful, of any Government Authority. The Issuing Lender
and the Lenders shall not, in any way, be liable for any failure by the
Issuing Lender or anyone else to pay any drawing under any Letter of
Credit as a result of any Government Acts or any other cause beyond the
control of the Issuing Lender and the Lenders.
(d) Nothing in this Section is intended to limit the
Reimbursement Obligation of the Borrower contained in Section 2.3(d)
hereof. The obligations of the Credit Parties under this Section shall
survive the termination of this Agreement. No act or omissions of any
current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender and the Lenders to
enforce any right, power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section, the Credit Parties shall have no obligation to indemnify the
Issuing Lender or any Lender in respect of any liability incurred by
the Issuing Lender or such Lender arising out of the gross negligence,
bad faith or willful misconduct of the Issuing Lender (including action
not taken by the Issuing Lender or such Lender), as determined by a
court of competent jurisdiction or pursuant to arbitration.
Section 2.18 Illegality.
Notwithstanding any other provision of this Credit Agreement, if any
Change in Law shall make it unlawful for such Lender or its LIBOR Lending Office
to make or maintain LIBOR Rate Loans as contemplated by this Credit Agreement or
to obtain in the interbank eurodollar market through its LIBOR Lending Office
the funds with which to make such Loans, (a) such Lender shall promptly notify
the Administrative Agent and the Borrower thereof, (b) the commitment of such
Lender hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such
shall forthwith be suspended until the Administrative Agent shall give notice
that the condition or situation which gave rise to the suspension shall no
longer exist, and (c) such Lender's Loans then outstanding as LIBOR Rate Loans,
if any, shall be converted on the last day of the Interest Period for such Loans
or within such earlier period as required by law as Alternate Base Rate Loans.
The Borrower hereby agrees to promptly pay any Lender, upon its demand, any
additional amounts necessary to compensate such Lender for actual and direct
costs (but not including anticipated profits) reasonably incurred by such Lender
in making any repayment in accordance with this Section including, but not
limited to, any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate Loans hereunder. A
certificate (which certificate shall include a description of the basis for the
computation) as to any additional amounts payable pursuant to this Section
submitted by such Lender, through the Administrative Agent, to the Borrower
shall be conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its LIBOR Lending
Office) to avoid or to minimize any amounts which may otherwise be payable
pursuant to this Section; provided, however, that such efforts shall not cause
the imposition on such Lender of any additional costs or legal or regulatory
burdens deemed by such Lender in its sole discretion to be material.
Section 2.19 Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.14, or requires the Borrower to
pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.14 or Section 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense
and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.16, or if any Lender
defaults in its obligation to fund Loans hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 9.6), all of its
interests, rights and obligations under this Agreement and the related
Credit Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(i) the Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section
9.6;
(ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and
participations in Letters of Credit, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and
under the other Credit Documents (including any amounts under
Section 2.15) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments
required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments
thereafter; and
(iv) such assignment does not conflict with
applicable law.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Extensions of Credit herein provided for, the Credit Parties hereby represent
and warrant to the Administrative Agent and to each Lender that:
Section 3.1 Financial Condition.
(a) (i) The audited Consolidated and consolidating financial
statements of the Borrower and its Consolidated Subsidiaries for the
fiscal years ended 2004, 2005 and 2006 together with the related
Consolidated and consolidating statements of income or operations,
equity and cash flows for the fiscal years ended on such dates, (ii)
the unaudited Consolidated and consolidating financial statements of
the Borrower and its Subsidiaries for the year-to-date period ending on
the last day of the quarter that ended at least 20 days prior to the
Closing Date, together with the related Consolidated and consolidating
statements of income or operations, equity and cash flows for the
year-to-date period ending on such date and (iii) a pro forma balance
sheet of the Borrower and its Subsidiaries as of the last day of the
quarter that ended at least 20 days prior to the Closing Date:
(A) were prepared in accordance with GAAP
consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein;
(B) fairly present the financial condition
of the Borrower and its Subsidiaries, as applicable,
as of the date thereof (subject, in the case of the
unaudited financial statements, to normal year-end
adjustments) and results of operations for the period
covered thereby; and
(C) show all material Indebtedness and other
liabilities, direct or contingent, of the Borrower
and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments
and contingent obligations.
(b) The five-year projections of the Borrower and its
Subsidiaries delivered to the Lenders on or prior to the Closing Date
have been prepared in good faith based upon reasonable assumptions.
Section 3.2 No Material Adverse Effect; Internal Control Event.
Since December 31, 2006 (a) (and, in addition, after delivery of annual
audited financial statements in accordance with Section 5.1(a), from the date of
the most recently delivered annual audited financial statements), there has been
no development or event which has had or could reasonably be expected to have a
Material Adverse Effect and (b) no Internal Control Event has occurred.
Section 3.3 Corporate Existence; Compliance with Law.
Each of the Credit Parties (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation,
organization or formation, (b) has the requisite power and authority and the
legal right to own and operate all its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged
and has taken all actions necessary to maintain all rights, privileges, licenses
and franchises necessary or required in the normal conduct of its business, (c)
is duly qualified to conduct business and in good standing under the laws of (i)
the jurisdiction of its organization or formation, (ii) the jurisdiction where
its chief executive office is located and (iii) each other jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to so qualify
or be in good standing in any such other jurisdiction could not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the business or operations of the Credit Parties and their Subsidiaries in such
jurisdiction and (d) is in compliance with all Requirements of Law,
organizational documents, government permits and government licenses (including
liquor licenses) except to the extent such non-compliance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The jurisdictions in which the Credit Parties are organized and
qualified to do business as of the Closing Date are described on Schedule 3.3.
The Borrower shall update Schedule 3.3 from time to time, in accordance with
Section 5.2, to add Additional Credit Parties.
Section 3.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each of the Credit Parties has full power and authority
and the legal right to make, deliver and perform the Credit Documents
to which it is party and has taken all necessary limited liability
company, partnership or corporate action to authorize the execution,
delivery and performance by it of the Credit Documents to which it is
party. Each Credit Document to which it is a party has been duly
executed and delivered on behalf of each Credit Party. Each Credit
Document to which it is a party constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party
in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(b) Each of the Borrower and the Guarantors has obtained (i)
all material licenses (including material liquor licenses), permits and
consents necessary or appropriate for such party to conduct the
business and operations located at each of the Facilities and (ii)
except for the Pledge Approval, the Colorado Gaming Notice and any
Approvals of the Gaming Authorities or any other Governmental
Authorities that the Administrative Agent or any Lender, Secured Party
or Participant is required to obtain under the Gaming Laws or other
Requirements of Law in order to exercise their respective rights and
remedies under the Credit Documents, all required approvals from the
Gaming Authorities of the transactions contemplated hereby and by the
other Credit Documents.
Section 3.5 No Legal Bar; No Default.
The execution, delivery and performance by each Credit Party of the
Credit Documents to which such Credit Party is a party, the borrowings
thereunder and the use of the proceeds of the Loans (a) will not violate any
Requirement of Law or any Contractual Obligation of any Credit Party (except
those as to which waivers or consents have been obtained), (b) will not conflict
with, result in a breach of or constitute a default under the articles of
incorporation, bylaws, articles of organization, operating agreement or other
organization documents of the Credit Parties or any material agreement or other
material instrument to which such Person is a party or by which any of its
properties may be bound or any material approval or material consent from any
Governmental Authority relating to such Person, and (c) will not result in, or
require, the creation or imposition of any Lien on any Credit Party's properties
or revenues pursuant to any Requirement of Law or Contractual Obligation other
than the Liens arising under or contemplated in connection with the Credit
Documents or Permitted Liens. No Credit Party is in default under or with
respect to any of its Contractual Obligations in any material respect. No
Default or Event of Default has occurred and is continuing.
Section 3.6 No Material Litigation.
No litigation, investigation, claim, criminal prosecution, civil
investigative demand, imposition of criminal or civil fines and penalties, or
any other proceeding of or before any arbitrator or Governmental Authority is
pending or, to the best knowledge of the Credit Parties, threatened by or
against any Credit Party or any of its Subsidiaries or against any of its or
their respective properties or revenues (a) with respect to the Credit Documents
or any Extension of Credit or any of the transactions contemplated hereby, or
(b) which could reasonably be expected to have a Material Adverse Effect. No
permanent injunction, temporary restraining order or similar decree has been
issued against any Credit Party or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
Section 3.7 Investment Company Act; etc.
No Credit Party is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. No Credit Party is a subject to regulation under the Federal
Power Act, the Interstate Commerce Act, or any federal or state statute or
regulation limiting its ability to incur the Credit Party Obligations.
Section 3.8 Margin Regulations.
No part of the proceeds of any Extension of Credit hereunder will be
used directly or indirectly for any purpose that violates, or that would require
any Lender to make any filings in accordance with, the provisions of Regulation
T, U or X of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. The Credit Parties and their Subsidiaries
(a) are not engaged, principally or as one of their important activities, in the
business of extending credit for the purpose of "purchasing" or "carrying"
"margin stock" within the respective meanings of each of such terms under
Regulation U and (b) taken as a group do not own "margin stock" except as
identified in the financial statements referred to in Section 3.1 or delivered
pursuant to Section 5.1 and the aggregate value of all "margin stock" owned by
the Credit Parties and their Subsidiaries taken as a group does not exceed 25%
of the value of their assets.
Section 3.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred resulting in
any liability that has remained underfunded, and no Lien in favor of the PBGC or
a Plan has arisen, during such five-year period. The present value of all
accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits. Neither any
Credit Party nor any Commonly Controlled Entity is currently subject to any
liability for a complete or partial withdrawal from a Multiemployer Plan.
Section 3.10 Environmental Matters.
Except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by
the Credit Parties or any of their Subsidiaries (the "Properties") do
not contain any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of, or (ii) could give
rise to liability on behalf of any Credit Party under, any
Environmental Law.
(b) The Properties and all operations of the Credit Parties
and/or their Subsidiaries at the Properties are in compliance, and have
in the last five years been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to
the Properties or the business operated by the Credit Parties or any of
their Subsidiaries (the "Business").
(c) Neither the Credit Parties nor their Subsidiaries have
received any written or actual notice of violation, alleged violation,
non-compliance, liability or potential liability on behalf of any
Credit Party with respect to environmental matters or Environmental
Laws regarding any of the Properties or the Business, nor do the Credit
Parties or their Subsidiaries have knowledge or reason to believe that
any such notice will be received or is being threatened.
(d) The Credit Parties have not and, to the best knowledge of
the Credit Parties, no other Person has disposed of Materials of
Environmental Concern from the Properties in violation of, or in a
manner or to a location that could give rise to liability on behalf of
any Credit Party under any Environmental Law, and the Credit Parties
have not and, to the best knowledge of the Credit Parties, no other
Person has generated, treated, stored or disposed of Materials of
Environmental Concern at, on or under any of the Properties in
violation of, or in a manner that could give rise to liability on
behalf of any Credit Party under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Credit Parties and their
Subsidiaries, threatened, under any Environmental Law to which any
Credit Party or any Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties
or the Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of any Credit Party or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could give rise to liability on behalf of any Credit Party under
Environmental Laws.
Section 3.11 Use of Proceeds.
The proceeds of the Extensions of Credit shall be used by the Borrower
solely (a) to refinance certain existing Indebtedness of the Credit Parties and
their Subsidiaries, including, without limitation, the redemption of the Senior
Notes and the payment of any applicable call premium, (b) to pay any costs, fees
and expenses associated with this Agreement on the Closing Date, and (c) for
working capital and other general corporate purposes of the Credit Parties and
their Subsidiaries.
Section 3.12 Subsidiaries; Joint Ventures; Partnerships.
Set forth on Schedule 3.12 is a complete and accurate list of all
Subsidiaries, joint ventures and partnerships of the Credit Parties as of the
Closing Date. Information on the attached Schedule includes the following: (a)
the number of shares of each class of Equity Interest or other equity interests
of each Subsidiary outstanding; and (b) the number and percentage of outstanding
shares of each class of Equity Interest owned by the Borrower or any of its
Subsidiaries. The outstanding Equity Interest and other equity interests of all
such Subsidiaries is validly issued, fully paid and non-assessable and is owned
free and clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents). There are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Equity Interest of the Borrower or any
Subsidiary, except as contemplated in connection with the Credit Documents. The
Borrower shall update Schedule 3.12 from time to time, in accordance with
Section 5.2, by providing a replacement Schedule 3.12 to the Administrative
Agent.
Section 3.13 Ownership.
Each of the Credit Parties and its Subsidiaries is the owner of, and
has good and marketable title to or a valid leasehold interest in, all of its
respective assets, which, together with assets leased or licensed by the Credit
Parties and their Subsidiaries, represents all assets in the aggregate material
to the conduct of the business of the Credit Parties and their Subsidiaries, and
(after giving effect to the Transactions) none of such assets is subject to any
Lien other than Permitted Liens. Each Credit Party and its Subsidiaries enjoys
peaceful and undisturbed possession under all of its leases and all such leases
are valid and subsisting and in full force and effect.
Section 3.14 Indebtedness.
Except as otherwise permitted under Section 6.1, the Credit Parties and
their Subsidiaries have no Indebtedness.
Section 3.15 Taxes.
Each of the Credit Parties and its Subsidiaries has filed, or caused to
be filed, all income tax returns and all other material tax returns (federal,
state, local and foreign) required to be filed and paid (a) all amounts of taxes
shown thereon to be due (including interest and penalties) and (b) all other
taxes, fees, assessments and other governmental charges (including mortgage
recording taxes, gaming taxes, documentary stamp taxes and intangibles taxes)
owing by it, except for such taxes (i) that are not yet delinquent or (ii) that
are being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP. None of the
Credit Parties or their Subsidiaries is aware as of the Closing Date of any
proposed tax assessments against it or any of its Subsidiaries.
Section 3.16 Intellectual Property Rights.
Each of the Credit Parties and its Subsidiaries owns, or has the legal
right to use, all Intellectual Property necessary for each of them to conduct
its business as currently conducted. Set forth on Schedule 3.16 is a list of all
registered or issued Intellectual Property (including all applications for
registration and issuance) owned by each of the Credit Parties and its
Subsidiaries or that each of the Credit Parties or any of its Subsidiaries has
the right to use as of the Closing Date or as of the date such Schedule was last
updated in accordance with the terms of Section 5.2 (including name/title,
current owner, registration or application number, and registration or
application date). Except as disclosed in Schedule 3.16 hereto, (a) each Credit
Party has the right to use its Intellectual Property in perpetuity and without
payment of royalties, (b) all registrations with and applications to
Governmental Authorities in respect of such Intellectual Property are valid and
in full force and effect and are not subject to the payment of any taxes or
maintenance fees or the taking of any interest therein, held by any of the
Credit Parties to maintain their validity or effectiveness, and (c) there are no
restrictions on the direct or indirect transfer of any Contractual Obligation,
or any interest therein, held by any of the Credit Parties in respect of such
Intellectual Property which has not been obtained. None of the Credit Parties is
in default (or with the giving of notice or lapse of time or both, would be in
default) under any license to use its Intellectual Property; no claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor do the Credit Parties or any of their Subsidiaries
know of any such claim; and, to the knowledge of the Credit Parties or any of
their Subsidiaries, the use of such Intellectual Property by any of the Credit
Parties or any of its Subsidiaries does not infringe on the rights of any
Person. The Credit Parties have recorded or deposited with and paid to the
United States Copyright Office, the Register of Copyrights, the Copyrights
Royalty Tribunal or other Governmental Authority, all notices, statements of
account, royalty fees and other documents and instruments required under the
terms and conditions of any Contractual Obligation of the Credit Parties and/or
under Title 17 of the United States Code and the rules and regulations issued
thereunder (collectively, the "Copyright Act"), and are not liable to any Person
for copyright infringement under the Copyright Act or any other law, rule,
regulation, contract or license as a result of their business operations.
Schedule 3.16 shall be updated from time to time, in accordance with Section
5.2, by the Borrower to include new Intellectual Property acquired after the
Closing Date by giving written notice thereof to the Administrative Agent.
Section 3.17 Solvency.
After giving effect to the Transactions, (a) each of the Credit Parties
is solvent and is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of
business, and (b) the fair saleable value of each Credit Party's assets,
measured on a going concern basis, exceeds all probable liabilities, including
those to be incurred pursuant to this Agreement. After giving effect to the
Transactions, none of the Credit Parties (i) has unreasonably small capital in
relation to the business in which it is or proposes to be engaged or (ii) has
incurred, or believes that it will incur debts beyond its ability to pay such
debts as they become due. In executing the Credit Documents and consummating the
Transactions, none of the Credit Parties intends to hinder, delay or defraud
either present or future creditors or other Persons to which one or more of the
Credit Parties is or will become indebted.
Section 3.18 Investments.
All Investments of each of the Credit Parties and its Subsidiaries are
Permitted Investments.
Section 3.19 Location of Collateral.
Set forth on Schedule 3.19(a) is a list of all Properties of the Credit
Parties and their Subsidiaries as of the Closing Date with street address,
county and state where located. Set forth on Schedule 3.19(b) is a list of all
locations where any tangible personal property of the Credit Parties and their
Subsidiaries (excluding inventory in transit or on temporary display at a
customer location) is located as of the Closing Date, including county and state
where located. Set forth on Schedule 3.19(c) is the state of incorporation or
organization, the chief executive office, the principal place of business, the
federal tax identification number and organization identification number of each
of the Credit Parties and their Subsidiaries as of the Closing Date.
Section 3.20 No Burdensome Restrictions.
None of the Credit Parties or their Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
Section 3.21 Brokers' Fees.
None of the Credit Parties or their Subsidiaries has any obligation to
any Person in respect of any finder's, broker's, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents other than the closing and other fees payable pursuant to this
Agreement and as set forth in the Fee Letter.
Section 3.22 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Credit Parties or any of their Subsidiaries as of
the Closing Date, other than as set forth in Schedule 3.22 hereto, and none of
the Credit Parties or their Subsidiaries (a) has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years,
other than as set forth in Schedule 3.22 hereto, or (b) has knowledge of any
potential or pending strike, walkout or work stoppage. Other than as set forth
on Schedule 3.22, no unfair labor practice complaint is pending against any
Credit Party or any of its Subsidiaries. There are no strikes, walkouts, work
stoppages or other material labor difficulty pending or threatened against any
Credit Party.
Section 3.23 Accuracy and Completeness of Information.
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of any Credit Party or any of its Subsidiaries to the
Administrative Agent, the Arranger or any Lender for purposes of or in
connection with this Agreement or any other Credit Document, or any transaction
contemplated hereby or thereby, is or will be true and accurate in all material
respects and not incomplete by omitting to state any material fact necessary to
make such information not misleading. There is no fact now known to any Credit
Party or any of its Subsidiaries which, individually or in the aggregate, has,
or could reasonably be expected to have, a Material Adverse Effect, which fact
has not been set forth herein, in the financial statements of the Borrower and
its Subsidiaries furnished to the Administrative Agent and the Lenders, or in
any certificate, opinion or other written statement made or furnished by any
Credit Party to the Administrative Agent and the Lenders.
Section 3.24 Material Contracts.
Schedule 3.24 sets forth a complete and accurate list of all Material
Contracts of the Credit Parties and their Subsidiaries in effect as of the
Closing Date. Each Material Contract is, and after giving effect to the
Transactions will be, in full force and effect in accordance with the terms
thereof. The Credit Parties have delivered to the Administrative Agent a true
and complete copy of each Material Contract. Schedule 3.24 shall be updated from
time to time, in accordance with Section 5.2 by the Borrower to include new
Material Contracts by giving written notice thereof to the Administrative Agent.
Section 3.25 Insurance.
The insurance coverage of the Credit Parties and their Subsidiaries as
of the Closing Date is outlined as to carrier, policy number, expiration date,
type and amount on Schedule 3.25 and such insurance coverage complies with the
requirements set forth in Section 5.5(b). Schedule 3.25 shall be updated from
time to time, in accordance with Section 5.2 by the Borrower to include
additional insurance coverage.
Section 3.26 Security Documents.
Except that the Gaming Pledge Agreement and the grant of the security
interests therein are not effective until the Pledge Approval is obtained, the
Security Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby. Except as set forth in the Security
Documents, such security interests and Liens are currently (or will be, upon (a)
the filing of appropriate financing statements with the Secretary of State of
the state of incorporation or organization for each Credit Party, the filing of
appropriate assignments or notices with the United States Patent and Trademark
Office and the United States Copyright Office, and the recordation of the
Mortgage Instruments, in each case in favor of the Administrative Agent, on
behalf of the Lenders, and (b) the Administrative Agent obtaining Control (as
defined in the Security Agreement) or possession over those items of Collateral
in which a security interest is perfected through Control or possession)
perfected security interests and Liens, prior to all other Liens other than
Permitted Liens.
Section 3.27 Regulation H.
No Mortgaged Property is a Flood Hazard Property.
Section 3.28 Classification of Senior Indebtedness.
The Credit Party Obligations constitute "Senior Indebtedness",
"Designated Senior Indebtedness" or any similar designation under and as defined
in any agreement governing any Subordinated Debt and the subordination
provisions set forth in each such agreement are legally valid and enforceable
against the parties thereto.
Section 3.29 Anti-Terrorism Laws.
Neither any Credit Party nor any of its Subsidiaries is an "enemy" or
an "ally of the enemy" within the meaning of Section 2 of the Trading with the
Enemy Act of the United States of America (50 U.S.C. App. ss.ss. 1 et seq.), as
amended. Neither any Credit Party nor any or its Subsidiaries is in violation of
(a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto or (c) the Patriot Act. None of the Credit Parties (i) is a
blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to the
best of its knowledge, engages in any dealings or transactions, or is otherwise
associated, with any such blocked person.
Section 3.30 Compliance with OFAC Rules and Regulations.
None of the Credit Parties or their Subsidiaries or their respective
Affiliates (a) is a Sanctioned Person, (b) has more than 15% of its assets in
Sanctioned Countries, or (c) derives more than 15% of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned Countries.
No part of the proceeds of any Extension of Credit hereunder will be used
directly or indirectly to fund any operations in, finance any investments or
activities in or make any payments to, a Sanctioned Person or a Sanctioned
Country.
Section 3.31 Compliance with FCPA.
Each of the Credit Parties and their Subsidiaries is in compliance with
the Foreign Corrupt Practices Act, 15 U.S.C. ss.ss. 78dd-1, et seq., and any
foreign counterpart thereto. None of the Credit Parties or their Subsidiaries
has made a payment, offering, or promise to pay, or authorized the payment of,
money or anything of value (a) in order to assist in obtaining or retaining
business for or with, or directing business to, any foreign official, foreign
political party, party official or candidate for foreign political office, (b)
to a foreign official, foreign political party or party official or any
candidate for foreign political office, and (c) with the intent to induce the
recipient to misuse his or her official position to direct business wrongfully
to such Credit Party or its Subsidiary or to any other Person, in violation of
the Foreign Corrupt Practices Act, 15 U.S.C. ss.ss. 78dd-1, et seq.
Section 3.32 Consent; Governmental Authorizations.
Except for the Pledge Approval, the Colorado Gaming Notice and any
Approvals of the Gaming Authorities or any other Governmental Authorities that
the Administrative Agent or any Lender, Secured Party or Participant is required
to obtain under the Gaming Laws or other Requirements of Law in order to
exercise their respective rights and remedies under the Credit Documents, no
approval, consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with acceptance of Extensions of Credit by the Borrower or the making
of the Guaranty hereunder or with the execution, delivery or performance of any
Credit Document by the Credit Parties (other than those which have been
obtained) or with the validity or enforceability of any Credit Document against
the Credit Parties (except such filings as are necessary in connection with the
perfection of the Liens created by such Credit Documents).
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions to Closing Date.
This Agreement shall become effective upon, and the obligation of each
Lender to make the Term Loan and the initial Revolving Loans on the Closing Date
is subject to, the satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement; Credit Documents and Lender
Consents. The Administrative Agent shall have received (i) counterparts
of this Agreement, executed by a duly authorized officer of each party
hereto, (ii) for the account of each Revolving Lender requesting a
promissory note, a Revolving Note, (iii) for the account of each Term
Loan Lender requesting a promissory note, a Term Loan Note, (iv) for
the account of the Swingline Lender requesting a promissory note, the
Swingline Note, (v) counterparts of the Security Agreement, the Pledge
Agreements, each Environmental Indemnity and each Mortgage Instrument,
in each case conforming to the requirements of this Agreement and
executed by duly authorized officers of the Credit Parties or other
Person, as applicable, (vi) counterparts of any other Credit Document
(other than the Custodian Agreement) executed by the duly authorized
officers of the parties thereto and (vii) executed consents, in the
form of Exhibit 4.1(a), from each Lender authorizing the Administrative
Agent to enter this Credit Agreement on their behalf.
(b) Authority Documents. The Administrative Agent shall have
received the following:
(i) Articles of Incorporation/Charter Documents.
Original certified articles of incorporation or other charter
documents, as applicable, of each Credit Party certified (A)
by an officer of such Credit Party (pursuant to an officer's
certificate in substantially the form of Exhibit 4.1(b)
attached hereto) as of the Closing Date to be true and correct
and in force and effect as of such date, and (B) to be true
and complete as of a recent date by the appropriate
Governmental Authority of the state of its incorporation or
organization, as applicable.
(ii) Resolutions. Copies of resolutions of the board
of directors or comparable managing body of each Credit Party
approving and adopting the Credit Documents, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by an officer of such Credit Party
(pursuant to an officer's certificate in substantially the
form of Exhibit 4.1(b) attached hereto) as of the Closing Date
to be true and correct and in force and effect as of such
date.
(iii) Bylaws/Operating Agreement. A copy of the
bylaws or comparable operating agreement of each Credit Party
certified by an officer of such Credit Party (pursuant to an
officer's certificate in substantially the form of Exhibit
4.1(b) attached hereto) as of the Closing Date to be true and
correct and in force and effect as of such date.
(iv) Good Standing. Original certificates of good
standing, existence or its equivalent with respect to each
Credit Party certified as of a recent date by the appropriate
Governmental Authorities of the state of incorporation or
organization and each other state in which the failure to so
qualify and be in good standing could reasonably be expected
to have a Material Adverse Effect.
(v) Incumbency. An incumbency certificate of each
Credit Party certified by an officer (pursuant to an officer's
certificate in substantially the form of Exhibit 4.1(b)
attached hereto) to be true and correct as of the Closing
Date.
(c) Legal Opinion of Counsel. The Administrative Agent shall
have received an opinion or opinions (including, if requested by the
Administrative Agent, local counsel opinions, including, without
limitation, Colorado local counsel opinions) of counsel for the Credit
Parties, dated the Closing Date and addressed to the Administrative
Agent and the Lenders, in form and substance acceptable to the
Administrative Agent (which shall include, without limitation, opinions
with respect to the due organization and valid existence of each Credit
Party, opinions as to perfection of the Liens granted to the
Administrative Agent pursuant to the Security Documents and opinions as
to the non-contravention of the Credit Parties' organizational
documents and Material Contracts).
(d) Personal Property Collateral. The Administrative Agent
shall have received, in form and substance satisfactory to the
Administrative Agent:
(i) (A) searches of UCC filings in the jurisdiction
of incorporation or formation, as applicable, of each Credit
Party and each jurisdiction where any Collateral is located or
where a filing would need to be made in order to perfect the
Administrative Agent's security interest in the Collateral,
copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than
Permitted Liens and (B) tax lien, judgment and pending
litigation searches;
(ii) searches of ownership of Intellectual Property
in the appropriate governmental offices and such
patent/trademark/copyright filings as requested by the
Administrative Agent in order to perfect the Administrative
Agent's security interest in the Intellectual Property;
(iii) completed UCC financing statements for each
appropriate jurisdiction as is necessary, in the
Administrative Agent's sole discretion, to perfect the
Administrative Agent's security interest in the Collateral;
(iv) stock or membership certificates, if any,
evidencing the Equity Interest pledged to the Administrative
Agent pursuant to any Pledge Agreement and duly executed in
blank undated stock or transfer powers (other than the stock
certificates evidencing the Equity Interest in ROC and the
stock power with respect to the same);
(v) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the
Lenders' security interest in the Collateral;
(vi) in the case of any personal property Collateral
located at premises leased by a Credit Party and set forth on
Schedule 3.19(a) such estoppel letters, consents and waivers
from the landlords of such real property to the extent the
Borrower is able to secure such letters, consents and waivers
after using commercially reasonable efforts (such letters,
consents and waivers shall be in form and substance
satisfactory reasonably to the Administrative Agent, it being
acknowledged and agreed that any landlord waiver in the form
of Exhibit 4.1(d) is satisfactory to the Administrative
Agent);
(vii) all instruments and chattel paper in the
possession of any of the Credit Parties, together with
allonges or assignments as may be necessary or appropriate to
perfect the Administrative Agent's and the Lenders' security
interest in the Collateral; and
(viii) Securities Account Control Agreements
satisfactory to the Administrative Agent with respect to each
securities account, except payroll accounts and to the extent
otherwise determined by the Administrative Agent
(e) Real Property Collateral. The Administrative Agent shall
have received, in form and substance satisfactory to the Administrative
Agent and the Lenders:
(i) fully executed and notarized Mortgage Instruments
encumbering the Mortgaged Properties listed in Schedule
3.19(d) as to properties owned by the Credit Parties and, to
the extent required by the Administrative Agent, the leasehold
interest in the Mortgaged Properties listed in Schedule
3.19(d) as to properties that are warehouses, plants or other
real properties material to the conduct of the Credit Parties'
business and are leased by the Credit Parties;
(ii) a title report in respect of each of the
Mortgaged Properties;
(iii) with respect to each Mortgaged Property listed
in Schedule 3.19(d), a Mortgage Policy assuring the
Administrative Agent that the Mortgage Instrument with respect
to such Mortgaged Property creates a valid and enforceable
first priority mortgage lien on such Mortgaged Property, free
and clear of all defects and encumbrances except Permitted
Liens, which Mortgage Policy shall be in form and substance
reasonably satisfactory to the Administrative Agent and shall
provide for affirmative insurance and such reinsurance as the
Administrative Agent may reasonably request, all of the
foregoing in form and substance reasonably satisfactory to the
Administrative Agent;
(iv) evidence as to (A) whether any Mortgaged
Property listed in Schedule 3.19(d) is a Flood Hazard Property
and (B) if any Mortgaged Property is a Flood Hazard Property,
(x) whether the community in which such Mortgaged Property is
located is participating in the National Flood Insurance
Program, (y) the applicable Credit Party's written
acknowledgment of receipt of written notification from the
Administrative Agent (I) as to the fact that such Mortgaged
Property is a Flood Hazard Property and (II) as to whether the
community in which each such Flood Hazard Property is located
is participating in the National Flood Insurance Program and
(z) copies of insurance policies or certificates of insurance
of the Credit Parties and their Subsidiaries evidencing flood
insurance reasonably satisfactory to the Administrative Agent
and naming the Administrative Agent as loss payee on behalf of
the Lenders;
(v) [Reserved].
(vi) satisfactory third-party environmental reviews
of all owned Mortgaged Properties listed in Schedule 3.19(d)
(other than with respect to the Mortgaged Property related to
the Riviera Black Hawk Facility) and, to the extent requested
by the Administrative Agent, all leased Mortgaged Properties
listed in Schedule 3.19(d), including, but not limited to,
Phase I environmental assessments, together with reliance
letters in favor of the Lenders;
(vii) to the extent requested by the Administrative
Agent, opinions of counsel to the Credit Parties for each
jurisdiction in which the Mortgaged Properties are located;
(viii) to the extent available and upon using
commercially reasonable efforts, zoning letters from each
municipality or other Governmental Authority for each
jurisdiction in which the Mortgaged Properties listed in
Schedule 3.19(d) are located; and
(ix) to the extent requested by the Administrative
Agent, with respect to each leased Mortgaged Property, a
survey certified to the Administrative Agent by a firm of
surveyors reasonably satisfactory to the Administrative Agent.
(f) Liability, Casualty, Property and Business Interruption
Insurance. The Administrative Agent shall have received copies of
insurance policies or certificates and endorsements of insurance
evidencing liability, casualty, property and business interruption
insurance meeting the requirements set forth herein or in the Security
Documents. The Administrative Agent shall be named (i) as lender's loss
payee, as its interest may appear, with respect to any such insurance
providing coverage in respect of any Collateral and (ii) as additional
insured, as its interest may appear, with respect to any such insurance
providing liability coverage, and the Borrower will use its
commercially reasonable efforts to have each provider of any such
insurance agree, by endorsement upon the policy or policies issued by
it or by independent instruments to be furnished to the Administrative
Agent, that it will give the Administrative Agent thirty (30) days
prior written notice before any such policy or policies shall be
altered or cancelled.
(g) Solvency Certificate. The Administrative Agent shall have
received an officer's certificate prepared by the chief financial
officer of the Borrower as to the financial condition, solvency and
related matters of the Credit Parties and their Subsidiaries, after
giving effect to the initial borrowings under the Credit Documents, in
substantially the form of Exhibit 4.1(g) hereto.
(h) Account Designation Notice. The Administrative Agent shall
have received the executed Account Designation Notice in the form of
Exhibit 1.1(a) hereto.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing with respect to the Loans to be made on
the Closing Date.
(j) Consents. The Administrative Agent shall have received
evidence that (A) except for the Pledge Approval, the Colorado Gaming
Notice and any Approvals of the Gaming Authorities or any other
Governmental Authorities that the Administrative Agent or any Lender,
Secured Party or Participant is required to obtain under the Gaming
Laws or other Requirements of Law in order to exercise their respective
rights and remedies under the Credit Documents (i) all boards of
directors, governmental, shareholder and material third party consents
and approvals necessary in connection with the Transactions have been
obtained and all applicable waiting periods have expired without any
action being taken by any authority that could restrain, prevent or
impose any material adverse conditions on such transactions or that
could seek or threaten any of the foregoing, and (ii) the Borrower and
the Guarantors have made all necessary registrations with, obtained all
necessary consents or approvals of, given all necessary notices to, and
taken all other necessary actions required by, each applicable Gaming
Authority relative to the execution, delivery and performance of the
Credit Documents by the Borrower and the Guarantors and (B) the
Borrower has given notice of the Transactions to the Colorado Gaming
Authorities prior to the Closing Date.
(k) Compliance with Laws. The financings and other
Transactions contemplated hereby shall be in compliance with all
applicable laws and regulations (including all applicable securities
and banking laws, rules and regulations).
(l) Bankruptcy. There shall be no bankruptcy or insolvency
proceedings pending with respect to any Credit Party or any Subsidiary
thereof.
(m) Existing Indebtedness of the Credit Parties. All of the
existing Indebtedness for borrowed money of the Credit Parties and
their Subsidiaries (excluding Indebtedness permitted to exist pursuant
to Section 6.1) shall be repaid in full and all security interests
related thereto shall be terminated on or prior to the Closing Date (or
in the case of the redemption of the Senior Notes, the Borrower shall
have deposited with the Trustee an amount sufficient to redeem the
Senior Notes so that the Senior Indenture shall be satisfied and
discharged as of the Closing Date and all security interests related
thereto shall be terminated on or prior to the Closing Date).
(n) Financial Statements. The Administrative Agent and the
Lenders shall have received copies of the financial statements referred
to in Section 3.1, each in form and substance satisfactory to it.
(o) No Material Adverse Change. Since December 31, 2006, there
shall have been no material adverse change in the business, properties,
prospects, operations or condition (financial or otherwise) of the
Borrower or any of its Subsidiaries.
(p) Financial Condition Certificate. The Administrative Agent
shall have received a certificate or certificates executed by a
Responsible Officer of the Borrower as of the Closing Date,
substantially in the form of Exhibit 4.1(p) stating that (i) there does
not exist any pending or ongoing, action, suit, investigation,
litigation or proceeding in any court or before any other Governmental
Authority (A) affecting this Agreement or the other Credit Documents,
that has not been settled, dismissed, vacated, discharged or terminated
prior to the Closing Date or (B) that purports to affect any Credit
Party or any of its Subsidiaries, or any transaction contemplated by
the Credit Documents, which action, suit, investigation, litigation or
proceeding could reasonably be expected to have a Material Adverse
Effect, that has not been settled, dismissed, vacated, discharged or
terminated prior to the Closing Date, (ii) immediately after giving
effect to this Agreement, the other Credit Documents, and all the
Transactions contemplated to occur on such date, (A) no Default or
Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents are true and
correct, and (C) the Credit Parties are in pro forma compliance with
each of the initial financial covenants set forth in Section 5.9
notwithstanding whether the Consolidated Leverage Ratio is otherwise
required to be calculated pursuant to Section 5.9 at such time (as
evidenced through detailed calculations of such financial covenants on
a schedule to such certificate) as of the last day of the quarter
ending at least twenty (20) days preceding the Closing Date and (iii)
each of the other conditions precedent in Section 4.1 have been
satisfied, except to the extent the satisfaction of any such condition
is subject to the judgment or discretion of the Administrative Agent or
any Lender.
(q) Patriot Act Certificate. At least five (5) Business Days
prior to the Closing Date, the Administrative Agent shall have received
a certificate satisfactory thereto, substantially in the form of
Exhibit 4.1(q), for benefit of itself and the Lenders, provided by the
Borrower that sets forth information required by the Patriot Act
including, without limitation, the identity of the Credit Parties, the
name and address of the Credit Parties and other information that will
allow the Administrative Agent or any Lender, as applicable, to
identify the Credit Parties in accordance with the Patriot Act.
(r) Material Contracts. The Administrative Agent shall have
received true and complete copies, certified by an officer of the
Borrower as true and complete, of all Material Contracts, together with
all exhibits and schedules.
(s) Ratings. The Borrower shall have received Ratings from S&P
and Moody's.
(t) Consolidated Leverage Ratio. The Administrative Agent
shall have received evidence reasonably satisfactory thereto provided
by the Credit Parties that Consolidated Leverage Ratio shall be no
greater than 5.65 to 1.0 after giving effect to the initial borrowings
under the Credit Agreement and the consummation of the Transactions for
the twelve month period through the last day of the quarter ending
immediately prior to the Closing Date.
(u) Gaming Authority Audit Reports and Certifications. The
Administrative agent shall have received (i) copies of the most recent
Gaming Authority gaming audit reports of each of the Facility's
operations and the results of such audit reports shall be reasonably
satisfactory to the Administrative Agent and (ii) certification from
the Credit Parties that (x) all Casino Licenses and other material
licenses are in full force and effect as of the Closing Date and (y)
the Credit Parties are in good standing with all applicable Gaming
Authorities.
(v) Fees and Expenses. The Administrative Agent and the
Lenders shall have received all fees and expenses, if any, owing
pursuant to the Fee Letter and Section 2.5.
(w) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
Section 4.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Credit Parties herein, in the Security Documents
and which are contained in any certificate furnished at any time under
or in connection herewith shall (i) with respect to representations and
warranties that contain a materiality qualification, be true and
correct and (ii) with respect to representations and warranties that do
not contain a materiality qualification, be true and correct in all
material respects, in each case on and as of the date of such Extension
of Credit as if made on and as of such date except for any
representation or warranty made as of an earlier date, which
representation and warranty shall remain true and correct as of such
earlier date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after
giving effect to the Extension of Credit to be made on such date unless
such Default or Event of Default shall have been waived in accordance
with this Agreement.
(c) Compliance with Commitments. Immediately after giving
effect to the making of any such Extension of Credit (and the
application of the proceeds thereof), (i) the sum of the aggregate
principal amount of outstanding Revolving Loans plus outstanding
Swingline Loans plus outstanding LOC Obligations shall not exceed the
Revolving Committed Amount then in effect, (ii) the outstanding LOC
Obligations shall not exceed the LOC Committed Amount, and (iii) the
outstanding Swingline Loans shall not exceed the Swingline Committed
Amount.
(d) Additional Conditions to Revolving Loans. If a Revolving
Loan is requested, all conditions set forth in Section 2.1 shall have
been satisfied.
(e) Additional Conditions to Additional Term Loans. If an
Additional Term Loan is requested, all conditions set forth in Section
2.2 shall have been satisfied.
(f) Additional Conditions to Letters of Credit. If the
issuance of a Letter of Credit is requested, all conditions set forth
in Section 2.3 shall have been satisfied.
(g) Additional Conditions to Swingline Loans. If a Swingline
Loan is requested, all conditions set forth in Section 2.4 shall have
been satisfied.
Each request for an Extension of Credit and each acceptance by the
Borrower of any such Extension of Credit shall be deemed to constitute
representations and warranties by the Credit Parties as of the date of such
Extension of Credit that the conditions set forth above in paragraphs (a)
through (g), as applicable, have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the
Closing Date, and thereafter (a) for so long as this Agreement is in effect, (b)
until the Commitments have terminated, and (c) until no Note remains outstanding
and unpaid and the Credit Party Obligations and all other amounts owing to the
Administrative Agent or any Lender hereunder are paid in full, such Credit Party
shall, and shall cause each of their Subsidiaries (other than in the case of
Sections 5.1 or 5.2 hereof), to:
Section 5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available and in
any event no later than the earlier of (i) to the extent applicable,
the date the Borrower is required by the SEC to deliver its Form 10-K
for each fiscal year of the Borrower and (ii) ninety (90) days after
the end of each fiscal year of the Borrower, a copy of (A) the
Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
Consolidated statements of income and retained earnings and of cash
flows of the Borrower and its Consolidated Subsidiaries for such year,
which shall be audited by a firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to
the Administrative Agent, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit such
independent certified public accountants to certify such financial
statements without such qualification and (B) the unaudited
consolidating balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
unaudited consolidating statements of income and retained earnings and
of cash flows of the Borrower and its Consolidated Subsidiaries for
such year;
(b) Quarterly Financial Statements. As soon as available and
in any event no later than the earlier of (i) to the extent applicable,
the date the Borrower is required by the SEC to deliver its Form 10-Q
for any fiscal quarter of the Borrower and (ii) forty-five (45) days
after the end of each fiscal quarter of the Borrower, a copy of the
Consolidated and consolidating balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such period and related
Consolidated and consolidating statements of income and retained
earnings and of cash flows for the Borrower and its Consolidated
Subsidiaries for such quarterly period and for the portion of the
fiscal year ending with such period, in each case setting forth in
comparative form Consolidated figures for the corresponding period or
periods of the preceding fiscal year (subject to normal recurring
year-end audit adjustments); and
(c) Annual Operating Budget and Cash Flow. As soon as
available, but in any event within thirty (30) days after the end of
each fiscal year, a copy of the detailed annual operating budget or
plan including cash flow projections of the Borrower and its
Subsidiaries for the next four fiscal quarter period prepared on a
quarterly basis, in form and detail reasonably acceptable to the
Administrative Agent and the Lenders, together with a summary of the
material assumptions made in the preparation of such annual budget or
plan;
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the
case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change, if any, in the application of accounting principles as
provided in Section 1.3.
Notwithstanding the foregoing, financial statements and reports
required to be delivered pursuant to the foregoing provisions of this Section
may be delivered electronically and if so, shall be deemed to have been
delivered on the date on which the Administrative Agent receives such reports
from the Borrower through electronic mail; provided that, upon the
Administrative Agent's request, the Borrower shall provide paper copies of any
documents required hereby to the Administrative Agent.
Section 5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) Accountant Certificate. Concurrently with the delivery of
the financial statements referred to in Section 5.1(a) above, a
certificate of the independent certified public accountants reporting
on such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of
the financial statements referred to in Sections 5.1(a) and 5.1(b)
above, a certificate of a Responsible Officer substantially in the form
of Exhibit 5.2(b) stating that (i) (A) such financial statements
present fairly the financial position of the Borrower and its
Subsidiaries for the periods indicated in conformity with GAAP applied
on a consistent basis, (B) each of the Credit Parties during such
period observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in this Agreement to be
observed, performed or satisfied by it, and (C) such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and such certificate shall
include the calculations in reasonable detail required to indicate
compliance with Section 5.9 as of the last day of such period.
(c) Updated Schedules. Concurrently with or prior to the
delivery of the financial statements referred to in Sections 5.1(a) and
5.1(b) above, (i) an updated copy of Schedule 3.3 and Schedule 3.12 if
the Borrower or any of its Subsidiaries has formed or acquired a new
Subsidiary since the Closing Date or since such Schedule was last
updated, as applicable, (ii) an updated copy of Schedule 3.16 if the
Borrower or any of its Subsidiaries has registered, applied for
registration of, acquired or otherwise obtained ownership of any new
Intellectual Property since the Closing Date or since Schedule 3.16 was
last updated, as applicable, (iii) an updated copy of Schedule 3.24 if
any new Material Contract has been entered into since the Closing Date
or since Schedule 3.24 was last updated, as applicable, together with a
copy of each new Material Contract, and (iv) an updated copy of
Schedule 3.25 if the Borrower or any of its Subsidiaries has altered or
acquired any insurance policies since the Closing Date or since
Schedule 3.25 was last updated.
(d) Financial Information; SEC Filings; Material Reports;
Press Releases; Etc. Promptly upon their becoming available, (i) copies
of all reports (other than those provided pursuant to Section 5.1 and
those which are of a promotional nature) and other financial
information which the Borrower sends to its shareholders, (ii) copies
of all reports and all registration statements and prospectuses, if
any, which the Borrower may make to, or file with, the SEC (or any
successor or analogous Governmental Authority) or any securities
exchange or other private regulatory authority, (iii) all material
regulatory reports and (iv) all press releases and other statements
made available by any of the Credit Parties to the public concerning
material developments in the business of any of the Credit Parties.
(e) Annual Officer's Certificate. Within ninety (90) days
after the end of each fiscal year of the Borrower, a certificate
containing information including a calculation of Excess Cash Flow and
the amount of all acquisitions, all dividends paid, Asset Dispositions,
Debt Issuances, and Equity Issuances that were made during the prior
fiscal year and amounts received in connection with any Extraordinary
Receipt during the prior fiscal year.
(f) Management Letters; Etc. Promptly upon receipt thereof, a
copy or summary of any other report, or "management letter" or similar
report submitted by independent accountants to the Borrower or any of
its Subsidiaries in connection with any annual, interim or special
audit of the books of such Person.
(g) Gaming Information. As soon as practicable and in any
event within ten (10) days after the receipt by the Borrower or any
Guarantor from any Gaming Authority or other Governmental Authority
having jurisdiction over the operations of the Borrower or any
Guarantor or filing or receipt thereof by the Borrower or any
Guarantor, (i) copies of any order or notice of such Gaming Authority
or such other Governmental Authority or court of competent jurisdiction
which designates any material Casino License or other material
franchise, permit or other governmental operating authorization of the
Borrower or any Guarantor, or any application therefor, for a hearing
or which refuses renewal or extension of, or revokes or suspends the
authority of the Borrower or any Guarantor to own, manage or operate
the Facilities (or portion thereof) and (ii) a copy of any material
citation, notice of material violation or order to show cause issued by
any Gaming Authority or other Governmental Authority or any material
complaint filed by any Gaming Authority or other Governmental Authority
which is available to the Borrower or any Guarantor.
(h) Miscellaneous Information. Promptly, such additional
financial and other information as the Administrative Agent, on behalf
of any Lender, may from time to time reasonably request.
Section 5.3 Payment of Taxes and Other Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, subject, where applicable, to
specified grace periods, (a) all of its taxes (Federal, state, local and any
other taxes) and (b) all of its other obligations and liabilities of whatever
nature in accordance with industry practice and (c) any additional costs that
are imposed as a result of any failure to so pay, discharge or otherwise satisfy
such taxes, obligations and liabilities, except when the amount or validity of
any such taxes, obligations and liabilities is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Credit Parties.
Section 5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it on the Closing Date and preserve, renew and keep in full force
and effect its corporate or other formative existence and good standing, take
all reasonable action to maintain all rights, privileges and franchises
(including all necessary Casino Licenses) necessary or desirable in the normal
conduct of its business and to maintain its goodwill and comply with all
contractual obligations and Requirements of Law.
Section 5.5 Maintenance of Property; Insurance.
(a) Keep all material property useful and necessary in its
business in good working order and condition (ordinary wear and tear
and obsolescence excepted).
(b) Maintain with financially sound and reputable insurance
companies liability, casualty, property and business interruption
insurance (including, without limitation, insurance with respect to (i)
its tangible Collateral, (ii) business interruption, (iii) public
liability, (iv) product liability, and (v) larceny, embezzlement and
criminal misappropriation) in at least such amounts and against at
least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business; and
furnish to the Administrative Agent, upon the request of the
Administrative Agent, full information as to the insurance carried. The
Administrative Agent shall be named (i) as Lender's loss payee, as its
interest may appear with respect to any property insurance, and (ii) as
additional insured, as its interest may appear, with respect to any
such liability insurance, and each provider of any such insurance shall
agree, by endorsement upon the policy or policies issued by it or by
independent instruments to be furnished to the Administrative Agent,
that it will give the Administrative Agent thirty (30) days prior
written notice before any such policy or policies shall be altered or
canceled, and such policies shall provide that no act or default of the
Credit Parties or any of their Subsidiaries or any other Person shall
affect the rights of the Administrative Agent or the Lenders under such
policy or policies.
(c) In case of any material loss, damage to or destruction of
the Collateral of any Credit Party or any part thereof, such Credit
Party shall promptly give written notice thereof to the Administrative
Agent generally describing the nature and extent of such damage or
destruction. In case of any such material loss, damage to or
destruction of the Collateral of any Credit Party or any part thereof,
if required by the Administrative Agent or the Required Lenders, such
Credit Party, will promptly, at such Credit Party's election, (i) at
such Credit Party's cost and expense, repair or replace the Collateral
of such Credit Party so lost, damaged or destroyed or (ii) prepay the
Loans in accordance with Section 2.7(b)(vi).
Section 5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books, records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice by the
Administrative Agent or any Lender, the Administrative Agent or any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired, and to discuss the business, operations, properties, financial
conditions and other conditions of the Credit Parties and their Subsidiaries
with officers and employees of the Credit Parties and their Subsidiaries and
with its independent certified public accountants.
Section 5.7 Notices.
Give notice in writing to the Administrative Agent (which shall
promptly transmit such notice to each Lender):
(a) promptly, but in any event within two (2) Business Days
after any Credit Party knows thereof, the occurrence of any Default or
Event of Default;
(b) promptly, any default or event of default under any
Contractual Obligation of any Credit Party or any of its Subsidiaries
which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or involve a monetary claim in excess
of $1,000,000;
(c) promptly, any litigation, or any investigation or
proceeding known or threatened to any Credit Party (i) affecting any
Credit Party or any of its Subsidiaries which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect or involve a monetary claim in excess of $1,000,000 or involving
injunctions or requesting injunctive relief by or against any Credit
Party or any Subsidiary of any Credit Party, (ii) affecting or with
respect to this Agreement, any other Credit Document or any security
interest or Lien created thereunder, (iii) involving an environmental
claim or potential liability under Environmental Laws which could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iv) by any Governmental Authority relating
to the Borrower or any Subsidiary thereof and alleging fraud, deception
or willful misconduct by such Person;
(d) of any labor controversy that has resulted in, or
threatens to result in, a strike or other work action against any
Credit Party which could reasonably be expected to have a Material
Adverse Effect;
(e) of any attachment, judgment, lien, levy or order exceeding
$1,000,000 that may be assessed against or threatened against any
Credit Party other than Permitted Liens;
(f) as soon as possible and in any event within thirty (30)
days after any Credit Party knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC (other than a
Permitted Lien) or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or any Credit Party, any Commonly Controlled Entity or any
Multiemployer Plan, with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan;
(g) promptly after becoming aware of the occurrence of any
Internal Control Event;
(h) as soon as possible and in any event within ten (10) days
prior to creating a Domestic Subsidiary, notice of the creation of such
Domestic Subsidiary;
(i) promptly, any notice of any violation received by any
Credit Party from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws; and
(j) promptly, any other development or event which could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Credit Parties propose to take with respect thereto.
In the case of any notice of a Default or Event of Default, the Borrower shall
specify that such notice is a Default or Event of Default notice on the face
thereof.
Section 5.8 Environmental Laws.
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws and obtain and comply in
all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings; and
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, agents, officers
and directors and affiliates, from and against any and all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Credit Parties or any of their Subsidiaries or
the Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence, bad
faith or willful misconduct of the party seeking indemnification
therefor. The agreements in this paragraph shall survive repayment of
the Credit Party Obligations and all other amounts payable hereunder
and termination of the Commitments and the Credit Documents.
Section 5.9 Financial Covenant.
As of the end of each fiscal quarter when the sum of the aggregate
principal amount of outstanding Revolving Loans plus outstanding Swingline Loans
plus outstanding Letters of Credit exceeds $2,500,000, the Consolidated Leverage
Ratio, for the twelve-month period ending as of each fiscal quarter end set
forth below, shall be less than or equal to the following:
- ------------------------------------------------------------ ------------------
Period Ratio
- ------------------------------------------------------------ ------------------
Closing Date through and including December 31, 2008 6.50 to 1.00
- ------------------------------------------------------------ ------------------
January 1, 2009 through and including December 31, 2009 6.25 to 1.00
- ------------------------------------------------------------ ------------------
January 1, 2010 through and including December 31, 2010 6.00 to 1.00
- ------------------------------------------------------------ ------------------
January 1, 2011 through and including December 31, 2011 5.50 to 1.00
- ------------------------------------------------------------ ------------------
January 1, 2012 and thereafter 5.00 to 1.00
- ------------------------------------------------------------ ------------------
Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made in determining compliance for any
applicable period with the financial covenant set forth in this Section, after
any Asset Disposition permitted by Section 6.4(a)(vi), (A) income statement
items, cash flow statement items and other balance sheet items (whether positive
or negative) attributable to the property or assets disposed of shall be
excluded in such calculations to the extent relating to such applicable period,
subject to adjustments mutually acceptable to the Borrower and the
Administrative Agent (after consultation with the Lenders) and (B) Indebtedness
that is repaid with the proceeds of such Asset Disposition shall be excluded
from such calculations and deemed to have been repaid as of the first day of
such applicable period.
Section 5.10 Additional Guarantors.
The Credit Parties will cause each of their Domestic Subsidiaries
(other than the Excluded Subsidiaries), whether newly formed, after acquired or
otherwise existing to promptly (and in any event within thirty (30) days after
such Domestic Subsidiary is formed or acquired (or such longer period of time as
agreed to by the Administrative Agent in its reasonable discretion)) become a
Guarantor hereunder by way of execution of a Joinder Agreement. In connection
therewith, the Credit Parties shall give notice to the Administrative Agent not
less than ten (10) days prior to creating a Domestic Subsidiary (or such shorter
period of time as agreed to by the Administrative Agent in its reasonable
discretion), or acquiring the Equity Interest of any other Person. Subject to
Gaming Laws, the Credit Party Obligations shall be secured by, among other
things, a first priority perfected security interest in the Collateral of such
new Guarantor and a pledge of 100% of the Equity Interest of such new Guarantor
and its Domestic Subsidiaries and 65% (or such higher percentage that would not
result in material adverse tax consequences for such new Guarantor) of the
voting Equity Interest and 100% of the non-voting Equity Interest of its
first-tier Foreign Subsidiaries. Subject to applicable Gaming Laws, in
connection with the foregoing, the Credit Parties shall deliver to the
Administrative Agent, with respect to each new Guarantor to the extent
applicable, substantially the same documentation required pursuant to Sections
4.1(b) - (f), (j) and 5.12 and such other documents or agreements as the
Administrative Agent may reasonably request.
Section 5.11 Compliance with Law.
(a) Comply with all Requirements of Law and orders (including
Environmental Laws), and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and the Collateral if
noncompliance with any such Requirements of Law, order or restriction
could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(b) File, on a timely basis, all applicable reports and
informational filings with respect to the transactions contemplated
herein and in the other Credit Documents that are required by any
Gaming Laws or any order issued by any applicable Gaming Authority.
(c) Comply in all material respects with all Contractual
Obligations.
Section 5.12 Pledged Assets.
(a) Each Credit Party will cause 100% of the Equity Interest
in each of its direct or indirect Domestic Subsidiaries other than the
Excluded Subsidiaries (unless such Domestic Subsidiary is owned by a
Foreign Subsidiary) and 65% (to the extent the pledge of a greater
percentage would be unlawful or would cause any materially adverse tax
consequences to the Borrower or any Guarantor) of the voting Equity
Interest and 100% of the non-voting Equity Interest of its first-tier
Foreign Subsidiaries, in each case to the extent owned by such Credit
Party, to be subject at all times to a first priority, perfected Lien
in favor of the Administrative Agent pursuant to the terms and
conditions of the Security Documents or such other security documents
as the Administrative Agent shall reasonably request; provided,
however, that the Borrower's Equity Interest in ROC shall not be
subject to a first priority, perfected Lien in favor of the
Administrative Agent until the Pledge Approval has been obtained.
(b) Subject to the terms of subsection (c) below, each Credit
Party will cause its real property acquired after the Closing Date and
all tangible and intangible personal property now owned or hereafter
acquired to be subject at all times to a first priority, perfected Lien
(subject in each case to Permitted Liens) in favor of the
Administrative Agent pursuant to the terms and conditions of the
Security Documents or such other security documents as the
Administrative Agent shall reasonably request. Each Credit Party shall,
and shall cause each of its Subsidiaries to, adhere to the covenants
set forth in the Security Documents.
(c) To the extent otherwise permitted hereunder, if any Credit
Party intends to acquire a fee ownership interest in any real property
("Real Estate") after the Closing Date and such Real Estate has a fair
market value in excess of $2,000,000, it shall provide to the
Administrative Agent promptly (i) such security documentation as the
Administrative Agent may request to cause such Real Estate to be
subject at all times to a first priority, perfected Lien (subject in
each case to Permitted Liens) in favor of the Administrative Agent and
(ii) such other documentation as the Administrative agent may
reasonably request in connection with the foregoing, including, without
limitation, title, insurance policies, surveys, environmental reports
and opinions of counsel, all in form and substance reasonably
satisfactory to the Administrative Agent.
(d) Each Credit Party shall timely and fully pay and perform
its obligations under all leases and other agreements with respect to
each leased location or public warehouse where any Collateral is or may
be located.
Section 5.13 Hedging Agreements.
Within ninety (90) days following the Closing Date, cause at least 50%
of the aggregate Term Loan then outstanding, and projected to be outstanding, to
be hedged pursuant to Hedging Agreements for a term of at least three (3) years
with a counterparty and on terms reasonably acceptable to the Administrative
Agent.
Section 5.14 Covenants Regarding Patents, Trademarks and Copyrights.
(a) Notify the Administrative Agent promptly if it knows that
any application, letters patent or registration relating to any Patent,
Patent License, Trademark or Trademark License of the Credit Parties or
any of their Subsidiaries may become abandoned, or of any adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any
court) regarding any Credit Party's or any of its Subsidiary's
ownership of any Patent or Trademark, its right to patent or register
the same, or to enforce, keep and maintain the same, or its rights
under any Patent License or Trademark License.
(b) Notify the Administrative Agent promptly after it knows of
any adverse determination or development (including, without
limitation, the institution of, or any such determination or
development in, any proceeding in any court) regarding any Copyright or
Copyright License of the Credit Parties or any of their Subsidiaries,
whether (i) such Copyright or Copyright License may become invalid or
unenforceable prior to its expiration or termination, or (ii) any
Credit Party's or any of its Subsidiary's ownership of such Copyright,
its right to register the same or to enforce, keep and maintain the
same, or its rights under such Copyright License, may become affected.
(c) (i) Promptly notify the Administrative Agent of any filing
by any Credit Party or any of its Subsidiaries, either itself or
through any agent, employee, licensee or designee (but in no event
later than the fifteenth day following such filing), of any application
for registration by any Credit Party of any Intellectual Property with
the United States Copyright Office or United States Patent and
Trademark Office or any similar office or agency in any other country
or any political subdivision thereof.
(ii) In accordance with Section 5.2, provide the
Administrative Agent and its counsel a complete and correct
list of all Intellectual Property owned by or licensed to the
Credit Parties or any of their Subsidiaries that have not been
set forth as annexes of such documents and instruments showing
all filings and recordings for the protection of the security
interest of the Administrative Agent therein pursuant to the
agreements of the United States Patent and Trademark Office or
the United States Copyright Office.
(iii) Upon request of the Administrative Agent,
execute and deliver any and all agreements, instruments,
documents, and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's
security interest in the Intellectual Property and the general
intangibles referred to in clauses (i) and (ii), including,
without limitation, the goodwill of the Credit Parties and
their Subsidiaries relating thereto or represented thereby (or
such other Intellectual Property or the general intangibles
relating thereto or represented thereby as the Administrative
Agent may reasonably request).
(d) Take all necessary actions, including, without limitation,
in any proceeding before the United States Patent and Trademark Office
or the United States Copyright Office, to maintain each item of
Intellectual Property of the Credit Parties and their Subsidiaries,
including, without limitation, payment of maintenance fees, filing of
applications for renewal, affidavits of use, affidavits of
incontestability and opposition, interference and cancellation
proceedings.
(e) In the event that any Credit Party becomes aware that any
Intellectual Property owned by any Credit Party is infringed,
misappropriated or diluted by a third party in any material respect,
notify the Administrative Agent promptly after it learns thereof and,
unless the Credit Parties shall reasonably determine that such
Intellectual Property is not material to the business of the Credit
Parties and their Subsidiaries taken as a whole, promptly take
appropriate action to recover any and all damages for such
infringement, misappropriation or dilution, and take such other actions
as the Credit Parties shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property.
Section 5.15 Ratings.
Maintain at all times Ratings.
Section 5.16 Landlord Waivers.
In the case of any personal property Collateral located at premises
leased by a Credit Party with a value in excess of $1,000,000, the Credit
Parties will provide the Administrative Agent with such estoppel letters,
consents and waivers from the landlords on such real property to the extent (a)
requested by the Administrative Agent and (b) the Borrower is able to secure
such letters, consents and waivers after using commercially reasonable efforts
(such letters, consents and waivers shall be in form and substance reasonably
satisfactory to the Administrative Agent, it being acknowledged and agreed that
any landlord waiver in the form of Exhibit 4.1(d) is satisfactory to the
Administrative Agent).
Section 5.17 Appraisals.
Upon the occurrence and during the continuance of an Event of Default
and the Administrative Agent's reasonable request and upon reasonable notice to
the Borrower, the Borrower shall have field examinations and/or Real Estate
Appraisals conducted, in each case at the Borrower's expense.
Section 5.18 Additional Matters.
(a) Public/Private Designation. Borrower will cooperate with
the Administrative Agent in connection with the publication certain
materials and/or information provided by or on behalf of the Borrower
to the Administrative Agent and Lenders (collectively, "Information
Materials") pursuant to this Article V and will designate Information
Materials (i) that are either available to the public or not material
with respect to the Borrower and its Subsidiaries or any of their
respective securities for purposes of United States federal and state
securities laws, as "Public Information" and (ii) that are not Public
Information as "Private Information".
(b) Gaming Approvals. As soon as practicable, but in any event
within twenty (20) days following the Closing Date, the Borrower shall
make application to the Gaming Authorities for the Pledge Approval and
pursue obtaining the same in good faith. Within five (5) Business Days
following the receipt of the Pledge Approval, Borrower shall deliver
the stock certificate or certificates evidencing its Equity Interest in
ROC, along with undated stock powers related thereto duly executed in
blank, to an agent of the Administrative Agent located in the State of
Nevada and the Administrative Agent shall cause such agent to keep such
certificates and powers physically located within the State of Nevada
and to otherwise comply with the terms of the Gaming Pledge Agreement.
Additionally, as soon as practicable, but in any event within twenty
(20) days following the Closing Date, Borrower shall deliver to the
applicable Colorado Gaming Authorities fully executed copies of the
Credit Documents (the "Colorado Gaming Notice").
(c) Real Estate. Within forty-five (45) days following the
Closing Date or such extended period of time as agreed to by the
Administrative Agent, the Borrower shall deliver to the Administrative
Agent, (i) maps or plats of an as-built survey of the sites of the
Mortgaged Properties listed in Schedule 3.19(d) certified to the
Administrative Agent and the Title Insurance Company in a manner
reasonably satisfactory to them, dated a date satisfactory to each of
the Administrative Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably satisfactory
to each of the Administrative Agent and the Title Insurance Company,
which maps or plats and the surveys on which they are based shall be
sufficient to delete any standard printed survey exception contained in
the applicable title policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established
and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 2005, and, without limiting the
generality of the foregoing, there shall be surveyed and shown on such
maps, plats or surveys the following: (A) the locations on such sites
of all the buildings, structures and other improvements and the
established building setback lines; (B) the lines of streets abutting
the sites and width thereof; (C) all access and other easements
appurtenant to the sites necessary to use the sites; (D) all roadways,
paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the site, whether recorded, apparent
from a physical inspection of the sites or otherwise known to the
surveyor; (E) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (F) if the site
is described as being on a filed map, a legend relating the survey to
said map, (ii) to the extent requested by the Administrative Agent,
amendments to the Mortgage Instruments and (iii) to the extent required
by the Administrative Agent, endorsements to the Mortgage Policies
assuring the Administrative Agent that the Mortgage Instrument with
respect to such Mortgaged Property creates a valid and enforceable
first priority mortgage lien on such Mortgaged Property, free and clear
of all defects and encumbrances except Permitted Liens, which Mortgage
Policy shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall provide for affirmative insurance and
such reinsurance as the Administrative Agent may reasonably request,
all of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent.
(d) Phase I. Within ninety (90) days following the Closing
Date or such extended period of time as agreed to by the Administrative
Agent, the Borrower shall deliver to the Administrative Agent,
satisfactory third-party environmental reviews of the Mortgaged
Property related to the Riviera Black Hawk Facility, including, but not
limited to, Phase I environmental assessments, together with reliance
letters in favor of the Lenders.
(e) Further Assurances. Upon the reasonable request of the
Administrative Agent, the Credit Parties shall promptly perform or
cause to be performed any and all acts and execute or cause to be
executed any and all documents for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are
necessary or advisable to maintain in favor of the Administrative
Agent, for the benefit of the Secured Parties, Liens on the Collateral
that are duly perfected in accordance with the requirements of, or the
obligations of the Credit Parties under, the Credit Documents and all
applicable Requirements of Law; including, without limitation, the
execution of a Custodian Agreement.
ARTICLE VI
NEGATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the
Closing Date, and thereafter (a) for so long as this Agreement is in effect, (b)
until the Commitments have terminated, (c) until no Note remains outstanding and
unpaid and the Credit Party Obligations and (d) until all other amounts owing to
the Administrative Agent or any Lender hereunder are paid in full, that:
Section 6.1 Indebtedness.
No Credit Party will, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement and
the other Credit Documents;
(b) Indebtedness of the Credit Parties and their Subsidiaries
existing as of the Closing Date as referenced in the financial
statements referenced in Section 3.1 (and set out more specifically in
Schedule 6.1(b) hereto) and any renewals, refinancings or extensions
thereof in a principal amount not in excess of that outstanding as of
the date of such renewal, refinancing or extension;
(c) Indebtedness of the Credit Parties and their Subsidiaries
incurred after the Closing Date consisting of Capital Leases or
Indebtedness incurred to provide all or a portion of the purchase price
or cost of construction of an asset; provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost
of construction of such asset; (ii) no such Indebtedness shall be
renewed, refinanced or extended for a principal amount in excess of the
principal balance outstanding thereon at the time of such renewal,
refinancing or extension; and (iii) the total amount of all such
Indebtedness shall not exceed $7,500,000 at any time outstanding;
(d) Unsecured intercompany Indebtedness among the Credit
Parties; provided that any such Indebtedness shall be fully
subordinated to the Credit Party Obligations hereunder on terms
required under Article XI;
(e) Indebtedness and obligations owing under Secured Hedging
Agreements and other Hedging Agreements entered into in order to manage
existing or anticipated interest rate, exchange rate or commodity price
risks and not for speculative purposes;
(f) to the extent the obligation of the Credit Parties to pay
a topping fee to Riviera Acquisition Holdings, Inc is deemed
Indebtedness under this Agreement, such obligation in an aggregate
amount not to exceed $8,000,000;
(g) Guaranty Obligations in respect of Indebtedness of a
Credit Party to the extent such Indebtedness is permitted to exist or
be incurred pursuant to this Section;
(h) so long as the Borrower is in pro forma compliance with
the Consolidated Leverage Incurrence Test and no Default or Event of
Default has occurred and is continuing or would otherwise arise as a
result of the incurrence of such Indebtedness, additional Subordinated
Indebtedness or unsecured Indebtedness and refinancings, exchanges,
extensions and renewals thereof; provided that (i) such Indebtedness
shall have a maturity date at least ninety-one (91) days after the Term
Loan Maturity Date, (ii) the terms and conditions of such Indebtedness
shall be consistent with market terms for similar issuances at such
time and (iii) such Indebtedness shall otherwise be on terms and
conditions reasonably acceptable to the Administrative Agent;
(i) Indebtedness incurred under performance bonds, appeal
bonds, surety bonds, insurance obligations or bonds and other similar
bonds incurred in the ordinary course of business;
(j) Indebtedness under the City of Blackhawk Special
Improvement District Bonds in an aggregate amount not to exceed
$2,800,000; and
(k) other unsecured Indebtedness of Credit Parties which does
not exceed $5,000,000 in the aggregate at any time outstanding.
Section 6.2 Liens.
The Credit Parties will not, nor will they permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of their respective property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired, except for
Permitted Liens. Notwithstanding the foregoing, if a Credit Party shall grant a
Lien on any of its assets in violation of this Section, then it shall be deemed
to have simultaneously granted an equal and ratable Lien on any such assets in
favor of the Administrative Agent for the ratable benefit of the Lenders and the
Hedging Agreement Providers, to the extent such Lien has not already been
granted to the Administrative Agent.
Section 6.3 Nature of Business.
No Credit Party will, nor will it permit any Subsidiary to, alter the
character of its business in any material respect from that conducted as of the
Closing Date.
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell,
transfer, lease or otherwise dispose of its property or assets or agree
to do so at a future time, except the following, without duplication,
shall be expressly permitted:
(i) (A) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course
of business and (B) the conversion of cash into Cash
Equivalents and Cash Equivalents into cash;
(ii) Extraordinary Receipts for which such Credit
Party or such Subsidiary has received any cash insurance
proceeds or condemnation or expropriation award with respect
to such property or assets to the extent Net Cash Proceeds
from such Extraordinary Receipt are used to make mandatory
prepayments pursuant to Section 2.7(b)(vi);
(iii) the sale, lease, transfer or other disposition
of machinery, parts and equipment no longer used or useful in
the conduct of the business of the Credit Parties or any of
their Subsidiaries;
(iv) the sale, lease or transfer of property or
assets from one Credit Party to another Credit Party;
(v) the termination of any Hedging Agreement; and
(vi) the sale, lease or transfer of property or
assets not to exceed $1,000,000 in the aggregate in any
fiscal year;
provided that (A) with respect to clauses (i)(A), (ii), (iii) and (vi)
above, at least 75% of the consideration received therefor by the
Credit Parties or any such Subsidiary shall be in the form of cash or
Cash Equivalents, (B) after giving effect to any Asset Disposition
pursuant to clause (vi) above, the Credit Parties shall be in
compliance on a Pro Forma Basis with the financial covenants set forth
in Section 5.9 hereof, recalculated for the most recently ended month
for which information is available, and (C) with respect to clauses
(iv), (v) and (vi) above, no Default or Event of Default shall exist or
shall result therefrom; provided, further, that with respect to sales
of assets permitted hereunder only, the Administrative Agent shall be
entitled, without the consent of any Lender, to release its Liens
relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) the property or assets
of any Person, other than except as otherwise limited or prohibited
herein, purchases or other acquisitions of inventory, materials,
property and equipment in the ordinary course of business, or (ii)
enter into any transaction of merger or consolidation, except for (A)
Investments or acquisitions permitted pursuant to Section 6.5 so long
as the Credit Party subject to such merger or consolidation is the
surviving entity, (B) (y) the merger or consolidation of a Subsidiary
that is not a Credit Party with and into a Credit Party; provided that
such Credit Party will be the surviving entity and (z) the merger or
consolidation of a Credit Party with and into another Credit Party;
provided that if the Borrower is a party thereto, the Borrower will be
the surviving corporation, and (C) the merger or consolidation of a
Subsidiary that is not a Credit Party with and into another Subsidiary
that is not a Credit Party.
Section 6.5 Advances, Investments and Loans.
The Credit Parties will not, nor will they permit any Subsidiary to,
make any Investment except for Permitted Investments.
Section 6.6 Transactions with Affiliates.
The Credit Parties will not, nor will they permit any Subsidiary to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm's-length transaction with a Person other than
an officer, director, shareholder or Affiliate.
Section 6.7 Ownership of Subsidiaries; Restrictions.
The Credit Parties will not, nor will they permit any Subsidiary to,
create, form or acquire any Subsidiaries, except for Domestic Subsidiaries that
are joined as Additional Credit Parties as required by the terms hereof. The
Credit Parties will not sell, transfer, pledge or otherwise dispose of any
Equity Interest or other equity interests in any of their Subsidiaries, nor will
they permit any of their Subsidiaries to issue, sell, transfer, pledge or
otherwise dispose of any of their Equity Interest or other equity interests,
except in a transaction permitted by Section 6.4.
Section 6.8 Corporate Changes; Material Contracts.
No Credit Party will, nor will it permit any of its Subsidiaries to,
(a) change its fiscal year, (b) amend, modify or change its articles of
incorporation, certificate of designation (or corporate charter or other similar
organizational document) operating agreement or bylaws (or other similar
document) in any respect adverse to the interests of the Lenders without the
prior written consent of the Required Lenders; provided that no Credit Party
shall (i) alter its legal existence or, in one transaction or a series of
transactions, merge into or consolidate with any other entity, or sell all or
substantially all of its assets, (ii) change its state of incorporation or
organization, or (iii) change its registered legal name, without complying with
the conditions set forth in the Security Agreement, (c) amend, modify, cancel or
terminate or fail to renew or extend or permit the amendment, modification,
cancellation or termination of any of its Material Contracts in any respect
adverse to the interests of the Lenders without the prior written consent of the
Required Lenders, (d) change its state of incorporation, organization or
formation without the consent of the Administrative Agent or have more than one
state of incorporation, organization or formation or (e) change its accounting
method (except in accordance with GAAP) in any manner adverse to the interests
of the Lenders without the prior written consent of the Required Lenders.
Section 6.9 Limitation on Restricted Actions.
The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such Person to
(a) pay dividends or make any other distributions to any Credit Party on its
Equity Interest or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation owed to
any Credit Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit Party, or (e)
act as a Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Agreement
and the other Credit Documents, (ii) applicable law, (iii) any document or
instrument governing Indebtedness incurred pursuant to Section 6.1(c); provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, or (iv) any Permitted Lien or
any document or instrument governing any Permitted Lien; provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien.
Section 6.10 Restricted Payments.
The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of Equity Interest of such Person, (b) to make dividends or other
distributions payable to the Credit Parties (directly or indirectly through its
Subsidiaries), (c) to make payments in respect of the Westerman Retirement
Obligation in an aggregate amount not to exceed $2,750,000 plus accrued interest
over the term of this Agreement, and (c) other Restricted Payments in an
aggregate amount not to exceed $5,000,000 per fiscal year.
Section 6.11 Amendment of Subordinated Debt.
The Credit Parties will not, nor will they permit any Subsidiary to,
without the prior written consent of the Required Lenders, amend, modify, waive
or extend or permit the amendment, modification, waiver or extension of any term
of any document governing or relating to any Subordinated Debt in a manner that
is adverse to the interests of the Lenders.
Section 6.12 Sale Leasebacks.
The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, become or remain liable as lessee or as guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (a) which any Credit Party or any Subsidiary has sold or
transferred or is to sell or transfer to a Person which is not a Credit Party or
a Subsidiary or (b) which any Credit Party or any Subsidiary intends to use for
substantially the same purpose as any other property which has been sold or is
to be sold or transferred by a Credit Party or a Subsidiary to another Person
which is not a Credit Party or a Subsidiary in connection with such lease.
Section 6.13 No Further Negative Pledges.
The Credit Parties will not, nor will they permit any Subsidiary to,
enter into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon any of their properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for such obligation if security is given for some other obligation,
except (a) pursuant to this Agreement and the other Credit Documents, (b)
pursuant to any document or instrument governing Indebtedness incurred pursuant
to Section 6.1(c); provided that any such restriction contained therein relates
only to the asset or assets constructed or acquired in connection therewith, and
(c) in connection with any Permitted Lien or any document or instrument
governing any Permitted Lien; provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien.
Section 6.14 Account Control Agreements; Additional Bank Accounts.
Set forth on Schedule 6.14 is a complete and accurate list of all
checking, savings or other accounts (including securities accounts) of the
Credit Parties at any bank or other financial institution, or any other account
where money is or may be deposited or maintained with any Person as of the
Closing Date. Each of the Credit Parties agree to enter into Deposit Account
Control Agreement, from time to time, to the extent reasonably requested by the
Administrative Agent or the Required Lenders.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. (i) The Borrower shall fail to pay any principal
on any Loan or Note when due (whether at maturity, by reason of
acceleration or otherwise) in accordance with the terms hereof or
thereof; or (ii) the Borrower shall fail to reimburse the Issuing
Lender for any LOC Obligations when due (whether at maturity, by reason
of acceleration or otherwise) in accordance with the terms hereof; or
(iii) the Borrower shall fail to pay any interest on any Loan or any
fee or other amount payable hereunder when due (whether at maturity, by
reason of acceleration or otherwise) in accordance with the terms
hereof and such failure shall continue unremedied for three (3) days;
or (iv) or any Guarantor shall fail to pay on the Guaranty in respect
of any of the foregoing or in respect of any other Guaranty Obligations
hereunder (after giving effect to the grace period in clause (iii)); or
(b) Misrepresentation. Any representation or warranty made or
deemed made herein, in the Security Documents or in any of the other
Credit Documents or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect,
false or misleading on or as of the date made or deemed made; or
(c) Covenant Default. (i) Any Credit Party shall fail to
perform, comply with or observe any term, covenant or agreement
applicable to it contained in Sections 5.1, 5.2, 5.4, 5.7, 5.9, 5.11,
5.13 or Article VI hereof; or (ii) any Credit Party shall fail to
comply with any other covenant contained in this Agreement or the other
Credit Documents or any other agreement, document or instrument among
any Credit Party, the Administrative Agent and the Lenders or executed
by any Credit Party in favor of the Administrative Agent or the Lenders
(other than as described in Sections 7.1(a) or 7.1(c)(i) above), and
such breach or failure to comply is not cured within thirty (30) days
of its occurrence; provided that any breach by a Credit Party of the
financial covenant in Section 5.9 shall only constitute an Event of
Default with respect to the Revolving Facility and shall not constitute
an Event of Default with respect to the Term Loan until the earlier of
(i) the Required Revolving Lenders or the Administrative Agent on
behalf of the Required Revolving Lenders exercise any remedy pursuant
to the terms of Section 7.2 and/or the Revolving Commitments are
terminated and the outstanding Revolving Loans and LOC Obligations are
accelerated as a result of such breach in accordance with the terms of
Section 7.2 or (ii) so long as such Event of Default has not been cured
or waived by the Required Revolving Lenders, thirty (30) days after the
date the delivery of the most recent covenant compliance certificate is
required under Section 5.1(c); or
(d) Indebtedness Cross-Default. (i) Any Credit Party shall
default in any payment of principal of or interest on any Indebtedness
(other than the Loans, Reimbursement Obligations and the Guaranty) in a
principal amount outstanding of at least $5,000,000 for the Borrower
and any of its Subsidiaries in the aggregate beyond any applicable
grace period (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(ii) any Credit Party shall default in the observance or performance of
any other agreement or condition relating to any Indebtedness (other
than the Loans, Reimbursement Obligations and the Guaranty) in a
principal amount outstanding of at least $5,000,000 in the aggregate
for the Credit Parties and their Subsidiaries or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries
of such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or to be repurchased, prepaid, deferred or redeemed
(automatically or otherwise); or (iii) any Credit Party shall breach or
default any Secured Hedging Agreement; or
(e) Other Cross-Defaults. The Credit Parties or any of their
Subsidiaries shall default in (i) the payment when due (beyond any
applicable grace or cure periods) under any Material Contract or (ii)
the performance or observance, of any obligation or condition of any
Material Contract and such failure to perform or observe such other
obligation or condition continues unremedied beyond any applicable
grace or cure periods unless, but only as long as, the existence of any
such default is being contested by the Credit Parties in good faith by
appropriate proceedings and adequate reserves in respect thereof have
been established on the books of the Credit Parties to the extent
required by GAAP; or
(f) Bankruptcy Default. (i) A Credit Party or any of its
Subsidiaries shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or a Credit Party or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against a Credit Party or
any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of sixty
(60) days; or (iii) there shall be commenced against a Credit Party or
any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of their assets which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within sixty (60) days from the entry thereof; or (iv) a Credit Party
or any of its Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) a Credit
Party or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing their inability to, pay its debts
as they become due; or
(g) Judgment Default. One or more judgments or decrees shall
be entered against a Credit Party or any of its Subsidiaries involving
in the aggregate a liability (to the extent not covered by insurance)
of $2,000,000 or more and all such judgments or decrees shall not have
been paid and satisfied, vacated, discharged, stayed or bonded pending
appeal within fifteen (15) Business Days from the entry thereof or any
injunction, temporary restraining order or similar decree shall be
issued against a Credit Party or any of its Subsidiaries that,
individually or in the aggregate, could result in a Material Adverse
Effect; or
(h) ERISA Default. (i) Any Person shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan (other than a Permitted Lien) shall arise on the
assets of the Credit Parties or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) a Credit Party, any of its Subsidiaries or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, any
Multiemployer Plan or (vi) any other similar event or condition shall
occur or exist with respect to a Plan; or
(i) Change of Control. There shall occur a Change of Control;
or
(j) Invalidity of Guaranty. At any time after the execution
and delivery thereof, the Guaranty, for any reason other than the
satisfaction in full of all Credit Party Obligations, shall cease to be
in full force and effect (other than in accordance with its terms) or
shall be declared to be null and void, or any Credit Party shall
contest the validity, enforceability, perfection or priority of the
Guaranty, any Credit Document, or any Lien granted thereunder in
writing or deny in writing that it has any further liability, including
with respect to future advances by the Lenders, under any Credit
Document to which it is a party; or
(k) Invalidity of Credit Documents. Any other Credit Document
shall fail to be in full force and effect (it being acknowledged and
agreed that, prior to obtaining the Pledge Approval, the Gaming Pledge
Agreement and the security interests granted therein and the
restrictions on the transfer of and agreements not to encumber the
Pledged Collateral (as defined in the Gaming Pledge Agreement) set
forth in the Gaming Pledge Agreement or the Credit Agreement will not
be effective) or to give the Administrative Agent and/or the Lenders
the security interests, liens, rights, powers, priority and privileges
purported to be created thereby (except as such documents may be
terminated or no longer in force and effect in accordance with the
terms thereof, other than those indemnities and provisions which by
their terms shall survive) or any Lien shall fail (other than by the
action or inaction of the Administrative Agent or any Lender) to be a
first priority, perfected Lien on a material portion of the Collateral;
or
(l) Subordinated Debt. Any default (which is not waived or
cured within the applicable period of grace) or event of default shall
occur under any Subordinated Debt or the subordination provisions
contained therein shall cease to be in full force and effect or shall
cease to give the Lenders the rights, powers and privileges purported
to be created thereby; or
(m) Uninsured Loss. Any uninsured damage to or loss, theft or
destruction of any assets of the Credit Parties or any of their
Subsidiaries shall occur that is in excess of $1,000,000; or
(n) Casino Licenses. Any Borrower or Guarantor fails to keep
in full force and effect, suffers the termination, revocation, or
suspension of, terminates, forfeits, or suffers a materially adverse
amendment to, any Casino License at any time held by the Borrower or
such Guarantor that is necessary to the operation of any casino located
at the Facilities owned by the Borrower or such Guarantor.
Section 7.2 Acceleration; Remedies.
(a) Upon the occurrence and during the continuance of a
Bankruptcy Event of Default, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon),
and all other amounts under the Credit Documents (including without
limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable.
(b) If such event is an Event of Default specified in Section
7.1 that only applies to the Revolving Facility in accordance with the
terms thereof, any or all of the following actions may be taken:
(i) with the written consent of the Required
Revolving Lenders, the Administrative Agent may, or upon the
written request of the Required Revolving Lenders, the
Administrative Agent shall, by written notice to the Borrower,
declare the Revolving Commitments to be terminated forthwith,
whereupon the Revolving Commitments shall immediately
terminate;
(ii) the Administrative Agent may, or upon the
written request of the Required Revolving Lenders, the
Administrative Agent shall, by written notice to the Borrower,
declare the Revolving Loans, Swingline Loans and LOC
Obligations (with accrued interest on any of the foregoing)
and all other amounts owing under this Credit Agreement and
the Revolving Notes with respect to the Revolving Facility to
be due and payable forthwith and direct the Borrower to pay to
the Administrative Agent cash collateral as security for the
LOC Obligations for subsequent drawings under then outstanding
Letters of Credit an amount equal to the maximum amount of
which may be drawn under Letters of Credit then outstanding,
whereupon the same shall immediately become due and payable;
and/or
(iii) with the written consent of the Required
Revolving Lenders, the Administrative Agent may, or upon the
written request of the Required Revolving Lenders, the
Administrative Agent shall, exercise such other rights and
remedies with respect to the Revolving Facility as provided
under the Credit Documents and under applicable law;
provided that if the Administrative Agent exercises any remedy pursuant
to this subsection (b), the Required Term Loan Lenders shall have the
right to direct in writing the Administrative Agent to exercise any
such remedy with respect to the Term Loan.
(c) If such event is any other Event of Default (including,
without limitation, any Event of Default under Section 7.1 that applies
to the Revolving Facility and the Term Loan), any or all of the
following actions may be taken:
(i) the Administrative Agent may, or upon the written
request of the Required Lenders, the Administrative Agent
shall, by written notice to the Borrower, declare the
Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate;
(ii) the Administrative Agent may, or upon the
written request of the Required Lenders, the Administrative
Agent shall, by written notice to the Borrower, declare the
Loans (with accrued interest thereon) and all other amounts
owing under this Credit Agreement and the Notes to be due and
payable forthwith and direct the Borrower to pay to the
Administrative Agent cash collateral as security for the LOC
Obligations for subsequent drawings under then outstanding
Letters of Credit an amount equal to the maximum amount of
which may be drawn under Letters of Credit then outstanding,
whereupon the same shall immediately become due and payable;
and/or
(iii) the Administrative Agent may, or upon the
written request of the Required Lenders, the Administrative
Agent shall, exercise such other rights and remedies as
provided under the Credit Documents and under applicable law.
(d) Each of the Borrower and the Guarantors agrees that, upon
the occurrence of and during the continuation of an Event of Default
and at the Administrative Agent's request, the Borrower and Guarantors
will diligently and fully cooperate with (and neither attack or
contest, nor directly or indirectly urge, finance or support any other
Person in attacking or contesting) any application by the
Administrative Agent, a Lender or such nominee to any Gaming Authority
in connection with the exercise of the rights of the Lenders under the
Credit Documents.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.1 Appointment and Authority.
Each of the Lenders and the Issuing Lender hereby irrevocably appoints
Wachovia to act on its behalf as the Administrative Agent hereunder and under
the other Credit Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the
Issuing Lender, and neither the Borrower nor any other Credit Party shall have
rights as a third party beneficiary of any of such provisions.
Section 8.2 Nature of Duties.
Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers or other agents listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Credit Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the Issuing Lender hereunder. Without limiting
the foregoing, none of the Lenders or other Persons so identified shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Credit Document by
or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Section 8.3 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Credit Documents.
Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Credit Documents
that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other
Credit Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is
contrary to any Credit Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the
other Credit Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 9.1 and 7.2) or (ii) in the absence of
its own gross negligence, bad faith or willful misconduct.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Credit
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Section 8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the Issuing Lender, the Administrative Agent may presume that
such condition is satisfactory to such Lender or the Issuing Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Lender prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
Section 8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the extent that
this Agreement expressly requires that such action be taken, or not taken, only
with the consent or upon the authorization of the Required Lenders, or all of
the Lenders, as the case may be.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the Issuing Lender expressly acknowledges that neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representation or warranty to it
and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender and the Issuing Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Credit Document or any related agreement or any document furnished
hereunder or thereunder.
Section 8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent, the Issuing
Lender, and the Swingline Lender in its capacity hereunder and their Affiliates
and their respective officers, directors, agents and employees (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitment Percentages
in effect on the date on which indemnification is sought under this Section,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Credit Party Obligations) be imposed on,
incurred by or asserted against any such indemnitee in any way relating to or
arising out of any Credit Document or any documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such indemnitee under or in connection with any
of the foregoing; provided, however, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting from such indemnitee's gross negligence, bad faith or willful
misconduct, as determined by a court of competent jurisdiction. The agreements
in this Section shall survive the termination of this Agreement and payment of
the Notes, any Reimbursement Obligation and all other amounts payable hereunder.
Section 8.8 Administrative Agent in Its Individual Capacity.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.
Section 8.9 Successor Administrative Agent.
The Administrative Agent may at any time give notice of its resignation
to the Lenders, the Issuing Lender and the Borrower. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, or an Affiliate of any
such bank. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent meeting the qualifications set
forth above provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (a) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Credit Documents (except
that in the case of any Collateral held by the Administrative Agent on behalf of
the Lenders or the Issuing Lender under any of the Credit Documents, the
retiring Administrative Agent shall continue to hold such Collateral until such
time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the Issuing
Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Credit Documents, the provisions of this Article and Section 9.5
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Section 8.10 Collateral and Guaranty Matters.
(a) The Lenders irrevocably authorize and direct the
Administrative Agent:
(i) to release any Lien on any Collateral granted to
or held by the Administrative Agent under any Credit Document
(i) upon termination of the Revolving Commitments and payment
in full of all Credit Party Obligations (other than contingent
indemnification obligations for which no claim has been made
or cannot be reasonably identified by an Indemnitee based on
the then-known facts and circumstances) and the expiration or
termination of all Letters of Credit, (ii) that is transferred
or to be transferred as part of or in connection with any sale
or other disposition permitted under Section 6.4, or (iii)
subject to Section 9.1, if approved, authorized or ratified in
writing by the Required Lenders;
(ii) to subordinate any Lien on any Collateral
granted to or held by the Administrative Agent under any
Credit Document to the holder of any Lien on such Collateral
that is permitted by Section 6.2; and
(iii) to release any Guarantor from its obligations
under the applicable Guaranty if such Person ceases to be a
Guarantor as a result of a transaction permitted hereunder.
(b) In connection with a termination or release pursuant to
this Section, the Administrative Agent shall promptly execute and
deliver to the applicable Credit Party, at the Borrower's expense, all
documents that the applicable Credit Party shall reasonably request to
evidence such termination or release. Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent's authority to release or subordinate
its interest in particular types or items of Collateral, or to release
any Guarantor from its obligations under the Guaranty pursuant to this
Section.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments, Waivers and Release of Collateral.
Neither this Agreement nor any of the other Credit Documents, nor any
terms hereof or thereof may be amended, modified, extended, restated, replaced,
or supplemented (by amendment, waiver, consent or otherwise) except in
accordance with the provisions of this Section nor may Collateral be released
except as specifically provided herein or in the Security Documents or in
accordance with the provisions of this Section. The Required Lenders may or,
with the written consent of the Required Lenders, the Administrative Agent may,
from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit Documents
or changing in any manner the rights of the Lenders or of the Borrower hereunder
or thereunder or (b) waive or consent to the departure from, on such terms and
conditions as the Required Lenders may specify in such instrument, any of the
requirements of this Agreement or the other Credit Documents or any Default or
Event of Default and its consequences; provided, however, that no such
amendment, supplement, modification, release, waiver or consent shall:
(i) reduce the amount or extend the scheduled date of
maturity of any Loan or Note or any installment thereon, or
reduce the stated rate of any interest or fee payable
hereunder (except in connection with a waiver of interest at
the increased post-default rate set forth in Section 2.8 which
shall be determined by a vote of the Required Lenders) or
extend the scheduled date of any payment thereof or increase
the amount or extend the expiration date of any Lender's
Commitment, in each case without the written consent of each
Lender directly affected thereby; provided that, it is
understood and agreed that (A) no waiver, reduction or
deferral of a mandatory prepayment required pursuant to
Section 2.7(b), nor any amendment of Section 2.7(b) or the
definitions of Asset Disposition, Debt Issuance, Equity
Issuance, Excess Cash Flow or Extraordinary Receipt, shall
constitute a reduction of the amount of, or an extension of
the scheduled date of, the scheduled date of maturity of, or
any installment of, any Loan or Note, (B) any reduction in the
stated rate of interest on Revolving Loans shall only require
the written consent of each Lender holding a Revolving
Commitment, (C) any reduction in the stated rate of interest
on the Term Loan shall only require the written consent of
each Lender holding a portion of the outstanding Term Loan and
(D) any amendment, waiver or modification to Section 2.7 (and
any related definitions) shall require the written consent of
each Lender adversely affected thereby; or
(ii) amend, modify or waive any provision of this
Section or reduce the percentage specified in the definition
of Required Lenders, without the written consent of all the
Lenders; or
(iii) release the Borrower or all or substantially
all of the Guarantors from obligations under the Guaranty,
without the written consent of all of the Lenders and Hedging
Agreement Providers; or
(iv) release all or substantially all of the
Collateral without the written consent of all of the Lenders
and Hedging Agreement Providers; or
(v) subordinate the Loans to any other Indebtedness
without the written consent of all of the Lenders; or
(vi) permit a Letter of Credit to have an original
expiry date more than twelve (12) months from the date of
issuance without the consent of each of the Revolving Lenders;
provided, that the expiry date of any Letter of Credit may be
extended in accordance with the terms of Section 2.3(a); or
(vii) permit the Borrower to assign or transfer any
of its rights or obligations under this Agreement or other
Credit Documents without the written consent of all of the
Lenders; or
(viii) amend, modify or waive any provision of the
Credit Documents requiring consent, approval or request of the
Required Lenders or all Lenders without the written consent of
the Required Lenders or all the Lenders as appropriate; or
(ix) without the consent of Required Revolving
Lenders, amend, modify or waive any provision in Section 4.2
or waive any Default or Event of Default (or amend any Credit
Document to effectively waive any Default or Event of Default)
if the effect of such amendment, modification or waiver is
that the Revolving Lenders shall be required to fund Revolving
Loans when such Lenders would otherwise not be required to do
so; or
(x) amend, modify or waive the order in which Credit
Party Obligations are paid or in a manner that would alter the
pro rata sharing of payments by and among the Lenders in
Section 2.11(b) without the written consent of each Lender and
each Hedging Agreement Provider directly affected thereby; or
(xi) amend, modify or waive any provision of Article
VIII without the written consent of the then Administrative
Agent; or
(xii) amend or modify the definition of Credit Party
Obligations to delete or exclude any obligation or liability
described therein without the written consent of each Lender
and each Hedging Agreement directly affected thereby; or
(xiii) permit Interest Periods with a duration longer
than six (6) months without the consent of each Lender
directly affected thereby; or
(xiv) amend or modify the definition of Required
Revolving Lenders or Required Term Loan Lenders without the
written consent of all the Lenders; or
(xv) amend the definitions of "Hedging Agreement,"
"Secured Hedging Agreement," or "Hedging Agreement Provider"
without the consent of any Hedging Agreement Provider that
would be adversely affected thereby;
provided, further, that no amendment, waiver or consent affecting the rights or
duties of the Administrative Agent, the Issuing Lender or the Swingline Lender
under any Credit Document shall in any event be effective, unless in writing and
signed by the Administrative Agent, the Issuing Lender and/or the Swingline
Lender, as applicable, in addition to the Lenders required hereinabove to take
such action.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Credit Parties, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding the foregoing, any amendment, waiver or other
modification to the financial covenant set forth in Section 5.9 or any component
definition of such financial covenants shall only require the consent of the
Required Revolving Lenders; provided that any amendment, waiver or other
modification to a component definition of the financial covenants in Section 5.9
shall only apply to the computation of such financial covenants.
Notwithstanding any of the foregoing to the contrary, the consent of
the Borrower and the other Credit Parties shall not be required for any
amendment, modification or waiver of the provisions of Article VIII (other than
the provisions of Section 8.9).
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (a) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (b) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
For the avoidance of doubt and notwithstanding any provision to the
contrary contained in this Section 9.1, this Agreement may be amended (or
amended and restated) with the written consent of the Credit Parties and the
Required Lenders (a) to increase the aggregate Commitments of the Lenders
(provided that no Lender shall be required to increase its commitment without
its consent), (b) to add one or more additional borrowing Tranches to this
Agreement and to provide for the ratable sharing of the benefits of this
Agreement and the other Credit Documents with the other then outstanding Credit
Party Obligations in respect of the extensions of credit from time to time
outstanding under such additional borrowing Tranche(s) and the accrued interest
and fees in respect thereof and (c) to include appropriately the lenders under
such additional borrowing Tranches in any determination of the Required Lenders
and/or to provide consent rights to such lenders under subsections (ix) and/or
(x) of Section 9.1 corresponding to the consent rights of the other Lenders
thereunder.
Section 9.2 Notices.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except
as provided in paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows:
(i) If to the Borrower or any other Credit Party:
Riviera Holdings Corporation
2901 Las Vegas Blvd. South
Las Vegas, Nevada 89109
Attention: Executive Vice President of Finance
Telephone: (702) 794-9527
Fax: (702) 794-9442
with a copy to:
Riviera Holdings Corporation
2901 Las Vegas Blvd. South
Attention: General Counsel
Telephone: (702) 794-9504
Fax: (702) 794-9560
(ii) If to the Administrative Agent:
Wachovia Bank, National Association, as Administrative Agent
Charlotte Plaza
201 South College Street, CP8
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Telephone: (704) 374-2698
Fax: (704) 383-0288
with a copy to:
Wachovia Bank, National Association
301 South College Street, NC5562
Charlotte, North Carolina 28288
Attention: Mark Felker
Telephone: (704) 374-7074
Fax: (704) 383-7611
(iii) if to a Lender, to it at its address (or
telecopier number) set forth in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given
when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Notices delivered
through electronic communications to the extent provided in paragraph
(b) below, shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other
communications to the Lenders and the Issuing Lender hereunder may be
delivered or furnished by electronic communication (including e-mail
and Internet or intranet websites) pursuant to procedures approved by
the Administrative Agent, provided that the foregoing shall not apply
to notices to any Lender or the Issuing Lender pursuant to Article II
if such Lender or the Issuing Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under
such Article by electronic communication. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be
deemed received upon the sender's receipt of an acknowledgement from
the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication
is not sent during the normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Any party hereto may change its
address or telecopier number for notices and other communications
hereunder by notice to the other parties hereto.
Section 9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans; provided that all such representations and warranties shall
terminate on the date upon which the Commitments have been terminated and all
amounts owing hereunder and under any Notes have been paid in full.
Section 9.5 Payment of Expenses and Taxes; Indemnity.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent
and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent) in connection
with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of
this Agreement and the other Credit Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether
or not the transactions contemplated hereby or thereby shall be
consummated); provided that all costs and expenses in connection with
the preparation, execution and delivery of the Credit Agreement and
Credit Documents and the syndication thereof shall not exceed the
amounts set forth in the Commitment Letter and Fee Letter, (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Lender and
the Swingline Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or Swingline Loan or any
demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Lender, the Issuing
Lender or the Swingline Lender (including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Lender), any Lender, the Issuing Lender or the
Swingline Lender, in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Credit
Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each
Lender, the Issuing Lender and the Swingline Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses
(including the reasonable fees, charges and disbursements of any
counsel for any Indemnitee) incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any
other Credit Party arising out of, in connection with, or as a result
of (i) the execution or delivery of this Agreement, any other Credit
Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or
the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Lender to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Materials of
Environmental Concern on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any liability under
Environmental Law related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Credit Party, and regardless of
whether any Indemnitee is a party thereto, provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (A) are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence, bad
faith or willful misconduct of such Indemnitee or (B) result from a
claim brought by the Borrower or any other Credit Party against an
Indemnitee for breach in bad faith of such Indemnitee's obligations
hereunder or under any other Credit Document, if the Borrower or such
Credit Party has obtained a final and nonappealable judgment in its
favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower
for any reason fails to indefeasibly pay any amount required under
paragraph (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), the Issuing Lender,
Swingline Lender or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Lender, Swingline Lender or such Related Party,
as the case may be, such Lender's Commitment Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent), the Issuing
Lender or Swingline Lender in its capacity as such, or against any
Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent), Issuing Lender or Swingline Lender in
connection with such capacity.
(d) Waiver of Consequential Damages, Etc. To the fullest
extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Credit Document or
any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use
of the proceeds thereof. No Indemnitee referred to in paragraph (b)
above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed
by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other
Credit Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be
payable promptly/not later than ten (10) days after demand therefor.
Section 9.6 Successors and Assigns; Participations.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby,
except that neither the Borrower nor any other Credit Party may assign
or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each
Lender and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an assignee in accordance with
the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of
this Section or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of paragraph (f) of this Section
(and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in paragraph (d) of this
Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign
to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and
the Loans at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment (x) of the
entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it, (y)
in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or (z) by
Wachovia during the primary syndication, no minimum
amount need be assigned; and
(B) in any case not described in paragraph
(b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with
respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified
in the Assignment and Assumption, as of the Trade
Date) shall not be less than $1,000,000, in the case
of any assignment in respect of a revolving facility,
or $1,000,000, in the case of any assignment in
respect of a term facility, unless each of the
Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be
unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment
shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this
Agreement with respect to the Loan or the Commitment assigned,
except that this clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations
among separate Tranches on a non-pro rata basis.
(iii) Required Consents. No consent shall be required
for any assignment except to the extent required by paragraph
(b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such
consent not to be unreasonably withheld or delayed)
shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such
assignment or (y) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; and
(B) the consent of the Administrative Agent
(such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect
of (i) a Revolving Commitment if such assignment is
to a Person that is not a Lender with a Commitment in
respect of such facility, an Affiliate of such Lender
or an Approved Fund with respect to such Lender or
(ii) a Term Loan Commitment to a Person who is not a
Lender, an Affiliate of a Lender or an Approved Fund.
(iv) Assignment and Assumption. The parties to each
assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 (which fee may be waived in the
discretion of the Administrative Agent), and the assignee, if
it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment
shall be made to the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such
assignment shall be made to a natural person.
Subject to acceptance and recording thereof by the
Administrative Agent pursuant to paragraph (c) of this Section, from
and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of
Sections 2.14 and 9.5 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this
Section.
(c) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at one of its
offices in Charlotte, North Carolina a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent,
sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the Lenders, Issuing Lender and Swingline
Lender shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement.
Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the
sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver that affects such Participant. Subject to
paragraph (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14 and 2.15
to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the
benefits of Section 9.7 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.11 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall
not be entitled to receive any greater payment under Sections 2.14 and
2.16 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of
Section 2.16 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16 as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
Section 9.7 Right of Set-off; Sharing of Payments.
(a) If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Lender, and each of their
respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender,
the Issuing Lender or any such Affiliate to or for the credit or the
account of the Borrower or any other Credit Party against any and all
of the obligations of the Borrower or such Credit Party now or
hereafter existing under this Agreement or any other Credit Document to
such Lender or the Issuing Lender, irrespective of whether or not such
Lender or the Issuing Lender shall have made any demand under this
Agreement or any other Credit Document and although such obligations of
the Borrower or such Credit Party may be contingent or unmatured or are
owed to a branch or office of such Lender or the Issuing Lender
different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the Issuing Lender and
their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such
Lender, the Issuing Lender or their respective Affiliates may have.
Each Lender and the Issuing Lender agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.
(b) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or other obligations hereunder
resulting in such Lender's receiving payment of a proportion of the
aggregate amount of its Loans and accrued interest thereon or other
such obligations greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (i)
notify the Administrative Agent of such fact, and (ii) purchase (for
cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as
shall be equitable, so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and
other amounts owing them, provided that:
(i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery,
without interest; and
(ii) the provisions of this paragraph shall not be
construed to apply to (A) any payment made by the Borrower
pursuant to and in accordance with the express terms of this
Agreement or (B) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation
in any of its Loans or participations in Letters of Credit to
any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this
paragraph shall apply).
(c) Each Credit Party consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against each Credit Party rights of setoff and
counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of each Credit Party in the amount of
such participation.
Section 9.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing
this Agreement.
Section 9.9 Counterparts; Integration; Effectiveness; Electronic
Execution.
(a) Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single
contract. This Agreement and the other Credit Documents, and any
separate letter agreements with respect to fees payable to the
Administrative Agent, constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.1, this
Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or email
shall be effective as delivery of a manually executed counterpart of
this Agreement.
(b) Electronic Execution of Assignments. The words
"execution," "signed," "signature," and words of like import in any
Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
Section 9.10 Severability.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 9.11 Integration.
This Agreement and the other Credit Documents represent the agreement
of the Borrower, the other Credit Parties, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent, the
Borrower, the other Credit Parties, or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or therein.
Section 9.12 Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the law of the State of New York.
Section 9.13 Consent to Jurisdiction; Service of Process and Venue.
(a) Consent to Jurisdiction. The Borrower and each other
Credit Party irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the courts of the
State of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or
any other Credit Document, or for recognition or enforcement of any
judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York sitting State
court or, to the fullest extent permitted by applicable law, in such
Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or in any other
Credit Document shall affect any right that the Administrative Agent,
any Lender or the Issuing Lender may otherwise have to bring any action
or proceeding relating to this Agreement or any other Credit Document
against the Borrower or any other Credit Party or its properties in the
courts of any jurisdiction.
(b) Service of Process. Each party hereto irrevocably consents
to service of process in the manner provided for notices in Section
9.2. Nothing in this Agreement will affect the right of any party
hereto to serve process in any other manner permitted by applicable
law.
(c) Venue. The Borrower and each other Credit Party
irrevocably and unconditionally waives, to the fullest extent permitted
by applicable law, any objection that it may now or hereafter have to
the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Credit Document in any court
referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
Section 9.14 Confidentiality.
Each of the Administrative Agent, the Lenders and the Issuing Lender
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder, under any other Credit Document or Secured Hedging Agreement or any
action or proceeding relating to this Agreement, any other Credit Document or
Secured Hedging Agreement or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) (i) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower and its obligations,
(ii) an investor or prospective investor in securities issued by an Approved
Fund that also agrees that Information shall be used solely for the purpose of
evaluating an investment in such securities issued by the Approved Fund, (iii) a
trustee, collateral manager, servicer, backup servicer, noteholder or secured
party in connection with the administration, servicing and reporting on the
assets serving as collateral for securities issued by an Approved Fund, (iv) a
nationally recognized rating agency that requires access to information
regarding the Credit Parties, the Loans and Credit Documents in connection with
ratings issued in respect of securities issued by an Approved Fund (in each
case, it being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such information and instructed to
keep such information confidential) or (v) financing, funding or investing
sources of existing or potential Lenders, assignees or Participants, subject to
an agreement containing substantially the same as those of this Section, (h)
with the consent of the Borrower or (i) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the Issuing
Lender or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower.
For purposes of this Section, "Information" shall mean all information
received from the Borrower or any of its Subsidiaries relating to the Borrower
or any of its Subsidiaries or any of their respective businesses, other than any
such information that is available to the Administrative Agent, any Lender or
the Issuing Lender on a nonconfidential basis prior to disclosure by the
Borrower or any of its Subsidiaries, provided that, in the case of information
received from the Borrower or any of its Subsidiaries after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Section 9.15 Acknowledgments.
The Borrower and the other Credit Parties each hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any other Credit
Party arising out of or in connection with this Agreement and the
relationship between the Administrative Agent and the Lenders, on one
hand, and the Borrower and the other Credit Parties, on the other hand,
in connection herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the
Borrower or the other Credit Parties and the Lenders.
Section 9.16 Waivers of Jury Trial; Waiver of Consequential Damages.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.17 Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf
of any other party) hereby notifies the Borrower that, pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower and the other Credit Parties, which
information includes the name and address of the Borrower and the other Credit
Parties and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower and the other Credit Parties in
accordance with the Patriot Act.
Section 9.18 Resolution of Drafting Ambiguities.
Each Credit Party acknowledges and agrees that it was represented by
counsel in connection with the execution and delivery of this Agreement and the
other Credit Documents to which it is a party, that it and its counsel reviewed
and participated in the preparation and negotiation hereof and thereof and that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation hereof or
thereof.
Section 9.19 Continuing Agreement.
This Credit Agreement shall be a continuing agreement and shall remain
in full force and effect until all Loans, LOC Obligations, interest, fees and
other Credit Party Obligations (other than those obligations that expressly
survive the termination of this Credit Agreement) have been paid in full and all
Commitments and Letters of Credit have been terminated. Upon termination, the
Credit Parties shall have no further obligations (other than those obligations
that expressly survive the termination of this Credit Agreement) under the
Credit Documents and the Administrative Agent shall, at the request and expense
of the Borrower, deliver all the Collateral in its possession to the Borrower
and release all Liens on the Collateral; provided that should any payment, in
whole or in part, of the Credit Party Obligations be rescinded or otherwise
required to be restored or returned by the Administrative Agent or any Lender,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, then the Credit Documents shall automatically be reinstated and all
Liens of the Administrative Agent shall reattach to the Collateral and all
amounts required to be restored or returned and all costs and expenses incurred
by the Administrative Agent or any Lender in connection therewith shall be
deemed included as part of the Credit Party Obligations.
Section 9.20 Regulatory Matters.
(a) Colorado Gaming Approvals. The Borrower shall cause notice
of the transactions contemplated by the Credit Documents to be provided
to the Colorado Gaming Authorities prior to the Closing Date. The
Colorado Gaming Authorities reserve the right to approve, require
changes to or require the termination of any of the Credit Documents,
including, but not limited to, if a Lender, the Administrative Agent,
the Arranger, any Secured Party, any Participant or other person having
an interest in the Credit Party Obligations is required to be found
suitable and is not found suitable.
(b) Subject to Gaming Laws. Any other provision in this
Agreement or any other Credit Document to the contrary notwithstanding,
each of the Lenders, Administrative Agent, Arranger and Secured Party
acknowledges that (i) all provisions of this Agreement and the other
Credit Documents relative to the Collateral are intended to be subject
to all applicable mandatory provisions of the Gaming Laws and to be
limited solely to the extent necessary to not render the provisions of
this Agreement and the other Credit Documents invalid or unenforceable,
in whole or in part; (ii) all rights, remedies and powers provided in
this Agreement and the other Credit Documents relative to the
Collateral, including, without limitation, with respect to the entry
into and ownership and operation of any Casino at the Facilities, the
possession or control of cashless wagering systems, mobile gaming
systems, all other "gaming devices" or "gaming equipment" (as such
terms or words of like import referring thereto are defined in the
Gaming Laws), and alcoholic beverages and the transfer of gaming or
liquor licenses, may be exercised only to the extent that the exercise
thereof does not violate any Gaming Law and that any required Approvals
(including prior Approvals) are obtained from the applicable Gaming
Authorities; (iii) each shall cooperate with the Gaming Authorities in
connection with the administration of their regulatory jurisdiction,
including, without limitation, providing documents or information as
may be requested by the Gaming Authorities relating to each of them;
and (iv) each of them and their respective assignees and Participants
are subject to being called forward by the Gaming Authorities, in their
discretion, for licensing or finding of suitability or to file or
provide other information in order to remain entitled to the benefits
of the Credit Agreement and the other Credit Documents.
Section 9.21 Lender Consent
Each Person signing a Lender Consent (a) approves the Credit Agreement,
(b) authorizes and appoints the Administrative Agent as its agent in accordance
with the terms of Article VIII, (c) authorizes the Administrative Agent to
execute and deliver this Agreement on its behalf, and (d) is a Lender hereunder
and therefore shall have all the rights and obligations of a Lender under this
Agreement as if such Person had directly executed and delivered a signature page
to this Agreement.
ARTICLE X
GUARANTY
Section 10.1 The Guaranty.
In order to induce the Lenders to enter into this Agreement and any
Hedging Agreement Provider to enter into any Secured Hedging Agreement and to
extend credit hereunder and thereunder and in recognition of the direct benefits
to be received by the Guarantors from the Extensions of Credit hereunder and any
Secured Hedging Agreement, each of the Guarantors hereby agrees with the
Administrative Agent, the Lenders and the Hedging Agreement Providers as
follows: each Guarantor hereby unconditionally and irrevocably jointly and
severally guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise, of
any and all Credit Party Obligations. If any or all of the indebtedness becomes
due and payable hereunder or under any Secured Hedging Agreement, each Guarantor
unconditionally promises to pay such indebtedness to the Administrative Agent,
the Lenders, the Hedging Agreement Providers, or their respective order, or
demand, together with any and all reasonable expenses which may be incurred by
the Administrative Agent or the Lenders in collecting any of the Credit Party
Obligations. The Guaranty set forth in this Article X is a guaranty of timely
payment and not of collection. The word "indebtedness" is used in this Article X
in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of the Borrower, including specifically all Credit
Party Obligations, arising in connection with this Agreement, the other Credit
Documents or any Secured Hedging Agreement, in each case, heretofore, now, or
hereafter made, incurred or created, whether voluntarily or involuntarily,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
whether or not such indebtedness is from time to time reduced, or extinguished
and thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
Section 10.2 Bankruptcy.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders and any Hedging Agreement Provider
whether or not due or payable by the Borrower upon the occurrence of any
Bankruptcy Event and unconditionally promises to pay such Credit Party
Obligations to the Administrative Agent for the account of the Lenders and to
any such Hedging Agreement Provider, or order, on demand, in lawful money of the
United States. Each of the Guarantors further agrees that to the extent that the
Borrower or a Guarantor shall make a payment or a transfer of an interest in any
property to the Administrative Agent, any Lender or any Hedging Agreement
Provider, which payment or transfer or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, or otherwise is avoided,
and/or required to be repaid to the Borrower or a Guarantor, the estate of the
Borrower or a Guarantor, a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such avoidance or repayment, the obligation or part thereof intended
to be satisfied shall be revived and continued in full force and effect as if
said payment had not been made.
Section 10.3 Nature of Liability.
The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by any
other party, and no Guarantor's liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower or by
any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent, the Lenders or any Hedging Agreement Provider on the
Credit Party Obligations which the Administrative Agent, such Lenders or such
Hedging Agreement Provider repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
Section 10.4 Independent Obligation.
The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other Guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
Section 10.5 Authorization.
Each of the Guarantors authorizes the Administrative Agent, each Lender
and each Hedging Agreement Provider without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part thereof
in accordance with this Agreement and any Secured Hedging Agreement, as
applicable, including any increase or decrease of the rate of interest thereon,
(b) take and hold security from any Guarantor or any other party for the payment
of this Guaranty or the Credit Party Obligations and exchange, enforce waive and
release any such security, (c) apply such security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in their
discretion may determine, (d) release or substitute any one or more endorsers,
Guarantors, the Borrower or other obligors and (e) to the extent otherwise
permitted herein, release or substitute any Collateral.
Section 10.6 Reliance.
It is not necessary for the Administrative Agent, the Lenders or any
Hedging Agreement Provider to inquire into the capacity or powers of the
Borrower or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any Credit Party Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
Section 10.7 Waiver.
(a) Each of the Guarantors waives any right (except as shall
be required by applicable statute and cannot be waived) to require the
Administrative Agent, any Lender or any Hedging Agreement Provider to
(i) proceed against the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party, or (iii) pursue any
other remedy in the Administrative Agent's, any Lender's or any Hedging
Agreement Provider's power whatsoever. Each of the Guarantors waives
any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party other than payment in full of the
Credit Party Obligations (other than contingent indemnity obligations),
including without limitation any defense based on or arising out of the
disability of the Borrower, any other guarantor or any other party, or
the unenforceability of the Credit Party Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the Credit
Party Obligations. The Administrative Agent may, at its election,
foreclose on any security held by the Administrative Agent or a Lender
by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or
remedy the Administrative Agent or any Lender may have against the
Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to
the extent the Credit Party Obligations have been paid in full and the
Commitments have been terminated. Each of the Guarantors waives any
defense arising out of any such election by the Administrative Agent or
any of the Lenders, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of the Guarantors against the Borrower or any other party or any
security.
(b) Each of the Guarantors waives all presentments, demands
for performance, protests and notices, including without limitation
notices of nonperformance, notice of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional Credit Party Obligations.
Each Guarantor assumes all responsibility for being and keeping itself
informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Credit
Party Obligations and the nature, scope and extent of the risks which
such Guarantor assumes and incurs hereunder, and agrees that neither
the Administrative Agent nor any Lender shall have any duty to advise
such Guarantor of information known to it regarding such circumstances
or risks.
(c) Each of the Guarantors hereby agrees it will not exercise
any rights of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
U.S. Bankruptcy Code, or otherwise) to the claims of the Lenders or any
Hedging Agreement Provider against the Borrower or any other guarantor
of the Credit Party Obligations of the Borrower owing to the Lenders or
such Hedging Agreement Provider (collectively, the "Other Parties") and
all contractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Other Party which it may at any time
otherwise have as a result of this Guaranty until such time as the
Credit Party Obligations shall have been paid in full and the
Commitments have been terminated. Each of the Guarantors hereby further
agrees not to exercise any right to enforce any other remedy which the
Administrative Agent, the Lenders or any Hedging Agreement Provider now
have or may hereafter have against any Other Party, any endorser or any
other guarantor of all or any part of the Credit Party Obligations of
the Borrower and any benefit of, and any right to participate in, any
security or collateral given to or for the benefit of the Lenders
and/or the Hedging Agreement Providers to secure payment of the Credit
Party Obligations of the Borrower until such time as the Credit Party
Obligations (other than contingent indemnity obligations) shall have
been paid in full and the Commitments have been terminated.
Section 10.8 Limitation on Enforcement.
The Lenders and the Hedging Agreement Providers agree that this
Guaranty may be enforced only by the action of the Administrative Agent acting
upon the instructions of the Required Lenders or such Hedging Agreement Provider
(only with respect to obligations under the applicable Secured Hedging
Agreement) and that no Lender or Hedging Agreement Provider shall have any right
individually to seek to enforce or to enforce this Guaranty, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
Agent for the benefit of the Lenders under the terms of this Agreement and for
the benefit of any Hedging Agreement Provider under any Secured Hedging
Agreement. The Lenders and the Hedging Agreement Providers further agree that
this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
Section 10.9 Confirmation of Payment.
The Administrative Agent and the Lenders will, upon request after
payment of the Credit Party Obligations which are the subject of this Guaranty
and termination of the Commitments relating thereto, confirm to the Borrower,
the Guarantors or any other Person that such indebtedness and obligations have
been paid and the Commitments relating thereto terminated, subject to the
provisions of Section 10.2.
ARTICLE XI
SUBORDINATION OF INTERCOMPANY DEBT
Section 11.1 Subordination.
(a) General. Each of the Credit Parties agrees and covenants
that the Intercompany Debt is and shall be subordinate in right and
order of payment to the payment in full of the Credit Party Obligations
on the terms and conditions set forth herein.
(b) Permitted Payments. Upon the occurrence and during the
continuance of a Default or Event of Default and at the direction of
the Administrative Agent, no Credit Party shall receive payments of
interest, principal and other amounts on the Intercompany Debt until
the Credit Party Obligations are paid in full or until otherwise agreed
by the Administrative Agent or the Required Lenders.
Section 11.2 Priority and Payment of Proceeds in Certain Events.
(a) Insolvency or Dissolution of a Credit Party. Upon the
occurrence of a Bankruptcy Event, all Credit Party Obligations shall
first be paid in full before any Credit Party shall be entitled to
receive any payment of the Intercompany Debt, unless otherwise agreed
to by the Administrative Agent or the Required Lenders. Upon the
occurrence of any Bankruptcy Event, any payment or distribution of
assets of a Credit Party of any kind or character, whether in cash,
property or securities to which a Credit Party would be entitled,
except for the provisions of this Article XI, shall be made by such
Credit Party or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution,
directly to the Administrative Agent for application (in the case of
cash) to or as collateral (in the case of non-cash property or
securities) for the payment in full of all Credit Party Obligations
after giving effect to any concurrent payment or distribution to the
Administrative Agent on the Credit Party Obligations.
(b) Payments in General. No direct or indirect payment or
distribution by or on behalf of a Credit Party in respect of the
Intercompany Debt upon acceleration shall be made, and no other
consideration in respect of the Intercompany Debt shall be given or
received to the extent prohibited by Section 11.1(b).
(c) Certain Payments Held in Trust. In the event that,
notwithstanding the foregoing provisions prohibiting such payment or
distribution or such giving or receipt of consideration, any Credit
Party shall have received any payment or distribution or consideration
in respect of the Intercompany Debt contrary to such provisions, then,
and in such event, such payment or distribution or consideration shall
be received and held in trust for the Lenders and shall be paid over or
delivered to the Administrative Agent for application to or as
collateral for the payment or prepayment of all Credit Party
Obligations in full after giving effect to any concurrent payment or
distribution to the Administrative Agent in respect of the Credit Party
Obligations. No amount paid by any Credit Party to the holder or
holders of the Intercompany Debt and paid over by the holder or holders
of the Intercompany Debt to the holders of the Credit Party Obligations
pursuant to this Article XI shall, as between any Credit Party and the
holder or holders of the Intercompany Debt, be deemed to be a payment
by any Credit Party to or on account of such Intercompany Debt.
Section 11.3 Restrictions on Actions by Credit Parties.
Until the Credit Party Obligations are paid in full, the Credit Parties
shall not, without the prior written consent of the Administrative Agent, take
any Collection Action with respect to the Intercompany Debt.
Section 11.4 Miscellaneous.
(a) The provisions of this Article XI shall continue to be
effective or be reinstated, as the case may be, if at any time any
payment of any of the Credit Party Obligations is rescinded or must
otherwise be returned by the Lenders or any other recipient thereof, as
the case may be, upon the insolvency, bankruptcy or reorganization of
any Credit Party or otherwise, all as though such payment had not been
made.
(b) No failure on the part of the Administrative Agent to
exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof of the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
(c) The provisions of this Article XI constitute a continuing
agreement and shall (i) remain in full force and effect until the
Credit Documents shall have been terminated and the Credit Party
Obligations shall have been paid in full, (ii) be binding upon each of
the Credit Parties and its successors and assigns and (iii) inure to
the benefit of and be enforceable by the Administrative Agent and its
respective successors, transferees and assigns.
(d) Notwithstanding the terms of this Article XI, the
Administrative Agent or the Required Lenders shall have the right to
waive the subordination terms of this Article XI and require the Credit
Parties to enforce the obligations under the Intercompany Debt in
accordance with the terms thereof.
[Signature Pages Follow]
CREDIT AGREEMENT
RIVIERA HOLDINGS CORPORATION
CREDIT AGREEMENTCHAR1\987380v13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its proper and duly authorized officers as of the
day and year first above written.
BORROWER: RIVIERA HOLDINGS CORPORATION,
- --------
a Nevada corporation
By:
------------------------------------
Name:
Title:
GUARANTORS: RIVIERA OPERATING CORPORATION,
a Nevada corporation
By:
------------------------------------
Name:
Title:
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:
------------------------------------
Name:
Title:
RIVIERA GAMING MANAGEMENT OF COLORADO, INC.,
a Colorado corporation
By:
------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent on behalf of the Lenders
By:
--------------------------------------------------
Name:
Title:
Schedule 1.1(a)
Investment Property
None.
Schedule 1.1(b)
Liens
- -------------------------------------------------------------------------------
Special Improvement District Bonds - Black Hawk $347,523 - Lien on entire real
property owned by Riviera Black
Hawk, Inc.
- -------------------------------------------------------------------------------
UCC Financing Statement naming Riviera Hotel and Casino as the Debtor and Bally
Gaming and Systems as Secured Party filed on November 11, 2003 with the
Secretary of State of the State of Nevada as File No. 20030300179. (Lien on the
gaming systems located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Operating Corporation as the Debtor and
Bally Gaming and Systems as Secured Party filed on November 11, 2003 with the
Secretary of State of the State of Nevada as File No. 20030300179. (Lien on
gaming systems located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Operating Corporation as the Debtor and
US Bancorp as Secured Party filed on October 7, 2004 with the Secretary of State
of the State of Nevada as File No. 20040306882. (Lease on Lanier copiers located
at the Riviera Las Vegas Facility.)
Precautionary Liens
UCC Financing Statement naming Riviera Hotel & Casino as the Debtor and WMS
Gaming Inc. as Secured Party filed on October 22, 2002 with the Secretary of
State of the State of Nevada as File No. 20020281048. (Lien on slot machines
located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Hotel and Casino as the Debtor and Bally
Gaming and Systems as Secured Party filed on June 20, 2006 with the Secretary of
State of the State of Nevada as File No. 20060196742. (Lien on slot machines
located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Operating Corporation as the Debtor and
WMS Gaming Inc. as Secured Party filed on March 18, 2003 with the Secretary of
State of the State of Nevada as File No. 20030077580. (Lien on slot machines
located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Operating Corporation as the Debtor and
Shuffle Master Inc. as Secured Party filed on November 1, 2004 with the
Secretary of State of the State of Nevada as File No. 20040329169. (Lien on
shufflers and table games located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Operating Corporation as the Debtor and
Bally Gaming and Systems as Secured Party filed on June 20, 2006 with the
Secretary of State of the State of Nevada as File No. 20060196742. (Lien on slot
machines located at the Riviera Las Vegas Facility.)
UCC Financing Statement naming Riviera Black Hawk, Inc. as the Debtor and
Aristocrat Technologies, Inc. as Secured Party filed on July 2, 2002 with the
Secretary of State of the State of Colorado as File No. 20022070016. (Lien on
slot machines located at the Riviera Black Hawk Facility.)
UCC Financing Statement naming Riviera Black Hawk, Inc. as the Debtor and WMS
Gaming, Inc. as Secured Party filed on March 31, 2003 with the Secretary of
State of the State of Colorado as File No. 20032033757. (Lien on slot machines
located at the Riviera Black Hawk Facility.)
UCC Financing Statement naming Riviera Black Hawk, Inc. as the Debtor and
Aristocrat Technologies, Inc. as Secured Party filed on April 3, 2006 with the
Secretary of State of the State of Colorado as File No. 20062031590. (Lien on
slot machines located at the Riviera Black Hawk Facility.)
UCC Financing Statement naming Riviera Black Hawk, Inc. as the Debtor and
Shuffle Master Inc. as Secured Party filed on August 8, 2006 with the Secretary
of State of the State of Colorado as File No. 20062076886. (Lien on shufflers
and table games located at the Riviera Black Hawk Facility.)
Schedule 3.3
Jurisdictions of Organization and Qualifications
- -------------------------------- ---------------------------------------------
Jurisdiction of Organization & Qualification
Company/Guarantor
- -------------------------------- ---------------------------------------------
Riviera Holdings Corporation Nevada
- -------------------------------- ---------------------------------------------
Riviera Operating Corporation Nevada
- -------------------------------- ---------------------------------------------
Riviera Black Hawk, Inc. Colorado
- -------------------------------- ---------------------------------------------
Riviera Gaming Management of
Colorado, Inc. Colorado
- -------------------------------- ---------------------------------------------
Schedule 3.12
Subsidiaries
- ------------------- -----------------------------------------------------------
Company
Subsidiaries Outstanding Equity Interests
- ------------------- -----------------------------------------------------------
Riviera Operating
Corporation 1,000 shares of common stock held by Company
- ------------------- -----------------------------------------------------------
Riviera Gaming
Management of
Colorado, Inc. 10,000 shares of common stock held by Riviera Gaming
Management, Inc.
- ------------------- -----------------------------------------------------------
Riviera Black Hawk,
Inc. 1,000 shares of common stock held by Riviera Operating
Corporation
- ------------------- -----------------------------------------------------------
Schedule 3.19(a)
Location of Real Property
Riviera Holdings Corporation
2901 Las Vegas Blvd South
Las Vegas, NV 89109
Clark County
Riviera Black Hawk Corporation
444 Main Street
Black Hawk, CO 80422
Gilpin County
Schedule 3.19(b)
Location of Collateral
Riviera Operating Corporation & Riviera Holdings Corporation
1. 2901 Las Vegas Blvd South Las Vegas, NV 89109 Clark County
2. Iron Mountain 2492 Brook Park Drive Las Vegas, NV 89030 Clark County
(IT -data storage)
3. Storage One
1120 LVBS
Las Vegas, NV 89104
Clark County
(Accounting -records storage)
Riviera Black Hawk Corporation
1. 444 Main Street PO Box 9 Black Hawk, CO 80422 Gilpin County
2. Rollinsville West Center LLC Box 444 #64 County Road 16 Rollinsville,
CO 80474 Gilpin County (Warehouse and storage)
3. Iron Mountain 8879 Fox Drive Thornton, CO 80260 Adams County (IT -data
storage)
CHAR1\996355v2
8/2/07
Schedule 3.19(c)
Chief Executive Offices
RIVIERA HOLDINGS CORPORATION
State Incorporated: Nevada
Nevada Secretary of State File No.: C749-1993
Federal Tax ID No.: EIN 88-0296885
Chief Executive Offices:
2901 Las Vegas Boulevard South
Las Vegas, NV 89109
Principal Place of Business:
2901 Las Vegas Boulevard South
Las Vegas, NV 89109
RIVIERA OPERATING CORPORATION
State Incorporated: Nevada
Nevada Secretary of State File No.: C751-1993
Federal Tax ID No.: EIN 88-0296874
Chief Executive Offices:
2901 Las Vegas Boulevard South
Las Vegas, NV 89109
Principal Place of Business:
2901 Las Vegas Boulevard South
Las Vegas, NV 89109
RIVIERA BLACK HAWK, INC.
State Incorporated: Colorado
Colorado Secretary of State File 19971131443 C
Federal Tax ID No.: EIN 86-0886265
Chief Executive Offices:
2901 Las Vegas Boulevard South
Las Vegas, NV 89109
Principal Place of Business:
444 Main Street
Black Hawk, CO 80422
Schedule 3.19(d)
Schedule of Mortgaged Properties
Riviera Holdings Corporation
Real Property located at 2901 Las Vegas Blvd South, Las Vegas, NV 89109, known
as APN 162-09-703-001
Riviera Black Hawk Corporation
Real Property located at 444 Main Street, Black Hawk, CO 80422, known as APN
010991R
Schedule 3.22
Labor Matters
Collective Bargaining Agreements
The Company has collective bargaining agreements with the Culinary and
Bartenders Union; Stagehands Union; Carpenters Union; Painters Union; Teamsters
Union (Front End and Back End Agreements); Operating Engineers Union;
Electricians Union; and Musicians Union. The Company pays certain funds to the
health, welfare and various benefit plans of the above listed unions for
employees represented by such unions.
Company Benefit Plans:
Company Benefit Plan Corporation Type of Plan Name
Profit Sharing and 401(k) Plan ROC/RBH Single Plan
ESOP RHC-ROC/RBH Multiple Plan
Deferred Compensation Plan ROC Single
Restricted Stock Plan RHC Single
PPO insurance ROC/RBH Multiple Plan
HPN insurance ROC Single
Dental insurance ROC/RBH Multiple Plan
Vision insurance ROC/RBH Multiple Plan
Life Insurance/
Disability (Short Term) ROC/RBH Multiple Plan
New York Life ROC Single
AFLAC/125 Caf. Plan ROC/RBH Multiple Plan
Exec. Life Ins. ROC/RBH Multiple Plan
ROC - Riviera Operating Corporation
RBH - Riviera Black Hawk, Inc.
RHC - Riviera Holdings Corporation
Schedule 3.24
Material Contracts
Purchase and License Agreement dated September 25, 2003 by and between Bally
Gaming, Inc., d/b/a Bally Gaming Systems, a Nevada Corporation, and Riviera
Operating Corporation, a Nevada corporation.
Schedule 3.25
Insurance
See next page
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
NAME OF INSURED TYPE OF COVERAGE & LIMITS EXPIRATION CARRIER POLICY NO.
- ---------------- ------------------------- ----------- ------- ----------
DATE
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
PROPERTY
Riviera Total Values: $409,720,694 Million Loss Limit 6/30/07 Affiliated FM TF938
Hodings Insurance Co.
Corporation $82,318,500 Million BI in Las Vegas, and
$37,578,000 Million BI for
Blackhawk
$50,000,000 Million Earthquake Limit
$20,000,000 Million Flood Limit
$25,000 Deductible, except $500,000
Flood deductible in BH; 24 Hr. waiting
Period for BI; 48 Hrs. EDP
$100,000 Quake; $100,000 LV Flood
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
GENERAL LIABILITY
Riviera $2,000,000 Million Primary Aggregate 6/30/07 Clarendon ECP001295-02
Hodings $100,000 Retention National Insurance Co.
Corporation
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
AUTO
Riviera $1,000,000 Million Limit - 10 Autos @ Inception 6/30/07 Clarendon ECA000467-02
Hodings National Insurance Co.
Corporation
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
CRIME
Riviera $4,000,000 Million Limit; $50,000 deductible 6/30/07 Federal/Chubb 68027934
Hodings
Corporation
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
BLACKHAWK - WORK COMP
Riviera No Deductible, Statutory Limits 7/01/07 Pinnacol Assurance 4071789
Hodings w/ $1,000,000 Million Employers Liability
Corporation
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
NV X/S WORK COMP
Riviera $350,000 Retention 7/01/07 Safety Nat'l SP9628NV
Hodings $1,000,000 Million Employers Liability Limit Casualty Corp
Corporation $100,000,000 Million WC Limit - no statutory
limit
- ---------------- ------------------------------------------------ ---------------- ------------------------------ --------------
- ---------------- ------------------------------------------------ ------------------------------- --------------
NAME OF INSURED TYPE OF COVERAGE & LIMITS EXPIRATION CARRIER POLICY NO.
- ---------------- ------------------------- ----------- ------- ----------
DATE
- ------------- ------------------------------------ --------------- ---------------------------------------- --------------
UMBRELLA/EXCESS LIABILITY
Riviera $110,000,000 Million Limit 6/30/07 St. Paul Fire / Marine Ins. Co. QK06500487
Hodings $15,000,000 X primary
Corporation Navigators Insurance Co.
$10,000,000 x $15,000,000 NH05EXC000007NV
Federal Insurance Co.
$15,000,000 x $25,000,000 79561524
North American Specialty Insurance Co.
$25,000,000 x $40,000,000 H2X000007900
St. Paul Fire / Marine Ins. Co.
$10,000,000 x $65,000,000 QI06500172
Federal Insurance Co. (Chubb)
$10,000,000 x $75,000,000 79561525
Westchester Surplus Lines Ins.
$25,000,000 x $85,000,000 G21995058001
- ------------------------ ------------------------- --------------- -------------------------------------- ---------------
CHAR1\996355v2
Schedule 6.1(b)
Indebtedness
Debt
- ------------------------------------------------------------------ -------------
Special Improvement District Bonds - Black Hawk $347,523 -
Public debt incurred in connection with public
improvements made to Riviera Black Hawk Facility
in 2000
- ------------------------------------------------------------------ -------------
Bally Gaming - ACSC 578,585
- Debt incurred for the Casino Management System for the
Riviera Las Vegas Facility
- ------------------------------------------------------------------ -------------
Hughes Calihan 168,046
- Debt incurred for copiers for Riviera Las Vegas Facility
- ------------------------------------------------------------------ -------------
Global Surveillance Associates 654,359
- Commitment to upgrade surveillance system for Riviera
Las Vegas Facility
- ------------------------------------------------------------------ -------------
Obligation of Officers
- ------------------------------------------------------------------ -------------
CEO pension William Westerman $2,527,625
- ------------------------------------------------------------------ -------------
Contract Non Compete William Westerman 500,000
- ------------------------------------------------------------------ -------------
Contract Non Compete Robert Vannucci 400,000
- ------------------------------------------------------------------ -------------
Schedule 6.14
Accounts
Balance as of
ACCT NO. CONSOLIDATED CASH IN BANK 4/30/07
------------------
990086639 ROC 100.111205 B OF A OPERATING 487,051
990086639 ROC 100.111205 B OF A OP TO CONCENTRATION (487,051)
990086605 ROC 100.111277 B OF A PAYROLL (FUNDED BY US DISBURSEMENT ACCT) (122,768)
990086605 ROC 100.111277 B OF A PAYROLL TO CONCENTRATION 122,768
990102873 ROC 100.111223 B OF A POS 25,486
990102873 ROC 100.111223 B OF A POS TO CONCENTRATION (25,486)
990086662 ROC 100.111243 B OF A NABANCO 74,064
990086662 ROC 100.111243 B OF A NABANCO TO CONCENTRATION (74,064)
990086654 ROC 100.111214 B OF A CONCENTRATION 980,193
990086654 ROC * 100.111227 B OF A INVST SWEEP - DAILY @ 3.5496% 04/30/07 3,545,788
------------------
SUBTOTAL B OF A OPERATING FUNDS 4,525,982
4030006407 ROC 100.111260.CAGE WELLS OPERATING DEPOSITS 1,967,243
153700353250 ROC 100.111215.OPDEP US OPERATING DEPOSITS 313,996
153700353250 ROC 100.111215.OPDEP US OP DEP TO CONCENT (313,996)
153700353276 ROC 100.111215.DISB US OPERATING DISBURSEMENTS (555,355)
153700353276 ROC 100.111215.DISB US OP DIS TO CONCENTRATION 555,355
153700353276 ROC 100.111215.DISB US OP DISB PR TAX DISTRIBUTION (1,515)
153700353276 ROC 100.111215.DISB US OP DISB TO CONCENTRATION 1,515
153700353276 ROC 100.111215 US CONCENTRATION (646,497)
253710021598 ROC * 100.111215 US BANK INVST SWEEP @ 4.84% 04/30/07 875,598
------------------
SUBTOTAL US BANK OPERATING FUNDS 229,102
990086696 ROC 100.111250 B OF A PARIMUTUEL RESERVE 20,287
990044830 ROC 100.111253 B OF A SPORTS RESERVE 30,532
------------------
SUBTOTAL INVESTMENT & RESERVE 50,819
990086704 ROC 100.111285 CASH EXCHANGE B of A 1,000
990086647 ROC 100.111280 TRAVEL AGENT COMMISSION B of A 1,000
0290526904 ROC 100.111265-BEVERLY HILLS Wells 107,870
004964914827 ROC 100.111219 B OF A GILSBAR CLAIMS 1,000
2272161320 ROC 100.111255 WELLS - Nevada Comp First (SIIS) 1,000
------------------
SUBTOTAL OTHER ACCOUNTS 111,870
TOTAL CASH IN BANK ROC 6,885,016
308418 RHC 00050.111273 BANK OF NEW YORK 24,997
12907887 RHC * 00050.111260 WELLS FARGO MONEY MARKET @ 5.122% 04/30/07 14,120,529
4000054445 RHC 00050.111260 WELLS FARGO 510
4000054445 RHC 00050.111260 WELLS FARGO - SWEEP (510)
4000054445 RHC * 00050.111260 WELLS FARGO INVST SWEEP - DAILY @ 4.32% 04/30/07 1,570,230
------------------
SUBTOTAL RIVIERA HOLDINGS CORP. 15,715,755
4375672540 RBH 1800.111260.WELLSGEN (WELLS) GEN-BH 1,519,525
4040016891 RBH 1800.111260.DISB WELLS FARGO (254,809)
4040016883 RBH 1800.111260.PAYROLL WELLS FARGO (91,460)
4126119601 RBH 1800.111260.LOTTERY WELLS LOTTERY 10,615
------------------
SUBTOTAL RIVIERA BLACK HAWK, INC. 1,183,870
------------------
TOTAL CONSOLIDATED CASH 23,784,641
========================================================================================================
ROC CASH 6,885,016
RHC CASH 15,715,755
RBH CASH 1,183,870
------------------
TOTAL CONSOLIDATED CASH 23,784,641
==================
* Denotes Investment Account or CD
ROC - Riviera Operating Corporation
RBH - Riviera Black Hawk, Inc.
RHC - Riviera Holdings Corporation
EXHIBIT 1.1(a)
[FORM OF]
ACCOUNT DESIGNATION NOTICE
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain
--------
Domestic Subsidiaries of the Borrower from time to
time party thereto (the "Guarantors"), the lenders and other financial
----------
institutions from time to time party thereto (the "Lenders"), and
-------
Wachovia Bank, National Association, as Administrative Agent for
Lenders (as amended, modified, extended, restated, replaced, or
supplemented from time to time, the "Credit Agreement"; capitalized
-----------------
terms used herein and not otherwise defined shall have the meanings set
forth in the Credit Agreement)
DATE : [Date]
- ---------------------------------------------------------------------------
The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account, unless the Borrower shall designate, in
writing to the Administrative Agent, one or more other accounts:
Bank Name: [______________________]
ABA Routing Number: [_______]
Account Number: [__________]
[TO BE COMPLETED BY BORROWER]
Notwithstanding the foregoing, on the Closing Date, funds borrowed
under the Credit Agreement shall be sent to the institutions and/or persons
designated on payment instructions to be delivered separately.
This Account Designation Notice may, upon execution, be delivered by
facsimile or electronic mail, which shall be deemed for all purposes to be an
original signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CHAR1\989822v3
CHAR1\989822v3
EXHIBIT 1.1(b)
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [the][each] Assignor identified in item 1 below ([the][each, an]
"Assignor") and [the][each] Assignee identified in item 2 below ([the][each, an]
"Assignee"). [It is understood and agreed that the rights and obligations of
[the Assignors][the Assignees] hereunder are several and not joint.](1)
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by [the][each]
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably
sells and assigns to [the Assignee][the respective Assignees], and [the][each]
Assignee hereby irrevocably purchases and assumes from [the Assignor][the
respective Assignors], subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor's][the
respective Assignors'] rights and obligations in [its capacity as a
Lender][their respective capacities as Lenders] under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including without limitation
any letters of credit, guarantees, and swingline loans included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of [the Assignor
(in its capacity as a Lender)][the respective Assignors (in their respective
capacities as Lenders)] against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] "Assigned
Interest"). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by [the][any] Assignor.
1. Assignor[s]: ______________________________
------------------------------
2. Assignee[s]: ______________________________
------------------------------
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]
3. Borrower: Riviera Holdings Corporation, a
Nevada corporation.
4. Administrative Agent: Wachovia Bank,
National Association, as the administrative
agent under the Credit Agreement.
5. Credit Agreement: The Credit Agreement dated
as of June 8, 2007 among Riviera Holdings
Corporation, a Nevada corporation, the
certain Domestic Subsidiaries of the
Borrower from time to time party thereto,
the lenders and other financial institutions
from time to time party thereto, and
Wachovia Bank, National Association, as
Administrative Agent.
6. Assigned Interest[s]:
- ------------ ---------- --------- ---------------------- ----------------- ----------------------- -------
Assignor[s] Assignee[s] Facility Aggregate Amount of Amount of Percentage Assigned of CUSIP
Assigned Commitment/ Commitment/Loans Commitment/ Number
---------------------- Assigned Loans
Loans for all Lenders
- ------------ ---------- --------- ---------------------- ----------------- ------------------------- -----
$ $ %
- ------------ ---------- --------- ---------------------- ----------------- ------------------------- -----
$ $ %
- ------------ ---------- --------- ---------------------- ----------------- ------------------------- -----
$ $ %
- ------------ ---------- --------- ---------------------- ----------------- ------------------------- -----
[7. Trade Date: ______________](2)
Effective Date: _____________ ___, 20___.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S] [NAME
OF ASSIGNOR]
By:______________________________
Title:
ASSIGNEE[S] [NAME
OF ASSIGNEE]
By:______________________________
Title:
[Consented to and] Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent
By_________________________________
Title:
[Consented to:]
[NAME OF RELEVANT PARTY]
By________________________________
Title:
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][the relevant]
Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
1.2. Assignee[s]. [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section 9.6(b)(iii), (v) and (vi) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 9.6(b)(iii) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets
of the type represented by the Assigned Interest and either it, or the person
exercising discretion in making its decision to acquire the Assigned Interest,
is experienced in acquiring assets of such type, (v) it has received a copy of
the Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section 5.1 thereof, as applicable, and such other documents and information as
it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a Foreign Lender, attached to the Assignment and Assumption is
any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance on the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the][the relevant] Assignee for amounts which have
accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of New York.
CHAR1\989822v3
EXHIBIT 1.1(c)
[FORM OF]
DEPOSIT ACCOUNT CONTROL AGREEMENT
(With Future Notification)
This DEPOSIT ACCOUNT CONTROL AGREEMENT ("Agreement") is made and entered into as
of this [____] day of [_______] 20[__] by and among [________________________]
as depositary bank (the "Bank"), the Bank's depositor customer,
[___________________________________, a _________________________] (the
"Company"), and Wachovia Bank, National Association, as administrative agent
(the "Secured Party").
Statement of Facts
The Bank acknowledges that, as of the date hereof, it maintains in the name of
the Company the deposit account(s) identified on Exhibit A attached hereto and
made a part hereof (each an "Account" and, collectively, the "Accounts"). One or
more of the Accounts may be served by one or more lockboxes operated by the
Bank, which lockboxes (if any) also are listed on Exhibit A (each a "Lockbox"
and, collectively, the "Lockboxes"). The Account(s) and any Lockbox(es) are
governed by the terms and conditions of the Company's commercial deposit account
agreement published by the Bank from time to time and, with respect to any
Lockbox, also may be governed by a lockbox service description between the Bank
and the Company (collectively with all applicable services descriptions and/or
agreements, the "Deposit Agreement").
The Company hereby confirms to the Bank that the Company has granted to the
Secured Party a security interest in the following (collectively, the "Account
Collateral"): (a) the Account(s), (b) the Lockbox(es) and (c) the Items
Collateral. The term "Items Collateral" means, collectively, all checks, drafts,
instruments, cash and other items at any time received in any Lockbox or for
deposit in any Account (subject to specific Lockbox instructions in effect for
processing items), wire transfers of funds, automated clearing house ("ACH")
entries, credits from merchant card transactions and other electronic funds
transfers or other funds deposited in, credited to, or held for deposit in or
credit to, any Account.
The parties desire to enter into this Agreement in order to set forth their
relative rights and duties with respect to the Account Collateral. In
consideration of the mutual covenants herein as well as other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Control of the Accounts
(a) The Statement of Facts is incorporated herein by reference. The Bank
represents that it is a "bank". The Company and the Bank acknowledge that each
Account is a "deposit account". Each party to this Agreement acknowledges that
this Agreement is an "authenticated" record and that the arrangements
established under this Agreement constitute "control" of each Account. Each of
these terms is used in this Agreement as defined in Article 9 of the Uniform
Commercial Code as adopted by the State of [____________] (the "[State] UCC").
(b) The Company represents and warrants to the Secured Party that Exhibit A
contains a complete and accurate list of all Accounts and Lockboxes maintained
by the Company with the Bank and subject to this Agreement. The Company
covenants for the benefit of the Secured Party that the Company shall not open
or maintain any deposit account with the Bank other than the Account(s). Nothing
in this Agreement shall impose upon the Bank any duty to monitor or assure the
Company's compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and
the Bank have not entered into any agreement (other than the Deposit Agreement)
with any person pursuant to which the Bank is obligated to comply with
instructions from such person as to the disposition of funds in any Account or
of Items Collateral. During the term of this Agreement the Bank will not enter
into any agreement with any person other than the Secured Party pursuant to
which the Bank will be obligated to comply with instructions from such person as
to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions
given by the Secured Party in accordance with this Agreement and permissible
under the Deposit Agreement, including directing the disposition of funds in any
Account or as to any other matter relating to any Account or other Account
Collateral, without further consent by the Company.
(e) The Secured Party authorizes and instructs the Bank to (i) permit the
Company to have access to and disposition over the Account(s) and Account
Collateral and to otherwise deal with same as provided in the Deposit Agreement
and (ii) act upon the instructions that the Bank shall receive from the Company
concerning the Lockbox and the Account Collateral until the implementation by
the Bank of the written instruction from the Secured Party to the Bank
substantially in the form of Exhibit B attached hereto and made a part hereof
(the "Notice") in accordance with the provisions of Section 7 of this Agreement.
The Secured Party's right to give instructions to the Bank regarding any Account
Collateral also shall include (but is not limited to) the right to give "stop
payment orders" to the Bank for any item presented to the Bank against any
Account even if it results in dishonor of the item presented against the
Account.
(f) Until delivery of the Notice by the Secured Party in accordance with the
provisions of Section 7, the Secured Party shall not give any instruction to the
Bank or otherwise exercise control over the Account(s) and the Account
Collateral and, until the Bank shall receive and implement the Notice as
provided in Section 7, the Bank shall not (and shall not be required by the
provisions of this Agreement to) honor and follow any instruction the Bank may
receive from the Secured Party with regard to the Account(s) and the Account
Collateral. Upon the implementation of the Notice by the Bank, the Bank shall
not permit any officer, agent or other representative of the Company or its
affiliates to direct the disposition of funds in any Account, withdraw any
amount from any Account or otherwise exercise any authority or power with
respect to any Lockbox, Account or Account Collateral. Upon implementation of
the Notice by the Bank, all collected and available funds in any Account shall
only be withdrawn or transferred based on instructions given by the Secured
Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing
house rules and other applicable law (including, without limitation, the Uniform
Commercial Code as adopted by the State in which the respective Account
identified on Exhibit A is located (hereinafter, the "Applicable UCC")) and the
Deposit Agreement shall also apply to the Secured Party's exercise of control
over the Account(s) and the Account Collateral and to the performance of
services hereunder by the Bank. Each of the Company and the Secured Party
authorizes and instructs the Bank to supply the Company's or the Secured Party's
endorsement, as appropriate, to any Items Collateral that the Bank shall receive
for deposit to any Account.
2. Statements and Other Information If so requested of the Bank by the Secured
Party in writing, the Bank will send to the Secured Party (in a manner
consistent with the Bank's standard practices) at the Secured Party's address
specified in Section 7, copies of all Account statements and communications (but
not canceled checks) that the Bank is required to send to the Company under the
Deposit Agreement. The Bank also shall provide to each of the Company and the
Secured Party when requested (as a service under this Agreement and/or the
Deposit Agreement) copies of Account statements and other deposit account
information, including Account balances, by telephone and by computer
communication, to the extent practicable when requested by the Company or by the
Secured Party. The Company consents to the Bank's release of such Account
information to the Secured Party. The Bank's liability for its failure to comply
with this Section 2 shall not exceed its cost of providing such information.
3. Setoff; Returned Items and Charges
(a) The Bank will not exercise any security interest (except for the security
interest provided in Section 4-210, "Security Interest of Collecting Bank in
Items, Accompanying Documents and Proceeds", of the Applicable UCC), lien, right
of setoff, deduction, recoupment or banker's lien or any other interest in or
against any Account or any other Account Collateral, and the Bank hereby
subordinates to the Secured Party any such security interest (except for such
security interest provided in such Section 4-210 of the Applicable UCC), lien or
right which the Bank may have against any Account or other Account Collateral.
Notwithstanding the preceding sentence, the Secured Party and the Company agree
that the Bank at all times (including following commencement of any bankruptcy
or insolvency proceeding by or against the Company) may set off and charge
against any Account (regardless of any agreement by the Company to compensate
the Bank by means of balances in the Account) all of the following as permitted
by the Deposit Agreement (collectively, the "Permitted Debits"): (i) the face
amount of each Returned Item (hereinafter defined), (ii) usual and customary
service charges and fees, (iii) account maintenance fees, (iv) transfer fees,
(v) out-of-pocket fees and expenses (including attorneys' reasonable fees)
incurred by the Bank (including those in connection with the negotiation,
administration or enforcement of this Agreement), and (vi) adjustments or
corrections of posting or encoding errors; whether any Permitted Debit shall
have accrued or been incurred before or after the date of this Agreement.
"Returned Item" means any (i) Items Collateral deposited into or credited to an
Account before or after the date of this Agreement and returned unpaid or
otherwise uncollected or subject to an adjustment entry, whether for
insufficient funds or any other reason, and without regard to the timeliness of
such return or adjustment or the occurrence or timeliness of any other party's
notice of nonpayment or adjustment; (ii) Items Collateral subject to a claim
against the Bank for breach of transfer, presentment, encoding, retention or
other warranty under Federal Reserve Regulations or Operating Circulars, ACH or
other clearing house rules, or applicable law (including, without limitation,
Articles 3, 4 and 4A of the Applicable UCC); and (iii) demand for chargeback in
connection with a merchant card transaction.
(b) If (i) the Bank were unable to set off or charge any Permitted Debit against
any Account because of insufficient funds in the Account, or (ii) the Bank in
good faith were to believe that any legal process or applicable law prohibited
such setoff or charge against any Account, or (iii) the Account were closed,
then: (A) the Bank may charge such Permitted Debits to and set off same against
any other Account; and (B) if there were insufficient funds in the Account(s)
against which to charge or set off such Permitted Debits, then the Bank shall
demand (unless the Bank shall believe in good faith that any legal process or
applicable law prohibits such demand) that the Company pay, and the Company
shall pay, to the Bank promptly upon the Company's receipt of the Bank's written
demand therefor, the full amount of all unpaid Permitted Debits.
(c) If (i) there were insufficient funds in the Account(s) against which the
Bank could charge or set off Permitted Debits and the Company shall have failed
to pay the Bank the full amount of unpaid Permitted Debits as described in
paragraph (b) of this Section 3, and (ii) the Bank shall have received and
implemented the Notice as provided herein, then the Bank may demand that the
Secured Party pay, and the Secured Party shall pay, to the Bank within five (5)
business days of the Secured Party's receipt of the Bank's written demand
therefor, the full amount of unpaid Permitted Debits; provided, however, as to
unpaid Permitted Debits that are service charges, fees or expenses, the Secured
Party shall be required to pay to the Bank only those service charges, fees or
expenses attributable to any Account that shall have been incurred in connection
with any Account on or after the date of this Agreement and on or before the
date of termination of this Agreement.
4. Exculpation of Bank
(a) At all times the Bank shall be entitled to rely upon any communication it
receives from the Secured Party or the Company in connection with this Agreement
or that the Bank shall believe in good faith to be a communication received from
the Secured Party or the Company in connection with this Agreement, and the Bank
shall have no obligation to investigate or verify the authenticity or
correctness of any such communication. The Bank shall have no liability to the
Company or the Secured Party for (i) honoring or following any instruction the
Bank shall receive from (or shall believe in good faith to be from) the Secured
Party in accordance with this Agreement, and (ii) honoring or following any
instruction the Bank shall receive from (or shall believe in good faith to be
from) the Company in accordance with this Agreement and the Deposit Agreement
prior to the implementation of the Notice by the Bank. The Bank shall not be
responsible for the validity, priority or enforceability of the Secured Party's
security interest in any Account Collateral, nor shall the Bank be responsible
for enforcement of any agreement between the Company and the Secured Party.
(b) The Bank shall be responsible only for the actual loss that a court having
jurisdiction over the Account(s) shall have determined had been incurred by the
Company or the Secured Party and had been caused by the Bank's gross negligence
or willful misconduct in its performance of its obligations under this
Agreement. The Bank shall have no liability to any party for failure of, or
delay in, its performance under this Agreement resulting from any "act of God",
war or terrorism, fire, other catastrophe or force majeure, electrical or
computer or telecommunications failure, any event beyond the control of the
Bank, or fraud committed by any third party. Nothing in this Agreement shall
create any agency, fiduciary, joint venture or partnership relationship between
the Bank and the Company or between the Bank and the Secured Party. Except as
shall be specifically required under this Agreement or the Deposit Agreement or
applicable law, the Bank shall have no duty whatsoever to the Company in
connection with the subject matter of this Agreement. Except as shall be
specifically required under this Agreement or applicable law, the Bank shall
have no duty whatsoever to the Secured Party in connection with the subject
matter of this Agreement.
5. Indemnification
(a) The Company hereby indemnifies the Bank and holds it harmless against, and
shall reimburse the Bank for, any loss, damage or expense (including attorneys'
reasonable fees and expenses, court costs and other expenses) including, but not
limited to, (i) unpaid charges, fees, and Returned Items for which the Company
and/or the Secured Party originally received credit or remittance by the Bank,
and (ii) any loss, damage or expense the Bank shall incur as a result of (A)
entering into or acting pursuant to this Agreement, (B) honoring and following
any instruction the Bank may receive from (or shall believe in good faith to be
from) the Secured Party or the Company under this Agreement, and (C) upon
implementation of the Notice, not honoring or following any instruction it shall
receive from (or shall believe in good faith to be from) the Company in
accordance with this Agreement. The Company shall not be responsible for any
loss, damage, or expense that a court having jurisdiction shall have determined
had been caused by the Bank's gross negligence or willful misconduct in its
performance of its obligations under this Agreement.
(b) Without limiting in any way the Secured Party's obligation to pay or
reimburse the Bank as otherwise specified in this Agreement, the Secured Party
hereby indemnifies the Bank and holds it harmless against any loss, damage or
expense (including attorneys' reasonable fees and expenses, court costs and
other expenses) which the Bank shall incur as a result of honoring or following
any instruction (including the Notice) it shall receive from (or shall believe
in good faith to be from) the Secured Party under this Agreement. The Secured
Party shall not be responsible for any loss, damage, or expense that a court
having jurisdiction shall have determined had been caused by the Bank's gross
negligence or willful misconduct in its performance of its obligations under
this Agreement.
(c) No party hereto shall be liable to any other party under this Agreement for
lost profits or special, indirect, exemplary, consequential or punitive damages,
even if such party shall have been advised of the possibility of such damages.
6. Third Party Claims; Insolvency of Company
(a) In the event that the Bank shall receive notice that any third party shall
have asserted an adverse claim by legal process against any Account or any sums
on deposit therein, any Lockbox or other Account Collateral, whether such claim
shall have arisen by tax lien, execution of judgment, statutory attachment,
garnishment, levy, claim of a trustee in bankruptcy, debtor-in-possession,
post-bankruptcy petition lender, court appointed receiver, or other judicial or
regulatory order or process (each, a "Claim"), the Bank may, in addition to
other remedies it possesses under the Deposit Agreement, this Agreement or at
law or in equity: (i) suspend disbursements from such Account without any
liability until the Bank shall have received an appropriate court order or other
assurances reasonably acceptable to the Bank in its sole discretion establishing
that funds may continue to be disbursed according to instructions then
applicable to such Account, and/or (ii) interplead such funds in such Account as
permitted by applicable law. The Bank's costs, expenses and attorneys'
reasonable fees incurred in connection with any such Claim are Permitted Debits
and shall be reimbursed to the Bank in accordance with the provisions of Section
3 above.
(b) If a bankruptcy or insolvency proceeding were commenced by or against the
Company, the Bank shall be entitled, without any liability, to refuse to (i)
permit withdrawals or transfers from the Account(s) or (ii) accept or comply
with the Notice thereafter received by the Bank, until the Bank shall have
received an appropriate court order or other assurances reasonably acceptable to
the Bank in its sole discretion establishing that (A) continued withdrawals or
transfers from the Account(s) or honoring or following any instruction from
either the Company or the Secured Party are authorized and shall not violate any
law, regulation, or order of any court and (B) the Bank shall have received
adequate protection for its right to set off against or charge the Account(s) or
otherwise be reimbursed for all Permitted Debits.
7. Notice and Communications
(a) All communications given by any party to another as required or provided
under this Agreement must be in writing, directed to the respective designated
officer ("Designated Officer") set forth under paragraph (c) of this Section 7,
and delivered to each recipient party at its address (or at such other address
and to such other Designated Officer as such party may designate in writing to
the other parties in accordance with this Section 7) either by U.S. Mail,
receipted delivery service or via telecopier facsimile transmission. All
communications given by the Secured Party to the Bank must be addressed and
delivered contemporaneously to both the Bank's Designated Officer and the Bank's
"with copy to" addressee at their respective addresses set forth below.
(b) Any communication (including the Notice) made by (or believed in good faith
by the Bank to be made by) the Company or the Secured Party to the Bank under
this Agreement shall be deemed delivered to the Bank if delivered by: (i) U.S.
Mail, on the date that such communication shall have been delivered to the
Bank's Designated Officer; (ii) receipted delivery service, on the date and time
that such communication shall have been delivered to the Bank's Designated
Officer and receipted by the delivery service; or (iii) telecopier facsimile
transmission, on the date and at the time that such communication shall have
been delivered to the Bank's Designated Officer and receipt of such delivery
shall have been acknowledged by the recipient telecopier equipment.
Notwithstanding the provisions of the preceding sentence, any communication
hereunder to the Bank that is an instruction (including the Notice) delivered to
the Bank and made by (or believed by the Bank in good faith to be made by) the
Company or the Secured Party shall be deemed received by the Bank when actually
delivered to the Bank's Designated Officer if delivered before 2:00 PM Eastern
time on a banking day or, if such communication were delivered after 2:00 PM
Eastern time on a banking day or delivered on a day that is not a banking day,
then such communication shall be deemed delivered to the Bank's Designated
Officer at the Bank's opening of its business on the next succeeding banking
day. A "banking day" means any day other than any Saturday or Sunday or other
day on which the Bank is authorized or required by law to close.
(c) The Notice shall be implemented by the Bank by the close of the Bank's
business on the banking day that shall be one (1) banking day after the banking
day on which the Notice was actually received by the Bank's Designated Officer.
Any other instruction delivered to the Bank shall be implemented by the Bank by
the close of the Bank's business on the banking day that shall be two (2)
banking days after the banking day on which such instruction was actually
received by the Bank's Designated Officer.
Address for Secured Party: Wachovia Bank, National Association,
as Administrative Agent
Charlotte Plaza
201 South College Street, CP-8
Charlotte, North Carolina 28288-0680
Attn: Syndication Agency Services
Address for Bank: [_________________________
=========================
Attn.: Mr/s. ______________, Designated Officer
Fax: ___________________]
Address for Company: [_________________________
=========================
Attn.: Mr/s. ______________, Designated Officer
Fax: ___________________]
8. Termination
(a) This Agreement may be terminated by the Secured Party at any time upon
receipt by the Bank of the Secured Party's written notice of termination issued
substantially in the form of Exhibit C attached hereto and made a part hereof.
This Agreement may be terminated by the Company only with the express prior
written consent of the Secured Party and, in that case, the Secured Party and
the Company shall jointly so notify the Bank in writing.
(b) This Agreement may be terminated by the Bank at any time on not less than
thirty (30) calendar days' prior written notice given to each of the Company and
the Secured Party. The Bank shall not be liable for the closure of any Lockbox
or any Account by the Company or the remittance of any funds therein directly
to, or on the instructions of, the Company prior to the implementation of the
Notice by the Bank. The Company shall notify the Secured Party promptly of the
Company's closure of any Lockbox or any Account.
(c) The Bank's rights to demand and receive reimbursement from the Company under
Section 3 above and the Company's indemnification of the Bank under Section 5
above shall survive termination of this Agreement. The Bank's right to demand
reimbursement from the Secured Party under Section 3 above shall survive
termination of this Agreement for a period of ninety (90) calendar days after
the date of termination of this Agreement. The Bank's right to demand
indemnification of the Bank from the Secured Party under Section 5 above shall
survive termination of this Agreement for a period of one hundred eighty (180)
calendar days after the date of termination of this Agreement.
(d) Upon termination of this Agreement, all funds thereafter on deposit or
deposited in the Accounts and all Items Collateral thereafter received by the
Bank shall be subject solely to the provisions of the Deposit Agreement between
the Company and the Bank.
9. Miscellaneous
(a) The Company shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Bank and the
Secured Party. The Secured Party shall not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Bank. The Bank shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Secured Party and
the Company, except that the Bank may transfer its rights and obligations under
this Agreement to any direct or indirect depositary subsidiary of Wachovia
Corporation or, in the event of a merger or acquisition of the Bank, to the
Bank's successor depositary institution (which subsidiary or successor shall be
a "bank" as defined in Section 9-102 of the [State] UCC).
(b) The law governing the perfection and priority of the Secured Party's
security interest in the Account Collateral shall be the law of the State of
[State; see Section 1(a)], which State shall also be the "jurisdiction" of the
Bank within the meaning of Section 9-304 of the [State] UCC. The Accounts, Items
Collateral, operation of the Accounts, and Deposit Agreement shall be governed
by the Applicable UCC, Federal Regulations and Operating Circulars, ACH or other
clearing house rules, and other applicable laws.
(c) This Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same Agreement. Delivery of an executed signature page counterpart to this
Agreement via telecopier facsimile transmission shall be effective as if it were
delivery of a manually delivered, original, executed counterpart thereof. This
Agreement can be modified or amended only by written agreement of all of the
parties hereto evidencing such modification or amendment.
(d) To the extent that any conflict may exist between the provisions of any
other agreement between the Company and the Bank and the provisions of this
Agreement, then this Agreement shall control. It is understood and agreed that
nothing in this Agreement shall give the Secured Party any benefit or legal or
equitable right, remedy or claim against the Bank under the Deposit Agreement.
10. Waiver of Jury Trial EXCEPT AS PROHIBITED BY APPLICABLE LAW, EACH PARTY
HERETO IRREVOCABLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
(INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH ANOTHER PARTY SHALL BE A PARTY
AS TO ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT.
IN WITNESS WHEREOF, each of the parties by its respective duly authorized
officer has executed and delivered this Agreement as of the day and year first
written above.
BANK: ____________________________________________
By: _________________________________________
Name: ______________________________________
Title: ______________________________________
COMPANY: _____________________________________________
By: __________________________________________
Name: ________________________________________
Title: _________________________________________
SECURED PARTY: WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent
By: ___________________________________________ Name:
-----------------------------------------
Title: __________________________________________
EXHIBIT A
ACCOUNTS OF COMPANY
Account Number Related Lockbox Account Name State in Which
Number, if any, Account is Located
EXHIBIT B
[To be Issued on Letterhead of Wachovia Bank, National Association]
[Date]
[Bank's Address]
NOTICE PURSUANT TO DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
Pursuant to the Deposit Account Control Agreement (With Future Notification)
among [_________________] (the "Company") you and us dated as of [_____ __, ___]
(the "Agreement"), a photocopy of which is attached hereto, this letter shall
serve as the Notice as described in and contemplated by the Agreement.
Capitalized terms used but not defined in this letter shall have the meanings
given them in the Agreement.
You are hereby instructed not to permit any access to or disposition over the
Account(s) or other Account Collateral by, and not to accept any instruction
with regard to the Account(s) or other Account Collateral from, any person other
than the Secured Party (or as otherwise provided in Section 6 of the Agreement).
None of the officers, agents or other representatives of the Company or any of
its affiliates shall at any time hereafter be permitted to direct the
disposition of funds in any Account, or to draw upon or otherwise exercise any
authority or power with respect to any Lockbox, Account or Account Collateral
related thereto.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent
By: _______________________________
Name: _____________________________
Title: ______________________________
Attachment
cc: The Company
EXHIBIT C
[To be Issued on Letterhead of Wachovia Bank, National Association]
[Date]
[Bank's Address]
[THE COMPANY]
===================================
Attention: __________________________
NOTICE OF TERMINATION OF DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
We refer you to the Deposit Account Control Agreement (With Future Notification)
among [_____________________] (the "Company"), you and us dated as of [_____
__], 2006 (the "Agreement"), a photocopy of which is attached hereto.
Capitalized terms used but not defined in this letter shall have the meanings
given them in the Agreement.
We hereby notify you that by this letter we are exercising our right under
Section 8(a) of the Agreement (subject to your rights as set forth in the
Agreement) to terminate the Agreement in accordance with its terms. Accordingly
the Agreement shall terminate at the close of the Bank's business [this day] [on
___________ __, 200_], subject to those undertakings that shall survive
termination of the Agreement. Upon termination of the Agreement, all funds
thereafter on deposit or deposited in the Account(s) and all Items Collateral
received by the Bank shall be subject solely to the provisions of the Deposit
Agreement between the Company and the Bank.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent
By __________________________
Name: _______________________
Title: ________________________
EXHIBIT 1.1(d)
[FORM OF]
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement"), dated as of [__________,
____], is by and among [_____________________, a ______________________] (the
"Subsidiary Guarantor"), Riviera Holdings Corporation, a Nevada corporation (the
"Borrower"), and Wachovia Bank, National Association, in its capacity as
administrative agent (in such capacity, the "Administrative Agent") under that
certain Credit Agreement, dated as of June 8, 2007 (as amended, modified,
extended, restated, replaced, or supplemented from time to time, the "Credit
Agreement"), by and among the Borrower, the certain Domestic Subsidiaries of the
Borrower from time to time party thereto (collectively the "Guarantors"), the
lenders and other financial institutions from time to time party thereto (the
"Lenders") and the Administrative Agent. Capitalized terms used herein but not
otherwise defined shall have the meanings provided in the Credit Agreement.
The Subsidiary Guarantor is an Additional Credit Party, and,
consequently, the Credit Parties are required by Section 5.10 of the Credit
Agreement to cause the Subsidiary Guarantor to become a "Guarantor" thereunder.
Accordingly, the Subsidiary Guarantor and the Borrower hereby agree as
follows with the Administrative Agent, for the benefit of the Lenders:
1. The Subsidiary Guarantor hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Subsidiary Guarantor will be
deemed to be a party to and a "Guarantor" under the Credit Agreement and shall
have all of the obligations of a Guarantor thereunder as if it had executed the
Credit Agreement. The Subsidiary Guarantor hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the applicable Credit Documents, including without limitation (a)
all of the representations and warranties set forth in Article III of the Credit
Agreement and (b) all of the affirmative and negative covenants set forth in
Articles V and VI of the Credit Agreement. Without limiting the generality of
the foregoing terms of this Paragraph 1, the Subsidiary Guarantor hereby
guarantees, jointly and severally together with the other Guarantors, the prompt
payment of the Credit Party Obligations in accordance with Article X of the
Credit Agreement.
2. The Subsidiary Guarantor hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Subsidiary Guarantor will be
deemed to be a party to the Security Agreement, and shall have all the rights
and obligations of an "Obligor" (as such term is defined in the Security
Agreement) thereunder as if it had executed the Security Agreement. The
Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to be
bound by, all of the terms, provisions and conditions contained in the Security
Agreement. Without limiting the generality of the foregoing terms of this
Paragraph 2, the Subsidiary Guarantor hereby grants to the Administrative Agent,
for the benefit of the Lenders, a continuing security interest in, and a right
of set off, to the extent applicable, against any and all right, title and
interest of the Subsidiary Guarantor in and to the Collateral (as such term is
defined in Section 2 of the Security Agreement) of the Subsidiary Guarantor.
3. The Subsidiary Guarantor hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Subsidiary Guarantor will be
deemed to be a party to the Credit Party Pledge Agreement, and shall have all
the rights and obligations of a "Pledgor" thereunder as if it had executed the
Credit Party Pledge Agreement. The Subsidiary Guarantor hereby ratifies, as of
the date hereof, and agrees to be bound by, all the terms, provisions and
conditions contained in the Credit Party Pledge Agreement. Without limiting the
generality of the foregoing terms of this Paragraph 3, the Subsidiary Guarantor
hereby pledges and assigns to the Administrative Agent, for the benefit of the
Lenders, and grants to the Administrative Agent, for the benefit of the Lenders,
a continuing security interest in any and all right, title and interest of the
Subsidiary Guarantor in and to Pledged Capital Stock (as such term is defined in
Section 2 of the Credit Party Pledge Agreement) and the other Pledged Collateral
(as such term is defined in Section 2 of the Credit Party Pledge Agreement).
4. The Subsidiary Guarantor acknowledges and confirms that it has
received a copy of the Credit Agreement and the schedules and exhibits thereto
and each Security Document and the schedules and exhibits thereto. The
information on the schedules to the Credit Agreement and the Security Documents
are hereby supplemented (to the extent permitted under the Credit Agreement or
Security Documents) to reflect the information shown on the attached Schedule A.
5. The Borrower confirms that the Credit Agreement is, and upon the
Subsidiary Guarantor becoming a Guarantor, shall continue to be, in full force
and effect. The parties hereto confirm and agree that immediately upon the
Subsidiary Guarantor becoming a Guarantor the term "Credit Party Obligations,"
as used in the Credit Agreement, shall include all obligations of the Subsidiary
Guarantor under the Credit Agreement and under each other Credit Document.
6. Each of the Borrower and the Subsidiary Guarantor agrees that at any
time and from time to time, upon the written request of the Administrative
Agent, it will execute and deliver such further documents and do such further
acts as the Administrative Agent may reasonably request in accordance with the
terms and conditions of the Credit Agreement in order to effect the purposes of
this Agreement.
7. This Agreement (a) may be executed in two or more counterparts, each
of which shall constitute an original but all of which when taken together shall
constitute one contract and (b) may, upon execution, be delivered by facsimile
or electronic mail, which shall be deemed for all purposes to be an original
signature.
8. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York. The terms of Sections 9.13
and 9.16 of the Credit Agreement are incorporated herein by reference, mutatis
mutandis, and the parties hereto agree to such terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the Borrower and the Subsidiary Guarantor
has caused this Agreement to be duly executed by its authorized officer, and the
Administrative Agent, for the benefit of the Lenders, has caused the same to be
accepted by its authorized officer, as of the day and year first above written.
SUBSIDIARY GUARANTOR: [SUBSIDIARY GUARANTOR]
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
BORROWER: RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Acknowledged, accepted and agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Schedule A
Schedules to Credit Agreement and Security Documents
[TO BE COMPLETED BY BORROWER]
EXHIBIT 1.1(e)
[FORM OF]
NOTICE OF BORROWING
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
- ------------------------------------------------------------------------------
Pursuant to Section 2.1(b)(i), 2.2, and/or 2.4(b)(i) of the Credit
Agreement, the Borrower hereby requests the following (the "Proposed
Borrowing"):
[Term Loan be made as follows:](1)
----------------------------
- ------------- ----------- ---------------------- ------------------------------
Interest Interest
Rate Period
Amount (Alternate Base Rate/ (one, two, three or six months
Date LIBOR Rate) (2) -- for LIBOR Rate only)(2)
- ------------- ----------- ---------------------- ------------------------------
Closing Date $[_____]
- ------------------- ----------- ---------------------- ------------------------
Revolving Loans be made as follows:
- ------- -------- ---------------------- -------------------------------------
Interest Interest
Rate Period
Date Amount (Alternate Base Rate/ (one, two, three or six months
LIBOR Rate) -- for LIBOR Rate only)
- ------- -------- ---------------------- -------------------------------------
- ------- -------- ---------------------- -------------------------------------
- ------- -------- ---------------------- -------------------------------------
- ------- -------- ---------------------- -------------------------------------
NOTE: REVOLVING LOAN BORROWINGS THAT ARE (A) ALTERNATE BASE RATE
LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF $1,000,000
AND IN INTEGRAL MULTIPLES OF $500,000 IN EXCESS THEREOF
AND (B) LIBOR RATE LOANS MUST BE IN A MINIMUM AGGREGATE
AMOUNT OF $5,000,000 AND IN INTEGRAL MULTIPLES OF
$1,000,000 IN EXCESS THEREOF.
Swingline Loans to be made on [date] as follows:
Swingline Loans requested:
(1) Total Amount of Swingline Loans $
----------------
NOTE: SWINGLINE LOAN BORROWINGS MUST BE IN MINIMUM AMOUNTS OF $500,000
AND IN INTEGRAL AMOUNTS OF $100,000 IN EXCESS THEREOF.
The undersigned hereby certifies that the following statements are true
on the date hereof and will be true on the date of the Proposed Borrowing:
(a) The representations and warranties made by the Credit
Parties in the Credit Agreement, in the Security Documents or which are
contained in any certificate furnished at any time under or in
connection with the Credit Agreement shall be true and correct on and
as of the date of the Proposed Borrowing as if made on and as of such
date except for any representation or warranty made as of an earlier
date, which representation and warranty shall remain true and correct
as of such earlier date.
(b) No Default or Event of Default shall have occurred and be
continuing on the date of the Proposed Borrowing or after giving effect
to the Proposed Borrowing unless such Default or Event of Default shall
have been waived in accordance with the Credit Agreement.
(c) Immediately after giving effect to the making of the
Proposed Borrowing (and the application of the proceeds thereof), (i)
the sum of the aggregate principal amount of outstanding Revolving
Loans plus outstanding Swingline Loans plus outstanding LOC Obligations
shall not exceed the Revolving Committed Amount then in effect (ii) the
outstanding LOC Obligations shall not exceed the LOC Committed Amount,
and (iii) the outstanding Swingline Loans shall not exceed the
Swingline Committed Amount.
(d) If a Revolving Loan is requested, all conditions set forth
in Section 2.1 of the Credit Agreement have been satisfied.
(e) If an Additional Term Loan is requested, all conditions
set forth in Section 2.2 of the Credit Agreement have been satisfied.
(f) If the issuance of a Letter of Credit is requested, all
conditions set forth in Section 2.3 of the Credit Agreement have been
satisfied.
(g) If a Swingline Loan is requested, all conditions set forth
in Section 2.4 of the Credit Agreement have been satisfied.
This Notice of Borrowing may, upon execution, be delivered by facsimile
or electronic mail, which shall be deemed for all purposes to be an original
signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT 1.1(f)
[FORM OF]
NOTICE OF CONVERSION/EXTENSION
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
- -------------------------------------------------------------------------------
Pursuant to Section 2.9 of the Credit Agreement, the Borrower hereby
requests ____ conversion or ____ extension of the following Loans be made as
follows (the "Proposed Conversion/Extension"):
- --------------- --------------------- ----- ------------- -------------------------- ------------------------------
Current Interest Requested Interest Requested Interest
Rate and Interest Amount to be Rate Period
Applicable Loan Period Date converted/ (Alternate Base Rate/LIBOR (one, two, three or six months
extended Rate) -- for LIBOR Rate only)
- --------------- --------------------- ----- ------------- -------------------------- ------------------------------
- --------------- --------------------- ----- -------------- ------------------------- ------------------------------
- --------------- --------------------- ----- ------------- -------------------------- ------------------------------
- --------------- --------------------- ----- ------------- -------------------------- ------------------------------
NOTE: PARTIAL CONVERSIONS THAT ARE (A) ALTERNATE BASE RATE LOANS
MUST BE IN A MINIMUM AGGREGATE AMOUNT OF $1,000,000 AND IN
INTEGRAL MULTIPLES OF $500,000 IN EXCESS THEREOF AND (B)
LIBOR RATE LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF
$5,000,000 AND IN INTEGRAL MULTIPLES OF $1,000,000 IN
EXCESS THEREOF.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
The undersigned hereby certifies that no Default or Event of Default
has occurred and is continuing or would result from such Proposed
Conversion/Extension or from the application of the proceeds thereof unless such
Default or Event of Default shall have been waived in accordance with the Credit
Agreement.
This Notice of Conversion/Extension may, upon execution, be delivered
by facsimile or electronic mail, which shall be deemed for all purposes to be an
original signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
CHAR1\989822v3
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CHAR1\989822v3
CHAR1\989822v3
EXHIBIT 1.1(g)
[FORM OF]
SECURITIES ACCOUNT CONTROL AGREEMENT
THIS SECURITIES ACCOUNT CONTROL AGREEMENT (as amended, modified,
extended, restated, replaced, or supplemented from time to time, this
"Agreement"), dated as of [Date], is entered into by and among [CREDIT PARTY
NAME] (the "Pledgor"), [SECURITIES INTERMEDIARY] (the "Intermediary") and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent for the benefit of
the Lenders party to the Credit Agreement described below (in such capacity, the
"Administrative Agent").
R E C I T A L S
WHEREAS, pursuant to that certain Credit Agreement, dated as of June 8,
2007, by and among Riviera Holdings Corporation, a Nevada corporation (the
"Borrower"), the certain Domestic Subsidiaries of the Borrower from time to time
party thereto (the "Guarantors"), the lenders and other financial institutions
from time to time party thereto (the "Lenders"), and the Administrative Agent
(as amended, modified, extended, restated, replaced, or supplemented from time
to time, the "Credit Agreement"), the Lenders have agreed to make loans and to
issue and/or acquire participation interests in letters of credit upon the terms
and subject to the conditions set forth therein;
WHEREAS, pursuant to that certain Security Agreement, dated as of June
8, 2007 (as amended, modified, extended, restated, replaced, or supplemented
from time to time, the "Security Agreement"), among the Borrower, the Guarantors
and the Administrative Agent, the Pledgor has granted a security interest to the
Administrative Agent, for the benefit of the Secured Parties, in all of its
right, title, interest and control in, to and over that certain securities
account number [_____________] maintained by the Pledgor with the Intermediary
and all Financial Assets contained in such account (collectively, the
"Account"), as well as all documents executed and delivered in connection
therewith, to secure its obligations under the Credit Agreement; and
WHEREAS, the parties hereto are entering into this Agreement to provide
the Administrative Agent with Control (as defined in the UCC referred to below)
of the Account and to perfect the security interests of the Administrative Agent
in the Account.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
A G R E E M E N T
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement. Further, the
following capitalized terms used herein shall have the meanings set forth in the
Uniform Commercial Code of the State of [New York] as in effect from time to
time (the "UCC"): Control, Entitlement Order and Financial Asset.
2. Account. The Intermediary hereby represents and warrants to the
Administrative Agent that (a) the Account has been established in the name of
the Pledgor as recited above, (b) subject to the terms of Section 4 below, the
Pledgor is entitled to control of the Account and to direct the Intermediary in
the management and distribution of the contents thereof and (c) except for the
claims and interest of the Administrative Agent and the Pledgor in the Account,
the Intermediary does not know of any claim to or interest in the Account. All
parties hereto agree that all property held by the Intermediary in the Account
will be treated as Financial Assets under Article 8 of the UCC.
3. Priority of Lien. The Intermediary hereby acknowledges the security
interests granted to the Administrative Agent, for the benefit of the Lenders,
by the Pledgor in the Account. The Intermediary hereby subordinates all liens,
encumbrances, claims and rights of setoff it may have against the Account or any
Financial Asset carried in the Account or any funds in the Account and agrees
that it will not enforce any lien, encumbrance, claim or right against the
Account or any funds or Financial Assets carried in the Account until this
Agreement has been terminated as provided herein; provided, however, that the
Intermediary may set off all reasonable amounts due and payable to the
Intermediary in respect of its ordinary course of business account fees
(including, without limitation, its ordinary transaction fees) and expenses for
the maintenance and operation of the Account. Without the prior written consent
of the Administrative Agent and the Pledgor, the Intermediary will not execute
and deliver, or otherwise become bound by, any agreement (i.e., a control
agreement) under which the Intermediary agrees with any third party that the
Intermediary will comply with any directions to transfer or redeem all or any
portion of the Financial Assets or funds in the Account originated by such third
party.
4. Control. The Intermediary will comply with Entitlement Orders or
instructions originated by the Administrative Agent concerning the Account
without further consent by the Pledgor or any other person (including, without
limitation, any request by the Administrative Agent to pay over to the
Administrative Agent the entire amount and any other Financial Assets in the
Account to the Administrative Agent notwithstanding any objection raised by the
Pledgor). The Pledgor agrees to indemnify the Intermediary and hold the
Intermediary harmless from any claim or liability it may incur by having acted
in accordance with a Notice (as defined below) or instructions given by the
Administrative Agent pursuant to an Entitlement Order, except to the extent that
such claims or liabilities arise from the Intermediary's gross negligence or
willful misconduct. The Intermediary and the Pledgor agree that, notwithstanding
any agreement, written or otherwise, to the contrary, upon receipt of written
notice by the Intermediary from the Administrative Agent in the form attached
hereto as Exhibit A (a "Notice") of the occurrence and continuation of an Event
of Default under the terms of the Credit Agreement, (a) the Intermediary shall
neither accept nor comply with any Entitlement Order or instructions from the
Pledgor withdrawing or redeeming any assets from the Account nor deliver any
such assets to the Pledgor nor pay any free funds or other amount owing from the
Intermediary to the Pledgor with respect to the Account without the specific
prior written consent of the Administrative Agent and (b) the Intermediary shall
thereafter comply with any Entitlement Order or instructions from the
Administrative Agent directing disposition of the Financial Assets or funds in
the Account without further consent of the Pledgor or any other person. The
Administrative Agent agrees that until the Intermediary receives a Notice, such
Intermediary may comply with any Entitlement Order or instructions from the
Pledgor with respect to the Account without receiving the consent of the
Administrative Agent. Furthermore, the Intermediary agrees to note the
Administrative Agent's security interests in the Account on its books and
records.
5. Statements, Confirmations and Notices of Adverse Claims. Upon
receipt of written notice of any lien, encumbrance or adverse claim against the
Account or against any Financial Asset or funds carried therein (other than any
lien in favor of the Administrative Agent), the Intermediary will promptly
notify the Administrative Agent and the Pledgor thereof in writing at the
addresses set forth on Schedule A attached hereto.
6. Limited Responsibility of the Intermediary. The Intermediary shall
have no responsibility or liability to the Administrative Agent with respect to
the value of the Account or any asset held therein or any responsibility to
limit, restrict or otherwise monitor the withdrawal of assets from the Account
by the Pledgor unless and until a Notice has been received by the Intermediary
in the manner specified herein. The Intermediary shall have no duty to
investigate or make any determination as to whether a default or an event of
default exists under any agreement between the Pledgor and the Administrative
Agent. This Agreement does not create any obligation or duty of the Intermediary
other than those expressly set forth herein. The Intermediary may rely on
notices and communications which do not conflict with the terms hereof that it
reasonably believes are given by the appropriate party.
7. Conflict. The Account shall be governed by the account agreement
between the Pledgor and the Intermediary. In the event of a conflict between
this Agreement and such account agreement or any other agreement between the
Intermediary and the Pledgor, the terms of this Agreement shall prevail.
Regardless of any provision in any such other agreement relating to the law
governing the Account, the parties hereto agree that the establishment and
maintenance of the Account, and all interests, duties and obligations with
respect thereto, shall be governed by the law of the State of [New York].
8. Termination. The rights and powers granted herein to the
Administrative Agent (a) have been granted in order to perfect the
Administrative Agent's security interests in the Account, (b) are powers coupled
with an interest and (c) will neither be affected by the bankruptcy of the
Pledgor nor by the lapse of time. The obligations of the Intermediary hereunder
shall continue in effect until (i) the Administrative Agent has notified the
Intermediary in writing that this Agreement is to be terminated or (ii) the
Intermediary provides the Administrative Agent with sixty (60) days prior
written notice that this Agreement is to be terminated.
9. Entire Agreement. This Agreement, any schedules or exhibits hereto
and the instructions and notices required or permitted to be executed and
delivered hereunder set forth the entire agreement of the parties with respect
to the subject matter hereof.
10. Amendments. No amendment, modification or, except as otherwise
specified in Section 8 above, termination of this Agreement, nor any assignment
of any rights hereunder, shall be binding on any party hereto unless it is in
writing and is signed by each of the parties hereto, and any attempt to so
amend, modify, terminate or assign except pursuant to such a writing shall be
null and void. No waiver of any rights hereunder shall be binding on any party
hereto unless such waiver is in writing and signed by the party against whom
enforcement is sought.
11. Severability. If any term or provision set forth in this Agreement
shall be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances, other than
those to which it is held invalid or unenforceable, shall be construed in all
respects as if such invalid or unenforceable term or provision were omitted.
12. Notices. Any notice, request or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to
have been properly given (a) when delivered, (b) when transmitted via telecopy
(or other facsimile device) to the number set forth on Schedule A hereto, (c)
the Business Day following the day on which the same has been delivered prepaid
(or subject to an invoice arrangement) to a reputable national overnight air
courier service, or (d) the third Business Day following the day on which the
same is sent by certified or registered mail, postage prepaid, in each case to
the respective parties at the address or telecopy numbers set forth on Schedule
A attached hereto, or at such other address as such party may specify by written
notice to the other parties hereto. For the purposes of this Agreement, the term
"Business Day" shall mean any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required by law
or other governmental action to close in [New York, New York] [or] [Charlotte,
North Carolina].
13. Counterparts. This Agreement may be executed (a) in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute one contract and (b) by facsimile signature,
which shall be deemed for all purposes to be an original signature.
14. Governing Law. This Agreement, and the rights and obligations of
the parties hereto, shall be governed by and construed in accordance with the
laws of the State of [New York]. Regardless of any provision in any other
agreement, for purposes of the UCC, [New York] shall be the Intermediary's
jurisdiction for purposes of Section 8-110 of the UCC.
15. Consent to Jurisdiction. All judicial proceedings brought against
any party hereto with respect to this Agreement may be brought in any state or
federal court of competent jurisdiction in the State of [New York], and, by
execution and delivery of this Agreement, each of the parties hereto accepts,
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to
be bound by any final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is available.
16. Waiver of Jury Trial and Consequential Damages. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN. Each of the parties hereto agrees
not to assert any claim against any other party to this Agreement or any their
respective directors, officers, employees, attorneys, Affiliates or agents, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to any of the transactions
contemplated herein.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
CONTROL AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized officer of each of the parties set forth below.
PLEDGOR: [CREDIT PARTY NAME]
- -------
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
CHAR1\989822v3
ADMINISTRATIVE
AGENT: WACHOVIA BANK, NATIONAL ASSOCIATION,
- -----
as Administrative Agent
By:
--------------------------------------------------
Name:
--------------------------------------------
Title:
-----------------------------------------------
INTERMEDIARY: [INTERMEDIARY]
- ------------
By:
--------------------------------------------------
Name:
--------------------------------------------
Title:
-----------------------------------------------
SCHEDULE A
Notices
Pledgor
[Credit Party Name]
[ -----------------------
Attn:
-------------------------------
Telephone:
--------------------------
Telecopy: ]
--------------------------- -
[TO BE COMPLETED BY BORROWER]
Administrative Agent
Wachovia Bank, National Association, as Administrative Agent
Charlotte Plaza
201 South College Street, CP-23
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Telephone: (704) 374-2698
Facsimile: (704) 383-0288
Intermediary
[Intermediary]
[
Attn:
-------------------------------
Telephone:
--------------------------
Telecopy: ]
---------------------------
[TO BE COMPLETED BY INTERMEDIARY]
CHAR1\989822v3
CHAR1\989822v3
EXHIBIT A
Form of Notice
[Date]
[Intermediary]
Attn:
-------------------------------
[TO BE COMPLETED BY INTERMEDIARY]
Re: Notice of Event of Default
Ladies and Gentlemen:
As referenced in the Account Control Agreement, dated as of [Month]
[Day], [Year], among [Credit Party Name], as Pledgor, Wachovia Bank, National
Association, as Administrative Agent, and [Intermediary], a copy of which is
attached (as amended, modified, extended, restated, replaced, or supplemented
from time to time, the "Control Agreement"; all terms used but not defined
herein shall have the meanings ascribed to such terms in the Control Agreement),
we hereby give you notice of the occurrence and continuation of an Event of
Default under the terms of the Credit Agreement. You are hereby instructed not
to accept or comply with any direction, instructions or Entitlement Orders from
the Pledgor with respect to the Account without our specific prior written
consent. In addition, pursuant to the terms of the Control Agreement, hereafter
you shall comply with any Entitlement Orders or instructions from the
Administrative Agent directing disposition of the Financial Assets or funds in
the Account without further consent of the Pledgor.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
--------------------------------------------------
Name:
--------------------------------------------
Title:
-----------------------------------------------
EXHIBIT 2.1(a)
[FORM OF]
FUNDING INDEMNITY LETTER
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
- ------------------------------------------------------------------------------
This letter is delivered in anticipation of the closing of the
above-referenced Credit Agreement. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in the most recent
draft of the Credit Agreement circulated to the Borrower and the Lenders.
The Borrower anticipates that all conditions precedent to the
effectiveness of the Credit Agreement will be satisfied on [Date] (the
"Effective Date"). The Borrower wishes to borrow the [initial Revolving Loans
and the Term Loan], described in the Notice of Borrowing delivered in connection
with this letter agreement, on the Effective Date as LIBOR Rate Loans (the
"Effective Date LIBOR Rate Loans"). In order to induce the Lenders to accept
this request prior to the Effective Date, the Borrower hereby agrees, upon the
written demand of any Lender, to compensate each such Lender for and hold each
such Lender harmless from any loss, cost or expense such Lender may sustain from
any failure by the Borrower to borrow the Effective Date LIBOR Rate Loans on the
Effective Date, whether as a result of the failure of the Credit Agreement to
become effective on the Effective Date or otherwise, including, without
limitation, any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired to
fund the Effective Date LIBOR Rate Loans.
The amount of such loss or expense shall be determined, in the
applicable Lender's sole discretion, using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrower through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this letter agreement, each Lender may deem that it funded each
LIBOR Rate Loan made by it at the LIBOR Rate for such LIBOR Rate Loan by a
matching deposit or other borrowing in the applicable offshore Dollar interbank
market for a comparable amount and for a comparable period, whether or not such
LIBOR Rate Loan was in fact so funded.
This letter agreement shall be governed by, and shall be construed and
enforced in accordance with the laws of the State of New York. This letter may
(a) be executed in any number of counterparts by the different signatories
hereto on separate counterparts, each of which counterparts when executed and
delivered shall be an original, but all of which together shall constitute one
and the same letter and (b) upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT 2.1(e)
[FORM OF]
REVOLVING NOTE
[Date]
FOR VALUE RECEIVED, the undersigned, RIVIERA HOLDINGS CORPORATION, a
Nevada corporation (the "Borrower") hereby unconditionally promises to pay, on
the Revolver Maturity Date (as defined in the Credit Agreement referred to
below), to [___________] or its registered assigns (the "Lender"), at the office
of Wachovia Bank, National Association, located at Charlotte Plaza, 201 South
College Street, CP-8, Charlotte, North Carolina 28288-0680, in lawful money of
the United States of America and in immediately available funds, the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
undersigned pursuant to Section 2.1 of the Credit Agreement referred to below.
The undersigned further agrees to pay interest in like money at such office on
the unpaid principal amount hereof and, to the extent permitted by law, accrued
interest in respect hereof from time to time from the date hereof until payment
in full of the principal amount hereof and accrued interest hereon, at the rates
and on the dates set forth in the Credit Agreement.
The holder of this Revolving Note is authorized to endorse the date and
amount of each Revolving Loan made pursuant to Section 2.1 of the Credit
Agreement and each payment of principal and interest with respect thereto and
its character as a LIBOR Rate Loan or an Alternate Base Rate Loan on Schedule A
annexed hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, which endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed (absent error);
provided, however, that the failure to make any such endorsement shall not
affect the obligations of the undersigned under this Revolving Note.
This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement, dated as of June 8, 2007 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the "Credit Agreement"),
by and among the Borrower, the certain Domestic Subsidiaries of the Borrower
from time to time party thereto (collectively the "Guarantors"), the lenders and
other financial institutions from time to time party thereto (the "Lenders") and
Wachovia Bank, National Association, as administrative agent for the Lenders
(the "Administrative Agent"), and the holder is entitled to the benefits
thereof. Capitalized terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Revolving Note shall become, or may be declared to be, immediately due and
payable, all as provided therein. In the event this Revolving Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to principal and interest, all costs of collection, including
reasonable attorneys' fees.
All parties now and hereafter liable with respect to this Revolving
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
This Revolving Note may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Schedule A
Loans and Payments of Principal
Principal
Amount Type Paid
of of Interest Interest Maturity or Principal Notation
Date Loan Loan(1) Rate Period Date Converted Balance Made By
---- ---- ---- ----- ------ ----- --------- ------- -------
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EXHIBIT 2.2(d)
[FORM OF]
TERM LOAN NOTE
[Date]
FOR VALUE RECEIVED, the undersigned, RIVIERA HOLDINGS CORPORATION, a
Nevada corporation (the "Borrower") hereby unconditionally promises to pay, on
the Term Loan Maturity Date (as defined in the Credit Agreement referred to
below), to [_____________]or its registered assigns (the "Lender") at the office
of Wachovia Bank, National Association, located at Charlotte Plaza, 201 South
College Street, CP-8, Charlotte, North Carolina 28288-0680, in lawful money of
the United States of America and in immediately available funds, the aggregate
unpaid principal amount of the Term Loan made by the Lender to the undersigned
pursuant to Section 2.2 of the Credit Agreement referred to below. The
undersigned further agrees to pay interest in like money at such office on the
unpaid principal amount hereof and, to the extent permitted by law, accrued
interest in respect hereof from time to time from the date hereof until payment
in full of the principal amount hereof and accrued interest hereon, at the rates
and on the dates set forth in the Credit Agreement.
The holder of this Term Loan Note is authorized to endorse the date and
amount of each payment of principal and interest with respect to the Term Loan
evidenced by this Term Loan Note and the portion thereof that constitutes a
LIBOR Rate Loan or an Alternate Base Rate Loan on Schedule A annexed hereto and
made a part hereof, or on a continuation thereof which shall be attached hereto
and made a part hereof, which endorsement shall constitute prima facie evidence
of the accuracy of the information endorsed (absent error); provided, however,
that the failure to make any such endorsement shall not affect the obligations
of the undersigned under this Term Loan Note.
This Term Loan Note is one of the Term Loan Notes referred to in the
Credit Agreement, dated as of June 8, 2007 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the "Credit Agreement"),
by and among the Borrower, the certain Domestic Subsidiaries of the Borrower
from time to time party thereto (collectively the "Guarantors"), the lenders and
other financial institutions from time to time party thereto (the "Lenders") and
Wachovia Bank, National Association, as administrative agent for the Lenders
(the "Administrative Agent"), and the holder is entitled to the benefits
thereof. Capitalized terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Term Loan Note shall become, or may be declared to be, immediately due and
payable, all as provided therein. In the event this Term Loan Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to principal and interest, all costs of collection, including
reasonable attorneys' fees.
All parties now and hereafter liable with respect to this Term Loan
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
This Term Loan Note may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
THIS TERM LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Schedule A
LOANS AND PAYMENTS OF PRINCIPAL
Principal
Amount Type Paid
of of Interest Interest Maturity or Principal Notation
Date Loan Loan(1) Rate Period Date Converted Balance Made By
---- ---- ---- ----- ------ ----- --------- ------- -------
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EXHIBIT 2.4(d)
[FORM OF]
SWINGLINE NOTE
[Date]
FOR VALUE RECEIVED, the undersigned, RIVIERA HOLDINGS CORPORATION, a
Nevada corporation (the "Borrower"), hereby unconditionally promises to pay on
the Revolver Maturity Date (as defined in the Credit Agreement referred to
below), to the order of [_____] (the "Swingline Lender") at the office of
Wachovia Bank, National Association, located at Charlotte Plaza, 201 South
College Street, CP-8, Charlotte, North Carolina 28288-0680, in lawful money of
the United States of America and in immediately available funds, the aggregate
unpaid principal amount of all Swingline Loans made by the Swingline Lender to
the undersigned pursuant to Section 2.4 of the Credit Agreement referred to
below. The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof and, to the extent permitted by
law, accrued interest in respect hereof from time to time from the date hereof
until payment in full of the principal amount hereof and accrued interest
hereon, at the rates and on the dates set forth in the Credit Agreement.
The holder of this Swingline Note is authorized to endorse the date and
amount of each Swingline Loan pursuant to Section 2.4 of the Credit Agreement
and each payment of principal and interest with respect thereto and its
character as an Alternate Base Rate Loan or otherwise on Schedule A annexed
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, which endorsement shall constitute prima
facie evidence of the accuracy of the information endorsed (absent error);
provided, however, that the failure to make any such endorsement shall not
affect the obligations of the undersigned under this Swingline Note.
This Swingline Note is the Swingline Note referred to in the Credit
Agreement, dated as of June 8, 2007 (as amended, modified, extended, restated,
replaced, or supplemented from time to time, the "Credit Agreement"), by and
among the Borrower, the certain Domestic Subsidiaries of the Borrower from time
to time party thereto (collectively the "Guarantors"), the lenders and other
financial institutions from time to time party thereto (the "Lenders") and
Wachovia Bank, National Association, as administrative agent for the Lenders
(the "Administrative Agent"), and the holder is entitled to the benefits
thereof. Capitalized terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Swingline Note shall become, or may be declared to be, immediately due and
payable, all as provided therein. In the event this Swingline Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to principal and interest, all costs of collection, including
reasonable attorneys' fees.
All parties now and hereafter liable with respect to this Swingline
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
This Swingline may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CHAR1\989822v3
Schedule A
Loans and Payments of Principal
Principal
Amount Type Paid
of of Interest Interest Maturity or Principal Notation
Date Loan Loan(1) Rate Period Date Converted Balance Made By
---- ---- ---- ----- ------ ----- --------- ------- -------
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EXHIBIT 4.1(a)
[FORM OF]
LENDER CONSENT
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE: [Date]
- -------------------------------------------------------------------------------
This Consent is given pursuant to the Credit Agreement referenced
above. The undersigned hereby (i) approves the Credit Agreement, (ii) authorizes
and appoints the Administrative Agent as its agent in accordance with the terms
of Article VIII of the Credit Agreement and (iii) authorizes the Administrative
Agent to execute and deliver the Credit Agreement on its behalf and, by its
execution below, the undersigned agrees to be bound as a Lender by the terms and
conditions of the Credit Agreement as if the undersigned had directly executed
and delivered a signature page to the Credit Agreement. By becoming a Lender
under the Credit Agreement pursuant to this Consent, the undersigned agrees to
make Extensions of Credit to the Borrower up to the amount of its Commitments in
accordance with the terms of the Credit Agreement. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Credit
Agreement.
Delivery of this Consent by telecopy shall be effective as an original.
A duly authorized officer of the undersigned has executed this Consent
as of the ___ day of _____, _____.
------------------------------,
as a Lender
By: ______________________________
Name: ______________________________
Title: ______________________________
EXHIBIT 4.1(b)
[FORM OF]
OFFICER'S CERTIFICATE
[CREDIT PARTY]
Pursuant to Section 4.1(b) of the Credit Agreement, dated as of June 8,
2007 (as amended, modified, extended, restated, replaced, or supplemented from
time to time, the "Credit Agreement"; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement), by
and among Riviera Holdings Corporation, a Nevada corporation (the "Borrower"),
the certain Domestic Subsidiaries of the Borrower from time to time party
thereto (collectively the "Guarantors"), the lenders and other financial
institutions from time to time party thereto (the "Lenders") and Wachovia Bank,
National Association, as administrative agent for the Lenders (the
"Administrative Agent"), the undersigned [____________] of [CREDIT PARTY] (the
"Company") hereby certifies as follows:
1. Attached hereto as Exhibit A is a true and complete copy of the
[articles of incorporation] [certificate of formation] [certificate of limited
partnership] of the Company and all amendments thereto as in effect on the date
hereof certified as a recent date by the appropriate Governmental Authorities of
the state of [incorporation] [organization] of the Company.
2. Attached hereto as Exhibit B is a true and complete copy of the
[bylaws] [operating agreement] [partnership agreement] of the Company and all
amendments thereto as in effect on the date hereof.
3. Attached hereto as Exhibit C is a true and complete copy of
resolutions duly adopted by the [board of directors] [members] [managers]
[partners] of the Company on ___________ ____. Such resolutions have not in any
way been rescinded or modified and have been in full force and effect since
their adoption to and including the date hereof, and such resolutions are the
only corporate proceedings of the Company now in force relating to or affecting
the matters referred to therein.
4. Attached hereto as Exhibit D is a true and complete copy of the
certificates of good standing, existence or its equivalent of the Company
certified as a recent date by the appropriate Governmental Authorities of the
state of [incorporation] [organization] of the Company and each other state in
which the failure to so qualify and be in good standing could reasonably be
expected to have a Material Adverse Effect.
5. The following persons are the duly elected and qualified officers of
the Company, holding the offices indicated next to the names below on the date
hereof, and the signatures appearing opposite the names of the officers below
are their true and genuine signatures, and each of such officers is duly
authorized to execute and deliver on behalf of the Company, the Credit
Agreement, the Notes and the other Credit Documents to be issued pursuant
thereto:
- ----------- ----------- ---------------------------------------------------
Name Office Signature
- ----------- ----------- ---------------------------------------------------
- ----------- ----------- ---------------------------------------------------
- ----------- ----------- ---------------------------------------------------
- ----------- ----------- ---------------------------------------------------
- ---------------------------------
This Certificate may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, I hereunder subscribe my name effective as of
the ____ day of ________, ____.
Name:
---------------------------------------
Title:
--------------------------------------
I, _______________________, the _______________________ of the Company,
hereby certify that ____________________ is the duly elected and qualified
_______________________ of the Company and that his/her true and genuine
signature is set forth above.
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT 4.1(d)
[FORM OF]
LANDLORD WAIVER
Drawn by and return to:
Moore & Van Allen, PLLC
Suite 4700
100 North Tryon Street
Charlotte, North Carolina 28202-4003
THIS LANDLORD LIEN WAIVER AGREEMENT (this "Agreement") is entered as of
this [____] day of [___________, 20__] by and between [______________________],
a [_________________] ("Landlord"), the owner of certain real property,
buildings and improvements located in [_______________], and Wachovia Bank,
National Association, in its capacity as administrative agent (the
"Administrative Agent") for itself and the other lenders (the "Lenders")
providing certain credit facilities pursuant to (i) that certain Credit
Agreement, dated on or about June 8, 2007 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the "Credit Agreement";
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Credit Agreement) by and among Riviera Holdings Corporation, a
Nevada corporation (the "Borrower"), certain domestic subsidiaries of the
Borrower from time to time party thereto (the "Guarantors" and together with the
Borrower, the "Credit Parties"), the lenders and other financial institutions
from time to time party thereto, and the Administrative Agent.
Recitals:
A. The Lenders have agreed to provide the Borrower with credit
facilities (the "Credit Facilities") under the terms and conditions of the
Credit Agreement, which credit facilities are guaranteed by the Guarantors. The
Credit Parties have secured the repayment of the Credit Facilities and any
Secured Hedging Agreement (as defined in the Credit Agreement) inter alia by
granting the Administrative Agent, for the ratable benefit of the Lenders and
any Hedging Agreement Provider (as defined in the Credit Agreement), a security
interest in all of the Credit Parties' personal property, whether now owned or
hereafter acquired, including all proceeds of any of the foregoing
(collectively, the "Collateral").
B. Whereas Landlord is the lessor under the lease described in Exhibit
A attached hereto (the "Lease") with [_________________] (the "Tenant") as
lessee pursuant to which Landlord has leased certain premises to Tenant located
at [____________________] (the "Premises").
C. As a condition to extending the Credit Facilities, the Lenders and
the Administrative Agent have requested that the Credit Parties obtain, and
cause the Landlord to provide, a waiver and subordination, pursuant to the terms
of this Agreement, of all of its rights against any of the Collateral for so
long as the Credit Facilities and the commitments to make the Credit Facilities
remain outstanding.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
benefits accruing to the Administrative Agent and Landlord as a result of the
credit facilities provided by the Lenders pursuant to the Credit Agreement, the
sufficiency and receipt of such consideration being hereby acknowledged, the
parties hereto agree as follows:
1. Landlord hereby subordinates in favor of the Administrative Agent,
each and every party now or hereafter participating as a Lender under the Credit
Agreement and each Hedging Agreement Provider, any and all rights or interests
that Landlord, or its successors and assigns, may now or hereafter have in or to
the Collateral, including, without limitation, any lien, claim, charge or
encumbrance of any kind or nature, arising by statute, contract, common law or
otherwise.
2. Landlord hereby agrees that the liens and security interests
existing in favor of the Administrative Agent, for the ratable benefit of each
and every party now or hereafter participating as a Lender under the Credit
Agreement and each Hedging Agreement Provider, shall be prior and superior to
(i) any and all rights of distraint, levy, and execution which Landlord may now
or hereafter have against the Collateral, (ii) any and all liens and security
interests which Landlord may now or hereafter have on and in the Collateral, and
(iii) any and all other rights, demands and claims of every nature whatsoever
which Landlord may now or hereafter have on or against the Collateral for any
reason whatsoever, including, without limitation, rent, storage charge, or
similar expense, cost or sum due or to become due Landlord by Tenant under the
provisions of any lease, storage agreement or otherwise, and Landlord hereby
subordinates all of its foregoing rights and interests in the Collateral to the
security interest of the Administrative Agent in the Collateral. Landlord deems
the Collateral to be personal property, not fixtures.
3. Upon the advance written notice from the Administrative Agent that
an event of default has occurred and is continuing under the Credit Agreement,
Landlord agrees that the Administrative Agent or its delegates or assigns may
enter upon the Premises at any time or times, during normal business hours, to
inspect or remove the Collateral, or any part thereof, from the Premises,
without charge, either prior to or subsequent to the termination of the Lease,
provided that in any event such removal shall occur no later than forty-five
(45) days after the termination of the Lease. The Administrative Agent shall
repair or pay reasonable compensation to Landlord for damage, if any, to the
Premises caused by the removal of the Collateral. In addition to the above
removal rights, the Landlord will permit the Administrative Agent to remain on
the Premises for forty-five (45) days after the Administrative Agent gives the
Landlord notice of its intention to do so and to take such action as the
Administrative Agent deems necessary or appropriate in order to liquidate the
Collateral, provided that the Administrative Agent shall pay to the Landlord the
basic rent due under the Lease pro-rated on a per diem basis determined on a
30-day month (provided, that such rent shall exclude any rent adjustments,
indemnity payments or similar amounts payable under the Lease for default,
holdover status or similar charges).
4. Landlord represents and warrants: (a) that it has not assigned its
claims for payment, if any, nor its right to perfect or assert a lien of any
kind whatsoever against Tenant's Collateral; (b) that it has the right, power
and authority to execute this Agreement; (c) that it holds legal title to the
Premises; (d) that it is not aware of any breach or default by the Tenant of its
obligations under the Lease with respect to the Premises; and (e) the Lease,
together with all assignments, modifications, supplementations and amendments
set forth in Exhibit A, represents, as of the date hereof, the entire agreement
between the parties with respect to the lease of the Premises. Landlord further
agrees to provide the Administrative Agent with prompt written notice in the
event that Landlord sells the Premises or any portion thereof.
5. The Landlord shall send to the Administrative Agent (in the manner
provided herein) a copy of any notice or statement sent to the Tenant by the
Landlord asserting a default under the Lease. Such copy shall be sent to the
Administrative Agent at the same time such notice or statement is sent to the
Tenant. Notices shall be sent to the Administrative Agent by prepaid, registered
or certified mail, addressed to the Administrative Agent at the following
address, or such other address as the Administrative Agent shall designate to
the Landlord in writing:
Wachovia Bank, National Association, as Administrative Agent
201 South College Street, CP8
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
6. The Landlord shall not terminate the Lease or pursue any other right
or remedy under the Lease by reason of any default of the Tenant under the
Lease, until the Landlord shall have given a copy of such written notice to the
Administrative Agent as provided above and, in the event any such default is not
cured by the Tenant within any time period provided for under the terms and
conditions of the Lease, the Landlord will allow the Administrative Agent (a)
thirty (30) days from the expiration of the Tenant's cure period under the Lease
within which the Administrative Agent shall have the right, but shall not be
obligated, to remedy such act, omission or other default and Landlord will
accept such performance by the Administrative Agent and (b) up to an additional
sixty (60) days to occupy the Premises; provided that during such period of
occupation the Administrative Agent shall pay to the Landlord the basic rent due
under the Lease pro-rated on a per diem basis determined on a thirty (30) day
month (provided that such rent shall exclude any rent adjustments, indemnity
payments or similar amounts payable under the Lease for default, holdover or
similar charge).
7. The undersigned will notify all successor owners, transferees,
purchasers and mortgagees of the Premises of the existence of this Agreement.
The agreements contained herein may not be modified or terminated orally and
shall be binding upon the successors, assigns and personal representatives of
the undersigned, upon any successor owner or transferee of the Premises, and
upon any purchasers, including any mortgagee, from the undersigned.
8. This Agreement shall continue in effect during the term of the
Credit Agreement, and any extensions, renewals or modifications thereof and any
substitutions therefor, shall be binding upon the successors, assigns and
transferees of Landlord, and shall inure to the benefit of the transferees of
Landlord, and shall inure to the benefit of the Administrative Agent, each
Lender, each Hedging Agreement Provider and their respective successors and
assigns. Landlord hereby waives notice of the Administrative Agent's acceptance
of and reliance on this Agreement.
9. This Agreement (a) may be executed and delivered in any number of
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement and (b) may, upon execution, be
delivered by facsimile or electronic mail, which shall be deemed for all
purposes to be an original signature.
10. This Agreement shall be governed by, and construed and interpreted
in accordance with, the law of the state of New York. All judicial proceedings
brought by the Landlord, the Administrative Agent or the Tenant with respect to
this Agreement may be brought in any state or federal court of competent
jurisdiction in the State of New York, and, by execution and delivery of this
Agreement, each of the Landlord, Administrative Agent and the Tenant accepts,
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to
be bound by any final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is available.
11. This Agreement represents the agreement of the Landlord,
Administrative Agent and the Tenant with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Landlord, Administrative Agent and the Tenant relative to the subject matter
hereof not expressly set forth or referred to herein.
12. This Agreement may not be amended, modified or waived except by a
written amendment or instrument signed by each of the Landlord, the
Administrative Agent and the Tenant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Landlord and the Administrative Agent have each
caused this Agreement to be duly executed by their respective authorized
representatives as of the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent
for the Lenders
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[LANDLORD]____________________________,
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Acknowledged and Agreed:
________________________________, as Tenant
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Exhibit A
Lease
EXHIBIT 4.1(g)
[FORM OF]
SOLVENCY CERTIFICATE
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
- -------------------------------------------------------------------------------
The undersigned [chief financial officer] of Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), is familiar with the
properties, businesses, assets and liabilities of the Credit Parties and is duly
authorized to execute this certificate on behalf of the Borrower and the Credit
Parties.
The undersigned certifies that he has made such investigation and
inquiries as to the financial condition of the Credit Parties as the undersigned
deems necessary and prudent for the purpose of providing this Certificate. The
undersigned acknowledges that the Administrative Agent and the Lenders are
relying on the truth and accuracy of this Certificate in connection with the
making of Loans and other Extensions of Credit under the Credit Agreement.
The undersigned certifies that the financial information, projections
and assumptions 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.
BASED ON THE FOREGOING, the undersigned certifies that, both before and
after giving effect to the Transactions:
(a) Each of the Credit Parties is solvent and is able to pay
its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business.
(b) The fair saleable value of each Credit Party's assets,
measured on a going concern basis, exceeds all probable liabilities,
including those to be incurred pursuant to the Credit Agreement.
(c) None of the Credit Parties has unreasonably small capital
in relation to the business in which it is or proposed to be engaged.
(d) None of the Credit Parties has incurred, or believes that
it will incur debts beyond its ability to pay such debts as they become
due.
(e) In executing the Credit Documents and consummating the
Transactions, none of the Credit Parties intends to hinder, delay or
defraud either present or future creditors or other Persons to which
one or more of the Credit Parties is or will become indebted.
This Certificate may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT 4.1(p)
[FORM OF]
FINANCIAL CONDITION CERTIFICATE
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
- -------------------------------------------------------------------------------
Pursuant to the terms of Section 4.1 of the Credit Agreement, I, [ , ]
of the Borrower, hereby certify on behalf of the Credit Parties and not in my
individual capacity that, as of the date hereof, the statements below are
accurate and complete in all respects:
(a) There does not exist any pending or ongoing, action, suit,
investigation, litigation or proceeding in any court or before any
other Governmental Authority (i) affecting the Credit Agreement or the
other Credit Documents, that has not been settled, dismissed, vacated,
discharged or terminated prior to the Closing Date or (ii) that
purports to affect any Credit Party or any of its Subsidiaries, or any
transaction contemplated by the Credit Documents, which action, suit,
investigation, litigation or proceeding could reasonably be expected to
have a certain Adverse Effect, that has not been settled, dismissed,
vacated, discharged or terminated prior to the Closing Date.
(b) Immediately after giving effect to the Credit Agreement,
the other Credit Documents and all Transactions contemplated to occur
on the Closing Date, (i) no Default or Event of Default exists, (ii)
all representations and warranties contained in the Credit Agreement
and in the other Credit Documents are true and correct, and (iii) the
Credit Parties are in pro forma compliance with each of the initial
financial covenants set forth in Section 5.9 of the Credit Agreement
notwithstanding whether the Consolidated Leverage Ratio is required to
be calculated pursuant to Section 5.9, as demonstrated by the financial
covenant calculations set forth on Schedule A attached hereto, as of
the most recent fiscal quarter ended prior to the Closing Date.
(c) Immediately after giving effect to the Credit Agreement,
the other Credit Documents and all Transactions contemplated to occur
on the Closing Date, each of the conditions precedent in Section 4.1
have been satisfied, including, without limitation:
(i) Except for the Pledge Approval, the Colorado
Gaming Notice and any Approvals of the Gaming Authorities or
any other Governmental Authorities that the Administrative
Agent or any Lender, Secured Party or Participant is required
to obtain under the Gaming Laws or other Requirements of Law
in order to exercise their respective rights and remedies
under the Credit Documents (i) all boards of directors,
governmental, shareholder and material third party consents
and approvals necessary in connection with the Transactions
have been obtained and all applicable waiting periods have
expired without any action being taken by any authority that
could restrain, prevent or impose any material adverse
conditions on such transactions or that could seek or threaten
any of the foregoing, and (ii) the Borrower and the Guarantors
have made all necessary registrations with, obtained all
necessary consents or approvals of, given all necessary
notices to, and taken all other necessary actions required by,
each applicable Gaming Authority relative to the execution,
delivery and performance of the Credit Documents by the
Borrower and the Guarantors.
(ii) The Borrower has given notice of the
Transactions to the Colorado Gaming Authorities prior to the
Closing Date.
(iii) There is no bankruptcy or insolvency
proceedings pending with respect to any Credit Party or any
Subsidiary thereof.
(iv) All of the existing Indebtedness for borrowed
money of the Credit Parties and their Subsidiaries (excluding
Indebtedness permitted to exist pursuant to Section 6.1of the
Credit Agreement) has been repaid in full and all security
interests related thereto have been terminated on or prior to
the Closing Date (or in the case of the redemption of the
Senior Notes, the Borrower has deposited with the Trustee an
amount sufficient to redeem the Senior Notes so that the
Senior Indenture shall be satisfied and discharged as of the
Closing Date and all security interests related thereto have
been terminated on or prior to the Closing Date).
(v) Since December 31, 2006, there has been no
material adverse change in the business, properties,
prospects, operations or condition (financial or otherwise) of
the Borrower or any of its Subsidiaries.
(vi) Attached hereto, as Exhibit A, are true and
complete copies of all Material Contracts, together with all
exhibits and schedules.
(vii) The Borrower has received Ratings from S&P and
Moody's.
(viii) The Consolidated Leverage Ratio is no greater
than 5.65 to 1.0 after giving effect to the initial borrowings
under the Credit Agreement and the consummation of the
Transactions for the twelve month period through the last day
of the quarter ending immediately prior to the Closing Date,
as demonstrated by the financial covenant calculations set
forth on Schedule A attached hereto.
(ix) (A) Attached hereto, as Exhibit B, are copies of
the most recent Gaming Authority gaming audit reports of each
of the Facility's operations, (B) all Casino Licenses and
other material licenses are in full force and effect as of the
Closing Date and (C) the Credit Parties are in good standing
with all applicable Gaming Authorities.
This Financial Condition Certificate may, upon execution, be delivered
by facsimile or electronic mail, which shall be deemed for all purposes to be an
original signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Schedule A
Financial Covenant Calculations
[TO BE COMPLETED BY BORROWER]
Exhibit A
Material Contracts
[TO BE COMPLETED BY BORROWER]
[See attached.]
Exhibit B
Gaming Authority Documents
[TO BE COMPLETED BY BORROWER]
[See attached.]
EXHIBIT 4.1(q)
[FORM OF]
PATRIOT ACT CERTIFICATE
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
I, [_______________], hereby certify that I am the duly elected,
qualified and acting [_______________] of the Borrower and am authorized to
execute this certificate on behalf of the Credit Parties.
I hereby certify on behalf of the Credit Parties that attached hereto
on Schedule A is true and complete information, as requested by the
Administrative Agent, on behalf of the Lenders, for compliance with The Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into
law October 26, 2001)), as amended or modified from time to time. (the "Patriot
Act"), including, without limitation, the legal name and address of the Borrower
and the other Credit Parties and other information that will allow the
Administrative Agent or any Lender, as applicable, to identify the Borrower and
the Credit Parties in accordance with the Patriot Act.
This Patriot Act Certificate may, upon execution, be delivered by
facsimile or electronic mail, which shall be deemed for all purposes to be an
original signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Schedule A
- ------------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Legal Name of the Borrower:
- ------------------------------------------------------------------------------
State of Organization:
- ------------------------------------------------------------------------------
Type of Organization:
- ------------------------------------------------------------------------------
Address of Chief Executive Office:
- ------------------------------------------------------------------------------
Address of Principal Place of Business:
- ------------------------------------------------------------------------------
Organizational Identification Number:(1)
- ------------------------------------------------------------------------------
Federal Tax Identification Number:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Legal Name of Guarantor:
- ------------------------------------------------------------------------------
State of Organization:
- ------------------------------------------------------------------------------
Type of Organization:
- ------------------------------------------------------------------------------
Address of Chief Executive Office:
- ------------------------------------------------------------------------------
Address of Principal Place of Business:
- ------------------------------------------------------------------------------
Organizational Identification Number:
- ------------------------------------------------------------------------------
Federal Tax Identification Number:
- ------------------------------------------------------------------------------
[To be completed for each Guarantor]
[TO BE COMPLETED BY BORROWER]
EXHIBIT 5.2(b)
[FORM OF]
OFFICER'S COMPLIANCE CERTIFICATE
TO: Wachovia Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 8, 2007, by and among Riviera Holdings
Corporation, a Nevada corporation (the "Borrower"), the certain Domestic
--------
Subsidiaries of the Borrower from time to time party thereto (the
"Guarantors"), the lenders and other financial institutions from time
to time party thereto (the "Lenders"), and Wachovia Bank, National
-------
Association, as Administrative Agent for Lenders (as amended,
modified, extended, restated, replaced, or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not
-----------------
otherwise defined shall have the meanings set forth in the Credit Agreement)
DATE : [Date]
- -------------------------------------------------------------------------------
For the fiscal [quarter] [year] ended [_________________, _____].
The undersigned hereby certifies on behalf of the Credit Parties that,
to the best of his/her knowledge, with respect to the Credit Agreement:
[(a) Attached hereto on Exhibit A is a certificate of the
independent certified public accountants reporting on the financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as
specified in such certificate.](1)
(b) The financial statements delivered for the fiscal period
referred to above present fairly the financial position of the Borrower
and its Subsidiaries, for the period indicated above, in conformity
with GAAP applied on a consistent basis.
(c) Each of the Credit Parties during the period indicated
above observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in the Credit Agreement to be
observed, performed or satisfied by it.
(d) I have obtained no knowledge of any Default or Event of
Default under the Credit Agreement;(2)
(e) To the extent applicable, attached hereto on Schedule A
are calculations in reasonable detail demonstrating compliance by the
Credit Parties with the financial covenant contained in Section 5.9 of
the Credit Agreement as of the last day of the fiscal period referred
to above.
(f) Attached hereto on Schedule B is a certificate including a
calculation of Excess Cash Flow and detailing the amount of all
acquisitions, all dividends, Asset Dispositions, Debt Issuances and
Equity Issuances that were made during the fiscal period referred to
above, amounts received in connection with a Recovery Event during the
fiscal period referred to above.
(g) [Attached hereto on Schedule C is an updated
copy of Schedule 3.3 to the Credit Agreement.](3)
(h) [Attached hereto on Schedule D is an updated
copy of Schedule 3.12 to the Credit Agreement.](4)
(i) [Attached hereto on Schedule E is an updated
copy of Schedule 3.16 to the Credit Agreement.](5)
(j) [Attached hereto on Schedule F is an updated
copy of Schedule 3.24 to the Credit Agreement.](6)
(k) [Attached hereto on Schedule G is an updated
copy of Schedule 3.25 to the Credit Agreement.](7)
This Certificate may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
19
CHAR1\876520v1
CHAR1\989822v3
[Exhibit A
Accountant Certificate]
See Attached.
Schedule A
Financial Covenant Calculations
[TO BE COMPLETED BY BORROWER]
Schedule B
Asset Dispositions/Recovery Events
I. all acquisitions I. _________
II. all dividends II. _________
III. Asset Dispositions III. _________
IV. Debt Issuances IV. _________
V. Equity Issuances V. _________
VI. Extraordinary Receipts VI. _________
VII. Excess Cash Flow (demonstrate calculation) VII. _________
[TO BE COMPLETED BY BORROWER]
Schedule C
Schedule 3.3 to Credit Agreement
[TO BE COMPLETED BY BORROWER]
Schedule D
Schedule 3.12 to Credit Agreement
[TO BE COMPLETED BY BORROWER]
Schedule E
Schedule 3.16 to Credit Agreement
[TO BE COMPLETED BY BORROWER]
Schedule F
Schedule 3.24 to Credit Agreement
[TO BE COMPLETED BY BORROWER]
[Please attach a copy of each Material
Contract.]
CHAR1\873674v1
Schedule G
Schedule 3.25 to Credit Agreement
[TO BE COMPLETED BY BORROWER]
[Please attach a copy of the insurance
coverage.]
- --------
(1) Include bracketed language if there are either multiple Assignors or
multiple Assignees. (2) To be completed if the Assignor(s) and the Assignee(s)
intend that the minimum assignment amount is to be determined as of the Trade
Date.
(1) Only to be used on the Closing Date or pursuant to Incremental Term
Facility.
(2)
LIBOR
Rate
is
only
available
on
the
Closing
Date
if
the
Borrower
delivers
a
Funding
Indemnity
Letter
in
accordance
with
the
Credit
Agreement
(1) The type of Loan may be represented by "L" for LIBOR Rate Loans or "ABR" for
Alternate Base Rate Loans.
(1) The type of Loan may be represented by "L" for LIBOR Rate Loans or "ABR" for
Alternate Base Rate Loans.
(1) This item does not apply to a Credit Party organized under the laws of
Alabama, Indiana, Massachusetts, Nebraska, New Hampshire, New Mexico, New York,
Oklahoma, South Carolina, Vermont or West Virginia. (1) To be provided annually.
(2) If a Default or Event of Default shall have occurred, an explanation of such
Default or Event of Default shall be provided on a separate page attached hereto
together with an explanation of the action taken or proposed to be taken by the
Borrower with respect thereto.
(3) Attach Schedule C if the Borrower or any of its Subsidiaries has formed or
acquired a new Subsidiary since the Closing Date or since Schedule 3.3 to the
Credit Agreement was last updated. (4) Attach Schedule D if the Borrower or any
of its Subsidiaries has formed or acquired a new Subsidiary since the Closing
Date or since Schedule 3.12 to the Credit Agreement was last updated. (5) Attach
Schedule E if the Borrower or any of its Subsidiaries has acquired any new
Intellectual Property since the Closing Date or since Schedule 3.16 to the
Credit Agreement was last updated. (6) Attach Schedule F if any new Material
Contract has been entered into since the Closing Date or since Schedule 3.24 to
the Credit Agreement was last updated (together with a copy of such Material
Contract(s)). (7) Attach Schedule G if the Borrower or any of its Subsidiaries
has altered or acquired any insurance policies since the Closing Date.