1
EXHIBIT 10.3
[EXECUTION COPY]
REDUCING REVOLVING LOAN AGREEMENT
dated as of September 29, 1997
among
HANCOCK BANK,
not in its individual capacity, except
as expressly provided herein, but
solely as Trustee, as Borrower,
BA LEASING & CAPITAL CORPORATION,
as Administrative Agent
SOCIETE GENERALE,
THE SUMITOMO BANK, LIMITED, and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Agents
THE MITSUBISHI TRUST AND BANKING CORPORATION,
as Lead Manager
and
THE PERSONS NAMED ON SCHEDULE I,
as Lenders
2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1.1. Defined Terms.............................................1
ARTICLE II AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND
PREPAYMENT OF LOANS
2.1. Commitment; Term..........................................2
2.2. Notes.....................................................2
2.3. Procedure for Borrowing...................................3
2.4. Prepayments; Lease Termination Payments and Premium.......3
2.5. Interest Rates............................................3
2.6. Determination of Interest Rate............................4
2.7. Pro Rata Treatment among Loans............................4
2.8. Payment from Trust Estate Only............................4
2.9. Taxes.....................................................5
2.10. Illegality................................................6
2.11. Increased Costs and Reduction of Return...................6
2.12. Funding Losses............................................7
2.13. Inability to Determine Rates..............................8
2.14. Survival..................................................8
ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM
THE TRUST ESTATE
3.1. Rent Distribution.........................................8
3.2. Distribution of Mandatory Prepayments.....................9
3.3. Distribution of Payments After Loan Event of Default......9
3.4. Other Payments...........................................10
3.5. Distribution of Excluded Amounts and Additional Costs....11
3.6. Guaranty Payments........................................11
ARTICLE IV CONDITIONS PRECEDENT
ARTICLE V AFFIRMATIVE COVENANTS OF THE BORROWER
5.1. Performance by the Borrower..............................11
5.2. Waiver by the Borrower...................................11
-i-
3
ARTICLE VI LOAN EVENTS OF DEFAULT; REMEDIES
6.1. Loan Events of Default...................................12
6.2. Remedies.................................................13
ARTICLE VII ADMINISTRATIVE AGENT
7.1. Appointment and Authorization............................15
7.2. Delegation of Duties.....................................15
7.3. Liability of the Administrative Agent....................15
7.4. Reliance by the Administrative Agent.....................16
7.5. Notice of Default........................................16
7.6. Credit Decision..........................................16
7.7. Indemnification of the Administrative Agent..............17
7.8. The Administrative Agent in Individual Capacity..........17
7.9. Successor Administrative Agent...........................18
7.10. Withholding Tax..........................................18
7.11. Acceptance of Agency.....................................20
7.12. Distribution and Receipt of Payments by Bank.............21
7.13. Lead Manager.............................................21
ARTICLE VIII MISCELLANEOUS
8.1. Amendments and Waivers...................................22
8.2. Notices..................................................22
8.3. Successors and Assigns; Transfers and Participations.....22
8.4. Counterparts.............................................22
8.5. Governing Law............................................22
8.6. Survival and Termination of Agreement....................23
8.7. Entire Agreement.........................................23
8.8. Severability.............................................23
SCHEDULE I - Lenders
EXHIBIT A - Form of Note
-ii-
4
REDUCING REVOLVING LOAN AGREEMENT
THIS REDUCING REVOLVING LOAN AGREEMENT (as amended and supplemented
from time to time, this "Loan Agreement"), dated as of September 29, 1997, is
entered into by and among HANCOCK BANK, not in its individual capacity, except
as specifically provided herein, but solely as Trustee under the Trust Agreement
of even date herewith (the "Borrower"); BA LEASING & CAPITAL CORPORATION, a
California corporation, as the Administrative Agent; Societe Generale, The
Sumitomo Bank, Limited, and Wells Fargo Bank, National Association
(collectively, the "Co-Agents"); The Mitsubishi Trust and Banking Corporation,
as Lead Manager, and the Persons named on Schedule I hereto, as Lenders.
W I T N E S E T H:
WHEREAS, the Borrower desires to pay costs associated with the
acquisition and construction of the Facilities, all as more particularly
described in the Participation Agreement of even date herewith and in each of
the other Operative Documents; and
WHEREAS, the Borrower desires to borrow from the Lenders a portion of
the costs associated with the acquisition and construction of the Facilities;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE II
DEFINITIONS
SECTION II.1. Defined Terms. The capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in Appendix 1 to the
Participation Agreement dated as of the date hereof among BL Resorts I, LLC and
GCG Resorts I, LLC, as the Initial Lessees and Construction Agents; Grand
Casinos, Inc. and certain of its Subsidiaries, as Guarantors; the Borrower; the
Trustee; the Arranger and the Administrative Agent; the Co-Agents; the Lead
Manager and the Lenders identified therein (the "Participation Agreement") for
all purposes hereof.
ARTICLE III
AMOUNT AND TERMS OF COMMITMENTS;
-1-
5
Loan Agreement
REPAYMENT AND PREPAYMENT OF LOANS
SECTION III.1. Commitment; Term. Subject to the terms and conditions
hereof and of the Participation Agreement, each Lender severally, but not
jointly, agrees to make loans to the Borrower ("Loans") from time to time
through the Commitment Termination Date for the purpose of enabling the Trustee
to pay the Building Costs and the Facility F,F&E Costs for the Facilities and,
upon completion of one or more Facilities, to make Revolving Advances to Lessees
in accordance with the Participation Agreement, in an aggregate principal amount
at any one time outstanding not to exceed the amount of such Lender's
Commitment; provided, however, that in no event shall the principal amount of
Advances relating to any Facility exceed the lesser of (a) the Fair Market Sales
Value of such Facility (including the value attributable to the related Facility
F,F&E as determined by the applicable Appraisal delivered pursuant to Section
3.3(i) of the Participation Agreement) and (b) the amount specified in Section
2.2(b) of the Participation Agreement relating to that Facility. Certain amounts
prepaid may be readvanced in accordance with the terms and conditions of the
Participation Agreement, including without limitation the provisions of Sections
2.2(c), 3.1 and 3.8 thereof.
SECTION III.2. Notes.
(a) The Loans made by each Lender shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit A (as amended,
modified, supplemented, extended or renewed from time to time, a "Note"), with
appropriate insertions as to payee and principal amount, duly executed by the
Borrower and payable to the order of such Lender and in a maximum principal
amount equal to such Lender's Commitment. Each Note shall be dated the Closing
Date and delivered to the related Lender in accordance with Section 2.3 of the
Participation Agreement. Each Note shall (i) be stated to mature on the Final
Maturity Date and (ii) bear interest on the unpaid principal amount thereof from
time to time outstanding at the applicable interest rate per annum determined as
provided in, and payable as specified in, Section 2.6.
(b) Upon the consummation of each Advance, each Lender shall, and is
hereby authorized by the Borrower and each of the Lessees to, record in its
records the amount of the Loan advanced by such Lender on such Advance Date, the
date and amount of each continuation or conversion of such Loan, the length of
each Interest Period with respect thereto and the date and amount of each
payment of principal and/or interest relating thereto; provided, that the
failure to make any such recordation shall not affect the obligation of the
Trustee under the Notes or the corresponding obligation of any applicable Lessee
to pay Rent. In all events, prior to any transfer of its Note, a Lender shall
indicate in writing to its transferee the date, amount and maturity of each Loan
made by it which is still outstanding and the amounts of accrued but unpaid
interest thereon.
-2-
6
Loan Agreement
SECTION III.3. Procedure for Borrowing.
(a) Subject to the terms and conditions of the Participation Agreement
and this Loan Agreement, the Borrower shall borrow under the Commitments on each
Advance Date upon receipt by the Trustee, the Administrative Agent and the
applicable Lenders from a Lessee of an Advance Request in accordance with
Section 2.4(a) of the Participation Agreement.
(b) Any Advance Request shall be delivered to the Trustee, the
Administrative Agent and the Lenders in accordance with Section 2.4(a) of the
Participation Agreement. Each Lender will fund its pro rata share of the Advance
in accordance with Section 2.2 of the Participation Agreement.
SECTION III.4. Prepayments; Lease Termination Payments and Premium.
(a) Borrower shall repay in full the unpaid principal amount of each
Loan (including any Additional Costs) upon the Final Maturity Date.
(b) On each Scheduled Payment Date on or after the Initial Reduction
Date, the Borrower shall pay to the Lenders that portion of the outstanding
principal amount of each Note, if any, which results in the aggregate principal
amount of the Loans outstanding under the Notes as of such date being not in
excess of the Commitment Amount (as reduced on that Scheduled Payment Date
pursuant to the terms of the Participation Agreement).
(c) No other principal amortization of the Loans will be required prior
to the Final Maturity Date, except that upon the occurrence of (i) a Casualty or
Non-Casualty Loss that results in a purchase by any Lessee of the Leased
Property suffering the Casualty or Non-Casualty Loss, (ii) any Lessee exercising
the early termination option pursuant to Section 5.1 or 5.2 of the Master Lease
to purchase all or a portion of the Leased Property then leased by such Lessee
or (iii) a Lease Event of Default that results in Lessor exercising its right to
have Lessees purchase all of the Leased Property, the Borrower shall prepay the
aggregate outstanding principal amount of the Loans equal to the amount of
principal that Lessees are required to pay as a result of any of the foregoing
pursuant to the applicable terms of the Master Lease, together with interest
accrued to the date of such prepayment on the principal amount so prepaid, plus,
Additional Costs, if any.
SECTION 2.5. Interest Rates. The Loans shall accrue interest at the
applicable Interest Rate from time to time in effect. The Interest Period for
which a LIBO Rate applies shall be one month unless the duration is shortened as
required by the definition of "Interest Period". Interest accrued on each Loan
shall be payable in arrears on each applicable Payment Date.
-3-
7
Loan Agreement
If all or a portion of the principal amount of or interest on the Notes
shall not be paid when due (whether at the Final Maturity Date thereof, by
acceleration or otherwise), such overdue amount shall, without limiting the
rights of any Lender under Section 6.2, bear interest at the Overdue Rate, in
each case from the date first due until paid in full (as well after as before
judgment) payable on demand.
SECTION III.6. Determination of Interest Rate.
(a) During such time as a LIBO Rate applies to any of the Notes,
interest in respect of such Notes shall be calculated on the basis of a 360 day
year and the actual days elapsed. During such time as the Alternate Base Rate
applies to any of the Notes, interest in respect of such Notes shall be
calculated on the basis of a 365 (or 366, as applicable) day year and the actual
number of days elapsed. The Administrative Agent shall, as soon as practicable,
but in no event later than 1:00 p.m., Gulfport, Mississippi time, two Business
Days prior to the first day of each Interest Period, notify the Borrower, who
shall notify Lessees and the Lenders, of the LIBO Rate. Any change in the
Interest Rate on the Loans resulting from a change in the Alternate Base Rate
shall become effective as of the opening of business on the day on which such
Alternate Base Rate changes as provided herein.
(b) Except as provided in Section 2.10 or Section 2.13, all Loans shall
be LIBO Rate Loans. LIBO Rate Loans shall be made by each Lender at its LIBOR
Office. At the end of each Interest Period, all LIBO Rate Loans shall
automatically be continued.
SECTION III.7. Pro Rata Treatment among Loans. Except as otherwise
expressly set forth in Article III, each payment (including each prepayment) by
the Borrower on account of principal of and interest on the Loans shall be made
pro rata among the Loans. The Administrative Agent shall apply any prepayments
in reduction of Loans so that the Borrower's funding losses under Section 2.12
are minimized. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes shall be made without set-off or counterclaim and
shall be made to the Administrative Agent (or Bank as agent for the
Administrative Agent), for the account of the Lenders, at the Administrative
Agent's office referred to in Schedule III of the Participation Agreement (or
Bank's office), in lawful money of the United States of America and in
immediately available funds. The Administrative Agent or Bank shall distribute
such payments to each Lender at its LIBOR Office, promptly upon receipt in like
funds as received.
SECTION III.8. Payment from Trust Estate Only. All payments and
expenses to be made by or paid by the Borrower in respect of the Loans, this
Loan Agreement and the Security Documents shall be made only from the income
and the proceeds from the Trust Estate and only
-4-
8
Loan Agreement
to the extent that the Borrower shall have received sufficient income or
proceeds from the Trust Estate to make such payments in accordance with the
terms of Article III. Each Lender agrees that it will look solely to the income
and proceeds from the Trust Estate for distribution to such Lender as herein
provided and that neither the Borrower nor the Administrative Agent is or shall
be personally liable to any Lender for any amount or expense payable hereunder
or under any Note or Security Document except as specifically provided for in
the Trust Agreement, the Participation Agreement or any other Operative
Document. The provisions of this Section 2.8 shall apply whether or not a Loan
Event of Default shall have occurred and be continuing.
SECTION III.9. Taxes.
(a) Subject to subsection (c) of this Section 2.9, any and all payments
by the Borrower to each Lender or the Administrative Agent under this Loan
Agreement and any other Operative Document shall be made free and clear of, and
without deduction or withholding for any Taxes. In addition, the Borrower shall
pay all Other Taxes.
(b) Borrower agrees to indemnify and hold harmless each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by each Lender or the Administrative Agent and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Payment under this indemnification shall be made within 30
days after the date any Lender or the Administrative Agent makes written demand
therefor.
(c) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so
that after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section) such Lender or the Administrative Agent, as the case may
be, receives an amount equal to the sum it would have received had no
such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings;
(iii) the Borrower shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with Applicable Law; and
(iv) the Borrower shall also pay to the Administrative
Agent for the account
-5-
9
Loan Agreement
of each Lender, at the time interest is paid, all additional amounts
which the respective Lender specifies as necessary to preserve the
after-tax yield the Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) Within 30 days after the date of any payment by the Borrower of
Taxes or Other Taxes, the Borrower shall furnish the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
(e) If the Borrower is required to pay additional amounts to any Lender
or the Administrative Agent pursuant to subsection (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Borrower which may thereafter
accrue, if such change in the judgment of such Lender is not otherwise
disadvantageous to such Lender.
SECTION III.10. Illegality.
(a) If any Lender determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make LIBO Rate Loans, then,
on notice thereof by the Lender to the Borrower through the Administrative
Agent, any obligation of that Lender to make LIBO Rate Loans shall be suspended
until the Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any LIBO
Rate Loan, the Borrower shall, upon its receipt of notice of such fact and
demand from such Lender (with a copy to the Administrative Agent), prepay in
full such LIBO Rate Loans of that Lender then outstanding, together with
interest accrued thereon, either on the last day of the Interest Period thereof,
if the Lender may lawfully continue to maintain such LIBO Rate Loans to such
day, or immediately, if the Lender may not lawfully continue to maintain such
LIBO Rate Loans. If the Borrower is required to so prepay any LIBO Rate Loan,
then concurrently with such prepayment, the Borrower shall borrow from the
affected Lender, in the amount of such repayment, an Alternate Base Rate Loan.
SECTION III.11. Increased Costs and Reduction of Return.
(a) If any Lender determines that, due to either (i) the introduction
of or any change in or
-6-
10
Loan Agreement
in the interpretation of any law or regulation or (ii) the compliance by that
Lender with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost of such Lender of agreeing to make or making, funding or maintaining
any LIBO Rate Loans, then the Borrower shall be liable for, and shall from time
to time, upon demand (with a copy of such demand to be sent to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Lender (or its Lending Office) or any corporation controlling such Lender
with any Capital Adequacy Regulation, affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitments, Loans, credits or obligations
under this Loan Agreement, then, upon demand of such Lender to the Borrower
through the Administrative Agent, the Borrower shall pay to such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
SECTION III.12. Funding Losses. The Borrower shall reimburse each
Lender and hold each Lender harmless from any loss or expense which such Lender
may sustain or incur as a consequence of:
(a) the failure of the Borrower to make on a timely basis any payment
of principal of any LIBO Rate Loan;
(b) the failure of the Borrower to borrow, continue or convert a Loan
after the Borrower has given (or is deemed to have given) an Advance Request;
(c) the failure of the Borrower to timely make any mandatory
prepayment;
(d) the prepayment or other payment (including after acceleration
thereof) of a LIBO Rate Loan on a day that is not the last day of the relevant
Interest Period; or
(e) the automatic conversion of any LIBO Rate Loan to an Alternate Base
Rate Loan on a day that is not the last day of the relevant Interest Period;
including any such loss or expense incurred by reason of the liquidation or
reemployment of
-7-
11
Loan Agreement
deposits or other funds obtained by it to make, continue or maintain its LIBO
Rate Loans or from fees payable to terminate the deposits from which such funds
were obtained; provided, that such Lender shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION III.13. Inability to Determine Rates. If the Administrative
Agent determines that for any reason adequate and reasonable means do not exist
for determining the LIBO Rate for any requested Interest Period with respect to
a proposed LIBO Rate Loan, or that the LIBO Rate applicable for any requested
Interest Period with respect to a proposed LIBO Rate Loan does not adequately
and fairly reflect the cost to the Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain LIBO Rate Loans
hereunder shall be suspended until the Administrative Agent revokes such notice
in writing. Upon receipt of such notice, the Borrower may revoke any Advance
Request then submitted by it. If the Borrower does not revoke such Advance
Request, the Lenders shall make, convert or continue the Loans, as proposed by
the Borrower, in the amount specified in the applicable Advance Request
submitted by the Borrower, but such Loans shall be made, converted or continued
as Alternate Base Rate Loans instead of LIBO Rate Loans.
SECTION III.14. Survival. The agreements and obligations of the
Borrower in this Article II shall survive the payment of all other obligations
of the Borrower.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE TRUST ESTATE
SECTION IV.1. Rent Distribution. Except as otherwise provided in
Section 3.3 and subject to Section 3.5, each payment of Rent (including, without
limitation, any prepaid Rent) as well as any payment of interest on overdue
installments of Rent under the Master Lease and related Lease Supplements, and
any other monies paid over by any Lessee or the Borrower to the Administrative
Agent for such purpose, shall be distributed as promptly as possible (it being
understood that any payments of Rent received by or on behalf of the
Administrative Agent under the Master Lease and related Lease Supplements on a
timely basis and in accordance with the provisions of the Master Lease shall be
distributed on the date received in the funds so received) in the following
order of priority:
first, an amount equal to the aggregate amount of the
payment of interest (as well as any interest on (to the extent
permitted by Applicable Laws) overdue interest)
-8-
12
Loan Agreement
then due and payable on the Notes shall be distributed and paid to the
Lenders; and
second, to the payment of outstanding principal under
the Notes.
SECTION IV.2. Distribution of Mandatory Prepayments.
(a) Except as otherwise provided in Section 3.2(b) and Section 3.3, the
amount of any prepayment received pursuant to Section 2.4 shall in each case be
distributed and paid in the following order of priority:
first, an amount equal to the aggregate amount of
accrued interest (as well as any interest on (to the extent permitted
by Applicable Laws) overdue interest) then due and payable on the Notes
shall be distributed and paid to the Lenders; and
second, an amount equal to the aggregate amount of the
payment of principal on the Notes then due and payable shall be
distributed and paid to the Lenders.
(b) Any Casualty Recovery or Non-Casualty Recovery that is not required
to be paid to a Lessee pursuant to the Master Lease, solely because a Lease
Default or Lease Event of Default exists shall be held by the Trustee as
security for the obligations of Lessees under the Master Lease and the other
Operative Documents and invested in Cash Equivalents and at such time as there
shall not be continuing any such Lease Default or Lease Event of Default, such
portion shall be paid to the applicable Lessee, unless the Administrative Agent
(as assignee of the Borrower) shall have theretofore declared the Master Lease
and related Lease Supplements to be terminated pursuant to Section 5.3 thereof,
in which event such portion shall be distributed forthwith upon such declaration
in accordance with the provisions of Section 3.3 hereof.
SECTION IV.3. Distribution of Payments After Loan Event of Default.
(a) Except as otherwise provided in Section 3.4(b), all payments
received and amounts (other than Excluded Amounts) realized by the
Administrative Agent after a Loan Event of Default shall have occurred and be
continuing, as well as all payments or amounts then held or thereafter received
by the Administrative Agent as part of the Trust Estate while such Loan Event of
Default shall be continuing, shall be distributed forthwith by the
Administrative Agent in the following order of priority:
first, so much of such payments or amounts as shall be
required to reimburse the Administrative Agent or Trustee for any tax,
expense or other loss incurred by the Administrative Agent or Trustee
(to the extent not previously reimbursed and to the extent incurred in
connection with its duties as the Administrative Agent or Trustee,
-9-
13
Loan Agreement
respectively) and any unpaid ongoing fees of the Administrative Agent
or Trustee shall be distributed to the Administrative Agent or Trustee
as the case may be;
second, so much of such payments or amounts as shall be
required to reimburse the then existing or prior Lenders (so long as
the Loan Events of Default that have occurred and are continuing arise
solely from a Lease Event of Default) for payments made by them to the
Administrative Agent or Trustee pursuant to Section 7.7 (to the extent
not previously reimbursed), and to pay such then existing or prior
Lenders (so long as the Loan Events of Default that have occurred and
are continuing arise solely from a Lease Event of Default) the amounts
payable to them pursuant to any expense reimbursement or
indemnification provisions of the Participation Agreement, the Master
Lease or this Loan Agreement, shall be distributed to each such Person,
without priority of one over the other, in accordance with the amount
of such payment or payments payable to each such Person;
third, so much of such amount as shall be required to
pay in full the aggregate unpaid principal amount of the Notes,
together with any Additional Costs and the accrued but unpaid interest
on the Notes to the date of distribution shall be distributed to the
Lenders holding Notes, and in the case the amount so to be distributed
shall be insufficient to pay in full as aforesaid, then, pro rata among
such Lenders, without priority of one such Lender over the other, in
the proportion that the unpaid principal amount of the Notes held by
each Lender bears to the aggregate unpaid principal amount of the
Notes;
fourth, the balance, if any, of such payments or
amounts remaining thereafter shall be promptly distributed to, or as
directed by, the Borrower.
(b) During the occurrence and continuance of any Loan Event of Default,
all amounts (other than Excluded Amounts) received or realized by the
Administrative Agent and otherwise distributable pursuant to Section 3.1 or 3.2
shall be distributed as provided in Section 3.3(a).
SECTION IV.4. Other Payments.
(a) Any payments received by the Administrative Agent for which no
provision as to the application thereof is made in the Operative Documents or
elsewhere in this Article III shall be distributed forthwith by the
Administrative Agent in the order of priority set forth in Section 3.1.
(b) All payments received and amounts realized by the Administrative
Agent under any of the Master Lease and Lease Supplements or otherwise with
respect to the Leased Property to the extent received or realized at any time
after payment in full of the principal of and interest on
-10-
14
Loan Agreement
all Loans, as well as any other amounts remaining as part of the Trust Estate
after payment in full of the principal of and interest on (and any Additional
Costs in respect of) all Loans issued hereunder, shall be distributed forthwith
by the Administrative Agent in the order of priority set forth in Section 3.3(a)
omitting clause "third" of such Section 3.3(a).
(c) Except after a Loan Event of Default has occurred and is
continuing, any payment received by the Administrative Agent for which provision
as to the application thereof is made in an Operative Document but not elsewhere
in this Article III shall be distributed forthwith by the Administrative Agent
to the Person for the purpose for which such payment was made in accordance with
the terms of such Operative Document.
SECTION IV.5. Distribution of Excluded Amounts and Additional Costs.
All amounts constituting Excluded Amounts and Additional Costs received by the
Administrative Agent shall be distributed to the Person or Persons entitled
thereto.
SECTION IV.6. Guaranty Payments. Any payment received by the
Administrative Agent from a Guarantor pursuant to the Guaranty shall be
distributed forthwith or retained by the Trustee in the same manner and subject
to the same conditions as provided in this Article III with respect to payments
received by the Trustee in respect of the Borrower's obligation as to which such
payment relates, all as if such payment had been made by the Borrower out of
Rent received under the Master Lease and one or more Lease Supplements.
ARTICLE V
CONDITIONS PRECEDENT
The agreement of each Lender to make the Loan requested to be made by
it on any Advance Date is subject to the satisfaction on the Advance Date of the
applicable conditions precedent set forth in Article III of the Participation
Agreement.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
SECTION VI.1. Performance by the Borrower. Subject to Section 2.8, so
long as any Note remains outstanding and unpaid or any other amount is owing to
any Lender hereunder, the Borrower will promptly pay all amounts payable by it
under this Loan Agreement and the Notes in accordance with the terms hereof and
thereof and shall duly perform each of its obligations under this Loan Agreement
and the Notes.
-11-
15
Loan Agreement
SECTION VI.2. Waiver by the Borrower.
(a) To the extent permitted by Applicable Laws, the Borrower is hereby
deemed to have irrevocably waived:
(i) the protection of any stay (automatic or otherwise)
arising out of or in connection with any proceedings for the
reorganization or liquidation of the Borrower under the Bankruptcy Code
or otherwise of the exercise by the Lenders or the Administrative Agent
of rights and remedies under the Operative Documents; and
(ii) any right that the Borrower might otherwise have
to enjoin, limit or restrict the good faith exercise of such rights and
remedies.
(b) To the extent permitted by Applicable Laws, the Lenders and the
Administrative Agent are hereby expressly relieved from any obligation to comply
with any such stay which might otherwise affect their exercise at any time of
such rights and remedies.
ARTICLE VII
LOAN EVENTS OF DEFAULT; REMEDIES
SECTION VII.1. Loan Events of Default. Each of the following events
shall constitute a "Loan Event of Default" (whether any such event shall be
voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any governmental authority) and each such Loan
Event of Default shall continue so long as, but only as long as, it shall not
have been remedied:
(a) the Borrower shall fail to pay any principal of or interest on any
Note when due and such failure shall continue unremedied for a period of 3
Business Days; or
(b) the failure by the Borrower in any material respect to timely
perform any other covenant or condition herein or in any other Operative
Document to which the Borrower is a party and such failure shall continue for a
period of 30 days after written notice thereof to Borrower and the applicable
Lessee(s) from the Administrative Agent; or
(c) any representation or warranty by the Borrower in any Operative
Document or in any certificate or document delivered thereunder shall have been
incorrect in a material respect when made and shall remain material when
discovered and if curable shall continue for a period of 30
-12-
16
Loan Agreement
days after written notice thereof to the Borrower and the Lenders from the
Administrative Agent; or
(d) the filing by the Borrower of any petition for dissolution or
liquidation of the Borrower; or the commencement by the Borrower of a voluntary
case under any applicable bankruptcy, insolvency or other similar law for the
relief of debtors, foreign or domestic, now or hereafter in effect; or the
Borrower shall have consented to the entry of an order for relief in an
involuntary case under any such law; or the failure of the Borrower generally to
pay, or the admission by the Borrower in writing that it is unable to pay, its
debts as such debts become due (within the meaning of the Bankruptcy Code); or
the failure by the Borrower promptly to satisfy or discharge any execution,
garnishment or attachment of such consequence as will impair its ability to
carry out its obligations under the Operative Documents; or the appointment of
or taking possession by a receiver, custodian or trustee (or other similar
official) for the Borrower or any substantial part of its property; or a general
assignment by the Borrower for the benefit of creditors; or the entry by the
Borrower into an agreement of composition with its creditors; or the Borrower
shall have taken any corporate action in furtherance of any of the foregoing; or
the filing against the Borrower of an involuntary petition in bankruptcy which
results in an order for relief being entered or, notwithstanding that an order
for relief has not been entered, the petition is not dismissed within 60 days of
the date of the filing of the petition; or the filing under any law relating to
bankruptcy, insolvency or relief of debtors of any petition against the Borrower
which either (i) results in a finding or adjudication of insolvency of the
Borrower or (ii) is not dismissed within 60 days of the date of the filing of
such petition; or
(e) a Lease Event of Default shall occur and be continuing.
SECTION VII.2. Remedies.
(a) Upon the occurrence of a Loan Event of Default hereunder, (i) if
such event is a Loan Event of Default specified in subsection (d) of Section 6.1
or subsections (f) or (g) of Section 10.1 of the Master Lease, the Commitment
(if not theretofore terminated) shall automatically terminate and the
outstanding principal amount of the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Loan Agreement and the Notes
shall automatically be and become immediately due and payable, and (ii) if such
event is any other Loan Event of Default, upon the written instructions of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Loan Agreement and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable;
provided that the sole remedies of the Administrative Agent upon the occurrence
of a Loan Event of Default specified in subsection (b), (c) (but only to the
extent the representation was made in the Borrower's individual capacity) or (d)
of Section 6.1 that does not also constitute a Lease
-13-
17
Loan Agreement
Event of Default shall be to cause the Lenders to remove and replace the
Borrower as the Trustee and to bring suit against Borrower for damages. Except
as expressly provided above in this Article VI, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
(b) Upon the occurrence of any Loan Event of Default and at any time
thereafter so long as any Loan Event of Default shall be continuing, the
Administrative Agent may, and upon the written instructions of the Required
Lenders shall, exercise any or all of the rights and powers and pursue any and
all of the remedies available to it hereunder and (subject to the terms thereof)
under the other Operative Documents, the Master Lease, the Lease Supplements,
the Guaranty and the other Operative Documents and shall have and may exercise
any and all rights and remedies available under the Uniform Commercial Code or
any provision of law.
(c) Upon the occurrence of any Loan Event of Default and at any time
thereafter so long as any Loan Event of Default shall be continuing, the
Administrative Agent may proceed to protect and enforce this Loan Agreement, the
Notes, the other Operative Documents, the Master Lease, the Lease Supplements
and the Guaranty by suit or suits or proceedings in equity, at law or in
bankruptcy, and whether for any portion of the specific performance of any
covenant or agreement herein contained or in execution or aid of any power
herein granted, or for foreclosure hereunder, or for the appointment of a
receiver or receivers for any portion of the Leased Property or any other
property subject to any Deed of Trust, or for the recovery of judgment for the
indebtedness secured thereby or for the enforcement of any other proper, legal
or equitable remedy available under Applicable Laws.
(d) The Borrower shall be liable for any and all accrued and unpaid
amounts due hereunder before, after or during the exercise of any of the
foregoing remedies, including all reasonable legal fees and other reasonable
costs and expenses incurred by the Administrative Agent or any Lender by reason
of the occurrence of any Loan Event of Default or the exercise of remedies with
respect thereto.
(e) Except as expressly provided above, no remedy under this Section
6.2 is intended to be exclusive, but each shall be cumulative and in addition to
any other remedy provided under this Section 6.2 or under the other Operative
Documents or otherwise available at law or in equity. The exercise by the
Administrative Agent or any Lender of any one or more of such remedies shall not
preclude the simultaneous or later exercise of any other remedy or remedies. No
express or implied waiver by the Administrative Agent or any Lender of any Loan
Event of Default shall in any way be, or be construed to be, a waiver of any
future or subsequent Loan Event of Default. The failure or delay of the
Administrative Agent or any Lender in exercising any rights granted it hereunder
upon any occurrence of any of the contingencies set forth herein shall not
constitute a waiver of any such right upon the continuation or recurrence of any
such contingencies or similar contingencies and any single or partial exercise
of any particular right by
-14-
18
Loan Agreement
the Administrative Agent or any Lender shall not exhaust the same or constitute
a waiver of any other right provided herein.
(f) 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.
ARTICLE VIII
ADMINISTRATIVE AGENT
SECTION VIII.1. Appointment and Authorization. Each Lender hereby
irrevocably (subject to Section 7.9) appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Loan Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Loan
Agreement and the other Operative Documents, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Loan Agreement or in any other Operative Document,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein or in any other Operative Document, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or any other
Operative Document or otherwise exist against the Administrative Agent.
SECTION VIII.2. Delegation of Duties. The Administrative Agent may
execute any of its duties under this Loan Agreement or any other Operative
Document by or through agents (including the Bank), employees or
attorneys-in-fact- and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION VIII.3. Liability of the Administrative Agent. None of the
Administrative Agent-Related Persons shall (i) be liable for any action taken
or omitted to be taken by any of them under or in connection with this Loan
Agreement or any other Operative Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct or as
otherwise provided in the Security Agreement), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower, or
any officer thereof, contained in this Loan Agreement
-15-
19
Loan Agreement
or in any other Operative Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Loan Agreement or any other Operative
Document, or for the value of or title to any Collateral, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Loan Agreement
or any other Operative Document, or for any failure of the Borrower or any other
party to any Operative Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Loan Agreement or any
other Operative Document, or to inspect the properties, books or records of the
Borrower or any of the Borrower's Subsidiaries or Affiliates.
SECTION VIII.4. Reliance by the Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Loan Agreement or any other
Operative Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Loan
Agreement or any other Operative Document in accordance with a request and any
action taken or consent of the Required Lenders and such request and any action
taken upon failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) Each Lender that has executed this Loan Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
SECTION VIII.5. Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Loan Default or
Loan Event of Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent
directly for the account of the Lenders, unless the Administrative Agent shall
have received written notice from a Lender or a Lessee referring to this Loan
-16-
20
Loan Agreement
Agreement, describing such Loan Default or Loan Event of Default and stating
that such notice is a "notice of default". The Administrative Agent will notify
the Lenders of its receipt of any such notice. The Administrative Agent shall
take such action with respect to such Loan Default or Loan Event of Default as
may be requested by the Required Lenders; provided, however, that unless and
until the Administrative Agent has received any such request, the Administrative
Agent may (but shall not be obligated to) take such action regarding such Loan
Default or Loan Event of Default as it shall deem advisable or in the best
interest of the Lenders.
SECTION VIII.6. Credit Decision. Each Lender acknowledges that none of
the Administrative Agent-Related Persons 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 Parent, Lessees and their Subsidiaries, shall be
deemed to constitute any representation or warranty by any Administrative
Agent-Related Person to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon any Administrative
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of any investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Parent, Lessees and their Subsidiaries, the value of and
title to any Collateral, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Loan Agreement and to extend credit to the Borrower and Lessees hereunder. Each
Lender also represents that it will independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Loan Agreement and the other Operative Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Lessees and Parent. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Lessees and Parent which may come into the
possession of any of the Administrative Agent-Related Persons.
SECTION VIII.7. Indemnification of the Administrative Agent. Whether or
not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand any Administrative Agent-Related Person (to the extent not
reimbursed by or on behalf of Lessees and without limiting the obligation of
Lessees to do so), pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment
to any Administrative Agent-Related Person of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable
-17-
21
Loan Agreement
share of any costs or out-of-pocket expenses (including attorney costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Loan Agreement, any other
Operative Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrower. The undertaking in this Section shall survive the
payment of all obligations hereunder and the resignation or replacement of the
Administrative Agent.
SECTION VIII.8. The Administrative Agent in Individual Capacity. BA
Leasing & Capital Corporation and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with Parent and its Subsidiaries and
Affiliates as though BA Leasing & Capital Corporation were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, BA Leasing & Capital
Corporation or its Affiliates may receive information regarding Parent or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of Parent or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, BA Leasing & Capital Corporation shall have the
same rights and powers under this Loan Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" include BA Leasing & Capital Corporation in its
individual capacity.
SECTION VIII.9. Successor Administrative Agent. The Administrative
Agent may, and at the request of the Required Lenders shall, resign as the
Administrative Agent upon 30 days' notice to the Lenders. If the Administrative
Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders. If no successor agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor agent from among the Lenders. Upon the acceptance
of its appointment as successor agent hereunder, such successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor agent and
the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement. If no
successor agent has accepted appointment as the Administrative Agent by the date
which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the
-18-
22
Loan Agreement
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint an successor agent as
provided for above. If required by Applicable Law, the Mississippi Gaming
Commission shall have made a determination of suitability with respect to a
successor agent.
SECTION VIII.10. Withholding Tax.
(a) If any Lender is a "foreign corporation" or "foreign partnership"
or "foreign trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Administrative
Agent, to deliver to the Administrative Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms 1001 and W-8 before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Loan Agreement;
(ii) if such Lender claims that interest paid under
this Loan Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade or
business of such Lender, two properly completed and executed copies of
IRS Form 4224 before the payment of any interest is due in the first
taxable year of such Lender and in each succeeding taxable year of such
Lender during which interest may be paid under this Loan Agreement; and
(iii) such other form or forms as may be required under
the Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part of
the obligations of the Borrower to such Lender, such Lender agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of obligations of the Borrower to such Lender. To the extent of
such percentage amount, the Administrative Agent will treat such Lender's IRS
Form 1001 as no longer valid.
-19-
23
Loan Agreement
(c) If any Lender claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Administrative Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the obligations of the
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by subsection (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
(e) If the Internal Revenue Service or any other Governmental Authority
of the United States or other jurisdiction asserts a claim that the
Administrative Agent (or its designee or agent) did not properly withhold tax
from amounts paid to or for the account of any Lender (because the appropriate
form was not delivered, was not properly executed, or because such Lender failed
to notify the Administrative Agent of a change in circumstances which rendered
the exemption from, or deduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Administrative Agent (or its
designee or agent, as the case may be) fully for all amounts paid, directly or
indirectly, by the Administrative Agent (or its designee or agent) and including
any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent (or its designee or agent) under this Section, together
with all costs and expenses (including attorney costs and the allocated cost of
internal counsel services and all disbursements of internal counsel). The
obligation of the Lenders under this subsection shall survive the payment of all
obligations and the resignation or replacement of the Administrative Agent.
SECTION VIII.11. Acceptance of Agency.
(a) The Administrative Agent accepts the agency hereby created
applicable to it and agrees to cause Bank (or its successor) to receive all
payments and proceeds pursuant to the Operative Documents and disburse such
payments or proceeds in accordance with the Operative Documents.
(b) Upon discharge of the indebtedness secured by the Security
Documents or security interest or Lien provided therein, the Administrative
Agent shall execute and deliver, at Lessees' cost and expense, such
satisfactions and terminations of said Liens as may be required. Upon
satisfaction of the Lien or security interest provided for in any such
instrument, such instrument shall be deemed withdrawn from the Collateral.
-20-
24
Loan Agreement
(c) In the event that the Required Lenders shall notify the
Administrative Agent that an event of default under a security instrument has
occurred, the Administrative Agent shall take such action with respect thereto
as the Required Lenders may require by written instructions, but the
Administrative Agent shall not be required to take any action not expressly set
forth in such written instructions.
(d) The Administrative Agent shall not have any duty or obligation to
manage, operate, control, use, sell, dispose of or otherwise deal with the
Leased Property or any other part of the Collateral or to otherwise take or
refrain from taking any action under, or in connection with, the security
instruments, except as expressly provided by the terms of this Loan Agreement or
as expressly provided in written instructions from the Required Lenders received
pursuant to the terms of Section 7.11(c) hereof.
(e) Except in accordance with written instruction furnished pursuant to
Section 7.11(c) hereof, and without limiting the generality of Section 7.11(d)
hereof, the Administrative Agent shall have no duty (i) to see to any recording,
filing or depositing of any security instrument or amendment thereof, (ii) to
see to any insurance on the Leased Property or to effect or maintain any such
insurance, (iii) to see to the payment or discharge of any tax, assessment, or
other governmental charge or any Lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Collateral, (iv) to
confirm or verify any notices or reports of any of the Lessees other than to
furnish (to the extent not otherwise furnished) the Lenders with a copy of each
notice or report furnished to the Administrative Agent by such Lessees pursuant
to a security instrument or (v) to inspect the Leased Property at any time or
ascertain or inquire as to the performance or observance of Lessee's covenants
under any security instrument.
(f) In accepting the agency hereby created, the Administrative Agent
acts solely as agent hereunder and not in its individual capacity, and all
persons, other than the Lenders, having any claim against the Administrative
Agent by reason of the transactions contemplated hereby shall look only to the
Collateral for payment or satisfaction thereof.
(g) The agency created hereby shall be terminated by notice given by
the Administrative Agent to the Lenders at any time upon the final disposition
of all Collateral and the final distribution by the Administrative Agent of all
monies or other property or proceeds received pursuant to the Operative
Documents in accordance with their terms.
SECTION VIII.12. Distribution and Receipt of Payments by Bank. The
Administrative Agent, for the benefit of Lenders, hereby appoints Bank as the
agent of the Lenders for purposes of receiving proceeds of Advances, payments
under the Master Lease and the Lease Supplements and making distributions to the
Lenders, Lessees and other Persons under this Loan Agreement.
-21-
25
Loan Agreement
The Administrative Agent may at any time by notice in writing terminate Bank's
appointment hereby as agent of collection and payment of the payments under the
Master Lease and the Lease Supplements, in which event Lessees, upon receipt of
copy of such notice, shall pay any and all payments payable to the
Administrative Agent hereunder and under the other Operative Documents directly
to the Administrative Agent at the account set forth in Schedule III of the
Participation Agreement.
SECTION VIII.13. Lead Manager. The "lead manager" shall not have any
right, power, obligation, liability, responsibility or duty under this Loan
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified as "co- agent" or "lead
manager" 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 so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder. Without limiting the foregoing, to the
extent the Co-Agents make determinations pursuant to the terms of any Operative
Document, the Co-Agents shall have the same rights afforded to the
Administrative Agent under this Article VII.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1. Amendments and Waivers. Neither this Loan Agreement, any
Note nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of the Participation Agreement.
SECTION IX.2. Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be delivered in accordance with, and shall be deemed to have been
given as provided in, Section 9.3 of the Participation Agreement; provided, that
any notice, request, demand or other communication to or upon the Administrative
Agent or the Lenders pursuant to Section 2.3 shall not be effective until
received.
SECTION IX.3. Successors and Assigns; Transfers and Participations.
(a) This Loan Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Administrative Agent, all future holders of
the Notes and their respective successors and assigns.
(b) Any transfer by a Lender of its Note or any sale by a Lender of any
participating
-22-
26
Loan Agreement
interest in the Loans evidenced by its Note shall comply with Sections 6.2, 6.3
and 6.4 of the Participation Agreement. Any Lender transferring its Note shall
pay, or cause the transferee to pay, the costs and expenses (including
reasonable counsel fees) incurred by the Administrative Agent in connection with
such transfer.
SECTION IX.4. Counterparts. This Loan Agreement may be executed by
one or more of the parties to this Loan Agreement on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Loan
Agreement signed by all the parties hereto shall be lodged with the Borrower and
the Administrative Agent.
SECTION IX.5. GOVERNING LAW. THIS LOAN AGREEMENT AND THE NOTES HAVE
BEEN DELIVERED IN, AND THIS LOAN AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS LOAN AGREEMENT AND THE NOTES SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
BUT EXCLUDING ALL OTHER CHOICE OF LAWS AND CONFLICTS OF LAWS RULES OF SUCH
STATE, EXCEPT AS TO MATTERS RELATING TO PERFECTION AND THE EFFECT OF PERFECTION
OR NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREUNDER, WHICH SHALL BE
GOVERNED BY THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED, AND TO THE
EXTENT THAT THE EXERCISE OF CERTAIN RIGHTS OR REMEDIES HEREUNDER OR UNDER THE
OTHER OPERATIVE DOCUMENTS MAY REQUIRE COMPLIANCE WITH GAMING LAWS.
SECTION IX.6. Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Loan Agreement and the Notes and
shall continue in full force and effect so long as any Note or any amount
payable to any Lender under or in connection with this Loan Agreement or the
Notes is unpaid, at which time this Loan Agreement shall terminate, it being
expressly understood that the obligations of the Borrower, as the case may be,
to the Administrative Agent and each Lender under Article II and the obligations
of the Lenders to the Administrative Agent under Section 7.7 shall survive the
payment in full of the Notes.
SECTION IX.7. Entire Agreement. This Loan Agreement sets forth the
entire agreement of the parties hereto with respect to its subject matter, and
supersedes all previous understandings, written or oral, with respect thereto.
-23-
27
Loan Agreement
SECTION IX.8. Severability. Any provision of this Loan Agreement or of
the Notes which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
[Signature pages follow]
-24-
28
Loan Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
HANCOCK BANK, not in its individual capacity,
except as specifically provided herein, but
solely as Trustee and as Borrower
By: _______________________________________
Name: Arnold Wethey
Title: Vice President & Trust Officer
29
Loan Agreement
BA LEASING & CAPITAL
CORPORATION, not in its
individual capacity except as
specifically provided herein
but solely as Administrative
Agent
By: _______________________________________
Name: Sonia T. Delen
Title: Assistant Vice President
30
Loan Agreement
SOCIETE GENERALE, as a Lender
By: _______________________________________
Name: Donald L. Schubert
Title: Vice President
31
Loan Agreement
THE SUMITOMO BANK, LIMITED, as a Lender
By: _______________________________________
Name: Hiroyuki Iwami
Title: Joint General Manager
32
Loan Agreement
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: _______________________________________
Name: David J. Kramer
Title: Vice President
33
Loan Agreement
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: _______________________________________
Name: Yasushi Satomi
Title: Senior Vice President
34
Loan Agreement
BANK OF SCOTLAND, as a Lender
By: _______________________________________
Name: Annie Chin Tat
Title: Vice President
35
Loan Agreement
HANCOCK BANK, as a Lender
By: _______________________________________
Name: Keith A. Williams
Title: Vice President
36
Loan Agreement
MITSUI LEASING (U.S.A.), INC., as a Lender
By: _______________________________________
Name: Masato Utsumi
Title: President
37
Loan Agreement
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as a Lender
By: _______________________________________
Name: David P. Williams
Title: Vice President
38
Loan Agreement
THE PEOPLES BANK, as a Lender
By: _______________________________________
Name: Robert M. Tucei
Title: Senior Vice President
39
Loan Agreement
SCHEDULE I
TO
REDUCING REVOLVING LOAN AGREEMENT
LENDERS
Commitment
Lender Commitment Percentage
- ------ ---------- ----------
BA Leasing & Capital Corporation $16,500,000 16.500000
Societe Generale 15,000,000 15.000000
The Sumitomo Bank, Limited 15,000,000 15.000000
Wells Fargo Bank, National Association 15,000,000 15.000000
The Mitsubishi Trust and Banking Corporation 15,000,000 15.000000
Bank of Scotland 10,000,000 10.000000
Hancock Bank 5,000,000 5.000000
Mitsui Leasing (U.S.A.), Inc. 3,500,000 3.500000
First Security Bank, National Association 2,500,000 2.500000
The Peoples Bank 2,500,000 2.500000
------------ ---------
TOTAL (Lenders) $100,000,000 100.00%
40
Loan Agreement
EXHIBIT A
TO REDUCING REVOLVING LOAN AGREEMENT
FORM OF NOTE
NOTE NO. __
U.S. $________________ ________________, 1997
FOR VALUE RECEIVED, the undersigned, HANCOCK BANK, not in its
individual capacity but solely as Trustee under the Trust Agreement for the
Lenders named therein (the "Borrower"), promises to pay to the order of [NAME OF
LENDER] (the "Lender"), the principal sum of $_________ United States Dollars
or, if less, the aggregate unpaid principal amount of all Loans made by the
Lender to, or for the benefit of, the Borrower, or purchased by the Lender, as
recorded either on the grid attached to this Note or in the records of the
Lender; provided, however, that the failure to make any such recordation or any
error in such recordation shall not in any way affect the Borrower's obligation
to repay this Note. The principal amount of each Loan evidenced hereby shall be
payable on or prior to the Final Maturity Date as provided in that certain
Reducing Revolving Loan Agreement, dated as of September 29, 1997, among the
Borrower, BA Leasing & Capital Corporation, a California corporation, as
administrative agent (the "Administrative Agent"), and the various lenders named
therein (the "Loan Agreement").
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding at the rates per annum, on the dates
specified in, and in accordance with the terms of the Loan Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Lender pursuant to the Loan Agreement.
This Note is one of the Notes referred to in, and evidences
indebtedness incurred under, the Loan Agreement, to which reference is made for
a statement of the terms and conditions on which the Borrower is required to
make prepayments and repayments of principal of the indebtedness evidenced by
this Note and on which such indebtedness may be declared to be immediately due
and payable. Capitalized terms used herein without definition shall have the
meanings provided in the Loan Agreement. This Note is secured pursuant to the
Security Documents made by the Borrower in favor of the Administrative Agent
referred to in the Loan Agreement and reference is hereby made to the Loan
Agreement and such Security Documents
A-1
41
Loan Agreement
for a statement of the terms and provisions of such security.
Anything to the contrary herein notwithstanding, the Borrower's
liability for any sums due hereunder shall be limited in accordance with Section
2.8 of the Loan Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest, and notice of
dishonor, notice of the existence, creation or nonpayment of all or any of the
Loans and all other notices whatsoever.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAWS AND CONFLICTS OF LAWS
RULES OF SUCH STATE.
IN WITNESS WHEREOF, the Trustee has caused this Note to be executed in
its corporate name by its duly authorized officer as of the date hereof.
HANCOCK BANK, not in its individual capacity but
solely as Trustee, as Borrower
By: _______________________________
Name:
Title:
A-2
42
Loan Agreement
GRID ATTACHED TO NOTE
DATED AS OF ____________, 1997 OF
HANCOCK BANK
AS TRUSTEE
PAYABLE TO THE ORDER OF [INSERT LENDER'S NAME]
Loans made by the Lender to the Trustee, as Borrower, and payments of principal
of such Loans.
========================================================================================================================
Principal Notation Made
========================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
========================================================================================================================
A-3