------------------------------------------------------------------------
------------------------------------------------------------------------
CREDIT AGREEMENT
DATED AS OF JUNE 8, 1999
AMONG
ARGOSY GAMING COMPANY, A DELAWARE CORPORATION,
THE MISSOURI GAMING COMPANY, A MISSOURI CORPORATION,
ALTON GAMING COMPANY, AN ILLINOIS CORPORATION,
IOWA GAMING COMPANY, AN IOWA CORPORATION,
JAZZ ENTERPRISES, INC., A LOUISIANA CORPORATION,
ARGOSY OF LOUISIANA, INC., A LOUISIANA CORPORATION,
CATFISH QUEEN PARTNERSHIP IN COMMENDAM,
A LOUISIANA PARTNERSHIP IN COMMENDAM, AND
THE INDIANA GAMING COMPANY, AN INDIANA CORPORATION,
AS BORROWERS
THE LENDERS HEREIN NAMED
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS SWINGLINE LENDER, L/C ISSUER AND AGENT BANK
SOCIETE GENERALE,
AS SYNDICATION AGENT
KEYBANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
THE FIRST NATIONAL BANK OF CHICAGO,
AS MANAGING AGENT
TABLE OF CONTENTS
RECITALS...........................................................................................................1
ARTICLE I - DEFINITIONS............................................................................................4
Section 1.01. Definitions............................................................................62
Section 1.02. Interpretation and Construction........................................................63
Section 1.03. Use of Defined Terms...................................................................63
Section 1.04. Cross-References.......................................................................63
Section 1.05. Exhibits and Schedules.................................................................63
ARTICLE II - AMOUNT, TERMS AND SECURITY OF THE FACILITIES.........................................................63
Section 2.01. The Credit Facility....................................................................63
Section 2.02. Use of Proceeds of the Credit Facility.................................................65
Section 2.03. Notice of Borrowings and Exercise of Interest Rate Options.............................66
Section 2.04. Conditions of Borrowings...............................................................67
Section 2.05. The Revolving Credit Note and Interest Rate Options....................................67
Section 2.06. Security for the Credit Facility.......................................................71
Section 2.07. Place and Manner of Payment............................................................71
Section 2.08. The Swingline Facility.................................................................73
Section 2.09. Issuance of Letters of Credit..........................................................75
Section 2.10. Fees...................................................................................77
Section 2.11. Interest on Overdue Amounts and Default Rate...........................................78
Section 2.12. Net Payments...........................................................................79
Section 2.13. Increased Costs........................................................................80
Section 2.14. Mitigation; Exculpation; Replacement Lender............................................81
Section 2.15. Commitment Increases and Term Loans....................................................82
ARTICLE III - CONDITIONS PRECEDENT TO THE CLOSING DATE............................................................85
A. Closing Conditions..............................................................................85
- i -
Section 3.01. Credit Agreement.......................................................................86
Section 3.02. The Notes..............................................................................86
Section 3.03. Security Documentation.................................................................86
Section 3.04. Other Loan Documents...................................................................88
Section 3.05. Articles of Incorporation, Bylaws, Corporate Resolution and Certificate of
Good Standing.................................................................88
Section 3.06. Partnership Documentation..............................................................89
Section 3.07. Closing Certificate and Authorized Representatives Certificate.........................89
Section 3.08. Opinion of Counsel.....................................................................89
Section 3.09. Title Insurance Policies...............................................................89
Section 3.10. Survey.................................................................................90
Section 3.11. Priority of Ship Mortgages.............................................................90
Section 3.12. Indentures.............................................................................90
Section 3.13. Consummation of Tender Offer and Consent Solicitation..................................90
Section 3.14. Outstanding First Mortgage Notes Payment Fund..........................................91
Section 3.15. New Indenture..........................................................................91
Section 3.16. Insurance..............................................................................91
Section 3.17. Payment of Fees........................................................................91
Section 3.18. Reimbursement for Expenses and Fees....................................................91
Section 3.19. Development Agreements and Leases......................................................92
Section 3.20. Estoppel Certificate...................................................................92
Section 3.21. Regulatory Approvals, Permits, Consents, Etc...........................................92
Section 3.22. Pricing Certificate....................................................................92
Section 3.23. Schedule of all Significant Litigation.................................................92
Section 3.24. Financial Statements...................................................................92
Section 3.25. No Injunction or Other Litigation......................................................93
Section 3.26. Additional Documents and Statements....................................................93
B. Conditions Precedent to all Borrowings..........................................................93
Section 3.27. Notice of Borrowing....................................................................93
Section 3.28. Certain Statements.....................................................................93
Section 3.29. Gaming Permits.........................................................................94
- ii -
C. Additional Conditions Precedent to Commitment Increases and Term Loans...........................94
Section 3.30. Evidence of Lawrenceburg Buyout.........................................................94
Section 3.31. Additional Security Documents...........................................................94
Section 3.32. Other Loan Documents....................................................................95
Section 3.33. Opinion of Counsel - Commitment Increase................................................95
Section 3.34. Lawrenceburg Title Insurance Policy.....................................................95
Section 3.35. Survey..................................................................................95
Section 3.36. Payment of Taxes........................................................................96
Section 3.37. Lawrenceburg Insurance..................................................................96
Section 3.38. Reimbursement for Expenses and Fees.....................................................96
Section 3.39. Phase I Environmental Site Assessments..................................................96
Section 3.40. No Injunction or Other Litigation.......................................................96
Section 3.41. Pro Forma Financial Compliance..........................................................97
Section 3.42. Designation of Restricted Subsidiary....................................................97
Section 3.43. Additional Documents and Statements.....................................................97
ARTICLE IV - REPRESENTATIONS AND WARRANTIES........................................................................97
Section 4.01. Organization; Power and Authorization...................................................97
Section 4.02. No Conflict With, Violation of or Default Under Laws or Other Agreements................98
Section 4.03. Litigation..............................................................................99
Section 4.04. Agreements Legal, Binding, Valid and Enforceable........................................99
Section 4.05. Information and Financial Data Accurate; Financial Statements;
No Material Adverse Change.....................................................99
Section 4.06. Governmental Approvals.................................................................100
Section 4.07. Payment of Taxes.......................................................................100
Section 4.08. Title to Properties....................................................................100
- iii -
Section 4.09. No Untrue Statements...................................................................101
Section 4.10. Brokerage Commissions..................................................................101
Section 4.11. No Defaults............................................................................102
Section 4.12. Employee Retirement Income Security Act of 1974........................................102
Section 4.13. Partnership Agreements, Development Agreements and Baton Rouge Leases..................102
Section 4.14. Senior Indenture.......................................................................103
Section 4.15. Convertible Notes......................................................................104
Section 4.16. Availability of Utility Services and Facilities........................................104
Section 4.17. Policies of Insurance..................................................................104
Section 4.18. Gaming Permits.........................................................................104
Section 4.19. Environmental Certificate..............................................................104
Section 4.20. New Venture Subsidiaries...............................................................105
Section 4.21. Compliance with Statutes, etc..........................................................105
Section 4.22. Investment Company Act.................................................................105
Section 4.23. Public Utility Holding Company Act.....................................................105
Section 4.24. Labor Relations........................................................................105
Section 4.25. Patents, Licenses, Franchises and Formulas.............................................105
Section 4.26. Contingent Liabilities.................................................................106
ARTICLE V - GENERAL COVENANTS OF BORROWERS........................................................................106
Section 5.01. FF&E...................................................................................106
Section 5.02. Permits; Licenses and Legal Requirements...............................................106
Section 5.03. Development Agreements.................................................................107
Section 5.04. Protection Against Lien Claims.........................................................107
Section 5.05. No Change in Character of Business.....................................................108
Section 5.06. Preservation and Maintenance of Properties and Assets; Acquisition
of Additional Property; Release of Baton Rouge Hotel Property.................108
Section 5.07. Repair of Properties and Assets........................................................109
Section 5.08. Financial Statements; Reports; Certificates and Books and Records......................109
Section 5.09. Insurance..............................................................................112
- iv -
Section 5.10. Taxes..................................................................................118
Section 5.11. Release of Senior Indenture Security Documents.........................................118
Section 5.12. Lawrenceburg Casino Facilities.........................................................118
Section 5.13. Further Assurances.....................................................................118
Section 5.14. Indemnification........................................................................119
Section 5.15. Inspection of the Collateral and Appraisal.............................................120
Section 5.16. Compliance With Other Loan Documents, Execution of Subsidiary Guaranties
and Pledge of Restricted Subsidiary Stock.....................................120
Section 5.17. Suits or Actions Affecting Borrowers...................................................121
Section 5.18. Occurrence of Senior Subordinated Notes Effective Date and Required
Payments from Proceeds of Senior Subordinated Notes...........................121
Section 5.19. Consents of and Notice to Gaming Authorities...........................................121
Section 5.20. Tradenames, Trademarks and Servicemarks................................................121
Section 5.21. Notice of Hazardous Materials..........................................................122
Section 5.22. Compliance with Statutes, etc..........................................................122
Section 5.23. Compliance with Access Laws............................................................123
Section 5.24. Designation of Bank Facilities as Designated Senior Debt...............................123
Section 5.25. Prohibition on Prepayment or Defeasance of Subordinated Debt...........................123
Section 5.26. Year 2000 Compliance...................................................................123
Section 5.27. Acceleration of Maturity Date..........................................................124
Section 5.28. Restriction on Amendments to Development Agreements, Partnership
Agreements and Baton Rouge Leases.............................................124
ARTICLE VI - FINANCIAL COVENANTS..................................................................................124
Section 6.01. Total Leverage Ratio...................................................................124
Section 6.02. Senior Leverage Ratio..................................................................126
Section 6.03. Fixed Charge Coverage Ratio............................................................127
Section 6.04. Minimum Net Worth......................................................................127
- v -
Section 6.05. Capital Expenditure Requirements.......................................................128
Section 6.06. Contingent Liability(ies)..............................................................129
Section 6.07. Investment Restrictions................................................................129
Section 6.08. Total Liens............................................................................130
Section 6.09. Limitation on Indebtedness.............................................................130
Section 6.10. Minimum Subordinated Debt..............................................................132
Section 6.11. Restriction on Distributions and Argosy Dividends......................................132
Section 6.12. No Change of Control...................................................................132
Section 6.13. Consolidation, Merger, Sale of Assets, etc.............................................132
Section 6.14. Transactions with Affiliates...........................................................133
Section 6.15. No Transfer of Ownership...............................................................134
Section 6.16. ERISA..................................................................................134
Section 6.17. Margin Regulations.....................................................................134
Section 6.18. Limitation on Additional Subsidiaries..................................................135
Section 6.19. Limitation on Consolidated Tax Liability...............................................135
Section 6.20. Change in Accounting Principles........................................................135
ARTICLE VII - EVENTS OF DEFAULT...................................................................................135
Section 7.01. Events of Default......................................................................135
Section 7.02. Default Remedies.......................................................................139
Section 7.03. Application of Proceeds................................................................140
Section 7.04. Notices................................................................................140
Section 7.05. Agreement to Pay Attorney's Fees and Expenses..........................................140
Section 7.06. No Additional Waiver Implied by One Waiver.............................................141
Section 7.07. Licensing of Agent Bank and Lenders....................................................141
Section 7.08. Exercise of Rights Subject to Applicable Law...........................................141
Section 7.09. Discontinuance of Proceedings..........................................................141
ARTICLE VIII - DAMAGE, DESTRUCTION AND CONDEMNATION...............................................................142
Section 8.01. No Abatement of Payments...............................................................142
Section 8.02. Distribution of Capital Proceeds
- vi -
Upon Occurrence of Fire, Casualty, Other Perils or Condemnation........................142
ARTICLE IX - AGENCY PROVISIONS....................................................................................144
Section 9.01. Appointment............................................................................144
Section 9.02. Nature of Duties.......................................................................144
Section 9.03. Disbursement of Borrowings.............................................................145
Section 9.04. Distribution and Apportionment of Payments.............................................146
Section 9.05. Rights, Exculpation, Etc...............................................................147
Section 9.06. Reliance...............................................................................148
Section 9.07. Indemnification........................................................................148
Section 9.08. Agent Individually.....................................................................149
Section 9.09. Successor Agent Bank; Resignation of Agent Bank; Removal of Agent Bank.................149
Section 9.10. Consent and Approvals..................................................................150
Section 9.11. Agency Provisions Relating to Collateral...............................................153
Section 9.12. Lender Actions Against Collateral and Restriction on Exercise of Set-Off...............156
Section 9.13. Ratable Sharing........................................................................156
Section 9.14. Delivery of Documents..................................................................156
Section 9.15. Notice of Events of Default............................................................157
Section 9.16. Syndication Agent, Documentation Agent and Managing Agent..............................157
ARTICLE X - GENERAL TERMS AND CONDITIONS..........................................................................157
Section 10.01. Amendments and Waivers.................................................................157
Section 10.02. Failure to Exercise Rights.............................................................159
Section 10.03. Notices and Delivery...................................................................159
Section 10.04. Modification in Writing................................................................159
Section 10.05. Other Agreements.......................................................................160
Section 10.06. Counterparts...........................................................................160
Section 10.07. Rights, Powers and Remedies are Cumulative.............................................160
Section 10.08. Continuing Representations.............................................................160
Section 10.09. Successors and Assigns.................................................................161
- vii -
Section 10.10. Assignment of Loan Documents by Borrowers or Syndication Interests by Lenders..........161
Section 10.11. Action by Lenders......................................................................162
Section 10.12. Time of Essence........................................................................163
Section 10.13. Choice of Law and Forum................................................................163
Section 10.14. Advances...............................................................................163
Section 10.15. Waiver of Jury Trial...................................................................163
Section 10.16. Scope of Approval and Review...........................................................164
Section 10.17. Severability of Provisions.............................................................164
Section 10.18. Cumulative Nature of Covenants.........................................................164
Section 10.19. Confidentiality........................................................................164
Section 10.20. Costs to Prevailing Party..............................................................165
Section 10.21. Expenses...............................................................................165
Section 10.22. Security and Loan Documentation........................................................166
Section 10.23. Setoff.................................................................................166
Section 10.24. Borrowers' Waivers and Consents........................................................166
Section 10.25. Schedules Attached.....................................................................171
Schedule 2.01(a) - Schedule of Lenders' Proportions in Credit Facility
Schedule 2.01(c) - Total Commitment Reduction Schedule
Schedule 3.23 - Schedule of Significant Litigation
Schedule 4.08(b) - Schedule of Intercompany Notes
Schedule 4.20 - Schedule of Restricted and Unrestricted Subsidiaries
Schedule 4.25 - Schedule of Trademarks, Patents, Licenses,
Franchises, Formulas and Copyrights
Schedule 4.26 - Schedule of Contingent Liabilities
Schedule 5.11 - Schedule of Senior Indenture Security Documents
Schedule 6.05(b) - Schedule of Excluded Capital Expenditures
Schedule 6.07(h) - Schedule of Existing Unrestricted Subsidiary Investments
Schedule 6.09 - Schedule of Liens
Section 10.26. Exhibits Attached......................................................................171
Exhibit A - Revolving Credit Note - Form
- viii -
Exhibit B - Swingline Note - Form
Exhibit C - Notice of Borrowing - Form
Exhibit D - Continuation/Conversion Notice - Form
Exhibit E - Notice of Swingline Advance - Form
Exhibit F - Compliance Certificate - Form
Exhibit G - Pricing Certificate - Form
Exhibit H - Defeasance Account Agreement - Form
Exhibit I - Authorized Representative Certificate - Form
Exhibit J - Closing Certificate - Form
Exhibit K - Assumption and Consent Agreement - Form
Exhibit L - Assignment and Assumption Agreement - Form
Exhibit M - Cash Collateral Pledge Agreement
Exhibit N - Subsidiary Guaranty - Form
Exhibit O - Legal Opinion - Form
Exhibit P - Alton Real Property Description
Exhibit Q - Riverside Real Property Description
Exhibit R - Sioux City Real Property Description
Exhibit S - Baton Rouge Hotel Property Description
Exhibit T - Baton Rouge Real Property Description
- ix -
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of the
8th day of June, 1999, by and among ARGOSY GAMING COMPANY, a Delaware
corporation ("Argosy"), THE MISSOURI GAMING COMPANY, a Missouri corporation
("MGC"), ALTON GAMING COMPANY, an Illinois corporation ("AGC"), IOWA GAMING
COMPANY, an Iowa corporation ("IGC"), JAZZ ENTERPRISES, INC., a Louisiana
corporation ("Jazz"), ARGOSY OF LOUISIANA, INC., a Louisiana corporation
("AOLI"), CATFISH QUEEN PARTNERSHIP IN COMMENDAM, a Louisiana partnership in
commendam ("CQP") and THE INDIANA GAMING COMPANY, an Indiana corporation
("TIGC" and, together with Argosy, MGC, AGC, IGC, Jazz, AOLI and CQP,
collectively the "Borrowers"), each financial institution whose name is set
forth on the signature pages of this Credit Agreement and each lender which
may hereafter become a party to this Credit Agreement pursuant to Section
2.15(a) and/or 2.15(b) or Section 10.10(b) (each individually a "Lender" and
collectively the "Lenders"), WELLS FARGO BANK, National Association, as the
swingline lender (herein in such capacity, together with its successors and
assigns, the "Swingline Lender"), WELLS FARGO BANK, National Association, as
the issuer of letters of credit hereunder (herein in such capacity, together
with its successors and assigns, the "L/C Issuer"), SOCIETE GENERALE, as the
syndication agent ("Syndication Agent"), KEYBANK NATIONAL ASSOCIATION, as the
documentation agent ("Documentation Agent"), THE FIRST NATIONAL BANK OF
CHICAGO, as the managing agent ("Managing Agent") and WELLS FARGO BANK,
National Association, as the arranger and administrative and collateral agent
for the Lenders, Swingline Lender and L/C Issuer (herein, in such capacity,
called the "Agent Bank" and, together with the Lenders, Swingline Lender and
L/C Issuer, collectively referred to as the "Banks").
R E C I T A L S:
WHEREAS:
A. In this Credit Agreement all capitalized words and terms
shall have the respective meanings and be construed herein as hereinafter
provided in Section 1.01 of this Credit Agreement and shall be deemed to
incorporate such words and terms as a part hereof in the same manner and with
the same effect as if the same were fully set forth.
B. AGC, MGC, AOLI, Jazz, IGC and TIGC are each wholly owned
subsidiaries of Argosy. AOLI is the general partner of and the owner of a
ninety percent (90%) partnership interest in CQP. Jazz is the partner in
commendam of and the owner of a ten percent (10%) partnership interest in CQP.
- 1 -
C. On or about June 5, 1996, Argosy issued Two Hundred
Thirty-Five Million Dollars ($235,000,000.00) in aggregate principal amount
of thirteen and one-quarter percent (13.25%) First Mortgage Notes due 2004
(the "First Mortgage Notes") pursuant to the terms of the Indenture of even
date therewith (the "Senior Indenture") executed by and among Argosy, as
issuer, MGC, AGC, The St. Louis Gaming Company, IGC, Jazz, AOLI, CQP and
TIGC, as guarantors and Bank One Trust Company, NA as successor trustee of
First National Bank of Commerce, as trustee (the "Senior Indenture Trustee").
D. On or about June 6, 1994, Argosy issued One Hundred
Fifteen Million Dollars ($115,000,000.00) aggregate principal amount of
twelve percent (12.0%) convertible subordinated notes due 2001 (the
"Convertible Notes") pursuant to the terms of the Indenture of even date
therewith (the "Convertible Notes Indenture") executed by and among Argosy,
as issuer, and Bank One, Springfield, as trustee.
E. Argosy desires to issue no less than One Hundred Fifty
Million Dollars ($150,000,000.00) in new 10.75% Senior Subordinated Notes due
2009 (the "Initial Senior Subordinated Notes") in a limited offering to
Qualified Institutional Buyers (as defined in Rule 144A of the Securities and
Exchange Commission (the "SEC")) and outside the United States to certain
persons in reliance on Regulation S of the SEC, which Initial Senior
Subordinated Notes are intended to be issued under and pursuant to an
indenture (together with any amendments or supplements in connection with the
Exchange Senior Subordinated Notes, the "New Indenture") to be dated on or
before the Closing Date, executed by and among Argosy, as issuer, MGC, AGC,
IGC, Jazz, AOLI, CQP and TIGC, as guarantors and Bank One Trust Company, NA,
as trustee, prepared and executed consistent with the Confidential Offering
Memorandum dated June 3, 1999.
F. Following the issuance of the Initial Senior
Subordinated Notes and in order to facilitate trading in such debt
securities, Argosy intends to file a registration statement with the SEC
seeking to register an exchange offer for the exchange of the Initial Senior
Subordinated Notes for an issue of no less than One Hundred Fifty Million
Dollars ($150,000,000.00) in Senior Subordinated Notes due 2009 (the
"Exchange Senior Subordinated Notes") under and pursuant to the New
Indenture. The Exchange Senior Subordinated Notes will be identical in all
material respects to the Initial Senior Subordinated Notes.
G. Argosy has made an "Offer to Purchase For Cash All
Outstanding 13-1/4% First Mortgage Notes Due 2004 and Solicitation of
Consents to the Proposed Amendments to Related Indenture and Security
Documents" (together with the related letter of transmittal and related
offering materials, collectively the "Purchase/Solicitation Statement")
pursuant to which Argosy has offered to purchase the First Mortgage Notes
(the "Tender Offer") and has solicited from the holders of the First Mortgage
Notes consents to
- 2 -
proposed, amendments to the Senior Indenture and the Senior Indenture
Security Documents and to Argosy's grant of additional liens on the Senior
Indenture Collateral (the "Consent Solicitation").
H. On the Closing Date: (i) Argosy shall purchase pursuant
to the Tender Offer, no less than 85.0% in aggregate principal amount of the
First Mortgage Notes, (ii) the Senior Indenture shall have been amended
pursuant to and consistent with the Consent Solicitation, and (iii) Argosy
shall have obtained the required consent of the holders of the First Mortgage
Notes to the grant of a second lien on the Senior Indenture Collateral.
I. The Borrower Consolidation desires to finance a portion
of the costs of the Tender Offer, Consent Solicitation and First Mortgage
Notes Defeasance and for the payment of the Convertible Notes and to provide
working capital for the Borrower Consolidation by establishing a bank
financed revolving line of credit in the principal amount of no less than Two
Hundred Million Dollars ($200,000,000.00), including a swingline subfacility
for fundings in smaller minimum amounts and on shorter notice in the maximum
amount of no less than Ten Million Dollars ($10,000,000.00) at any time
outstanding, and also including a subfacility for the issuance of Letters of
Credit in the maximum amount of no less than Ten Million Dollars
($10,000,000.00) at any time outstanding.
J. Banks are willing, subject to the terms, covenants and
conditions hereinafter set forth, to establish in favor of Borrowers a
secured revolving line of credit in the initial principal amount of Two
Hundred Million Dollars ($200,000,000.00), subject to potential increase of
the Aggregate Commitment by an additional amount of up to Two Hundred Million
Dollars ($200,000,000.00) as provided in Section 2.15(a) and (b) hereinbelow.
Additionally, the Credit Facility will include the L/C Facility, as a
subfacility for the issuance of standby and documentary letters of credit by
the L/C Issuer in the maximum aggregate amount as set forth in this Credit
Agreement in Letters of Credit at any time outstanding and shall further
include the Swingline Facility to be funded by the Swingline Lender, as a
subfacility in the maximum aggregate amount as set forth in this Credit
Agreement at any time outstanding, all on the terms and subject to the
conditions, covenants and understandings hereinafter set forth and contained
in each of the Loan Documents.
NOW, THEREFORE, in consideration of the foregoing, and
other valuable considerations as hereinafter described, the parties hereto do
promise, covenant and agree as follows:
- 3 -
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For the purposes of this Credit
Agreement, each of the following terms shall have the meaning specified with
respect thereto, unless a different meaning clearly appears from the context:
"AGC" shall mean Alton Gaming Company, an Illinois
corporation.
"AOLI" shall mean Argosy of Louisiana, Inc., a Louisiana
corporation.
"Access Laws" shall have the meaning set forth in Section
5.23(a).
"Adjusted Assets" of the Argosy Consolidation as of any
Fiscal Quarter end shall mean Assets less the Minority Asset Adjustment.
"Adjusted Cash Flow" as of the end of any Fiscal Quarter
shall mean with reference to the Argosy Consolidation:
For the Fiscal Quarter under review, together with the most
recently ended three (3) preceding Fiscal Quarters, the sum
of: (i) Economic EBITDA, less (ii) the aggregate amount of
actually paid federal and state taxes on or measured by
income, less (iii) Distributions (exclusive of advisory
fees paid to Conseco) actually paid (to the extent not
included in Adjusted Fixed Charges), less (iv) the sum of:
(a) the aggregate amount actually paid for Non-Financed
Capital Expenditures at the Argosy Owned Facilities during
such period (exclusive of Sioux City Casino Facilities),
plus (b) 57.5% of the aggregate amount actually paid for
Non-Financed Capital Expenses at the Lawrenceburg Casino
Facilities during such period, plus (c) 70% of the
aggregate amount actually paid for Non-Financed Capital
Expenditures at the Sioux City Casino Facilities during
such period.
"Adjusted Fixed Charges" of the Argosy Consolidation as of
any Fiscal Quarter end shall mean Fixed Charges less the Minority Fixed
Charges Adjustment.
"Adjusted Funded Debt" of the Argosy Consolidation as of
any Fiscal Quarter end shall mean Funded Debt less the Minority Funded Debt
Adjustment.
- 4 -
"Adjusted Senior Funded Debt" of the Argosy Consolidation
as of any Fiscal Quarter end shall mean Senior Funded Debt less the Minority
Senior Funded Debt Adjustment.
"Adjusted Total Liabilities" of the Argosy Consolidation as
of any Fiscal Quarter end shall mean Total Liabilities less the Minority
Total Liabilities Adjustment.
"Affiliate(s)" of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person. A Person shall be deemed to be "controlled by" any other
Person if such other Person possesses, directly or indirectly, power to:
(a) vote ten percent (10%) or more of the equity
securities (on a fully diluted basis) having ordinary voting
power for the election of directors or managing general
partners; or
(b) direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
"Agent Bank" has the meaning set forth in the Preamble of
this Credit Agreement.
"Aggregate Commitment" shall mean reference to the
aggregate amount committed by Lenders for advance to or on behalf of
Borrowers as Borrowings under the Credit Facility in the initial principal
amount of Two Hundred Million Dollars ($200,000,000.00) as may be increased
by up to the additional principal amount of Two Hundred Million Dollars
($200,000,000.00) as provided in Section 2.15(a) and (b), in each case
subject to: (i) the Scheduled Reductions as set forth on the Total Commitment
Reduction Schedule, (ii) the limitations for advance as set forth in the
definition of Maximum Permitted Balance, and (iii) Voluntary Permanent
Reduction as provided in Section 2.01(c).
"Aggregate Expenditure Availability" shall mean, as of any
date of determination, the lesser of (a) One Hundred Seventy-Five Million
Dollars ($175,000,000.00) less the aggregate of Capital Expenditures,
Investments and Indebtedness in the following categories for the period of
the life of the Bank Facilities, and (b) the Aggregate Expenditure Basket
less the aggregate of Capital Expenditures, Investments and Indebtedness in
the following categories, for the period of the Fiscal Year in which the date
of determination occurs:
- 5 -
(i) Investments made under Section 6.07(d), except
Investments made in BOSCLP for the purpose of funding
Capital Expenditures to the Sioux City Casino Facilities to
the extent permitted under Section 6.05;
(ii) Capital Expenditures made to the Argosy Owned
Facilities during any Fiscal Year in excess of the Maximum
Cap Ex Limit, except to the extent permitted under Section
6.05(a);
(iii) Capital Expenditures described on the Schedule
of Excluded Capital Expenditures;
(iv) The amount of Investments made in each
Restricted Subsidiary that is redesignated by Borrowers as
an Unrestricted Subsidiary;
(v) Until the occurrence of the Lawrenceburg
Buyout, Non-financed Capital Expenditures at the
Lawrenceburg Casino Facilities in excess of (a) Ten Million
Dollars ($10,000,000.00) in the aggregate during the first
(1st) through fourth (4th) full Fiscal Quarters following
the Closing Date; (b) Eleven Million Dollars
($11,000,000.00) in the aggregate during the fifth (5th)
through eighth (8th) full Fiscal Quarters following the
Closing Date; (c) Twelve Million Dollars ($12,000,000.00)
in the aggregate during the ninth (9th) through twelfth
(12th) full Fiscal Quarters following the Closing Date; (d)
Thirteen Million Dollars ($13,000,000.00) in the aggregate
during the thirteenth (13th) through sixteenth (16th) full
Fiscal Quarters following the Closing Date; and (e)
Fourteen Million Dollars ($14,000,000.00) in the aggregate
during the period commencing with the seventeenth Fiscal
Quarter following the Closing Date through Bank Facilities
Termination; and
(vi) Until the occurrence of the Lawrenceburg
Buyout, all Indebtedness of IGCLP in excess of Twenty-One
Million Dollars ($21,000,000.00), exclusive of Secured
Indebtedness and Capital Lease Liabilities to the extent
permitted under Section 6.09(b).
"Aggregate Expenditure Basket" shall mean Sixty Million
Dollars ($60,000,000.00) during any Fiscal Year; provided, however, that
commencing with the third (3rd) Fiscal Year following the Closing Date and
continuing for each Fiscal Year until Bank Facility Termination (the Fiscal
Year in which the Closing Date occurs being deemed the first Fiscal Year) to
the extent the Borrower Consolidation uses less than Sixty Million Dollars
($60,000,000.00) in Aggregate Expenditure Availability during any Fiscal
Year, the unused amount of Aggregate Expenditure Availability, up to the
maximum carryover amount
- 6 -
of Thirty Million Dollars ($30,000,000.00), shall be added to the Aggregate
Expenditure Basket for the next, but only the next, ensuing Fiscal Year. The
amount of any such carryover shall be deemed the first expenditures made
during the next ensuing Fiscal Year.
"Aggregate Outstandings" shall mean collective reference to
the sum of the Funded Outstandings, Swingline Outstandings, Potential L/C
Exposure and L/C Exposure as of any given date of determination.
"Alton Assignment of Permits, Contracts, Rents and
Revenues" shall mean the Assignment of Permits, Contracts, Rents and Revenues
to be executed by AGC on or before the Closing Date, whereby AGC assigns to
Agent Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer
in consideration of the Bank Facilities: (a) all of its right, title and
interest under all spaceleases and equipment leases and contracts relating to
the Alton Casino Facilities, (b) all of its right, title and interest in and
to all permits, licenses and contracts relating to the Alton Casino
Facilities, except those gaming permits and licenses which are unassignable,
and (c) all rents, issues, profits, revenues and income from the operation of
the Alton Casino Facilities, together with any and all future expansions
thereof, related thereto or used in connection therewith, as such assignment
may be amended, modified, supplemented, extended, renewed or restated from
time to time.
"Alton Belle II" shall mean that vessel known as Alton
Belle Casino II, Official No. 992563.
"Alton Belle II Ship Mortgage" shall mean the First
Preferred Ship Mortgage to be executed by AGC on or before the Closing Date
wherein AGC, as owner and mortgagor, grants a mortgage lien in favor of Agent
Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer, in
and to Alton Belle II, as such ship mortgage may be amended, modified,
supplemented, extended, renewed or restated from time to time.
"Alton Casino Facilities" shall mean the riverboat casino
business and related activities conducted by AGC on the Alton Vessel and on
the Alton Real Property and all improvements now or hereafter situate thereon.
"Alton Development Agreement" shall mean that certain
Agreement under date of April 18, 1991 by and between the City of Alton,
Illinois and the Alton Riverboat Gambling Partnership (the predecessor in
interest to AGC), pursuant to which, among other things, AGC constructed
various improvements to the Alton Real Property and was granted the Alton
Easement, as such agreement has been extended and is it may hereafter be
amended, modified, supplemented, extended, renewed or restated from time to
time.
- 7 -
"Alton Development Agreement Estoppel Certificate" shall
mean that certain Estoppel Certificate to be executed by the City of Alton,
Illinois as of the Closing Date pursuant to which the City of Alton, Illinois
represents to Agent Bank on behalf of the Lenders, the Swingline Lender and
the L/C Issuer, among other things, that: (i) the Alton Development Agreement
is in full force and effect; (ii) there are no defaults existing under the
Alton Development Agreement; and (iii) the City of Alton, Illinois
acknowledges that AGC is entitled to assign its interest under the Alton
Easement pursuant to the Assignment of Alton Development Agreement.
"Alton Easement" shall mean the easement for use of the
Alton Real Property which is granted to AGC under the Alton Development
Agreement.
"Alton Landing" shall mean that vessel known as Alton
Landing, Official No. 559023.
"Alton Landing Ship Mortgage" shall mean the First
Preferred Ship Mortgage to be executed by AGC on or before the Closing Date
wherein AGC, as owner and mortgagor, grants a mortgage lien in favor of Agent
Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer, in
and to Alton Landing, as such ship mortgage may be amended, supplemented or
otherwise modified from time to time.
"Alton Real Property" shall mean that real property which
is particularly described by "Exhibit P" attached hereto, which real property
is subject to, and used by AGC, as the Alton Easement in accordance with the
terms and conditions of the Alton Development Agreement.
"Alton Vessel" shall mean collective reference to Alton
Belle II and to any other documented or undocumented vessels, barges
watercraft or floating structures which may be utilized by AGC, as of the
Closing Date or thereafter, in the operation of its riverboat casino business
at, or in connection with, the Alton Real Property.
"Annualized EBITDA" shall mean with reference to EBITDA
realized by each Restricted Subsidiary in each applicable Restricted
Subsidiary Venture, as of the last day of each Fiscal Quarter (a) EBITDA for
the fiscal period consisting of that Fiscal Quarter and the three (3)
immediately preceding Fiscal Quarters, or (b) with respect to any such fiscal
period in which the applicable Restricted Subsidiary Venture has been open
for business to the public for at least one (1) full Fiscal Quarter but less
than four (4) full Fiscal Quarters, such amount as is necessary to reflect
the annualization of EBITDA attributable to the applicable Restricted
Subsidiary using the following calculations:
- 8 -
(i) if the applicable Restricted Subsidiary
Venture has been open for business to the public for one
(1) full Fiscal Quarter, the applicable Restricted
Subsidiary EBITDA for that Fiscal Quarter shall be
multiplied by four (4);
(ii) if the applicable Restricted Subsidiary
Venture has been open for business to the public for two
(2) full Fiscal Quarters, the applicable Restricted
Subsidiary EBITDA for those Fiscal Quarters shall be
multiplied by two (2); and
(iii) if the applicable Restricted Subsidiary
Venture has been open for business to the public for three
(3) full Fiscal Quarters, the applicable Restricted
Subsidiary EBITDA for those Fiscal Quarters shall be
multiplied by four-thirds (4/3).
"Applicable Margin" means for any Base Rate Loan or LIBOR
Loan during the period commencing on the Closing Date and continuing until
the Maturity Date, the applicable percentage amount to be added to the Base
Rate or LIBO Rate, as the case may be, as set forth in Table One below in
each instance based on the Total Leverage Ratio calculated with regard to the
Argosy Consolidation as of each Fiscal Quarter end, any change in the
applicable percentage amount by reason thereof to be effective as of the 1st
day of the third (3rd) month immediately following each such Fiscal Quarter
end:
- ----------------------------------------------------------------------------------------------------------
TABLE ONE TABLE TWO
- ----------------------------------------------------------------------------------------------------------
LIBO
BASE RATE RATE COMMITMENT
TOTAL LEVERAGE RATIO MARGIN MARGIN PERCENTAGE
- ----------------------------------------------------------------------------------------------------------
Greater than 4.25 to 1.00 but less than or equal 1.500% 2.750% 0.50%
to 4.75 to 1.00
- ----------------------------------------------------------------------------------------------------------
Greater than 3.75 to 1.00 but less than or equal 1.250% 2.500% 0.375
to 4.25 to 1.00
- ----------------------------------------------------------------------------------------------------------
Greater than 3.25 to 1.0 but less than or equal 1.000% 2.250% 0.375%
to 3.75 to 1.00
- ----------------------------------------------------------------------------------------------------------
Greater than 2.75 to 1.0 but less than or equal 0.750% 2.000% 0.250%
to 3.25 to 1.00
- ----------------------------------------------------------------------------------------------------------
Greater than 2.00 to 1.0 but less than or equal 0.500% 1.750% 0.250%
to 2.75 to 1.00
- ----------------------------------------------------------------------------------------------------------
Less than or equal to 2.00 to 1.00 0.250% 1.500% 0.250%
- ----------------------------------------------------------------------------------------------------------
- 9 -
"Argosy" shall mean Argosy Gaming Company, a Delaware
corporation.
"Argosy I" shall mean that vessel known as Argosy I,
Official No. 693321.
"Argosy I Ship Mortgage" shall mean the First Preferred
Ship Mortgage to be executed by AGC on or before the Closing Date wherein
AGC, as owner and mortgagor, grants a mortgage lien in favor of Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, in and to
Argosy I, as such ship mortgage may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Argosy III" shall mean that vessel known as Argosy III,
Official No. 1023758.
"Argosy III Ship Mortgage" shall mean the First Preferred
Ship Mortgage to be executed by CQP on or before the Closing Date wherein
CQP, as owner and mortgagor, grants a mortgage lien in favor of Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, in and to
Argosy III, as such ship mortgage may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Argosy IV" shall mean that vessel known as Argosy IV,
Official No. 1024067.
"Argosy IV Ship Mortgage" shall mean the First Preferred
Ship Mortgage to be executed by MGC on or before the Closing Date wherein
MGC, as owner and mortgagor, grants a mortgage lien in favor of Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, in and to
Argosy IV, as such ship mortgage may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Argosy V" shall mean that vessel known as Argosy V,
Official No. 972895.
"Argosy V Ship Mortgage" shall mean the First Preferred
Ship Mortgage to be executed by IGC on or before the Closing Date wherein
IGC, as owner and mortgagor, grants a mortgage lien in favor of Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, in and to
Argosy V, as such ship mortgage may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Argosy VI" shall mean that vessel known as Argosy VI,
Official No. 1054147.
"Argosy VI Ship Mortgage" shall mean the First Preferred
Ship Mortgage to be executed by IGCLP as of the Level Two Commitment Increase
Effective Date, or upon
- 10 -
the closing of the Level Two Term Loan, as the case may be, wherein IGCLP, as
owner and mortgagor, grants a mortgage lien in favor of Agent Bank on behalf
of the Lenders, the Swingline Lender and the L/C Issuer, in and to Argosy VI,
as such ship mortgage may be amended, supplemented or otherwise modified from
time to time.
"Argosy Consolidation" shall mean collective reference to
the Borrower Consolidation, IGCLP and BOSCLP on a consolidated basis, without
regard to any Unrestricted Subsidiary or other Affiliate of any of them.
"Argosy Dividends" shall mean collective reference to any
and all Cash dividends or Distributions to any stockholder of Argosy by
reason of its capital stock (common or preferred) in Argosy, including,
without limitation, Share Repurchases.
"Argosy Owned Facilities" shall mean collective reference
to the Hotel/Casino Facilities, exclusive of the Lawrenceburg Casino
Facilities until the occurrence of the Lawrenceburg Buyout, together with
each Restricted Subsidiary Venture.
"Assets" shall mean the total assets of the Argosy
Consolidation determined in accordance with GAAP.
"Assignment and Assumption Agreement" shall mean the
document evidencing an assignment of a Syndication Interest by any Lender to
an Eligible Assignee in the form of the Assignment, Assumption and Consent
Agreement marked "Exhibit L", affixed hereto and by this reference
incorporated herein and made a part hereof.
"Assignment of Alton Development Agreement" shall mean that
Assignment of Development Agreement to be executed by AGC on or before the
Closing Date pursuant to which, among other things, AGC assigns a present
interest in the Alton Development Agreement to Agent Bank on behalf of the
Lenders, the Swingline Lender and the L/C Issuer in consideration of the Bank
Facilities.
"Assignments" shall mean a collective reference to the
Alton Assignment of Permits, Contracts, Rents and Revenues, the Baton Rouge
Assignment of Permits, Contracts, Rents and Revenues, the Riverside
Assignment of Permits, Contracts, Rents and Revenues, the Sioux City
Assignment of Permits, Contracts, Rents and Revenues, and the Assignment of
Alton Development Agreement.
"Assumption and Consent Agreement" shall mean the document
evidencing an increase of the Aggregate Commitment and assumption of such
increase by a Lender or Eligible Assignee in the form of the Assumption and
Consent Agreement marked "Exhibit K", affixed hereto and by this reference
incorporated herein and made a part hereof.
- 11 -
"Authorized Representative(s)" shall mean, relative to the
Borrowers, those of the respective officers whose signatures and incumbency
shall have been certified to Agent Bank and the Banks as required by and
defined in Section 3.07 of the Credit Agreement with the authority and
responsibility to deliver Notices of Borrowing, Continuation/Conversion
Notices, Pricing Certificates, Notices of Swingline Advances, requests for
the issuance of Letters of Credit and all other requests, notices, reports,
consents, certifications, actions and authorizations on behalf of Borrowers,
or any of them.
"Available Borrowings" shall mean, at any time, and from
time to time, the aggregate amount available to Borrowers for a Borrowing, a
Swingline Advance or issuance of a Letter of Credit not exceeding the amount
of the Maximum Availability, as of each date of determination.
"BOSCLP" shall mean Belle of Sioux City, L.P., an Iowa
limited partnership.
"BOSCLP Partnership Agreement" shall mean the Agreement of
Limited Partnership of Belle of Sioux City, L.P. dated as of December 1,
1994, by and between IGC, as the general partner and Sioux City Riverboat
Corp. as the limited partner.
"Bank Facilities" shall mean collective reference to the
Credit Facility, Swingline Facility and L/C Facility.
"Bank Facility Termination" or "Bank Facilities
Termination" shall mean indefeasible payment in full of all sums owing under
the Notes and each of the other Loan Documents, the occurrence of the Stated
Expiry Date or other termination of all outstanding Letters of Credit, and
the irrevocable termination of the obligation to advance Borrowings, to
advance Swingline Advances and to issue Letters of Credit.
"Banking Business Day" means (a) with respect to any
Borrowing, payment or rate determination of LIBOR Loans, a day, other than a
Saturday or Sunday, on which Agent Bank is open for business in San Francisco
and on which dealings in Dollars are carried on in the London interbank
market, and (b) for all other purposes any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the States of Illinois,
California, Nevada and/or New York, or is a day on which banking institutions
located in California, Nevada and/or New York are required or authorized by
law or other governmental action to close.
"Bankruptcy Code" shall mean the United States Bankruptcy
Code, as amended, 11 U.S.C. Section 101, ET SEQ.
- 12 -
"Banks" shall have the meaning set forth in the Preamble to
this Credit Agreement.
"Base Rate" shall mean, as of any date of determination,
the rate per annum equal to the higher of (a) the Prime Rate in effect on
such date and (b) the Federal Funds Rate in effect on such date plus one-half
of one percent (1/2 of 1%) (fifty basis points).
"Base Rate Loan" shall mean reference to that portion of
the unpaid principal balance of the Credit Facility bearing interest with
reference to the Base Rate plus the Applicable Margin.
"Baton Rouge Assignment of Permits, Contracts, Rents and
Revenues" shall mean the Assignment of Permits, Contracts, Rents and Revenues
to be executed by AOLI, Jazz and CQP on or before the Closing Date, whereby
AOLI, Jazz and CQP assign to Agent Bank on behalf of the Lenders, the
Swingline Lender and the L/C Issuer in consideration of the Bank Facilities:
(a) all of their right, title and interest under all spaceleases and
equipment leases and contracts relating to the Baton Rouge Casino Facilities,
(b) all of their right, title and interest in and to all permits, licenses
and contracts relating to the Baton Rouge Casino Facilities, except those
gaming permits and licenses which are unassignable, and (c) all rents,
issues, profits, revenues and income from the operation of the Baton Rouge
Casino Facilities, together with any and all future expansions thereof,
related thereto or used in connection therewith, as such assignment may be
amended, modified, supplemented, extended, renewed or restated from time to
time.
"Baton Rouge Casino Facilities" shall mean the riverboat
casino business and related activities conducted by CQP on the Baton Rouge
Vessel and on the Baton Rouge Real Property and all improvements now or
hereafter situate thereon.
"Baton Rouge Collateral Assignment" shall mean that certain
Collateral Assignment of Loan Documents to be executed by Argosy and Agent
Bank pursuant to which the instruments securing performance under the
Intercompany Notes from Jazz to Argosy are collaterally assigned to Agent
Bank as security for the Bank Facilities and all other sums which may be
owing by Borrowers to the Banks from time to time under the Credit Agreement
as such assignment may be amended, modified, supplemented, extended, renewed
or restated from time to time.
"Baton Rouge Development Agreement" shall mean that certain
Contract under date of September 21, 1994 by and among the City of Baton
Rouge, Louisiana, the Parish of East Baton Rouge (collectively, the
"City-Parish") and Jazz pursuant to which, among other things, Jazz agreed to
construct certain improvements on the Baton Rouge Real Property and also
agreed that certain payments would be made to the City-Parish in
- 13 -
connection with operation of a riverboat gaming business in connection with
the Baton Rouge Real Property.
"Baton Rouge Fee Property" shall mean that portion of the
Baton Rouge Real Property which is designated as Parcel I, Parcels II A
through II F, Parcel III Tract A, Parcel III Tract B-2 and Parcels IV through
XV on Exhibit T attached hereto and incorporated by reference herein.
"Baton Rouge Hotel Property" shall mean the unimproved real
property more particularly described on that certain exhibit marked "Exhibit
S", affixed hereto, to be contributed by the Borrower Consolidation to an
Unrestricted Subsidiary or other Person which is not a member of the Borrower
Consolidation for the development and operation of a hotel on such land.
"Baton Rouge Lease Property" shall mean those portions of
the Baton Rouge Real Property which are designated as Parcels II G and II H,
Parcel III Tract B-1, and Parcels XVI and XVII, on Exhibit T attached hereto
and incorporated by reference herein.
"Baton Rouge Mortgage" shall mean that certain Mortgage of
Jazz Enterprises, Inc., Argosy of Louisiana, Inc. and Catfish Queen
Partnership in Commendam to Secure Present and Future Indebtedness,
Assignment of Leases and Rents, Security Agreement and Fixture Filing to be
executed by AOLI, Jazz and CQP as of the Closing Date in favor of Agent Bank,
on behalf of the Lenders, the Swingline Lender and the L/C Issuer,
encumbering the Baton Rouge Real Property and other Collateral therein
described for the purpose of securing the Bank Facilities and all other sums
which may be owing by Borrowers to the Banks from time to time under the
terms of the Credit Agreement, as it may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Baton Rouge Parking Lot Lease" shall mean that certain
Contract of Lease with Option to Renew and Right of First Refusal, under date
of October 19, 1995, by and between Phillips Connel Witter, as lessor, and
CQP, as lessee, pursuant to which CQP is granted a leasehold interest in the
Baton Rouge Parking Lot Parcel.
"Baton Rouge Parking Lot Parcel" shall mean that portion of
the Baton Rouge Real Property which is designated as Parcel XVII on Exhibit T
attached hereto and incorporated by reference herein.
"Baton Rouge Real Property" shall mean that real property
which is particularly described by "Exhibit T" attached hereto and
incorporated by reference herein (except that, after the Baton Rouge Hotel
Property has been released as Collateral under the
- 14 -
Security Documentation in accordance with Section 5.06, it shall no longer be
part of the Baton Rouge Real Property).
"Baton Rouge Vessel" shall mean collective reference to
Argosy III and to any other documented or undocumented vessels, barges,
watercraft or floating structures which may be utilized by CQP, as of the
Closing Date or thereafter, in the operation of its riverboat casino business
at, or in connection with, the Baton Rouge Real Property.
"Borrower Consolidation" shall mean collective reference to
Borrowers and each Restricted Subsidiary on a consolidated basis, without
regard to any Unrestricted Subsidiary or other Affiliate.
"Borrowers" shall have the meaning ascribed to such term in
the Preamble of this Credit Agreement.
"Borrowing(s)" shall mean the Closing Disbursement and such
amounts as Borrowers may request by Notice of Borrowing to Agent Bank from
time to time to be advanced under the Credit Facility in accordance with the
provisions of Section 2.03 or at the request of Agent Bank pursuant to
Section 2.08 or Section 2.09.
"Breakage Charges" shall have the meaning ascribed to such
term in Section 2.07(c) of the Credit Agreement.
"CQP Partnership Agreement" shall mean that certain Amended
and Restated Articles of Partnership in Commendam of Catfish Queen
Partnership in Commendam, executed under date of September 21, 1994, by AOLI,
as general partner, and by Jazz as partner in commendam.
"Capital Expenditures" shall mean, for any period, without
duplication, the aggregate of all expenditures (whether paid in cash or
accrued as liabilities during that period and including Capitalized Lease
Liabilities) by the Borrower Consolidation during such period that, in
conformity with GAAP, are required to be included in or reflected by the
property, plant or equipment or similar fixed or capital asset accounts
reflected in the consolidated balance sheet of the Borrower Consolidation
(including equipment which is purchased simultaneously with the trade-in of
existing equipment owned by Borrowers to the extent of (a) the gross amount
of such purchase price LESS (b) the cash proceeds of trade-in credit of the
equipment being traded in at such time), but excluding capital expenditures
made in connection with the replacement or restoration of assets, to the
extent reimbursed or refinanced from insurance proceeds paid on account of
the loss of or damage to the assets being replaced or restored, or from
awards of compensation arising from the taking by
- 15 -
condemnation of or the exercise of the power of eminent domain with respect
to such assets being replaced or restored.
"Capital Proceeds" shall mean the Net Proceeds (after
deducting all reasonable expenses incurred in connection therewith) available
to Borrowers in excess of Five Million Dollars ($5,000,000.00) in the
aggregate during any Fiscal Year from (i) partial or total condemnation or
destruction of any part of the Collateral, (ii) insurance proceeds (other
than rent insurance and business interruption insurance) received in
connection with damage to or destruction of the Collateral, and (iii) the
sale or other disposition of any portion of the Collateral in accordance with
the provisions of this Credit Agreement (not including, however, any proceeds
received by Borrowers, or any of them, from a sale, condemnation, damage or
destruction of FF&E or other personal property if such FF&E or other personal
property is replaced by items of equivalent value and utility, in each case
such exclusion to apply only during any period in which no Default in the
payment of any principal or interest owing under the terms of the Bank
Facilities or an Event of Default has occurred and is continuing).
"Capitalized Lease Liabilities" means all monetary
obligations of the Borrowers, or any of them, under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Credit Agreement, the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Cash" shall mean, when used in connection with any Person,
all monetary and non-monetary items owned by that Person that are treated as
cash or the equivalent of cash in accordance with GAAP, consistently applied.
"Cash Collateral Account" shall mean the restricted
depository savings account to be established by Borrowers or Agent Bank on
behalf of Borrowers with L/C Issuer at its offices located at One East First
Street, Reno, Nevada, or at such other office located in the United States as
may be designated from time to time by L/C Issuer, for the purpose of
depositing cash collateral for the aggregate L/C Exposure upon the occurrence
of any Event of Default.
"Cash Collateral Pledge Agreement" shall mean the Pledge
and Assignment of Savings Account Agreement to be executed by Borrowers in
favor of L/C Issuer as of the Closing Date as the same may be amended or
modified from time to time under the terms of which all sums held from time
to time in the Cash Collateral Account are pledged in favor of L/C Issuer to
secure repayment of any funding required under any outstanding Letters of
- 16 -
Credit, a copy of which Cash Collateral Pledge Agreement is marked "Exhibit
M", affixed hereto and by this reference incorporated herein and made a part
hereof.
"Cash Equivalents" shall mean, when used in connection with
any Person, that Person's Investments in:
(a) Government Securities maturing within one (1)
year after the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America given on the date of
such Investment a credit rating of at least Aa by Moody's
Investors Service, Inc. or AA by Standard & Poor's
Corporation, in each case maturing within one (1) year from
the making of the Investment;
(c) certificates of deposit issued by, bank
deposits in, eurodollar deposits through, bankers'
acceptances of, and repurchase agreements covering
Government Securities executed by, any Lender or, if not a
Lender, any bank incorporated under the laws of the United
States of America or any State thereof and having on the
date of such Investment combined capital, surplus and
undivided profits of at least Two Hundred Fifty Million
Dollars ($250,000,000.00), or total assets of at least Five
Billion Dollars ($5,000,000,000.00), in each case maturing
within one (1) year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank
deposits in, eurodollar deposits through, bankers'
acceptances of, and repurchase agreements covering
Government Securities executed by, any branch or office
located in the United States of America of a bank
incorporated under the laws of any jurisdiction outside the
United States of America having on the date of such
Investment combined capital, surplus and undivided profits
of at least Five Hundred Million Dollars ($500,000,000.00),
or total assets of at least Fifteen Billion Dollars
($15,000,000,000.00) in each case maturing within one year
after the date of the making of the Investment;
(e) repurchase agreements covering Government
Securities executed by a broker or dealer registered under
Section 15(b) of the Securities Exchange Act of 1934 having
on the date of the Investment capital of at least One
Hundred Million Dollars ($100,000,000.00), maturing within
thirty (30) days after the date of the making of the
Investment; PROVIDED that the maker of the Investment
receives written confirmation of the transfer to
- 17 -
it of record ownership of the Government Securities on the
books of a "primary dealer" in such Government Securities on
the books of such registered broker or dealer, as soon as
practicable after the making of the Investment;
(f) readily marketable commercial paper of
corporations doing business in and incorporated under the
laws of the United States of America or any State thereof
or of any corporation that is the holding company for a
bank described in clauses (c) or (d) above given on the
date of such Investment a credit rating of at least P-1 by
Moody's Investors Service, Inc. or A-1 by Standard & Poor's
Corporation, in each case maturing within three hundred
sixty-five (365) days after the date of the making of the
Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the laws of the United
States of America or any State thereof given on the date
of such Investment a credit rating of at least Aa by
Moody's Investors Service, Inc. or AA by Standard & Poor's
Corporation, in each case having an investment period not
to exceed fifty (50) days; PROVIDED that (i) the amount of
all such Investments issued by the same issuer does not
exceed Five Million Dollars ($5,000,000.00) and (ii) the
aggregate amount of all such Investments does not exceed
Fifteen Million Dollars ($15,000,000.00); and
(h) a readily redeemable "money market mutual
fund" advised by a bank described in clauses (c) or (d)
hereof, or an investment advisor registered under Section
203 of the Investment Advisors Act of 1940, that has and
maintains an investment policy limiting its investments
primarily to instruments of the types described in clauses
(a) through (g) hereof and having on the date of such
Investment total assets of at least One Billion Dollars
($1,000,000,000.00).
"Centaur" shall mean Centaur, Inc., an Indiana corporation.
"Change in Control" shall mean the date on which:
(a) Any "person" or "group" (as such terms are
defined in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) other than William F.
Cellini, F. Lance Callis, Jimmy F. Gallagher, William J.
Enery, John B. Pratt, Sr., James S. Connors and Stephanie
Pratt, each of such Person's immediate family or a trust or
similar entity existing solely for the benefit of such
Person or such Person's immediate family, own
- 18 -
or control, more than forty percent (40%) of the common
voting stock of Argosy; or
(b) During any period of twenty-four (24)
consecutive months commencing after the Closing Date,
individuals who at the beginning of such period constituted
Argosy's Board of Directors (together with any new or
replacement directors whose election by Argosy's Board of
Directors or whose nomination for election by Argosy's
shareholders, was approved by a vote of at least a majority
of the directors then still in office who were either
directors at the beginning of such period or whose election
or nomination for election was previously so approved)
cease for any reason to constitute a majority of the
directors then in office; or
(c) Argosy fails to own, directly or indirectly,
one hundred percent (100%) of the capital stock interests
of MGC, AGC, IGC, Jazz, AOLI and TIGC or members of the
Borrower Consolidation fail to own one hundred percent
(100%) of the partnership interests in CQP.
"Closing Certificate" shall have the meaning ascribed to
such term in Section 3.07.
"Closing Date" shall mean the date upon which: (i) each
condition precedent required under Article IIIA of this Credit Agreement has
been satisfied or waived and (ii) the Security Documentation has been filed
and/or recorded in accordance with and in the manner required herein and by
the Agent Bank, or such other date as to which Agent Bank and Borrowers agree
in writing.
"Closing Disbursement" shall have the meaning set forth in
Section 2.02(a).
"Closing Instructions" shall mean the Closing Instructions
to be given by Agent Bank to Title Company at or prior to the Closing Date
setting forth the requirements of Lenders for the issuance of the Title
Insurance Policies and other conditions for the closing of the Credit
Facilities, as may be amended or modified prior to the Closing Date to the
reasonable satisfaction of Agent Bank.
"Collateral" shall mean collective reference to all of
Borrowers' right, title and interest in and to: (i) all of the Alton Casino
Facilities, the Riverside Casino Facility, Baton Rouge Casino Facility, the
Vessels and the personal property, FF&E, contract rights, leases, intangibles
and other interests of the Borrowers in the Hotel/Casino Facilities, and each
of them, which are subject to the liens, pledges and security interests
created by the Security Documentation; (ii) all rights of the Borrowers, or
any of them, assigned and/or pledged as
- 19 -
additional security pursuant to the terms of the Loan Documents and Security
Documentation; and (iii) any and all other property and/or intangible rights,
interest or benefits inuring to or in favor of the Borrowers, or any of them,
which are in any manner assigned, pledged, encumbered or otherwise
hypothecated in favor of Banks or Agent Bank on behalf of Lenders to secure
payment of the Credit Facility.
"Collateral Real Properties" shall mean collective
reference to the real properties, improvements and associated FF&E which are
pledged and encumbered as Collateral securing repayment of the Bank
Facilities, which shall consist of the Alton Casino Facilities, the Riverside
Casino Facilities, and the Baton Rouge Casino Facilities, together with any
other real property or interests therein which may be held by Agent Bank from
time to time to secure repayment of the Bank Facilities.
"Commercial L/C Fee" shall have the meaning set forth in
Section 2.10(c) of this Credit Agreement.
"Commercial Letter(s) of Credit" shall mean a letter or
letters of credit issued by L/C Issuer pursuant to Section 2.09 of this
Credit Agreement for the purpose of assuring payment for goods or equipment
supplied to Borrowers, or any of them.
"Commitment Fee" shall have the meaning ascribed to such
term in Section 2.10(b) of this Credit Agreement.
"Commitment Increases" shall mean collective reference to
the Level One Commitment Increase and the Level Two Commitment Increase.
"Commitment Percentage" shall mean the per annum percentage
to be used in the calculation of the Commitment Fee based on the Leverage
Ratio of the Borrower Consolidation, determined as set forth in Table Two of
the definition of Applicable Margin.
"Compliance Certificate" shall mean a compliance
certificate as described in Section 5.08(a)(v) substantially in the form of
"Exhibit F", affixed hereto and by this reference incorporated herein and
made a part hereof to be completed and signed by an Authorized Representative.
"Conseco" shall mean Conseco Entertainment, L.L.C., an
Indiana limited liability company.
"Conseco IGCLP Loans" as of any date of determination,
shall mean collective reference to the unpaid balance of principal owing by
IGCLP to Conseco on each
- 20 -
"Capital Loan" (as defined in the IGCLP Partnership Agreement) made by
Conseco to the IGCLP.
"Consent Solicitation" shall have the meaning set forth in
Recital Paragraph G.
"Consent Solicitation Consideration" shall mean the
aggregate amount to be paid to the holders of the First Mortgage Notes in
consideration of the amendments to the Senior Indenture and Senior Indenture
Security Documents pursuant to the Consent Solicitation and in accordance
with the terms of the Purchase/Solicitation Statement.
"Contingent Liability(ies)" shall mean, as to any Person,
any obligation of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness, leases or dividends ("primary obligations") of
any other Person (the "primary obligor") (other than Indebtedness of the
Borrower Consolidation, or any of them) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (by means of loans, capital contributions or otherwise) (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or support the solvency or level of any balance sheet
item of the primary obligor or any "keep well," "make well" or other
arrangement of whatever nature given for the purpose of assuring or holding
harmless an obligee against loss with respect to any obligation of such
primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
(d) to make payment in respect of any net liability arising in connection
with any Interest Rate Hedges, foreign currency exchange agreement, commodity
hedging agreement or any similar agreement or arrangement in any such case if
the purpose or intent of such agreement is to provide assurance that such
primary obligation will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such primary
obligation will be protected (in whole or in part) against loss in respect
thereof or (e) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that
the term Contingent Liability shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount of
any Contingent Liability shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Contingent Liability is made (unless the Contingent Liability is limited by
its terms to a lesser amount, in which case to the extent of such amount) or,
if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by Borrowers in good faith, PROVIDED that
(y) the amount of any Contingent Liability consisting of a completion
guaranty shall be
- 21 -
deemed to be zero unless and until Borrowers' independent auditors have
quantified the amount of the exposure thereunder (and thereafter shall be
deemed to be the amount so quantified from time to time), and (z) the amount
of any Contingent Liability consisting of Interest Rate Hedges or of a
"keep-well", "make well" or other similar arrangement shall be deemed to be
zero unless and until either Borrower or any Restricted Subsidiary is
required to make payment with respect thereto (and shall thereafter be deemed
during the relevant period to be the amount required to be paid and after
paid in full, zero).
"Continuation/Conversion Notice" shall mean a notice of
continuation or conversion of or to a LIBOR Loan and certificate duly
executed by an Authorized Representative, substantially in the form of that
certain exhibit marked "Exhibit D", affixed hereto and by this reference
incorporated herein and made a part hereof.
"Convert, Conversion and Converted" shall refer to a
Borrowing at or continuation of a particular interest rate basis or
conversion of one interest rate basis to another pursuant to Section 2.05(c).
"Convertible Notes" shall have the meaning set forth in
Recital Paragraph D.
"Convertible Notes Indenture" shall have the meaning set
forth in Recital Paragraph D.
"Corporate Borrowers" shall have the meaning set forth in
Section 3.05.
"Credit Agreement" shall mean this Credit Agreement
executed by and among Borrowers and Banks setting forth the terms and
conditions of the Credit Facility, Swingline Facility and L/C Facility,
together with all Schedules, Exhibits and other attachments thereto, as the
same may be amended, modified, supplemented, extended, renewed or restated
from time to time.
"Credit Facility" shall mean the agreement of Lenders to
fund a revolving line of credit, subject to the terms and conditions set
forth in this Credit Agreement and the Revolving Credit Note, up to the
Maximum Permitted Balance.
"Default" shall mean the occurrence or non-occurrence, as
the case may be, of any event that with the giving of notice or passage of
time, or both, would become an Event of Default.
"Default Rate" shall have the meaning set forth in Section
2.11(b) with respect to defaults occurring under the Notes and shall mean the
Base Rate plus the then Applicable Margin plus two percent (2%) per annum for
all other purposes.
- 22 -
"Defaulting Lender" means any Lender which fails or refuses to
perform its obligations under the Credit Facility within the time period
specified for performance of such obligation or, if no time frame is specified,
if such failure or refusal continues for a period of five (5) Banking Business
Days after notice from Agent Bank.
"Defeasance Account" shall mean the irrevocable special
purpose restricted account to be established by Borrowers with the Defeasance
Custodian pursuant to the Defeasance Account Agreement into which the Defeasance
Consideration shall be deposited on or before the Closing Date.
"Defeasance Account Agreement" shall mean the Irrevocable
Special Purpose Restricted Account, Control and Security Agreement to be
executed by and among Borrowers, as trustors, the Defeasance Custodian and Agent
Bank as of the Closing Date, as the same may be amended, modified, supplemented,
extended, renewed or restated from time to time, a copy of which is marked
"Exhibit H", affixed hereto, under the terms of which: (a) the Defeasance
Consideration is irrevocably deposited into the Defeasance Account for the sole
and exclusive purposes of: (i) paying when due all accrued interest under the
Outstanding First Mortgage Notes, and (ii) paying all principal and premium
necessary to redeem and pay in full the Outstanding First Mortgage Notes on or
before July 1, 2000, and (b) all sums held from time to time in the Defeasance
Account are pledged in favor of Agent Bank to secure repayment of the Bank
Facilities.
"Defeasance Consideration" shall mean the Cash to be deposited
with the Defeasance Custodian in the Defeasance Account in an aggregate amount,
calculated to the satisfaction of Agent Bank, sufficient to fully pay all
principal, premium and interest owing under the Outstanding First Mortgage Notes
and the Senior Indenture as the same become due from time to time subsequent to
the Closing Date and in connection with the full payment and redemption of the
Outstanding First Mortgage Notes on or before July 1, 2000.
"Defeasance Custodian" shall mean Wells Fargo Bank, National
Association, in its capacity as custodian and intermediary under the Defeasance
Account Agreement.
"Defeased Debt" shall mean the Indebtedness evidenced by the
Outstanding First Mortgage Notes and Senior Indenture following the occurrence
of the First Mortgage Notes Redemption and the First Mortgage Notes Defeasance.
"Designated Deposit Account" shall mean a deposit account to
be maintained by Borrowers with Agent Bank, as from time to time designated in
writing by an Authorized Representative.
- 23 -
"Development Agreements" shall mean collective reference to
the Alton Development Agreement, the Riverside Development Agreement, the Baton
Rouge Development Agreement, the Sioux City Development Agreement and the
Lawrenceburg Development Agreement.
"Distributions" shall mean and collectively refer to any and
all management fees (including, without limitation, all management, consulting
and financial advisory fees paid to the holders of Minority Interest
Percentages), payments, advances or other distributions, fees or compensation of
any kind or character whatsoever, other than within the Borrower Consolidation,
but shall not include consideration paid for financial consulting services
incurred in connection with the Bank Facilities and Subordinated Debt and for
tangible and intangible assets in an arms length exchange for fair market value,
trade payments made and other payments for liabilities incurred in the ordinary
course of business or compensation to officers, directors and employees of
Borrowers in the ordinary course of business or compensation to consultants paid
in an arms length transaction for fair market value for the purpose of pursuing
or investigating prospective business opportunities.
"EBITDA" shall mean with reference to any Person, for any
fiscal period under review, the sum of (i) Net Income for that period, plus
(ii) any extraordinary loss reflected in such Net Income, minus (iii) any
extraordinary gain reflected in such Net Income, plus (iv) Interest Expense
for that period, plus (v) the aggregate of amortization of fees and expenses
incurred and paid in connection with the closing of the Bank Facilities, the
New Indenture and issuance of the Senior Subordinated Notes, the Commitment
Increases and/or Term Loans described in Section 2.15 and Subordinated Debt
to the extent not included in (iv) above as Interest Expense, plus (vi) the
aggregate amount of federal and state taxes on or measured by income for that
period (whether or not payable during that period), plus (vii) depreciation,
amortization, pre-opening and all other non-cash expenses for that period
(including, without limitation, any adjustments to the book value of AOLI,
Jazz or CQP relating to the Baton Rouge Casino Facility), in each case
determined in accordance with GAAP and, in the case of items (ii), (iv), (v),
(vi) and (vii), only to the extent deducted in the determination of Net
Income for that period.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Economic EBITDA" with reference to the Argosy Consolidation
as of any Fiscal Quarter end shall mean EBITDA (including Annualized EBITDA of
each applicable Restricted Subsidiary) less the Minority EBITDA Adjustment, in
each case determined for the Fiscal Quarter under review and the three (3)
immediately preceding Fiscal Quarters.
- 24 -
"Eligible Assignee" means (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender, (c) any commercial bank having a
combined capital and surplus of Fifty Million Dollars ($50,000,000.00) or more
that is (i) organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (ii) organized under the Laws of any
other country which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of such a country, PROVIDED that (A)
such bank is acting through a branch or agency located in the United States of
America and (B) such Bank is otherwise exempt from withholding of tax on
interest and delivers Form 1001 or Form 4224 at the time of any assignment, (d)
a financial institution which is an accredited investor as defined by the
Securities Act of 1934 and is otherwise exempt from withholding tax on interest
at the time of any assignment, and (e) with respect to such commercial bank or
financial institution as described in (a) through (d) above, no finding of
unsuitability has been made or determined by any Gaming Authority.
"Eligible Subparticipant" shall mean: (i) any Eligible
Assignee, and (ii) any other Person which is a bank, savings and loan
association or other financial or lending institution which has not been found
unsuitable as a lender by any Gaming Authority.
"Eligible Term Lender" shall mean: (i) any Eligible
Subparticipant, and (ii) any other Person that is not a Related Entity which has
not been found unsuitable as a lender by any Gaming Authority.
"Environmental Certificate" shall mean the Certificate and
Indemnification Regarding Hazardous Materials to be executed by Borrowers on or
before the Closing Date and delivered to Agent Bank as a further inducement to
the Banks to establish the Bank Facilities, as it may be amended, modified,
extended, renewed or restated from time to time.
"Equity Offering" shall mean the issuance and sale of
additional shares of common voting stock by Argosy to the public after the
Closing Date in exchange for Cash or Cash Equivalents.
"Event of Default" shall mean any event of default as
defined in Section 7.01 hereof.
"Excess Capital Proceeds" shall have the meaning ascribed to
such term in Section 5.01 of this Credit Agreement.
"Exchange Senior Subordinated Notes" shall have the meaning
set forth in Recital Paragraph F.
- 25 -
"FF&E" shall mean collective reference to any and all
furnishings, fixtures and equipment, including, without limitation, all gaming
devices, slots and associated equipment, which have been installed or are to be
installed and used in connection with the operation of the Hotel/Casino
Facilities and those items of furniture, fixtures and equipment which have been
purchased or leased or are hereafter purchased or leased by Borrowers, or any of
them, in connection with the Hotel/Casino Facilities.
"FIRREA" shall mean the Financial Institutions Reform,
Recovery and Enforcement Act of 1989.
"Federal Funds Rate" means, as of any date of determination,
the rate set forth in the weekly statistical release designated as H.15(519), or
any successor publication, published by the Federal Reserve Board (including any
such successor, "H.15(519)") for such date opposite the caption "Federal Funds
(Effective)". If for any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any successor, the "Composite 3:30 p.m.
Quotation") for such date under the caption "Federal Funds Effective Rate". If
on any relevant date the appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such date
will be the arithmetic mean of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that date by
each of three leading brokers of Federal funds transactions in New York City
selected by the Agent Bank. For purposes of the Credit Agreement, any change in
the Base Rate due to a change in the Federal Funds Rate shall be effective as of
the opening of business on the effective date of such change.
"Fee Side Letter" shall mean the Confidential Fee Letter dated
April 16, 1999 executed by and between Agent Bank and Argosy concerning payment
of the fees in connection with the Credit Facility, as more particularly therein
described.
"Financial Covenants" shall mean collective reference to the
financial covenants set forth in Article VI of this Credit Agreement.
"Financing Statements" shall mean collective reference to the
Financing Statements (Argosy), the Financing Statements (AGC), the Financing
Statements (MGC), the Financing Statements (TIGC), the Financing Statements
(AOLI), the Financing Statements (Jazz), the Financing Statements (CQP), the
Financing Statements (IGC) and, after the Level Two Commitment Increase
Effective Date or the closing of the Level Two Term Loan, as applicable, the
Financing Statements (IGCLP).
- 26 -
"Financing Statements (AGC)" shall mean the Uniform Commercial
Code financing statements to be executed by AGC, as Debtor, and by Agent Bank,
as Secured Party, and filed in the Office of the Secretary of State of the State
of Illinois and in the Office of the County Recorder of Madison County,
Illinois, in order to perfect the security interest granted to Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer under the
Security Agreement (AGC) and other Security Documentation in accordance with
requirements of the Illinois Uniform Commercial Code, as they may be amended,
modified, supplemented, extended, renewed or restated from time to time.
"Financing Statements (AOLI)" shall mean the Uniform
Commercial Code financing statements to be executed by AOLI, as Debtor, and by
Agent Bank, as Secured Party, and filed in the Office of the Secretary of State
of the State of Illinois and in the Office of the Recorder of East Baton Rouge
Parish, Louisiana, in order to perfect the security interest granted to Agent
Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer under the
Security Agreement (AOLI) and other Security Documentation in accordance with
requirements of the Louisiana Uniform Commercial Code, as they may be amended,
modified, supplemented, extended, renewed or restated from time to time.
"Financing Statements (Argosy)" shall mean the Uniform
Commercial Code financing statements to be executed by Argosy, as Debtor, and by
Agent Bank, as Secured Party, and filed in the Office of the Secretary of State
of the State of Illinois, in the Office of the Secretary of State of Missouri,
in the Office of the County Recorder of Madison County, Illinois and in the
office of the County Recorder of Platte County, Missouri, in order to perfect
the security interest granted to Agent Bank on behalf of the Lenders, the
Swingline Lender and the L/C Issuer under the Security Agreement (Argosy) and
other Security Documentation in accordance with requirements of the Illinois
Uniform Commercial Code, as they may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Financing Statements (CQP)" shall mean the Uniform Commercial
Code financing statements to be executed by CQP, as Debtor, and by Agent Bank,
as Secured Party, and filed in the Office of the Secretary of State of the State
of Illinois and in the Office of the Recorder of East Baton Rouge Parish,
Louisiana, in order to perfect the security interest granted to Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer under the
Security Agreement (CQP) and other Security Documentation in accordance with
requirements of the Louisiana Uniform Commercial Code, as they may be amended,
modified, supplemented, extended, renewed or restated from time to time.
"Financing Statements (IGC)" shall mean the Uniform Commercial
Code financing statements to be executed by IGC, as Debtor, and by Agent Bank,
as Secured Party, and filed in the Office of the Secretary of State of the State
of Illinois, in the Office
- 27 -
of the Secretary of State of the State of Iowa and in the Office of the
County Recorder of Woodbury County, Iowa, in order to perfect the security
interest granted to Agent Bank on behalf of the Lenders, the Swingline Lender
and the L/C Issuer under the Security Agreement (IGC) and other Security
Documentation in accordance with requirements of the Iowa Uniform Commercial
Code, as they may be amended, modified, supplemented, extended, renewed or
restated from time to time.
"Financing Statements (IGCLP)" shall mean the Uniform
Commercial Code Financing Statements to be executed, as of the Level Two
Commitment Increase Effective Date or the closing of the Level Two Term Loan, by
IGCLP, as Debtor, and by Agent Bank, as Secured Party, and filed in the Office
of the Secretary of State of the State of Illinois, in the Office of the
Secretary of State of the State of Indiana and in the Office of the County
Recorder of Dearborn County, Indiana, in order to perfect the security interest
granted to Agent Bank on behalf of the Lenders, the Swingline Lender and the L/C
Issuer under the Security Agreement (IGCLP) and other Security Documentation in
accordance with requirements of the Indiana Uniform Commercial Code, as they may
be amended, modified, supplemented, extended, renewed or restated from time to
time.
"Financing Statements (Jazz)" shall mean the Uniform
Commercial Code financing statements to be executed by Jazz, as Debtor, and by
Agent Bank, as Secured Party, and filed in the Office of the Recorder of East
Baton Rouge Parish, Louisiana, in order to perfect the security interest granted
to Agent Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer
under the Security Agreement (Jazz) and other Security Documentation in
accordance with requirements of the Louisiana Uniform Commercial Code, as they
may be amended, modified, supplemented, extended, renewed or restated from time
to time.
"Financing Statements (MGC)" shall mean the Uniform
Commercial Code financing statements to be executed by MGC, as Debtor, and by
Agent Bank, as Secured Party, and filed in the Office of the Secretary of
State of the State of Illinois, in the Office of the Secretary of State of
the State of Missouri and in the Office of the County Recorder of Platte
County, Missouri, in order to perfect the security interest granted to Agent
Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer under
the Security Agreement (MGC) and other Security Documentation in accordance
with requirements of the Missouri Uniform Commercial Code, as they may be
amended, modified, supplemented, extended, renewed or restated from time to
time.
"Financing Statements (TIGC)" shall mean the Uniform
Commercial Code financing statements to be executed by TIGC, as Debtor, and by
Agent Bank, as Secured Party, and filed in the Office of the Secretary of State
of the State of Illinois, in the Office
- 28 -
of the Secretary of State of the State of Indiana and in the Office of the
County Recorder of Dearborn County, Indiana, in order to perfect the security
interest granted to Agent Bank on behalf of the Lenders, the Swingline Lender
and the L/C Issuer under the Security Agreement (TIGC) and other Security
Documentation in accordance with requirements of the Indiana Uniform
Commercial Code, as they may be amended, modified, supplemented, extended,
renewed or restated from time to time.
"First Mortgage Notes" shall have the meaning set forth in
Recital Paragraph C.
"First Mortgage Notes Defeasance" shall mean the contract
defeasance of the Outstanding First Mortgage Notes on the Closing Date by the
funding of the Defeasance Account with the Defeasance Consideration pursuant to
the terms of the Defeasance Account Agreement.
"First Mortgage Notes Redemption" shall mean the purchase and
acquisition by Borrowers of no less than eighty-five percent (85%) of the
outstanding principal amount of the First Mortgage Notes pursuant to the Tender
Offer and in accordance with the terms of the Purchase/Solicitation Statement.
"Fiscal Quarter" shall mean the consecutive three (3) month
periods during each Fiscal Year beginning on January 1, April 1, July 1 and
October 1 and ending on March 31, June 30, September 30 and December 31,
respectively.
"Fiscal Year" shall mean the fiscal year period beginning
January 1 of each calendar year and ending on the following December 31.
"Fiscal Year End" shall mean December 31 of each calendar year.
"Fixed Charge Coverage Ratio" as of the end of any Fiscal
Quarter shall mean with reference to the Argosy Consolidation, the ratio of
Adjusted Cash Flow to Adjusted Fixed Charges.
"Fixed Charges" shall mean (without regard to the Defeased
Debt) the sum of (i) Interest Expense (expensed and capitalized) for the Fiscal
Quarter under review, together with the three (3) immediately preceding Fiscal
Quarters, plus (ii) any other Contingent Liability of the type described in
clause (b)(ii) of the definition thereof actually paid during the Fiscal Quarter
under review, together with the three (3) immediately preceding Fiscal Quarters,
plus (iii) the current portion of long-term Indebtedness (exclusive of the
amount due under the Credit Facility on the Maturity Date) as of the end of the
Fiscal Quarter under review, plus (iv) the current portion of Capitalized Lease
Liabilities as of the
- 29 -
end of the Fiscal Quarter under review, plus (v) Argosy Dividends paid in
Cash during the Fiscal Quarter under review, together with the three (3)
immediately preceding Fiscal Quarters.
"Funded Debt" of the Argosy Consolidation shall mean for any
Fiscal Quarter the sum of: (i) the average of the Aggregate Outstandings as of
the last day of each calendar month during such Fiscal Quarter, plus (ii) the
total as of the last day of such period of the unpaid principal balance of both
the long-term and current portions (without duplication) of all other
Indebtedness (exclusive of the Defeased Debt) and Capitalized Lease Liabilities
shown on the financial statements of the Argosy Consolidation prepared in
accordance with GAAP.
"Funded Outstandings" shall mean the unpaid principal amount
outstanding on the Credit Facility as of any given date of determination, not
including Swingline Outstandings or the amount of any Potential L/C Exposure or
L/C Exposure.
"Funding Date" shall mean the date on which the Closing
Disbursement is advanced by Lenders and each date upon which Lenders fund
Borrowings requested by Borrowers in accordance with the provisions of Section
2.03 or at the request of Agent Bank pursuant to Section 2.08 or Section 2.09.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession, which are applicable to the circumstances as of
the date of determination, in each instance consistently applied.
"Gaming Authorities" shall mean, without limitation,
collective reference to the Illinois Gaming Board, the Indiana Gaming
Commission, the Iowa Racing and Gaming Commission, the Louisiana Gaming
Control Board, the Missouri Gaming Commission, and any other applicable
Governmental Authority or administrative state or local agency involved in
the regulation of gaming and gaming activities conducted at the Hotel/Casino
Facilities.
"Gaming Devices" shall mean slot machines and other devices
which constitute gaming devices and related equipment.
"Gaming Laws" shall mean all statutes, rules, regulations,
ordinances, codes and administrative or judicial precedents pursuant to which
any Gaming Authority possesses
- 30 -
regulatory licensing or permit authority over gambling, gaming or casino
activities conducted by any member of the Borrower Consolidation at the
Hotel/Casino Facilities.
"Gaming Permits" shall mean collective reference to every
license, permit or other authorization required to own, operate and otherwise
conduct gambling, gaming and casino activities at the Hotel/Casino Facilities,
including, without limitation, all licenses granted by the Gaming Authorities.
"Government Securities" means readily marketable (a) direct
full faith and credit obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of America and (b)
obligations of an agency or instrumentality of, or corporation owned, controlled
or sponsored by, the United States of America that are generally considered in
the securities industry to be implicit obligations of the United States of
America.
"Governmental Authority" or "Governmental Authorities" shall
mean any federal, state, regional, county or municipal governmental agency,
board, commission, officer or official whose consent or approval is required or
whose regulations must be followed as a prerequisite to (i) the continued
operation and occupancy of the Hotel/Casino Facilities or (ii) the performance
of any act or obligation or the observance of any agreement, provision or
condition of whatever nature herein contained.
"Hazardous Materials Claims" shall have the meaning set
forth in Section 5.21.
"Hazardous Materials Laws" shall have the meaning set forth
in Section 5.21.
"Hotel/Casino Facilities" shall mean collective reference to
Alton Casino Facilities, Baton Rouge Casino Facilities, Lawrenceburg Casino
Facilities, Riverside Casino Facilities and Sioux City Casino Facilities,
together with any future expansions thereof, related thereto or used in
connection therewith, and all appurtenances thereto.
"IGCLP" shall mean Indiana Gaming Company, L.P., an Indiana
limited partnership.
"IGCLP Partnership Agreement" shall mean the Second Amended
and Restated Agreement of Limited Partnership of Indiana Gaming Company, L.P.
dated as of February 21, 1996, executed by and among IGC, as the general
partner, and Conseco, Centaur and Ratcliff, as the limited partners.
- 31 -
"Indebtedness" shall mean, as to any Person, with-out
duplication, (a) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money, (b) the deferred purchase price of
property or services (other than accrued expenses, tax liability, deferred
taxes, and trade accounts payable less than ninety (90) days past due and other
accrued or deferred liabilities incurred in the ordinary course of business)
which in accordance with GAAP would be shown on the liability side of the
balance sheet of such Person, (c) the face amount of all letters of credit to
the extent not secured with Cash, issued for the account of such Person and all
drafts drawn thereunder, (d) all obligations under conditional sale or other
title retention agreements relating to property purchased by such Person, (e)
all liabilities of the type described in clauses (a) through (d) or (f) of this
definition secured by (or for which the holder of any such liability has an
existing right, contingent or otherwise, to be secured by) any lien or
encumbrance on any property owned by such Person, whether or not such
liabilities have been assumed by such Person, (f) all Capitalized Lease
Liabilities of such Person, and (g) all Contingent Liabilities of such Person in
respect of any indebtedness, obligations or liabilities of any other Person of
the type referred to in clauses (a)-(f) of this definition.
"Initial Senior Subordinated Notes" shall have the meaning set
forth in Recital Paragraph E.
"Intercompany Notes" shall mean a collective reference to
those intercompany promissory notes which are particularly described on the
Schedule of Intercompany Notes marked Schedule 4.08(b), affixed hereto and by
this reference incorporated herein and made a part hereof.
"Intercreditor Agreement" shall mean each agreement to be
executed by and among Agent Bank, on behalf of itself and each of the Banks
(upon the prior approval of Requisite Lenders) and the holders of all Pari
Passu Notes, or the authorized agent, trustee or other representative thereof
under any loan agreement, indenture, document or other agreement evidencing
such authority to act on behalf of such holders, setting forth the terms and
understandings upon which: (i) any Liens securing such Pari Passu Obligations
shall be equal, ratable and pari passu with the Liens securing the
Obligations, (ii) the parties thereto agree as to the disposition and
priority of payment between the Obligations and the Pari Passu Obligations
both before and after any insolvency case involving any member of the
Borrower Consolidation, (iii) the parties thereto agree as to the disposition
of proceeds in the event of any realization upon any Collateral securing both
the Obligations and the Pari Passu Obligations, and (iv) the parties thereto
agree as to any other matters deemed reasonably necessary by them, or any of
them, with respect to the Obligations and the Pari Passu Obligations,
including, without limitation, voting rights, title insurance, declaration of
default, enforcement of remedies and any other matters customarily provided
in pari passu intercreditor arrangements in comparable financing transactions.
- 32 -
"Interest Expense" shall mean with respect to any Person, as
of the last day of any fiscal period under review, the sum of (i) all interest
(without duplication but including capitalized interest), fees and other charges
for that fiscal period incurred by such Person to a lender in connection with
borrowed money (including any obligations for fees payable to the issuer of any
letter of credit) or the deferred purchase price of assets that are considered
"interest expense" under GAAP; provided, however, that the amortization of fees
and expenses incurred and paid in connection with the closing of the Bank
Facilities, the New Indenture and issuance of the Senior Subordinated Notes, the
Commitment Increases and/or Term Loans described in Section 2.15 and
Subordinated Debt shall be excluded from the determination of Interest Expense,
plus (ii) the portion of the up front costs and expenses for Interest Rate
Hedges (to the extent not included in (i)) fairly allocated to such interest
rate hedges as expenses for such period, plus (iii) the portion of Capital Lease
Liabilities that should be treated as interest in accordance with GAAP.
"Interest Period(s)" shall have the meaning set forth in
Section 2.05(d).
"Interest Rate Hedges" shall mean, with respect to any Person,
all liabilities of such Person under interest rate swap agreements, interest
rate cap agreements, basis swap, forward rate agreements and interest collar or
floor agreements and all other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or currency exchange rates.
"Interest Rate Option" shall have the meaning ascribed to such
term in Section 2.05(b) of the Credit Agreement.
"Investment" shall mean, when used in connection with any
Person, any investment by or of that Person, whether by means of purchase or
other acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, payment under a
guaranty or other debt or equity participation or interest in any other Person,
INCLUDING any partnership and joint venture interests of such Person. The amount
of any Investment shall be the amount actually invested without adjustment for
subsequent increases or decreases in the value of such Investment.
"L/C Agreement(s)" shall mean collective reference to the
Application and Agreement for Standby Letter of Credit and Application for
Commercial Letter of Credit and addendum(s) thereto executed by an Authorized
Officer of Borrowers in favor of L/C Issuer in L/C Issuer's standard form
setting forth the terms and conditions upon which L/C Issuer shall issue a
Letter(s) of Credit, as the same may be amended, modified, supplemented,
extended, renewed or restated from time to time.
- 33 -
"L/C Exposure" shall mean the aggregate amount which L/C
Issuer may be required to fund or is contingently liable for disbursement under
all issued and outstanding Letter(s) of Credit, which amount shall be determined
by subtracting from the aggregate of the Stated Amount of each such Letter(s) of
Credit (to the extent such Letter of Credit is not secured by Cash deposited
into the Cash Collateral Account and subject to the Cash Collateral Pledge
Agreement), the principal amount of all L/C Reimbursement Obligations which have
accrued and have been fully satisfied as of each date of determination and which
reduce the amount that can be drawn thereunder.
"L/C Facility" shall mean the agreement of L/C Issuer to issue
Letters of Credit subject to the terms and conditions and up to the maximum
amounts and duration as set forth in Section 2.09 of this Credit Agreement.
"L/C Fees" shall mean collective reference to Standby L/C Fees
and Commercial L/C Fees.
"L/C Issuer" shall have the meaning set forth in the Preamble
of this Credit Agreement.
"L/C Reimbursement Obligation(s)" shall mean the obligation of
Borrowers to reimburse L/C Issuer for amounts funded or disbursed under a
Letter(s) of Credit, together with accrued interest thereon.
"LIBO Rate" means, relative to any Interest Period for any
LIBOR Loan, the per annum rate (reserve adjusted as hereinbelow provided) as
published on the applicable Banking Business Day in "Telerate System Reports" by
the British Bankers Association for interest settlement rates relating to London
Interbank Offerings as of 11:00 a.m., London, England time, two (2) Banking
Business Days prior to the beginning of the applicable Interest Period for
delivery on the first day of such Interest Period, for the number of months
comprised therein and in a minimum amount and multiples as set forth in this
Credit Agreement. The foregoing rate of interest shall be reserve adjusted by
dividing the applicable LIBO Rate by a one (1.00) minus the LIBOR Reserve
Percentage, with such quotient to be rounded upward, if necessary, to the
nearest whole multiple of one-hundredth of one percent (0.01%). All references
in this Credit Agreement or other Loan Documents to a LIBO Rate include the
aforesaid reserve adjustment.
"LIBOR Loan" shall mean each portion of the total unpaid
principal under the Credit Facility which bears interest at a rate determined by
reference to the LIBO Rate plus the Applicable Margin.
- 34 -
"LIBOR Reserve Percentage" means, relative to any Interest
Period for LIBOR Loans made by any Lender, the reserve percentage (expressed as
a decimal) equal to the actual aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into
account any transactional adjustments or other scheduled changes in reserve
requirements) applicable to Agent Bank as specified under regulations issued
from time to time by the Federal Reserve Board. The LIBOR Reserve Percentage
shall be based on Regulation D of the Federal Reserve Board or other regulations
from time to time in effect concerning reserves for "Eurocurrency Liabilities"
from related institutions as though Agent Bank were in a net borrowing position.
"Lawrenceburg Assignment of Permits, Contracts, Rents and
Revenues" shall mean the Assignment of Permits, Contracts, Rents and Revenues to
be executed by IGCLP as of the Level Two Commitment Increase Effective Date, or
upon closing of the Level Two Term Loan, as the case may be, whereby IGCLP
assigns to Agent Bank on behalf of the Lenders, the Swingline Lender and the L/C
Issuer in consideration of the Bank Facilities: (a) all of its right, title and
interest under all spaceleases and equipment leases and contracts relating to
the Lawrenceburg Casino Facilities, (b) all of its right, title and interest in
and to all permits, licenses and contracts relating to the Lawrenceburg Casino
Facilities, except those gaming permits and licenses which are unassignable, and
(c) all rents, issues, profits, revenues and income from the operation of the
Lawrenceburg Casino Facilities, together with any and all future expansions
thereof, related thereto or used in connection therewith, as such assignment may
be amended, modified, supplemented, extended, renewed or restated from time to
time.
"Lawrenceburg Buyout" shall mean the purchase and/or
acquisition by Argosy, TIGC or any member of the Borrower Consolidation, such
that the Borrower Consolidation owns one hundred percent (100%) ownership of the
Lawrenceburg Casino Facilities or one hundred percent (100%) of the ownership
and partner interests in IGCLP.
"Lawrenceburg Buyout Effective Date" shall mean the date upon
which the Lawrenceburg Buyout occurs.
"Lawrenceburg Casino Facilities" shall mean the riverboat
casino business and related activities conducted by IGCLP on the Lawrenceburg
Vessel and on the Lawrenceburg Real Property and all improvements now or
hereafter situate thereon.
"Lawrenceburg Closing Instructions" shall mean instructions to
the Title Company from counsel for Agent Bank setting forth the terms and
conditions under which the Lawrenceburg Title Policy is to be issued.
- 35 -
"Lawrenceburg Development Agreement" shall mean that certain
Riverboat Gaming Development Agreement between the City of Lawrenceburg,
Indiana, and the Indiana Gaming Company, L.P., executed by IGCLP, and by the
City of Lawrenceburg, Indiana under date of April 13, 1994, as amended by that
certain Amendment Number One to Riverboat Gaming Development Agreement under
date of December 28, 1995 and by that certain Amendment Number Two to Riverboat
Gaming Development Agreement under date of August 20, 1996.
"Lawrenceburg Mortgage" shall mean that certain Mortgage,
Fixture Filing and Security Agreement with Assignment of Rents to be executed by
IGCLP as of the Level Two Commitment Increase Effective Date or the closing of
the Level Two Term Loan, as applicable, in favor of Agent Bank, on behalf of the
Lenders, the Swingline Lender and the L/C Issuer, encumbering all real property
which is owned or leased by IGCLP, or which is used in operation of the
Lawrenceburg Casino Facilities, as of the Level Two Commitment Increase
Effective Date or the closing of the Level Two Term Loan, as applicable, and
other Collateral therein described for the purpose of securing the Bank
Facilities and all other sums which may be owing by Borrowers to the Banks from
time to time under the terms of the Credit Agreement, as it may be amended,
modified, supplemented, extended, renewed or restated from time to time.
"Lawrenceburg Permitted Encumbrances" shall mean, at any
particular time with respect to the Lawrenceburg Casino Facilities, (i) Liens
for taxes, assessments or governmental charges not then due, payable and
delinquent, (ii) Liens for taxes, assessments or governmental charges not
then required to be paid pursuant to Section 5.10, (iii) Liens consented to
in writing by Agent Bank upon the approval of Requisite Lenders, (iv) Liens
of legally valid capital leases and purchase money security interests for
acquired FF&E up to the maximum amount permitted under Section 6.09(b), and
only to the extent of the lesser of the purchase money loan or the fair
market value of the acquired FF&E, (v) Liens of legally valid leases for FF&E
at the time of the acquisition thereof, (vi) easements, licenses or
rights-of-way, hereafter granted to any Governmental Authority or public
utility providing services to the Hotel/Casino Facilities and/or Restricted
Subsidiary Venture which do not in any material way affect the marketability
of the same or interfere with the use thereof in the business of the
Borrowers, (vii) judgment and attachment Liens which do not constitute an
Event of Default, (viii) statutory Liens of landlords and liens of carriers,
warehousemen, mechanics, customs and revenue authorities and materialmen and
other similar Liens imposed by law incurred in the ordinary course of
business which could not reasonably be expected to cause a Material Adverse
Change and which are discharged in accordance with Section 5.04, (ix) Liens
incurred or deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money
- 36 -
bonds and other similar obligations; (x) leases or subleases granted to
others not interfering in any material respect with the ordinary conduct of
the business of the Borrower Consolidation, or any of them; (xi) the
replacement or renewal of any Lien otherwise permitted hereunder; (xii) minor
defects, encroachments or irregularities in title not interfering in any
material respect with the ordinary conduct of the business of the Borrower
Consolidation, or any of them; and (xiii) Liens in existence as of the Level
Two Commitment Increase Effective Date or as of the closing of the Level Two
Term Loan, so long as such Liens are not created or perfected in
contemplation of such acquisition or designation.
"Lawrenceburg Real Property" shall mean any real property
owned or leased by IGCLP, or used in operation of the Lawrenceburg Casino
Facilities, as of the Closing Date, together with any real property which is
acquired or leased by IGCLP, or used in operation of the Lawrenceburg Casino
Facilities, subsequent to the Closing Date.
"Lawrenceburg Sale" shall mean the sale or divestment by
Argosy of its ownership interest in TIGC or sale by Argosy and/or TIGC of all of
their respective right, title and interest in and to the IGCLP and/or the
Lawrenceburg Casino Facilities.
"Lawrenceburg Title Insurance Policy" shall mean an ALTA
Extended Coverage Lender's Policy of Title Insurance to be issued by Title
Company acceptable to Agent Bank, insuring the Lawrenceburg Mortgage as a first
mortgage lien on the Lawrenceburg Real Property subject only to the Lawrenceburg
Permitted Encumbrances, all in accordance with the Lawrenceburg Closing
Instructions.
"Lawrenceburg Vessel" shall mean collective reference to
Argosy VI and to any other documented or undocumented vessels, barges,
watercraft or floating structures which may be utilized by IGCLP, as of the
Closing Date or thereafter, in the operation of its riverboat casino business
at, or in connection with, the Lawrenceburg Casino Facilities.
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, maritime laws, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
"Lender Reply Period" shall have the meaning set forth in
Section 9.10(d).
"Lenders" shall have the meaning set forth in the Preamble
to this Credit Agreement. With respect to matters requiring the consent to or
approval of all Lenders at any given time, all then existing Defaulting
Lenders will be disregarded and excluded, and, for voting purposes only, "all
Lenders" shall be deemed to mean "all Lenders other than Defaulting Lenders".
- 37 -
"Letter(s) of Credit" shall mean collective reference to the
Standby Letter(s) of Credit and/or Commercial Letter(s) of Credit, as the case
may be, issued by L/C Issuer on behalf of Borrowers, or any of them, as the same
may be amended, modified, supplemented, extended, renewed or restated from time
to time.
"Level One Availability" shall mean Seventy-Five Million
Dollars ($75,000,000.00) less (i) in the case of a Level One Commitment
Increase, the amount previously or to be concurrently incurred as a Level One
Term Loan, or (ii) in the case of a Level One Term Loan, the amount of the Level
One Commitment Increase previously or to be concurrently effectuated.
"Level One Commitment Increase" shall have the meaning set
forth in Section 2.15(a).
"Level One Increase Conditions" shall have the meaning set
forth in Section 2.15(a).
"Level One Term Loan" shall mean a term loan which may be
incurred by the Borrower Consolidation for general corporate purposes as
evidenced by Pari Passu Notes subject to the conditions and up to the maximum
aggregate principal amount set forth in Section 2.15(c).
"Level Two Availability" shall mean One Hundred Fifty Million
Dollars ($150,000,000.00) less (i) in the case of a Level Two Commitment
Increase, the amount previously or to be concurrently incurred as a Level Two
Term Loan, or (ii) in the case of a Level Two Term Loan, the amount of the Level
Two Commitment Increase previously or to be concurrently effectuated.
"Level Two Commitment Increase" shall have the meaning set
forth in Section 2.15(b).
"Level Two Increase Conditions" shall have the meaning set
forth in Section 2.15(b).
"Level Two Term Loan" shall mean a term loan which may be
incurred by the Borrower Consolidation for the purpose of effectuating the
Lawrenceburg Buyout as evidenced by Pari Passu Notes subject to the conditions
and up to the maximum aggregate principal amount set forth in Section 2.15(d).
"Liabilities and Costs" means all claims, judgments,
liabilities, obligations, responsibilities, losses, damages (including lost
profits), punitive or treble damages, costs,
- 38 -
disbursements and expenses (including, without limitation, reasonable
attorneys', experts' and consulting fees and costs of investigation and
feasibility studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present
or future.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Loan Documents" shall mean the collective reference to this
Credit Agreement, the Revolving Credit Note, the Swingline Note, the Security
Documentation, Environmental Certificate, Alton Development Agreement Estoppel
Certificate and all other instruments and agreements required to be executed by
or on behalf of Borrowers, or any of them, or any other Person in connection
with the Bank Facilities for the benefit of Banks or Agent Bank on behalf of the
Lenders, the Swingline Lender and the L/C Issuer.
"Margin Stock" shall have the meaning provided in Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Adverse Change" shall mean: (i) any set of
circumstances or events which, other than with respect to the Representations
and Warranties set forth in Article IV of the Credit Agreement which shall be
construed to be applicable to circumstances and events existing both as of the
Closing Date (or such earlier date as may be referenced in each particular
provision) and subsequent to the Closing Date, are not in existence as of the
Closing Date, which are material and adverse to (a) the Collateral or (b) the
condition (financial or otherwise) or business operations of the Argosy
Consolidation taken as a whole, or (c) the ability of Borrowers to perform their
respective Obligations under the Loan Documents, or (d) the ability of any of
the Lenders to enforce any of their material rights or remedies under any of the
Loan Documents, or (ii) any events or changes, which, other than with respect to
the Representations and Warranties set forth in Article IV of the Credit
Agreement which shall be construed to be applicable to events and changes
existing both as of the Closing Date (or such earlier date as may be referenced
in each particular provision) and subsequent to the Closing Date, are not in
existence as of the Closing Date and which have or result in a material adverse
effect upon (a) the value of the Hotel/Casino Facilities taken as a whole or the
priority of the security interests granted to Agent Bank, (b) the validity of
any of the Loan Documents, or (c) the use, occupancy or operation of the
Hotel/Casino Facilities taken as a whole.
- 39 -
"Maturity Date" shall mean June 8, 2004, subject to
acceleration to July 1, 2000, as provided in Section 5.27.
"Maximum Availability" shall mean the Maximum Permitted
Balance less the Aggregate Outstandings.
"Maximum Cap Ex Requirement" shall have the meaning ascribed
to such term in Section 6.05(a) of the Credit Agreement.
"Maximum Permitted Balance" shall mean the maximum amount of
principal which may be outstanding on the Bank Facilities from time to time,
which shall be the lesser of: (a) the Maximum Scheduled Balance, or (b) the
amount to which the Maximum Scheduled Balance is permanently voluntarily reduced
by Borrower pursuant to Section 2.01(c) or is otherwise further reduced or
limited pursuant to Sections 5.01 and 8.02.
"Maximum Scheduled Balance" shall mean the amount of the Total
Commitment, as reduced on each Reduction Date by the Scheduled Reductions.
"Minimum Cap Ex Requirement" shall have the meaning ascribed
to such term in Section 6.05(a) of the Credit Agreement.
"Minority Asset Adjustment" shall mean the amount to be
deducted from the aggregate amount of Assets of the Argosy Consolidation as of
any Fiscal Quarter end in an aggregate amount determined in the following
manner:
(a) that portion of the aggregate amount of Assets of
the Argosy Consolidation attributable to each Minority Venture Project shall be
determined;
(b) each respective amount determined in (a) above
shall be multiplied by the Minority Interest Percentage applicable to each
respective Minority Venture Project; and
(c) the products of each of the calculations made in
(b) above shall be added to determine the aggregate amount of the Minority Asset
Adjustment.
"Minority EBITDA Adjustment" shall mean the amount to be
deducted from EBITDA of the Argosy Consolidation during any specified period in
an aggregate amount determined in the following manner:
(a) that portion of the EBITDA of the Argosy
Consolidation attributable to each Minority Venture Project shall be
determined, which shall be annualized
- 40 -
in the same manner as described in the definition of Annualized EBITDA with
respect to each Restricted Subsidiary Venture which has been open to the
public for less than four (4) full Fiscal Quarters; Management and advisory
fees paid to Argosy and Conseco shall be deducted from the EBITDA
attributable to the Lawrenceburg Casino Facilities;
(b) each respective amount determined in (a) above
shall be multiplied by the Minority Interest Percentage applicable to each
respective Minority Venture Project; and
(c) the products of each of the calculations made in
(b) above shall be added to determine the aggregate amount of the Minority
EBITDA Adjustment.
"Minority Fixed Charges Adjustment" shall mean the amount to
be deducted from Fixed Charges of the Argosy Consolidation during any specified
period in an aggregate amount determined in the following manner:
(a) that portion of Fixed Charges of the Argosy
Consolidation attributable to each Minority Venture Project shall be determined;
(b) each respective amount determined in (a) above
shall be multiplied by the Minority Interest Percentage applicable to each
respective Minority Venture Project; and
(c) the products of each of the calculations made in
(b) above shall be added to determine the aggregate amount of the Minority Fixed
Charges Adjustment.
"Minority Funded Debt Adjustment" as of the end of any Fiscal
Quarter shall mean the amount to be deducted from Funded Debt of the Argosy
Consolidation as of the end of such Fiscal Quarter in an aggregate amount
determined as of the end of such Fiscal Quarter in the following manner:
(a) that portion of the Funded Debt of the Argosy
Consolidation attributable to each Minority Venture Project shall be determined;
(b) with respect to each portion of Funded Debt, as
determined in (a) above, but exclusive of all amounts identified in (c) below,
for which any member of the Borrower Consolidation is directly or contingently
liable, the amount of each such portion of Funded Debt shall be multiplied by
the Minority Interest Percentage applicable to each respective Minority Venture
Project;
- 41 -
(c) each portion of Funded Debt as determined in (a)
above, attributable to the Conseco IGCLP Loans shall be identified; and
(d) the products of each of the calculations made in
(b) above, together with the total of the portions of Funded Debt identified in
(c) above, shall be added to determine the aggregate amount of the Minority
Funded Debt Adjustment.
"Minority Interest Expense Adjustment" shall mean the amount
to be deducted from Interest Expense of the Argosy Consolidation during any
specified period in an aggregate amount determined in the following manner:
(a) that portion of Interest Expense of the Argosy
Consolidation attributable to each Minority Venture Project shall be determined;
(b) each respective amount determined in (a) above
shall be multiplied by the Minority Interest Percentage applicable to each
respective Minority Venture Project; and
(c) the products of each of the calculations made in
(b) above shall be added to determine the aggregate amount of the Minority
Interest Expense Adjustment.
"Minority Interest Percentage" shall mean the percentage of
ownership of a Minority Venture Project held by all Persons which are not
members of the Borrower Consolidation.
"Minority Senior Funded Debt Adjustment" as of the end of any
Fiscal Quarter shall mean the amount to be deducted from Senior Funded Debt of
the Argosy Consolidation as of the end of such Fiscal Quarter in an aggregate
amount determined as of the end of such Fiscal Quarter in the following manner:
(a) that portion of the Senior Funded Debt of the
Argosy Consolidation attributable to each Minority Venture Project shall be
determined;
(b) with respect to each portion of Senior Funded
Debt, as determined in (a) above, for which any member of the Borrower
Consolidation is directly or contingently liable, the amount of each such
portion of Senior Funded Debt shall be multiplied by the Minority Interest
Percentage applicable to each respective Minority Venture Project;
- 42 -
(c) each Obligation of Senior Funded Debt as
determined in (a) above, for which no member of the Borrower Consolidation is
directly or contingently liable, shall be identified; and
(d) the products of each of the calculations made in
(b) above, together with the total of the Senior Funded Debt identified in (c)
above, shall be added to determine the aggregate amount of the Minority Senior
Funded Debt Adjustment.
"Minority Total Liabilities Adjustment" shall mean the amount
to be deducted from Total Liabilities of the Argosy Consolidation as of the end
of any Fiscal Quarter in an aggregate amount determined in the following manner:
(a) that portion of Total Liabilities of the Argosy
Consolidation attributable to each Minority Venture Project shall be determined;
(b) each respective amount determined in (a) above
shall be multiplied by the Minority Interest Percentage applicable to each
respective Minority Venture Project; and
(c) the products of each of the calculations made in
(b) above shall be added to determine the aggregate amount of the Minority Total
Liabilities Adjustment.
"Minority Venture Project" shall mean individual reference and
"Minority Venture Projects" shall mean collective reference to the Lawrenceburg
Casino Facilities (until the occurrence of the Lawrence Buyout Effective Date),
the Sioux City Casino Facilities and each Restricted Subsidiary Venture in which
Requisite Lenders have consented in writing to a minority interest being owned
by a Person or Persons which are not members of the Borrower Consolidation.
"Mortgages" mean collective reference to the Shore Mortgages
and the Ship Mortgages.
"Net Gaming Revenues" shall mean all gaming revenues realized
by the Borrower Consolidation at the Argosy Owned Facilities which are subject
to taxation by a Gaming Authority.
"Net Income" shall mean with respect to any Person for any
fiscal period, the net income of such Person during such fiscal period
determined in accordance with GAAP, consistently applied.
- 43 -
"Net Proceeds" shall mean the aggregate cash proceeds
received by the Borrower Consolidation in respect of any sale, transfer,
conveyance or disposition of FF&E, net of the direct costs relating to such
sale, transfer, conveyance or disposition of FF&E, amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such sale, transfer, conveyance or
disposition of FF&E, any reserve for adjustment in respect of the sale price
of such FF&E or liabilities associated with such sale, transfer, conveyance
or disposition of FF&E and retained by the Borrower Consolidation and all
Indebtedness assumed by the purchaser in connection with such sale, transfer,
conveyance or disposition of FF&E and all taxes paid or payable as a result
of such sale, transfer, conveyance or disposition.
"Net Worth" of the Argosy Consolidation shall mean Adjusted
Assets, less Adjusted Total Liabilities, as of any given date of determination.
"New Indenture" shall have the meaning set forth in Recital
Paragraph E.
"New Venture" means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dock casino, entertainment center or similar
facility (or any site or proposed site for any of the foregoing or entity that
provides management or other services or goods to any of the foregoing) owned in
whole (or in part upon the prior written consent of Requisite Lenders) by any
New Venture Subsidiary or owned by a Person in which Argosy or a New Venture
Subsidiary is an owner or equity investor.
"New Venture Investment" shall mean any Investment made by the
Borrower Consolidation in or to any New Venture or New Venture Subsidiary after
the Closing Date.
"New Venture Investments" shall mean collective reference to
each and every New Venture Investment.
"New Venture Subsidiary" shall mean a Subsidiary of Argosy
that is the owner in whole (or in part upon the prior written consent of
Requisite Lenders) of a New Venture.
"Non-Financed Capital Expenditures" shall mean collective
reference to: (i) Capital Expenditures to the Argosy Owned Facilities which are
paid from advances under the Bank Facilities, and (ii) Capital Expenditures to
the Hotel/Casino Facilities which are paid from sources other than from the Bank
Facilities or from any loan, credit arrangement, lease or other financing from
any source or third party, but shall not include Non-Financed Capital
Expenditures made for the Capital Expenditures set forth on the Schedule of
Excluded Capital Expenditures, Schedule 6.05(b) to the extent permitted in
Section 6.05(b).
- 44 -
"Non Pro Rata Borrowing" means a Borrowing with respect to
which fewer than all Lenders have funded their respective Pro Rata Shares of
such Borrowing and the failure of the non-funding Lender or Lenders to fund its
or their respective Pro Rata Shares of such Borrowing constitutes a breach of
this Credit Agreement.
"Notes" shall mean collective reference to the Revolving
Credit Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning set forth in
Section 2.03.
"Notice of Swingline Advance" shall have the meaning set
forth in Section 2.08(b).
"Obligations" means, from time to time, all Indebtedness of
Borrowers owing to Agent Bank, any Lender or any Person entitled to
indemnification pursuant to Section 5.14, or any of their respective successors,
transferees or assigns, of every type and description, whether or not evidenced
by any note, guaranty or other instrument, arising under or in connection with
this Credit Agreement or any other Loan Document, whether or not for the payment
of money, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys' fees and disbursements,
including, without limitation, Protective Advances, reasonable fees and
disbursements of expert witnesses and other consultants, and any other sum now
or hereinafter chargeable to Borrowers under or in connection with Credit
Agreement or any other Loan Document. Notwithstanding the foregoing definition
of "Obligations", Borrowers' obligations under any environmental indemnity
agreement constituting a Loan Document, or any environmental representation,
warranty, covenant, indemnity or similar provision in this Credit Agreement or
any other Loan Document, shall be secured by the Collateral only to the extent,
if any, specifically provided in the Security Documentation.
"Outstanding First Mortgage Notes" shall mean the collective
reference to the First Mortgage Notes which are not tendered by the respective
holders thereof and accepted by Argosy pursuant to the Tender Offer and remain
outstanding obligations of the Borrower Consolidation following the First
Mortgage Notes Redemption and the Closing Date.
"Pari Passu Note" shall mean individual reference and "Pari
Passu Notes" shall mean collective reference to the promissory notes evidencing
Indebtedness incurred by any member of the Borrower Consolidation as the Level
One Term Loan and/or Level Two Term Loan, as applicable, which is PARI PASSU to
the Obligations (and guaranties thereof issued by any member of the Borrower
Consolidation) in priority of payment and in any
- 45 -
Collateral securing repayment thereof in accordance with the terms, covenants
and provisions contained in an Intercreditor Agreement.
"Pari Passu Obligations" shall mean collective reference to
all obligations and Indebtedness of the Borrower Consolidation under the Pari
Passu Notes, together with any loan agreement, indenture and all other
documents and agreements and related collateral and security documents and
instruments, as may be amended, modified, supplemented, extended, renewed or
restated from time to time in accordance with the requirements of the
applicable Intercreditor Agreement, executed by any member of the Borrower
Consolidation in connection with or relating to the Pari Passu Notes in favor
of the holders thereof or any agent, trustee or other representative thereof.
"Partnership Agreements" shall mean a collective reference to
the CQP Partnership Agreement, the BOSCLP Partnership Agreement and the IGCLP
Partnership Agreement.
"Pension Plan" means any "employee pension benefit plan" that
is subject to Title IV of ERISA and which is maintained for employees of
Borrowers, or any of them, or any of their respective ERISA Affiliates.
"Permitted Encumbrances" shall mean, at any particular time
with respect to the Borrower Consolidation, (i) Liens for taxes, assessments or
governmental charges not then due, payable and delinquent, (ii) Liens for taxes,
assessments or governmental charges not then required to be paid pursuant to
Section 5.10, (iii) Liens in favor of the Senior Indenture Trustee securing the
Outstanding First Mortgage Notes evidenced by the Senior Indenture Security
Documents until October 1, 2000 and Liens in favor of Agent Bank or any Lender
created or contemplated by the Security Documentation, (iv) the Liens on the
Baton Rouge Real Property and/or the Riverside Real Property and existing
improvements which are allowed by Banks to appear in Schedule B, Part I and II
of the Title Insurance Policies at the Closing Date, (v) Liens consented to in
writing by Agent Bank upon the approval of Requisite Lenders, (vi) Liens of
legally valid capital leases and purchase money security interests for acquired
FF&E up to the maximum amount permitted under Section 6.09(b), and only to the
extent of the lesser of the purchase money loan or the fair market value of the
acquired FF&E, (vii) Liens of legally valid leases for FF&E at the time of the
acquisition thereof, (viii) easements, licenses or rights-of-way, hereafter
granted to any Governmental Authority or public utility providing services to
the Hotel/Casino Facilities and/or Restricted Subsidiary Venture which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrowers, (ix) judgment and attachment Liens
which do not constitute an Event of Default, (x) statutory Liens of landlords
and liens of carriers, warehousemen, mechanics, customs and revenue authorities
and materialmen and other similar Liens imposed by law incurred in the
- 46 -
ordinary course of business which could not reasonably be expected to cause a
Material Adverse Change and which are discharged in accordance with Section
5.04, (xi) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and other similar
obligations; (xii) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business of the
Borrower Consolidation, or any of them; (xiii) the replacement or renewal of
any Lien otherwise permitted hereunder; (xiv) minor defects, encroachments or
irregularities in title not interfering in any material respect with the
ordinary conduct of the business of the Borrower Consolidation, or any of
them; and (xv) Liens in existence on the Closing Date referenced on the
Schedule of Liens.
"Person" means an individual, firm, corporation, limited
liability company, trust, association, partnership, joint venture, tribunal or
other entity.
"Policies of Insurance" shall mean the insurance to be
obtained and maintained by Borrower throughout the term of this Credit Agreement
as provided in Section 5.09 herein.
"Post Foreclosure Plan" shall have the meaning set forth in
Section 9.11(e).
"Potential L/C Exposure" shall mean the amount of L/C Exposure
that would result from the issuance of each Letter of Credit that is requested
by Borrowers, or any of them, pursuant to Section 2.09 herein, which amount
shall be measured during the period commencing on the date of such request for
issuance and continuing until the requested Letter of Credit is either issued by
the L/C Issuer or the request for issuance is rejected, withdrawn, rescinded or
otherwise terminated.
"Pricing Certificate" shall have the meaning set forth in
Section 5.08(a)(ii).
"Prime Rate" means at any time, and from time to time, the
rate of interest most recently announced within WFB at its principal office in
San Francisco, California, as its "Prime Rate", with the understanding that
WFB's "Prime Rate" is one of its base rates and serves as the basis upon which
effective rates of interest are calculated for those loans and extensions of
credit making reference thereto, and is evidenced by the recording thereof after
its announcement in such internal publication or publications as WFB may
designate. Each change in the Prime Rate shall be effective on the day the
change is announced within WFB.
"Principal Prepayments" shall have the meaning set forth in
Section 2.07(a) of this Credit Agreement.
- 47 -
"Pro Rata Share" shall mean with respect to any Lender, a
percentage equal to such Lender's Syndication Interest in the Credit Facility as
set forth on the Schedule of Lenders' Proportions in Credit Facility.
"Protective Advance" means all sums expended as determined
by Agent Bank to be necessary to: (a) protect the priority, validity and
enforceability of the Security Documentation on, and security interests in,
any Collateral and the instruments evidencing or securing the Obligations, or
(b) prevent the value of any Collateral from being materially diminished
(assuming the lack of such a payment within the necessary time frame could
potentially cause such Collateral to lose value), or (c) protect any of the
Collateral from being materially damaged, impaired, mismanaged or taken,
including, without limitation, any amounts expended in accordance with
Section 10.21.
"Purchase/Solicitation Statement" shall have the meaning
ascribed to such term in Recital Paragraph G.
"Qualified Appraisal" shall mean reference to an appraisal or
appraisals of the Hotel/Casino Facilities and Collateral, or any portion
thereof, acceptable to Agent Bank, prepared at Borrowers' expense in compliance
with FIRREA by an appraiser acceptable to Agent Bank, with sufficient copies
delivered to Agent Bank for distribution to each of the Lenders.
"Ratcliff" shall mean RJ Investments, Inc., an Indiana
corporation.
"Redemption Consideration" shall mean the aggregate amount to
be paid for the purchase of First Mortgage Notes pursuant to the Tender Offer
and in accordance with the terms of the Purchase/Solicitation Statement.
"Reduction Date(s)" shall mean reference to each date or the
dates, as the context may require, upon which the Total Commitment is reduced by
a Scheduled Reduction as set forth on the Total Commitment Reduction Schedule.
"Related Entities" shall mean collective reference to all
stockholders, Affiliates and Subsidiaries of the Borrowers, or any of them,
other than another Borrower.
"Replacement Note(s)" shall have the meaning set forth in
Section 2.05(i) of this Credit Agreement.
"Reportable Event" shall mean a reportable event as defined in
Title IV of ERISA, except actions of general applicability by the Secretary of
Labor under Section 110 of ERISA.
- 48 -
"Requisite Lenders" means, as of any date of determination
prior to the occurrence of an Event of Default, Lenders holding Syndication
Interests in excess of fifty percent (50.1%) of the Credit Facility; and at
all times during which an Event of Default has occurred and remains
continuing, Lenders holding a percentage in excess of fifty percent (50.1%)
of the Funded Outstandings; PROVIDED THAT, (i) in determining such percentage
at any given time, all then existing Defaulting Lenders will be disregarded
and excluded and the Pro Rata Shares of Lenders shall be redetermined, for
voting purposes only, to exclude the Pro Rata Shares of such Defaulting
Lenders, and (ii) notwithstanding the foregoing, at all times when three (3)
or more Lenders are party to this Credit Agreement, the term Requisite
Lenders shall in no event mean less than three (3) Lenders.
"Restricted Subsidiary" shall mean a wholly owned Subsidiary
of Argosy (other than MGC, AGC, IGC, Jazz, AOLI, CQP and TIGC) which: (a) has
not incurred any Indebtedness other than in connection with a Subsidiary
Guaranty, guaranties issued in connection with Subordinated Debt and Pari Passu
Obligations, if any, and accrued expenses, tax liability, deferred taxes and
trade accounts payable less than ninety (90) days past due and other accrued or
deferred liabilities incurred in the ordinary course of business, (b) is not
subject to any Liens except Restricted Subsidiary Permitted Encumbrances and in
connection with a Restricted Subsidiary Security Agreement, (c) has executed and
delivered to Agent Bank a Subsidiary Guaranty and has executed and delivered to
Agent Bank such security instruments, mortgages, ship mortgages and other
documents as Agent Bank may reasonably require for the purpose of adding its
assets, real and personal, as additional Collateral securing repayment of the
Bank Facilities and the Subsidiary Guaranty, (d) all of the stock or other
evidence of ownership thereof has been pledged in favor of Agent Bank by a
Restricted Subsidiary Security Agreement, and (e) has been designated by Argosy
to be a Restricted Subsidiary by written notice thereof to Agent Bank, subject
to Argosy's right to redesignate such New Venture Subsidiary as an Unrestricted
Subsidiary by written notice thereof to Agent Bank so long as: (i) no Default or
Event of Default has occurred and remains continuing, and (ii) giving effect to
such redesignation as of the end of the most recently ended Fiscal Quarter on a
pro forma basis, no Default or Event of Default would exist under the Financial
Covenants.
"Restricted Subsidiary Permitted Encumbrances" shall mean, at
any particular time with respect to a Restricted Subsidiary, (i) Liens for
taxes, assessments or governmental charges not then due, payable and delinquent,
(ii) statutory Liens for labor or materials or liens for taxes, assessments or
governmental charges not then required to be paid pursuant to Section 5.10,
(iii) Liens in favor of Agent Bank or any Lender created or contemplated by the
Security Documentation, (iv) Liens consented to in writing by Agent Bank upon
the approval of Requisite Lenders, (v) Liens of legally valid capital leases and
purchase money security interests for acquired FF&E up to the maximum amount
permitted under Section 6.09(b), and only to the extent of the lesser of the
purchase money loan or the fair
- 49 -
market value of the acquired FF&E at the time of the acquisition thereof,
(vi) Liens of legally valid leases for FF&E, (vii) easements, licenses or
rights-of-way, now existing or hereafter granted to any Governmental
Authority or public utility providing services to the Restricted Subsidiary
or Restricted Subsidiary Venture, (viii) judgment and attachment Liens which
do not constitute an Event of Default, (ix) statutory Liens of landlords and
Liens of carriers, warehousemen, mechanics, customs and revenue authorities
and materialmen and other similar Liens imposed by law incurred in the
ordinary course of business which could not reasonably be expected to cause a
Material Adverse Change and which are discharged in accordance with Section
5.04, (x) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and other similar
obligations; (xi) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business of such
Restricted Subsidiary; (xii) the replacement or renewal of any Lien otherwise
permitted hereunder; (xiii) minor defects, encroachments or irregularities in
title not interfering in any material respect with the ordinary conduct of
the business of such Restricted Subsidiary; and (xiv) Liens in existence at
the time of acquisition or designation of any Restricted Subsidiary, so long
as such Lien is not created or perfected in contemplation of such acquisition
or designation.
"Restricted Subsidiary Security Agreements" shall mean the
Security Agreement and Pledge Agreement in substantially the form of the
Security Agreements, and in any case to the reasonable satisfaction of Agent
Bank, to be executed by Argosy in favor of Agent Bank on behalf of the Banks for
the purpose of pledging and granting a security interest in the capital stock
and other interests which it may have in any Restricted Subsidiary, as it may be
amended, modified, supplemented, extended, renewed or restated from time to
time.
"Restricted Subsidiary Venture" shall mean a New Venture
wholly owned by a Restricted Subsidiary.
"Revolving Credit Note" shall mean the Revolving Credit Note,
a copy of which is marked "Exhibit A", affixed hereto and by this reference
incorporated herein and made a part hereof, to be executed by Borrowers on the
Closing Date, payable to the order of Agent Bank on behalf of the Lenders,
evidencing the Credit Facility, as it may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Riverside Assignment of Permits, Contracts, Rents and
Revenues" shall mean the Assignment of Permits, Contracts, Rents and Revenues to
be executed by MGC and by Argosy on or before the Closing Date, whereby MGC and
Argosy assign to Agent
- 50 -
Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer in
consideration of the Bank Facilities: (a) all of their right, title and
interest under all spaceleases and equipment leases and contracts relating to
the Riverside Casino Facilities, (b) all of their right, title and interest
in and to all permits, licenses and contracts relating to the Riverside
Casino Facilities, except those gaming permits and licenses which are
unassignable, and (c) all rents, issues, profits, revenues and income from
the operation of the Riverside Casino Facilities, together with any and all
future expansions thereof, related thereto or used in connection therewith,
as such assignment may be amended, modified, supplemented, extended, renewed
or restated from time to time.
"Riverside Casino Facilities" shall mean the riverboat casino
business and related activities conducted by MGC on the Riverside Vessel and on
the Riverside Real Property and all improvements now or hereafter situate
thereon.
"Riverside Deed of Trust" shall mean that certain Deed of
Trust, Fixture Filing and Security Agreement with Assignment of Rents to be
executed by AGC and by MGC as of the Closing Date in favor of Agent Bank, on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, encumbering the
Riverside Property and other Collateral therein described for the purpose of
securing the Bank Facilities and all other sums which may be owing by Borrowers
to the Banks from time to time under the terms of the Credit Agreement, as it
may be amended, modified, supplemented, extended, renewed or restated from time
to time.
"Riverside Development Agreement" shall mean that certain
Lease and Development Agreement executed by the City of Riverside, Missouri and
by AGC under date of June 7, 1993, pursuant to which, among other things MGC
agreed to: (i) construct certain improvements on the Riverside Real Property;
and (ii) make certain payments to the City of Riverside; all in connection with
its operation of a riverboat gaming business in connection with the Riverside
Real Property.
"Riverside Real Property" shall mean that real property which
is particularly described by "Exhibit Q" attached hereto and incorporated by
reference herein.
"Riverside Vessel" shall mean collective reference to Argosy
IV and to any other documented or undocumented vessels, barges, watercraft or
floating structures which may be utilized by MGC, as of the Closing Date or
thereafter, in the operation of its riverboat casino business at, or in
connection with, the Riverside Real Property.
"SEC" shall have the meaning set forth in Recital Paragraph E.
- 51 -
"Schedule of Excluded Capital Expenditures" shall mean the
Schedule of Excluded Capital Expenditures, a copy of which is set forth as
Schedule 6.05(b), affixed hereto, setting forth the list of Capital Expenditures
which may be paid from Borrowers' assets and advances under the Bank Facilities
as exclusions from Non-Financed Capital Expenditures.
"Schedule of Existing Unrestricted Subsidiary Investments"
shall mean the Schedule of Existing Unrestricted Subsidiary Investments, a copy
of which is set forth as Schedule 6.07(h), affixed hereto, setting forth the
Investments in Unrestricted Subsidiaries existing as of the Closing Date.
"Schedule of Lenders' Proportions in Credit Facility" shall
mean the Schedule of Lenders' Proportions in Credit Facility, a copy of which is
marked "Schedule 2.01(a), affixed hereto, setting forth the respective
Syndication Interest and maximum amount to be funded under the Credit Facility
by each Lender as such schedule may be amended, modified or restated from time
to time in connection with an Assumption and Consent Agreement or Assignment and
Assumption Agreement.
"Schedule of Liens" shall mean the Schedule of Liens, a copy
of which is set forth as Schedule 6.09, affixed hereto, setting forth certain
Liens encumbering the Collateral as of the Closing Date.
"Schedule of Significant Litigation" shall mean the Schedule
of Significant Litigation, a copy of which is set forth as Schedule 3.23,
affixed hereto and by this reference incorporated herein and made a part hereof,
setting forth the information described in Section 3.23 with respect to each
Significant Litigation.
"Schedule of Subsidiaries" shall mean the Schedule of
Subsidiaries, a copy of which is marked "Schedule 4.20", affixed hereto and by
this reference incorporated herein and made a part hereof, setting forth the
name of each Subsidiary of Argosy as of the Closing Date, stating whether each
such Subsidiary is a Restricted Subsidiary or an Unrestricted Subsidiary and if
the Subsidiary is a New Venture Subsidiary setting forth a description of the
applicable New Venture.
"Scheduled Reduction(s)" shall mean the amount by which the
Aggregate Commitment is reduced on each Reduction Date (calculated as a
percentage of the Total Commitment) as set forth on the Total Commitment
Reduction Schedule.
"Second Anniversary Date" shall mean the second annual
anniversary of the Closing Date.
- 52 -
"Secured Indebtedness" shall mean that portion of the
Indebtedness of the Argosy Consolidation, determined in accordance with GAAP,
(i) which is owing by IGCLP (both secured and unsecured), prior to the
Lawrenceburg Buyout Date, exclusive of Indebtedness owing by IGCLP to its
partners, and (ii) in each other instance the repayment of which is secured by
any of the Collateral or by all or any portion of the Assets owned by any member
of the Argosy Consolidation.
"Secured Interest Rate Hedge(s)" shall mean any Interest Rate
Hedge entered into between any Borrower and any Lender, or Affiliate of any
Lender, which is secured by the Security Documentation.
"Security Agreement (AGC)" shall mean the Security and Pledge
Agreement (AGC) in favor of Agent Bank on behalf of the Lenders, the Swingline
Lender and the L/C Issuer, to be executed by AGC for the purpose of pledging,
and granting a security interest in, all right, title and interest of AGC in and
to any FF&E and other tangible and intangible personal property in which it may
have an interest, and the other Collateral set forth therein; including, without
limitation: (i) any Intercompany Notes in which it may have an interest; and
(ii) all capital stock, partnership interests and other interests which it may
have in any Subsidiary, as it may be amended, modified, supplemented, extended,
renewed or restated from time to time.
"Security Agreement (AOLI)" shall mean the Security and Pledge
Agreement (AOLI) in favor of Agent Bank on behalf of the Lenders, the Swingline
Lender and the L/C Issuer, to be executed by AOLI for the purpose of pledging,
and granting a security interest in, all right, title and interest of AOLI in
and to any FF&E and other tangible and intangible personal property in which it
may have an interest, and the other Collateral set forth therein; including,
without limitation: (i) any Intercompany Notes in which it may have an interest;
and (ii) all capital stock, partnership interests and other interests which it
may have in any Subsidiary, as it may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Security Agreement (Argosy)" shall mean the Security and
Pledge Agreement (Argosy) in favor of Agent Bank on behalf of the Lenders, the
Swingline Lender and the L/C Issuer, to be executed by Argosy for the purpose of
pledging, and granting a security interest in, all right, title and interest of
Argosy in and to any FF&E and other tangible and intangible personal property in
which it may have an interest, and the other Collateral set forth therein;
including, without limitation: (i) any Intercompany Notes in which it may have
an interest; and (ii) all capital stock, partnership interests and other
interests which it may have in any Subsidiary, as it may be amended, modified,
supplemented, extended, renewed or restated from time to time.
- 53 -
"Security Agreement (CQP)" shall mean the Security and Pledge
Agreement (CQP) in favor of Agent Bank on behalf of the Lenders, the Swingline
Lender and the L/C Issuer, to be executed by CQP for the purpose of pledging,
and granting a security interest in, all right, title and interest of CQP in and
to any FF&E and other tangible and intangible personal property in which it may
have an interest, and the other Collateral set forth therein; including, without
limitation: (i) any Intercompany Notes in which it may have an interest; and
(ii) all capital stock, partnership interests and other interests which it may
have in any Subsidiary, as it may be amended, modified, supplemented, extended,
renewed or restated from time to time.
"Security Agreement (IGC)" shall mean the Security and
Pledge Agreement (IGC) in favor of Agent Bank on behalf of the Lenders, the
Swingline Lender and the L/C Issuer, to be executed by IGC for the purpose of
pledging, and granting a security interest in, all right, title and interest
of IGC in and to any FF&E and other tangible and intangible personal property
in which it may have an interest (excluding its partnership interest in
BOSCLP), and the other Collateral set forth therein; including, without
limitation: (i) any Intercompany Notes in which it may have an interest; (ii)
all capital stock, partnership interests and other interests which it may
have in any Subsidiary (other than BOSCLP); and (iii) all right, title and
interest of IGC to receive payments under the Sioux City Vessel Lease; as
such Security and Pledge Agreement may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Security Agreement (IGCLP)" shall mean the Security and
Pledge Agreement (IGCLP) in favor of Agent Bank on behalf of the Lenders, the
Swingline Lender and the L/C Issuer, to be executed by IGCLP on or before the
Level Two Commitment Increase Effective Date or the closing of the Level Two
Term Loan, as applicable, for the purpose of pledging, and granting a security
interest in, all right, title and interest of IGCLP in and to any FF&E and other
tangible and intangible personal property in which it may have an interest, and
the other Collateral set forth therein; including, without limitation: (i) any
Intercompany Notes in which it may have an interest; and (ii) all capital stock,
partnership interests and other interests which it may have in CQP or in any
Subsidiary, as it may be amended, modified, supplemented, extended, renewed or
restated from time to time.
"Security Agreement (Jazz)" shall mean the Security and Pledge
Agreement (Jazz) in favor of Agent Bank on behalf of the Lenders, the Swingline
Lender and the L/C Issuer, to be executed by Jazz for the purpose of pledging,
and granting a security interest in, all right, title and interest of Jazz in
and to any FF&E and other tangible and intangible personal property in which it
may have an interest, and the other Collateral set forth therein; including,
without limitation: (i) any Intercompany Notes in which it may have an interest;
and (ii) all capital stock, partnership interests and other interests which it
may have in any
- 54 -
Subsidiary, as it may be amended, modified, supplemented, extended, renewed
or restated from time to time.
"Security Agreement (MGC)" shall mean the Security and Pledge
Agreement (MGC) in favor of Agent Bank on behalf of the Lenders, the Swingline
Lender and the L/C Issuer, to be executed by MGC for the purpose of pledging,
and granting a security interest in, all right, title and interest of MGC in and
to any FF&E and other tangible and intangible personal property in which it may
have an interest, and the other Collateral set forth therein; including, without
limitation: (i) any Intercompany Notes in which it may have an interest; and
(ii) all capital stock, partnership interests and other interests which it may
have in any Subsidiary, as it may be amended, modified, supplemented, extended,
renewed or restated from time to time.
"Security Agreement (TIGC)" shall mean the Security and Pledge
Agreement (TIGC) in favor of Agent Bank on behalf of the Lenders, the Swingline
Lender and the L/C Issuer, to be executed by TIGC for the purpose of pledging,
and granting a security interest in, all right, title and interest of TIGC in
and to any FF&E and other tangible and intangible personal property in which it
may have an interest, and the other Collateral set forth therein; including,
without limitation: (i) any Intercompany Notes in which it may have an interest;
and (ii) all capital stock, partnership interests and other interests which it
may have in any Subsidiary (including, without limitation, its partnership
interest in IGCLP), as it may be amended, modified, supplemented, extended,
renewed or restated from time to time.
"Security Agreements" shall mean collective reference to the
Security Agreement (AGC), the Security Agreement (AOLI), the Security Agreement
(Argosy), the Security Agreement (CQP), the Security Agreement (IGC), the
Security Agreement (Jazz), the Security Agreement (MGC), the Security Agreement
(TIGC), and, as of the Level Two Commitment Increase Effective Date or closing
of the Level Two Term Loan, as the case may be, the Security Agreement (IGCLP).
"Security Documentation" shall mean collective reference to
the Mortgages, Financing Statements, Assignments, Security Agreements, Revolving
Credit Note, Subsidiary Guaranties, Trademark Security Agreement and all other
instruments and agreements to be executed by or on behalf of any member of the
Borrower Consolidation, including, without limitation, each Restricted
Subsidiary, or any of them, or other applicable Persons, in favor of Agent Bank
on behalf of the Banks securing repayment of the Bank Facilities.
"Senior Funded Debt" of the Argosy Consolidation shall mean
for any Fiscal Quarter the sum of: (i) the average of the Aggregate Outstandings
as of the last day of each calendar month during such Fiscal Quarter, plus (ii)
the total as of the last day of such period
- 55 -
of the unpaid principal balance of both the long-term and current portions
(without duplication) of all other Secured Indebtedness (exclusive of the
Defeased Debt) and Capitalized Lease Liabilities shown on the financial
statements of the Argosy Consolidation prepared in accordance with GAAP.
"Senior Indenture" shall have the meaning set forth in
Recital Paragraph C.
"Senior Indenture Amendment" shall mean the amendment or
supplement to the Senior Indenture to be executed by the Senior Indenture
Trustee, Argosy and the other parties to the Senior Indenture effectuating
the amendments and modifications to the Senior Indenture and Senior Indenture
Security Documents pursuant to the Consent Solicitation and as set forth in
the Purchase/Solicitation Statement.
"Senior Indenture Collateral" shall have the meaning ascribed
to the term "Collateral" in the Senior Indenture.
"Senior Indenture Security Documents" shall mean those
documents securing repayment of the Borrowers' obligations under the Senior
Indenture, and the First Mortgage Notes issued in accordance therewith, as
described on Schedule 5.11 attached hereto.
"Senior Indenture Trustee" shall have the meaning ascribed to
such term in Recital Paragraph C.
"Senior Leverage Ratio" as of the end of any Fiscal Quarter
shall mean with reference to the Argosy Consolidation, the ratio of Adjusted
Senior Funded Debt to Economic EBITDA.
"Senior Subordinated Notes" shall mean reference to the
Initial Senior Subordinated Notes or the Exchange Senior Subordinated Notes, or
both, as the case may be, whichever are issued and outstanding as of any date of
determination.
"Senior Subordinated Notes Effective Date" shall have the
meaning set forth in Section 3.15.
"Share Repurchases" shall mean the purchase of shares of any
class of stock, option, right or other equity interest, whether voting or
non-voting of Argosy by any member of the Borrower Consolidation, or any of
them.
"Ship Mortgages" shall mean collective reference to the Argosy
I Ship Mortgage, the Alton Belle II Ship Mortgage, the Alton Landing Ship
Mortgage, the Argosy III Ship Mortgage, the Argosy IV Ship Mortgage, the Argosy
V Ship Mortgage and
- 56 -
the Spirit of America Ship Mortgage and, as of the Level Two Commitment
Increase Effective Date or closing of the Level Two Term Loan, as the case
may be, the Argosy VI Ship Mortgage.
"Shore Mortgages" shall mean a collective reference to the
Baton Rouge Mortgage, the Riverside Deed of Trust and, as of the Level Two
Commitment Increase Effective Date, or the closing of the Level Two Term Loan,
as the case may be, the Lawrenceburg Mortgage.
"Significant Litigation" shall mean each action, suit,
proceeding, litigation and controversy against, or to the actual knowledge of
Borrowers threatened, or affecting any member of the Argosy Consolidation, or
any of them, not fully covered by insurance or that is subject to a
reservation of rights and involving claims in excess of Three Million Dollars
($3,000,000.00) or which if determined adverse to the interests of any member
of the Argosy Consolidation, or any of them, would reasonably be expected to
result in a Material Adverse Change.
"Sioux City Assignment of Permits, Contracts, Rents and
Revenues" shall mean the Assignment of Permits, Contracts, Rents and Revenues to
be executed by IGC on or before the Closing Date, whereby IGC assigns to Agent
Bank on behalf of the Lenders, the Swingline Lender and the L/C Issuer in
consideration of the Bank Facilities: (a) all of its right, title and interest
under all spaceleases and equipment leases and contracts relating to the Sioux
City Casino Facilities, (b) all of its right, title and interest in and to all
permits, licenses and contracts relating to the Sioux City Casino Facilities,
except those gaming permits and licenses which are unassignable, (c) all of its
right, title and interest in and to all rents, issues, profits, revenues and
income from the operation of the Sioux City Casino Facilities, together with any
and all future expansions thereof, related thereto or used in connection
therewith, and (d) all of its right, title and interest to receive payments
under the Sioux City Vessel Lease, as such assignment may be amended, modified,
supplemented, extended, renewed or restated from time to time.
"Sioux City Casino Facilities" shall mean the riverboat casino
business and related activities conducted by BOSCLP on the Sioux City Vessels
and on the Sioux City Real Property and all improvements now or hereafter
situate thereon.
"Sioux City Development Agreement" shall mean that certain
Development Agreement under date of June 22, 1992, by and between the City of
Sioux City, Iowa and Sioux City Riverboat Corp., pursuant to which, among other
things, Sioux City Riverboat Corp. constructed various improvements to the Sioux
City Real Property and was granted the right to utilize the Sioux City Real
Property as well as certain adjoining parking facilities owned by the City of
Sioux City, all in operation of the Sioux City Casino Facilities, with
- 57 -
the interest of Sioux City Riverboat Corp. under the Sioux City Development
Agreement having been assigned to BOSCLP pursuant to that certain Assignment
and Assumption Agreement executed by Sioux City Riverboat Corp. and by BOSCLP
under date of December 1, 1994.
"Sioux City Real Property" shall mean that real property which
is particularly described by "Exhibit R" attached hereto and incorporated by
reference herein.
"Sioux City Riverboat Corp." shall mean Sioux City Riverboat
Corp., Inc., an Iowa corporation.
"Sioux City Vessel Lease" shall mean that certain Management
and Boat Lease Agreement executed by BOSCLP and by IGC under date of December 1,
1994 pursuant to which, among other things, IGC leased the Sioux City Vessels to
BOSCLP and IGC agreed to manage the Sioux City Casino Facilities on behalf of
BOSCLP.
"Sioux City Vessels" shall mean collective reference to Argosy
V, Alton Landing and to any other documented or undocumented vessels, barges,
watercraft or floating structures which may be utilized by BOSCLP, as of the
Closing Date or thereafter, in the operation of its riverboat casino business
at, or in connection with, the Sioux City Real Property.
"Spirit of America" shall mean that vessel known as Spirit of
America, Official No. 259139.
"Spirit of America Ship Mortgage" shall mean the First
Preferred Ship Mortgage to be executed by Argosy on or before the Closing Date
wherein Argosy, as owner and mortgagor, grants a Lien in favor of Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, in and to Spirit
of America, as such ship mortgage may be amended, modified, supplemented,
extended, renewed or restated from time to time.
"Standby L/C Fee" shall have the meaning set forth in Section
2.10(c) of this Credit Agreement.
"Standby Letter(s) of Credit" shall mean a letter or letters
of credit issued by L/C Issuer pursuant to Section 2.09 of the Credit Agreement
for the purpose of securing payment or performance of a financial obligation of
Borrowers, or any of them, other than in connection with the payment for goods
or equipment.
"Stated Amount" shall mean the maximum amount which L/C Issuer
may be required to disburse to the beneficiary(ies) of a Letter(s) of Credit
under the terms thereof.
- 58 -
"Stated Expiry Date(s)" shall mean the date set forth on the
face of a Letter(s) of Credit as the date when all obligations of L/C Issuer to
advance funds thereunder will terminate, as the same may be extended from time
to time.
"Subordinated Debt" shall mean: (i) the Indebtedness evidenced
by the New Indenture and Senior Subordinated Notes, and (ii) all other unsecured
Indebtedness of the Borrower Consolidation (not including, however: (x) the
First Mortgage Notes purchased by Borrowers as of the Closing Date pursuant to
the First Mortgage Notes Redemption, and (y) the Senior Indenture and the
Outstanding First Mortgage Notes subsequent to July 1, 2000) which is
contractually subordinated to the Obligations and for which (a) there is no
principal or sinking fund payment requirement maturing or otherwise coming due
prior to one (1) year after the Maturity Date; (b) the maturity date of the
Subordinated Debt shall not be earlier than one year subsequent to the Maturity
Date; (c) all material covenants, terms and conditions of the Subordinated Debt
shall be no more restrictive on Argosy and the Borrower Consolidation than those
applicable under this Credit Agreement; and (d) the covenants, terms,
conditions, representations, subordination and blockage provisions, events
of default and other provisions of the Subordinated Debt are either (i)
substantially similar in all material respects to the covenants, terms,
conditions, representations, subordination and blockage provisions, events of
default and other provisions contained in the New Indenture, or (ii) such
covenants, terms, conditions, representations, subordination and blockage
provisions, events of default and other provisions shall be acceptable to the
Requisite Lenders in their reasonable credit judgment.
"Subsidiary" shall mean, on the date in question, any Person
of which an aggregate of 50% or more of the stock of any class or classes (or
equivalent partnership or limited liability company interests) is owned of
record or beneficially, directly or indirectly, by another Person and/or any of
its Subsidiaries, if the holders of the stock of such class or classes (or
equivalent partnership or limited liability company interests) (a) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the directors (or individuals performing similar functions) of
such Person, even though the right so to vote has been suspended by the
happening of such a contingency, or (b) are entitled, as such holders, to vote
for the election of a majority of the directors (or individuals performing
similar functions) of such Person, whether or not the right so to vote exists by
reason of the happening of a contingency.
"Subsidiary Guarantor" shall mean each Restricted Subsidiary
which has executed the Subsidiary Guaranty.
"Subsidiary Guaranty" shall mean the General Continuing
Subsidiary Guaranty to be executed by each Restricted Subsidiary in favor of the
Agent Bank on behalf of Banks in the form of the General Continuing Subsidiary
Guaranty marked "Exhibit N",
- 59 -
affixed hereto and by this reference incorporated herein and made a part
hereof, under the terms of which each Restricted Subsidiary irrevocably and
unconditionally guaranties to Agent Bank on behalf of the Banks the full and
prompt payment and performance of all Obligations.
"Swingline Advance" shall mean each advance made by Swingline
Lender to Borrowers under the Swingline Facility.
"Swingline Facility" shall mean the agreement of Swingline
Lender to make Swingline Advances to Borrowers subject to the terms and
conditions and up to the maximum amounts and for the duration as set forth in
Section 2.08 of this Credit Agreement.
"Swingline Lender" shall have the meaning set forth in the
Preamble of this Credit Agreement.
"Swingline Note" shall mean the Swingline Note, a copy of
which is marked "Exhibit B", affixed hereto, to be executed by Borrowers on the
Closing Date, payable to the order of Swingline Lender evidencing the Swingline
Facility.
"Swingline Outstandings" shall mean the aggregate amount of
all outstanding and unpaid Swingline Advances as of each date of determination.
"Syndication Interest" shall mean the proportionate interest
of each Lender in the Credit Facility as set forth on the Schedule of Lenders'
Proportions in Credit Facility, a copy of which is marked Schedule 2.01(a)
affixed hereto and by this reference incorporated herein and made a part hereof,
as the same may be amended or restated from time to time.
"Taxes" shall have the meaning set forth in Section 2.12.
"Tender Offer" shall have the meaning ascribed to such term in
Recital Paragraph G.
"Term Loans" shall mean collective reference to the Level
One Term Loan and the Level Two Term Loan.
"Title Company" shall mean First American Title Insurance
Company, together with such reinsurers with direct access as are requested by
Agent Bank or other title insurance company or companies as may be reasonably
acceptable to Agent Bank.
"Title Insurance Policies" shall mean the ALTA Extended
Coverage Lenders Policy(ies) of Title Insurance and endorsements to be attached
thereto, to be issued by Title
- 60 -
Company as of the Closing Date, in the aggregate amount of Fifty-Five Million
Dollars ($55,000,000.00) in connection with the Riverside Casino Facilities
and Fifty-Seven Million Dollars ($57,000,000.00) in connection with the Baton
Rouge Casino Facility, in each case in favor of WFB, as Agent Bank, insuring:
(i) the Baton Rouge Mortgage as a first mortgage lien on the Baton Rouge Real
Property; and (ii) the Riverside Deed of Trust as a first mortgage lien on
the Riverside Real Property; all subject only to the exceptions permitted to
be shown thereon in accordance with the requirements set forth in the Closing
Instructions.
"Total Commitment" shall mean the amount of Two Hundred
Million Dollars ($200,000,000.00) (the amount of the Aggregate Commitment on the
Closing Date), plus, on and after the Level One Commitment Increase Effective
Date, the aggregate amount of the Level One Commitment Increase, plus, on and
after the Level Two Commitment Increase Effective Date, the aggregate amount of
the Level Two Commitment Increase.
"Total Commitment Reduction Schedule" shall mean the Total
Commitment Reduction Schedule marked "Schedule 2.01(c)", affixed hereto, setting
forth as of each Reduction Date the amount of each Scheduled Reduction as a
percentage of the Total Commitment.
"Total Leverage Ratio" as of the end of any Fiscal Quarter
shall mean with reference to the Argosy Consolidation, the ratio of Adjusted
Funded Debt to Economic EBITDA.
"Total Liabilities" shall mean the total liabilities of the
Argosy Consolidation determined in accordance with GAAP.
"Trademark Security Agreement" shall mean the security
agreement to be executed by Borrowers as of the Closing Date for the purpose of
granting a security interest in favor of Agent Bank on behalf of Lenders in all
trademarks, tradenames and servicemarks used in connection with the Argosy Owned
Facilities, including, without limitation, each registration and application set
forth on Schedule 4.27 or otherwise described on Schedule A to the Trademark
Security Agreement.
"USCG" shall mean the United States Coast Guard.
"Unrestricted Subsidiary" shall mean each New Venture
Subsidiary which is not a Restricted Subsidiary or a Borrower.
"Unsuitable Lender" shall have the meaning set forth in
Section 10.10(d).
- 61 -
"Vessels" shall mean collective reference to the Alton Vessel,
the Baton Rouge Vessel, the Lawrenceburg Vessel, the Riverside Vessel, and the
Sioux City Vessels.
"Voluntary Permanent Reduction" shall have the meaning set
forth in Section 2.01(c).
"WFB" shall mean Wells Fargo Bank, National Association.
Section 1.02. INTERPRETATION AND CONSTRUCTION. In this
Credit Agreement, unless the context otherwise requires:
(a) Articles and Sections mentioned by number only are the
respective Articles and Sections of this Credit Agreement as so numbered;
(b) Words importing a particular gender mean and include
every other gender, and words importing the singular number mean and include the
plural number and VICE VERSA;
(c) All times specified herein, unless otherwise
specifically referred, shall be the time in San Francisco, California;
(d) Any headings preceding the texts of the several
Articles and Sections of this Credit Agreement, and any table of contents or
marginal notes appended to copies hereof, shall be solely for convenience of
reference and shall not constitute a part of this Credit Agreement, nor shall
they affect its meaning, construction or effect;
(e) If any clause, provision or Section of this Credit
Agreement shall be ruled invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any of
the remaining provisions hereof;
(f) The terms "herein", "hereunder", "hereby", "hereto",
"hereof" and any similar terms as used in the Credit Agreement refer to this
Credit Agreement; the term "heretofore" means before the date of the execution
of this Credit Agreement; and the term "hereafter" means after the date of the
execution of this Credit Agreement;
(g) The parties hereto agree that each has contributed to the
drafting of this Credit Agreement and each of the Loan Documents and that the
provisions herein contained shall not be construed against Borrowers or Banks as
having been the person or persons responsible for the preparation thereof;
- 62 -
(h) All accounting terms used herein which are not
otherwise specifically defined shall be used in accordance with GAAP;
(i) Each reference to a Loan Document or the Security
Documentation, or any of them, as used in this Credit Agreement shall be deemed
a reference to such Loan Document or the Security Documentation as the same may
be amended, modified, supplemented, replaced or restated from time to time; and
(j) Every affirmative duty, covenant and obligation
of Borrowers hereunder shall be equally applicable to each of the Borrowers
individually and where the context would result in the best interests or rights
of Banks shall be construed to mean "Borrowers or any of them" or "Borrowers and
each of them", as applicable.
Section 1.03. USE OF DEFINED TERMS. Unless otherwise defined
or the context otherwise requires, terms for which meanings are provided in this
Credit Agreement shall have such meanings when used in the Notes and in each
Loan Document and other communication delivered from time to time in connection
with this Credit Agreement or any other Loan Document.
Section 1.04. CROSS-REFERENCES. Unless otherwise specified,
references in this Credit Agreement and in each other Loan Document to any
Article or Section are references to such Article or Section of this Credit
Agreement or such other Loan Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or definition to any
clause are references to such clause of such Article, Section or definition.
Section 1.05. EXHIBITS AND SCHEDULES. All Exhibits and
Schedules to this Credit Agreement, either as originally existing or as the same
may from time to time be supplemented, modified or amended, are incorporated
herein by this reference and made a part hereof.
ARTICLE II
AMOUNT, TERMS AND SECURITY OF THE FACILITIES
Section 2.01. THE CREDIT FACILITY.
a. Subject to the conditions and upon the terms
hereinafter set forth and in accordance with the terms and provisions of the
Revolving Credit Note, Lenders severally agree in the proportions set forth on
the Schedule of Lenders' Proportions in Credit Facility to advance the Closing
Disbursement on the Closing Date and thereafter to advance Borrowings to
Borrowers, in the aggregate up to the Maximum Permitted Balance in the
- 63 -
initial amount of Two Hundred Million Dollars ($200,000,000.00), subject to
increase as provided in Section 2.15(a) and 2.15(b), in such amounts as
Borrowers may request by Notice of Borrowing duly executed by an Authorized
Officer and delivered to Agent Bank from time to time as provided in Section
2.03.
b. Subject to the uses and purposes set forth in
Section 2.02, on and after the Closing Date, Borrowers may borrow, repay and
reborrow the Available Borrowings up to the Maximum Permitted Balance from time
to time; provided further, however, amounts of Funded Outstandings bearing
interest with reference to a LIBO Rate shall be subject to Breakage Charges
incident to prepayment as provided in Section 2.07(c). The Credit Facility shall
be for a term commencing on the Closing Date and terminating on the Maturity
Date, on which date the entire outstanding balance of the Credit Facility shall
be fully paid and Bank Facility Termination shall occur. In no event shall any
Lender be liable to fund any amounts under the Credit Facility in excess of its
respective Syndication Interest in any Borrowing. In the event the Aggregate
Outstandings exceed the Maximum Permitted Balance at any time, Borrowers shall
immediately cause the Aggregate Outstandings to be reduced by such amount as may
be necessary to cause the Aggregate Outstandings to be equal to or less than the
Maximum Permitted Balance.
c. Borrowers may voluntarily reduce the Maximum
Permitted Balance from time to time (a "Voluntary Permanent Reduction") on the
following conditions:
(i) that each such Voluntary Permanent
Reduction be in the minimum amount of Five Million Dollars
($5,000,000.00) (or, if less the remaining Maximum Permitted
Balance) and in increments of One Million Dollars
($1,000,000.00) and made in writing by an Authorized
Representative, effective on the fifth (5th) Banking Business
Day following receipt by Agent Bank;
(ii) that each such Voluntary Permanent
Reduction shall be irrevocable and a permanent reduction to
the Maximum Permitted Balance; and
(iii) in the event any Voluntary Permanent
Reduction reduces the Maximum Permitted Balance to less than
the sum of the Aggregate Outstandings, the Borrowers shall
immediately cause the Aggregate Outstandings to be reduced by
such amount as may be necessary to cause the Aggregate
Outstandings to be equal to or less than the Maximum Permitted
Balance.
- 64 -
Section 2.02. USE OF PROCEEDS OF THE CREDIT FACILITY.
Available Borrowings shall be used for the following purposes:
a. On the Closing Date a Borrowing shall be advanced
(the "Closing Disbursement") for the purposes of:
(i) paying in full the fees due Agent Bank as set
forth in the Fee Side Letter, the costs, fees and expenses of
Title Company incurred in connection with the issuance of the
Title Insurance Policies, the costs, fees and expenses of
Henderson & Morgan, LLC, attorneys for Agent Bank, and
associate counsel and insurance consultants retained by them
incurred to the Closing Date; and
(ii) financing a portion of the costs and funds to be
advanced by Borrowers for the Redemption Consideration and
the Consent Solicitation Consideration;
(iii) financing a portion of the costs and funds to
be advanced by Borrowers as Defeasance Consideration;
(iv) paying other costs, fees and expenses incurred
by Borrowers, including attorneys' fees and related costs,
incurred in connection with the Bank Facilities and the New
Indenture; and
(v) financing working capital requirements of the
Borrower Consolidation.
b. Subsequent to the Closing Date up to the Maximum
Permitted Balance for the purpose of:
(i) providing financing for general corporate
purposes, including financing Capital Expenditures, working
capital requirements (including funding all or any portion of
the costs of acquisition of a Minority Interest Percentage)
and New Venture Investments of the Borrower Consolidation
subject to the terms, covenants and limitations hereinafter
set forth; and
(ii) financing a portion of the costs and funds to be
advanced by Borrowers to cause the Convertible Notes to be
fully paid on or before July 1, 2000.
- 65 -
c. On and after the Commitment Increase Effective
Date up to the Maximum Permitted Balance, after giving effect to the Commitment
Increase, for the additional purpose of:
(i) financing a portion of the costs of acquiring one
hundred percent (100%) ownership within the Borrower
Consolidation of IGCLP and the Lawrenceburg Casino Facilities;
and
(ii) paying other costs, fees and expenses incurred
by Borrowers, including attorneys fees and related costs, of
acquiring one hundred percent (100%) ownership within the
Borrower Consolidation of IGCLP and the Lawrenceburg Casino
Facilities.
Section 2.03. NOTICE OF BORROWINGS AND EXERCISE OF INTEREST
RATE OPTIONS.
a. An Authorized Representative shall give Agent
Bank, no later than 9:00 a.m. on a Banking Business Day at Agent Bank's
office specified in Section 2.07, three (3) full Banking Business Days prior
notice in the form of (i) verbal notice by telephone by an Authorized
Representative, and (ii) written notice by a Notice of Borrowing ("Notice of
Borrowing"), a copy of which is marked "Exhibit C", affixed hereto, for each
proposed Borrowing to be made with reference to a LIBO Rate and at least one
(1) full Banking Business Days prior notice for all other Borrowings,
specifying the date and amount of each proposed Borrowing. Agent Bank shall
give prompt notice of each Notice of Borrowing to Lenders of the amount to be
funded and specifying the Funding Date. Not later than 11:00 a.m. on the
Funding Date specified, each Lender shall disburse to Agent Bank its Pro Rata
Share of the amount to be advanced by each such Lender in lawful money of the
United States of America and in immediately available funds. Agent Bank shall
make the proceeds of such fundings received by it on or before 11:00 a.m.
from the Lenders available to Borrowers by depositing, prior to 1:00 p.m. on
the day so received (but not prior to the Funding Date), in the Designated
Deposit Account maintained with Agent Bank the amounts received from the
Lenders. No Borrowing may exceed the Available Borrowings. Each Borrowing to
be made with reference to the Base Rate shall be in a minimum amount of One
Million Dollars ($1,000,000.00) and in increments of One Hundred Thousand
Dollars ($100,000.00). Borrowers shall be entitled to no more than five (5)
Borrowings during each calendar month, exclusive of Borrowings made for the
sole purpose of funding repayment of a Swingline Advance or L/C Reimbursement
Obligation.
b. The failure of any Lender to fund its Pro Rata
Share of any Borrowing on any Funding Date shall neither relieve any other
Lender of any obligation hereunder to fund its Pro Rata Share of such Borrowing
on such Funding Date nor relieve the Lender which has failed to fund its Pro
Rata Share of its obligations to Borrowers
- 66 -
hereunder. No Lender shall be responsible for the failure of any other Lender
to fund its Pro Rata Share of such Borrowing on any Funding Date nor shall
any Lender be responsible for the failure of any other Lender to perform its
respective obligations hereunder. The provisions set forth in Section
10.10(d) shall be applicable to a Defaulting Lender to the same extent as if
such Defaulting Lender was found to be an Unsuitable Lender.
Section 2.04. CONDITIONS OF BORROWINGS. The Closing
Disbursement and all Borrowings, other than Borrowings made at the request of
Agent Bank for the purpose of funding repayment of Swingline Outstandings and/or
L/C Reimbursement Obligations as hereinafter provided, will only be made so long
as Borrowers are in full compliance with each of the requirements and conditions
precedent set forth in Article III A and B of this Credit Agreement and with
Article III C with respect to the advance of the Commitment Increase; provided,
however, upon the consent of the Requisite Lenders, Lenders shall advance
Borrowings notwithstanding the existence of less than full compliance with the
requirements of Article III B and Borrowings so made shall be deemed to have
been made pursuant to this Credit Agreement.
Section 2.05. THE REVOLVING CREDIT NOTE AND INTEREST RATE
OPTIONS.
a. The Credit Facility shall be further evidenced
by the Revolving Credit Note payable to the order of Agent Bank on behalf of
the Lenders. Agent Bank shall record manually or electronically the date and
amount of each Borrowing advanced by the Lenders together with the applicable
Interest Period in the case of portions of the unpaid principal under the
Credit Facility bearing interest with reference to a LIBO Rate, and the
amount of each repayment of principal made thereunder by Borrowers and the
entry of such records shall be conclusive absent manifest or demonstrable
error; provided, however, the failure to make such a record or notation with
respect to any Borrowing or repayment thereof, or an error in making such a
record or notation, shall not limit or otherwise affect the obligations of
Borrowers hereunder or under the Revolving Credit Note.
b. Interest shall accrue on the entire outstanding
principal balance of the Credit Facility at a rate per annum equal to the Base
Rate plus the Applicable Margin, unless Borrowers request a LIBOR Loan pursuant
to Section 2.03 or elect pursuant to Section 2.05(c) hereinbelow to have
interest accrue on a portion or portions of the outstanding principal balance of
the Credit Facility at a LIBO Rate ("Interest Rate Option"), in which case
interest on such portion or portions shall accrue at a rate per annum equal to
such LIBO Rate plus the Applicable Margin in effect as of the second Banking
Business Day prior to the first day of the applicable Interest Period, as long
as: (i) each such LIBOR Loan is in a minimum amount of Five Million Dollars
($5,000,000.00) and in increments of One Million Dollars ($1,000,000.00), and
(ii) no more than ten (10) LIBOR Loans may be outstanding at any one time.
Interest accrued on each Base Rate Loan shall be due and
- 67 -
payable quarterly on the first day of each Fiscal Quarter following the
Closing Date, and on the Maturity Date. For each LIBOR Loan, accrued interest
shall be due and payable at the end of each Interest Period applicable
thereto, but in any event no less frequently than at the end of each three
(3) month period during the term of such LIBOR Loan. Except as qualified
above, the outstanding principal balance of the Credit Facility may be a Base
Rate Loan or one or more LIBOR Loans, or any combination thereof, as
Borrowers shall specify.
c. So long as no Default or Event of Default shall
have occurred and remains continuing, Borrowers may Convert from one Interest
Rate Option to another Interest Rate Option or continue an Interest Rate
Option for another Interest Period by giving irrevocable notice to Agent Bank
of such Conversion or Continuation by 9:00 a.m., on a day which is at least
three (3) Banking Business Days prior to the proposed date of such Conversion
to or Continuation of each LIBOR Loan or one (1) Banking Business Day prior
to the proposed date of such Conversion to each Base Rate Loan. Each such
notice shall be made by an Authorized Representative by telephone and
thereafter immediately confirmed in writing by delivery to Agent Bank of a
Continuation/Conversion Notice specifying the date of such Conversion or
Continuation, the amounts to be so Converted or Continued and the Interest
Period if the Conversion or Continuation is being made with reference to a
LIBOR Loan. Upon receipt of such Continuation/Conversion Notice, Agent Bank
shall promptly set the applicable interest rate (which in the case of a LIBOR
Loan shall be the LIBO Rate plus the Applicable Margin as of the second
Banking Business Day prior to the first day of the applicable Interest
Period) and the applicable Interest Period if the Conversion or Continuation
is being made with reference to a LIBOR Loan and shall confirm the same in
writing to Borrowers and Lenders. Each Conversion or Continuation shall be on
a Banking Business Day. No LIBOR Loan shall be converted to a Base Rate Loan
or renewed on any day other than the last day of the current Interest Period
relating to such amounts outstanding unless Borrowers pay any applicable
Breakage Charges. All Borrowings advanced at the request of Agent Bank under
Sections 2.08 or 2.09 of the Credit Agreement shall bear interest with
reference to the Base Rate plus the Applicable Margin, subject to Borrowers'
right to Convert such Borrowing to a LIBOR Loan or LIBOR Loans as provided
herein. If Borrowers fail to give a Continuation/Conversion Notice for the
continuation of a LIBOR Loan as a LIBOR Loan for a new Interest Period in
accordance with this Section 2.05(c), such LIBOR Loan shall automatically
become a Base Rate Loan at the end of its then current Interest Period.
d. Each interest period (each individually an
"Interest Period" and collectively the "Interest Periods") for a LIBOR Loan
shall commence on the date such LIBOR Loan is made or the date of Conversion or
Continuation of any amount or amounts of the outstanding Borrowings hereunder to
a LIBOR Loan, as the case may be, and shall end on the date which is one (1),
two (2), three (3) or six (6) months thereafter, as elected by Borrowers.
However, no Interest Period may extend beyond the Maturity Date and no
- 68 -
Interest Period may extend beyond any Reduction Date unless the sum of (i)
the aggregate amount of LIBOR Loans having an Interest Period ending after
such Reduction Date, plus (ii) the L/C Exposure and Potential L/C Exposure of
all Letters of Credit outstanding and requested for which the Stated Expiry
Date is after such Reduction Date, does not exceed the Maximum Permitted
Balance after giving effect to the Scheduled Reduction on such Reduction
Date. Each Interest Period for a LIBOR Loan shall commence and end on a
Banking Business Day. If any Interest Period commences on a date for which
there is no corresponding date in the month in which it is scheduled to end,
such Interest Period shall end on the last Banking Business Day of such
month. If any Interest Period would otherwise expire on a day which is not a
Banking Business Day, the Interest Period shall be extended to expire on the
next succeeding Banking Business Day, unless the result of such extension
would be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding Banking
Business Day.
e. The applicable LIBO Rate and Base Rate shall be
determined by the Agent Bank, and notice thereof shall be given promptly to
Borrowers and Lenders. Each determination of the applicable Base Rate and LIBO
Rate shall be conclusive and binding upon the Borrowers, in the absence of
manifest or demonstrable error. The Agent Bank shall, upon written request of
Borrowers or any Lender, deliver to Borrowers or such Lender, as the case may
be, a statement showing the computations used by the Agent Bank in determining
any rate hereunder.
f. Computation of interest on all Base Rate Loans
shall be calculated on the basis of a 365, or, when applicable, 366 day year
based on the actual number of days elapsed. Computation of interest on all LIBOR
Loans shall be calculated on the basis of a year of three hundred sixty (360)
days and the actual number of days elapsed. The applicable Base Rate shall be
effective the same day as a change in the Base Rate is announced by WFB as being
effective.
g. If with respect to any Interest Period, (a) the
Agent Bank reasonably determines (which determination shall be binding and
conclusive on Borrowers) that by reason of circumstances affecting the
inter-bank eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable LIBO Rate, or (b) Requisite Lenders advise Agent
Bank that the LIBO Rate as determined by Agent Bank will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding, for such
Interest Period, a LIBOR Loan under the Credit Facility, then so long as such
circumstances shall continue: (i) Agent Bank shall promptly notify Borrowers
thereof, (ii) the Lenders shall not be under any obligation to make a LIBOR Loan
or Convert a Base Rate Loan into a LIBOR Loan for which such circumstances
exist, and (iii) on the last day of the then current Interest Period, the LIBOR
Loan for which such circumstances exist shall, unless then repaid in full,
automatically Convert to a Base Rate Loan.
- 69 -
h. Notwithstanding any other provisions of the
Credit Agreement, if, after the Closing Date, any law, rule, regulation, treaty,
interpretation or directive (whether having the force of law or not) or any
change therein shall make it unlawful for any Lender to make or maintain LIBOR
Loans, then (i) the commitment and agreement to maintain LIBOR Loans as to such
Lender shall immediately be suspended, and (ii) unless required to be terminated
earlier, LIBOR Loans as to such Lender, if any, shall be Converted on the last
day of the then current Interest Period applicable thereto to Base Rate Loans.
If it shall become lawful for such Lender to again maintain LIBOR Loans, then
Borrowers may once again as to such Lender request Conversions to the LIBO Rate.
During any period of such suspension, such Lender shall make Base Rate Loans.
i. The Borrowers agree that upon written notice
by: (y) Agent Bank or (z) any Lender to the Borrowers (with a copy of such
notice concurrently delivered to Agent Bank) to the effect that a promissory
note or other evidence of indebtedness is required for such Lender by a
Governmental Authority, banking regulatory agency or regulatory audit in
order for such Lender to evidence (whether for the purposes of pledge,
enforcement or otherwise) the Syndication Interest held by such Lender:
(i) The Borrowers shall promptly execute and deliver
to each Lender a promissory note payable to the order of each
such Lender (each individually a "Replacement Note" and
collectively the "Replacement Notes") in the form of the
Revolving Credit Note in the amount of each Lender's
respective Syndication Interest in the Credit Facility subject
to Scheduled Reductions to be allocated amongst Lenders in
accordance with their respective Syndication Interests;
(ii) The Replacement Notes shall, in the aggregate,
fully replace the Revolving Credit Note and each reference to
the Revolving Credit Note in this Credit Agreement and each
of the Loan Documents shall be deemed to be a collective
reference to the Replacement Notes;
(iii) Borrowings, Interest Rate Options,
Continuation/Conversion Notices and all other provisions for
the disbursement of funds, setting of interest rates and
collection of repayments of interest and principal shall
continue to be made by Agent Bank as the administrative and
collateral agent for the Lenders in the same manner and to the
same extent as provided in the Revolving Credit Note and this
Credit Agreement as fully applicable to each of the
Replacement Notes;
(iv) the Agent Bank, upon the consent of Requisite
Lenders, shall cause the Title Insurance Company to issue, at
the expense of Borrowers,
- 70 -
such endorsements to the Title Insurance Policies as may be
reasonably necessary to assure the aggregate obligation
evidenced by the Replacement Notes is secured by the insured
Security Documentation with the same coverage and priority
as the obligation evidenced by the Revolving Credit Note; and
(v) Concurrently with the delivery of the Replacement
Notes, Agent Bank shall return the original Revolving Credit
Note to Borrowers marked as superseded and replaced by the
Replacement Notes.
Section 2.06. SECURITY FOR THE CREDIT FACILITY. As security
for the due and punctual payment and performance of the terms and provisions of
this Credit Agreement, the Notes and all of the other Security Documentation
shall be executed and delivered to Agent Bank, as of the Closing Date, by the
respective parties to each of the Security Documentation and recorded and/or
filed in each applicable jurisdiction as required by the Closing Instructions.
The Security Documentation shall be subordinate to the Senior Indenture Security
Documents with respect to the Senior Indenture Collateral until the Senior
Indenture Security Documents are terminated and released.
Section 2.07. PLACE AND MANNER OF PAYMENT.
a. All amounts payable by Borrowers to the
Lenders shall be made to Agent Bank on behalf of Lenders pursuant to the terms
of this Credit Agreement and the Notes and shall be made on a Banking Business
Day in lawful money of the United States of America and in immediately available
funds. Other than in connection with: (i) the Scheduled Reductions of principal,
or (ii) principal payments which may be required to decrease the Aggregate
Outstandings to an amount equal to or less than the Maximum Permitted Balance,
Borrowers shall not make repayments ("Principal Prepayments") of the outstanding
balance of principal owing under the Revolving Credit Note more frequently
than five (5) such Principal Prepayments during each calendar month. Each such
Principal Prepayment of a Base Rate Loan shall be in a minimum amount of One
Million Dollars ($1,000,000.00) (or, if less, the outstanding principal amount
of Base Rate Loans) and in increments of One Hundred Thousand Dollars
($100,000.00) in excess thereof. Each such Principal Prepayment of a LIBOR Loan
shall be in a minimum amount of Five Million Dollars ($5,000,000.00) and in
increments of One Million Dollars ($1,000,000.00) in excess thereof; provided,
that in no event shall any outstanding LIBOR Loan have a principal balance of
less then Five Million Dollars ($5,000,000.00).
b. All such amounts payable by Borrowers shall
be made to Agent Bank at its office located at Wells Fargo Bank, Syndications
Division, 201 Third Street, Eighth Floor, San Francisco, California 94103, or at
such other address as may be
- 71 -
directed in writing by Agent Bank from time to time. If such payment is
received by Agent Bank prior to 11:00 a.m., Agent Bank shall credit Borrowers
with such payment on the day so received and shall disburse to the
appropriate Lenders on the same day the Pro Rata Share of payments relating
to the Credit Facility in immediately available funds. If such payment is
received by Agent Bank after 11:00 a.m., Agent Bank shall credit Borrowers
with such payment as of the next Banking Business Day and disburse to the
appropriate Lenders on the next Banking Business Day such Pro Rata Share of
such payment relating to the Credit Facility, in immediately available funds.
Any payment on the Credit Facility made by Borrowers to Agent Bank pursuant
to the terms of this Credit Agreement or the Revolving Credit Note for the
account of Lenders shall constitute payment to the appropriate Lenders. If
the Revolving Credit Note or any payment required to be made thereon or
hereunder, is or becomes due and payable on a day other than a Banking
Business Day, the due date thereof shall be extended to the next succeeding
Banking Business Day and interest thereon shall be payable at the then
applicable rate during such extension.
c. Subject to Section 2.07(a), the
outstanding principal owing under the Credit Facility and the Revolving
Credit Note may be prepaid at any time in whole or in part without penalty;
provided, however, that any portion or portions of the unpaid principal
balance which is accruing interest at a LIBO Rate may only be prepaid or
repaid on the last day of the applicable Interest Period unless Borrowers
give three (3) days prior written notice to Agent Bank and additionally pay
concurrently with such prepayment or repayment such additional amount or
amounts as will compensate Lenders for any losses, costs or expenses which
they may incur as a result of such payment, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
the liquidation of deposits or other funds acquired by such Lender to fund or
maintain such LIBOR Loan ("Breakage Charges"). A certificate of a Lender
setting forth in reasonable detail as to amounts payable hereunder shall be
conclusive and binding on Borrowers for all purposes, absent manifest or
demonstrable error. Any calculation hereunder shall be made on the assumption
that each Lender that regularly funds in the London interbank market has
funded or will fund each LIBOR Loan in the London interbank market; PROVIDED
that no Lender shall have any obligation to actually fund any LIBOR Loan in
such manner.
d. Unless the Agent Bank receives notice from
an Authorized Officer prior to the date on which any payment is due to the
Lenders that the Borrowers will not make such payment in full as and when
required, the Agent Bank may assume that the Borrowers have made such payment in
full to the Agent Bank on such date in immediately available funds and the Agent
Bank may (but shall not be so required), in reliance upon such assumption,
distribute to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrowers have not made such payment
in full to the Agent Bank, each Lender shall repay to the Agent Bank on demand
such amount
- 72 -
distributed to such Lender, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such
Lender until the date repaid.
e. If, other than as expressly provided
elsewhere herein, any Lender shall obtain any payment with respect to the Bank
Facilities (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Syndication Interest, such Lender shall
immediately (a) notify the Agent Bank of such fact, and (b) purchase from the
other Lenders such participations in the Credit Facility as shall be necessary
to cause such purchasing Lender to share the excess payment with each of them in
proportion to their respective Syndication Interests; PROVIDED, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. The Agent Bank will keep records
(which shall be conclusive and binding in the absence of manifest or
demonstrable error) of each participation purchased under this section and will
in each case notify the Lenders and the Borrowers following any such purchases
or repayments.
Section 2.08. THE SWINGLINE FACILITY.
a. Subject to the conditions and upon the
terms hereinafter set forth and in accordance with the terms and provisions
of the Swingline Note, a copy of which is marked Exhibit B affixed hereto,
Swingline Lender agrees to lend and advance Swingline Advances to Borrowers
in the amounts and at the times provided below. Notwithstanding anything
herein contained to the contrary, however, Borrowers shall not be entitled to
any Swingline Advances on and after ten (10) calendar days prior to the
Maturity Date.
b. With respect to each proposed Swingline
Advance, an Authorized Representative shall give Swingline Lender written notice
in the form of the Notice of Swingline Advance ("Notice of Swingline Advance"),
a copy of which is marked "Exhibit E", affixed hereto, to be received by
Swingline Lender no later than 12:00 noon on the date for each proposed
Swingline Advance specifying the requested amount to be funded or oral notice to
be received by Swingline Lender no later than 12:00 noon on such date, to be
followed by a duly completed and executed Notice of Swingline Advance no later
than
- 73 -
3:00 p.m. on the same date. Swingline Lender shall, on the date for each
proposed Swingline Advance, deposit into the Designated Deposit Account in
lawful money of the United States of America in immediately available funds
such amounts as Borrowers may request; provided, that: (i) after giving
effect to such Swingline Advance, the Swingline Outstandings do not exceed
(x) Ten Million Dollars ($10,000,000.00) at any time prior to either the
Level One Commitment Increase Effective Date or the Level Two Commitment
Increase Effective Date, (y) Fifteen Million Dollars ($15,000,000.00) at any
time on and after Level One Commitment Increase Effective Date so long as the
Level One Commitment Increase is at least a like amount, or (z) Twenty
Million Dollars ($20,000,000.00) at any time on and after the Level Two
Commitment Increase Effective Date so long as the Level Two Commitment
Increase is at least a like amount, (ii) the amount requested does not exceed
the Available Borrowings, (iii) no Default or Event of Default has occurred
and is continuing, and (iv) the Closing Date shall have occurred and the
conditions precedent set forth in Sections 3.28 and 3.29 shall have been
satisfied. No more than five (5) Swingline Advances may be outstanding at any
one time. Within the foregoing limitations, Borrowers may borrow, repay and
reborrow under the Swingline Facility. Each Swingline Advance shall be in an
integral multiple of One Hundred Thousand Dollars ($100,000.00). Promptly
after receipt of each request for a Swingline Advance, Swingline Lender shall
obtain telephonic verification from Agent Bank that the amount of such
request does not exceed the then Available Borrowings (such verification to
be promptly confirmed in writing). Unless notified to the contrary by the
Swingline Lender, each repayment of a Swingline Advance shall be in an amount
which is an integral multiple of One Hundred Thousand Dollars ($100,000.00),
together with the accrued interest thereon. The Swingline Lender shall
promptly notify the Agent Bank of the Swingline Outstandings each time there
is a change therein.
c. Each Swingline Advance shall bear
interest at the Base Rate less one percent (1%) per annum and shall be
payable at the times and in the manner set forth below and, in any event, on
or before ten (10) days prior to the Maturity Date. Unless otherwise paid,
interest accrued on the unpaid balance of Swingline Outstandings shall be
paid monthly on or before the fifth (5th) day following receipt by Borrowers
of an invoice from Swingline Lender setting forth the amount of such accrued
interest. In the event any Swingline Advance is outstanding for five (5)
consecutive Banking Business Days, then on the next Banking Business Day
(unless Borrowers have made other arrangements acceptable to the Swingline
Lender to pay the Swingline Outstanding in full), Borrowers shall request a
Borrowing under the Credit Facility in an amount sufficient to pay the
applicable Swingline Advance in full, together with all interest accrued
thereon. Upon receipt of the amount of the Borrowing from the Lenders, the
Agent Bank shall provide such amount to the Swingline Lender for repayment of
the applicable Swingline Advance and the balance of the Borrowing, if any,
shall be deposited in immediately available funds to the Designated Deposit
Account. In the event Borrowers fail to request a Borrowing within the period
- 74 -
specified above, Agent Bank shall, without notice to or consent of the
Borrowers and without regard to any other conditions precedent for the making of
Borrowings under the Credit Facility, including, without limitation the remedies
set forth in Section 7.02, promptly (but subject to the notice periods for
Borrowings set forth in Section 2.03) cause a Borrowing to be made and funded by
the Lenders under the Credit Facility in the amount necessary to pay the
applicable Swingline Advance in full, together with all interest accrued
thereon, to the extent of Available Borrowings, and the Borrowers shall be
deemed to have requested such Borrowing and consented to its being made as
provided for herein.
d. Each Lender's obligation to advance
Borrowings in the proportionate amount of its Syndication Interest in the Credit
Facility of any unreimbursed Swingline Outstandings pursuant hereto is several,
and not joint or joint and several. The failure of any Lender to perform its
obligation to advance a Borrowing in a proportionate amount of such Lender's
Syndication Interest of any unreimbursed Swingline Outstandings shall neither
relieve any other Lender of its obligation hereunder to advance such Borrowing
in the amount of such other Lender's proportionate Syndication Interest of such
amount, nor relieve the Lender which has failed to fund its obligations to
Borrowers hereunder. The Borrowers agree to accept the Borrowings for payment of
Swingline Outstandings as provided hereinabove, whether or not such Borrowings
could have been made pursuant to the terms of Article III B or any other section
of this Credit Agreement.
Section 2.09. ISSUANCE OF LETTERS OF CREDIT.
a. Any Authorized Representative of Borrowers
may from time to time request that a Letter of Credit be issued by delivering to
L/C Issuer (with a telecopy to the Agent Bank) on a Banking Business Day, at
least five (5) Banking Business Days prior to the date of such proposed
issuance, an L/C Agreement in L/C Issuer's then standard form (consistent with
the terms of the Credit Agreement), completed to the satisfaction of L/C Issuer
and such other certificates as the L/C Issuer may reasonably request; provided,
however, that no Letter of Credit shall be issued (a) if any Default or Event of
Default has occurred and remains continuing, or (b) if after giving effect to
the issuance thereof, the aggregate Stated Amount of outstanding Letters of
Credit would exceed (x) Ten Million Dollars ($10,000,000.00) at any time prior
to either the Level One Commitment Increase Effective Date or the Level Two the
Commitment Increase Effective Date, or (y) Fifteen
Million Dollars ($15,000,000.00) at any time on and after the Level One
Commitment Increase Effective Date, so long as the Level One Commitment Increase
is at least a like amount, or (z) Twenty-Five Million Dollars ($25,000,000.00)
at any time on and after the Level Two Commitment Increase Effective Date so
long as the Level Two Commitment Increase is at least a like amount, or (c) the
Stated Amount of the requested Letter of Credit exceeds the Maximum
Availability. Each Letter of Credit shall be issued by the L/C Issuer on the
Banking Business Day specified in the Borrowers' application therefor. Each
request
- 75 -
for a Letter of Credit and each Letter of Credit shall be subject to the
Uniform Customs and Practice for Documentary Credits, International Chamber
of Commerce Publication New 1994 Revision No. 500, or any successor
publication then in effect. In no event shall any Letter of Credit have a
Stated Expiry Date later than thirty (30) days prior to the Maturity Date.
Promptly after receipt of each request for the issuance of a Letter of Credit
and immediately prior to the issuance thereof, L/C Issuer shall obtain
telephonic verification from Agent Bank that the amount of such request does
not exceed the then Available Borrowings. The L/C Issuer shall promptly
notify the Agent Bank of the aggregate L/C Exposure of outstanding Letters of
Credit each time there is a change therein. Each Lender (other than the L/C
Issuer) agrees that, upon the issuance of any Letter of Credit it shall
automatically acquire a participation interest in the L/C Issuer's liability
under such Letter of Credit in an amount equal to such Lender's Pro Rata
Share of such liability, and each Lender (other than the L/C Issuer) thereby
shall absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and shall be unconditionally obligated to the L/C Issuer
to pay and discharge when due, its Pro Rata Share of the L/C Issuer's
liability under such Letter of Credit.
b. Upon presentation of a draft drawn under
any Letter of Credit, L/C Issuer shall promptly notify the Agent Bank and
Borrowers of the amount under such draft and the date upon which such draft
is to be funded. On or before two (2) Banking Business Days following such
notice (unless Borrowers have made other arrangements acceptable to the L/C
Issuer to pay the amount of such draft in full), Borrowers shall request a
Borrowing under the Credit Facility in an amount sufficient to pay the amount
of such draft in full. The Agent Bank, upon receipt of such funds from the
Lenders, shall automatically provide such amount to the L/C Issuer for
payment of the amount of such draft and the balance of the Borrowing shall be
deposited in immediately available funds to the Designated Deposit Account.
In the event Borrowers fail to advance to the L/C Issuer the amount of such
draft from Borrowers' available funds or request a Borrowing within two (2)
Banking Business Days from receipt of the notice as specified above, on the
third (3rd) Banking Business Day following Agent Bank's receipt of such
notice, Agent Bank shall, without notice to or consent of the Borrowers and
without regard to any other conditions precedent for the making of Borrowings
under the Credit Facility, including, without limitation the remedies set
forth in Section 7.02, cause (subject to the notice periods for Borrowings
set forth in Section 2.03) a Borrowing to be made and funded by the Lenders
under the Credit Facility in the amount necessary to pay the amount of such
draft in full. Upon the occurrence of any Event of Default, L/C Issuer shall,
without notice or further authorization or consent of Borrowers whatsoever,
be authorized to immediately cause the Cash Collateral Account to be
established and funded by Lenders with a Borrowing advanced to Agent Bank
equal to the aggregate amount of the L/C Exposure then outstanding. All
amounts held by L/C Issuer in the Cash Collateral Account shall be held as
security for the repayment of any L/C Reimbursement Obligation thereafter
arising
- 76 -
pursuant to the terms of the L/C Agreement(s) and the Cash Collateral Pledge
Agreement. Borrowings advanced by Lenders to pay drafts drawn upon or to
secure repayment of the L/C Exposure under Letters of Credit pursuant to this
subsection shall: (i) constitute Borrowings under the Credit Facility, (ii)
initially be Base Rate Loans and (iii) be subject to all of the provisions of
this Credit Agreement concerning Borrowings under the Credit Facility, except
that such Borrowings shall be made upon demand of the Agent Bank as set forth
above rather than upon Notice of Borrowing by Borrowers and shall be made,
notwithstanding anything in this Credit Agreement to the contrary, without
regard to any other conditions precedent to the making of Borrowings under
the Credit Facility and notwithstanding any Default or Event of Default
thereunder. All amounts paid by L/C Issuer on a draft drawn under any Letter
of Credit which has not been funded or concurrently reimbursed by Borrowers
or through a Borrowing as provided hereinabove, shall bear interest at the
Base Rate plus the Applicable Margin per annum until repaid or reimbursed to
L/C Issuer.
c. Each Lender's obligation to advance
Borrowings in the proportionate amount of its Syndication Interest in the Credit
Facility of any unreimbursed amounts outstanding under any Letter of Credit
pursuant hereto is several, and not joint or joint and several. The failure of
any Lender to perform its obligation to advance a Borrowing in a proportionate
amount of such Lender's Syndication Interest of any unreimbursed amounts
outstanding under a Letter of Credit will not relieve any other Lender of its
obligation hereunder to advance such Borrowing in the amount of such other
Lender's proportionate Syndication Interest of such amount, nor relieve the
Lender which has failed to fund of its obligation to fund hereunder. The
Borrowers agree to accept the Borrowings for payment of Letters of Credit as
provided hereinabove, whether or not such Borrowings could have been made
pursuant to the terms of Article III B or any other section of this Credit
Agreement.
d. Letters of Credit shall be used and issued
for the benefit of Borrowers for the general corporate purposes of Borrowers, or
any of them, relating to the Hotel/Casino Facilities or any New Venture.
Section 2.10. FEES.
a. On the date of execution of this Credit
Agreement, on the Closing Date and on each other applicable date, Borrowers
shall pay the fees as required in the Fee Side Letter, each of such fees to
be retained by Agent Bank or distributed to Lenders as agreed between Agent
Bank and each Lender.
b. Borrowers shall pay a quarterly nonusage
fee (the "Commitment Fee") to the Agent Bank for the account of Lenders based on
the Leverage
- 77 -
Ratio, calculated as of each Fiscal Quarter end with reference to the
Borrower Consolidation, to determine applicable Commitment Percentage
determined as set forth in Table Two of the definition of Applicable Margin.
The Commitment Fee shall be calculated as the product
of (i) the applicable Commitment Percentage multiplied by (ii) the daily average
of the Maximum Permitted Balance less the daily average of the Funded
Outstandings and less the daily average of the amount of L/C Exposure
attributable to all outstanding Standby Letters of Credit, computed on the basis
of a three hundred sixty-five (365), or three hundred sixty-six (366) when
appropriate, day year based on the number of actual days elapsed. Each
Commitment Fee shall be payable in arrears on a quarterly basis on or before the
first (1st) day of the third (3rd) month following each applicable Fiscal
Quarter end and upon termination of this Credit Agreement, whether at maturity,
by acceleration or otherwise. Each Commitment Fee shall be promptly distributed
by Agent Bank to Lenders in proportion to their respective Syndication Interests
in the Credit Facility.
c. In connection with the issuance of each
Standby Letter of Credit, Borrowers shall pay the following fees (collectively
the "Standby L/C Fee"): (i) concurrently with such issuance an issuance fee to
L/C Issuer for its own account in an amount equal to the Stated Amount of each
such Standby Letter of Credit multiplied by one-quarter of one percent (.25%);
and (ii) a standby fee to the Agent Bank for the account of Lenders to be
promptly distributed by Agent Bank to Lenders in proportion to their respective
Syndication Interests in the Credit Facility following receipt of each such
standby fee by Agent Bank, in an amount equal to the L/C Exposure of each such
Standby Letter of Credit multiplied by the Applicable Margin percentage for
LIBOR Loans made as of the date of issuance of each such Standby Letter of
Credit, calculated on a per annum basis commencing on such date of issuance and
continuing until the Stated Expiry Date of each such Standby Letter of Credit,
payable in advance on a quarterly basis on the issuance date and on or before
the second Banking Business Day following the beginning of each Fiscal Quarter.
Concurrently with the issuance of each Commercial Letter of Credit, Borrowers
shall pay a commercial letter of credit issuance fee to the L/C Issuer for its
own account ("Commercial L/C Fee") in an amount equal to the Stated Amount of
each such Commercial Letter of Credit multiplied by one-quarter of one percent
(.25%), calculated on a per annum basis for the number of days elapsing from the
issuance date to the Stated Expiry Date of each such Commercial Letter of
Credit. All L/C Fees paid by Borrowers are nonrefundable and shall be deemed
fully earned upon issuance of the applicable Letter of Credit.
Section 2.11. INTEREST ON OVERDUE AMOUNTS AND DEFAULT RATE.
a. If any payment due under the Revolving
Credit Note is not paid when due, Borrowers shall additionally pay interest on
such overdue amounts
- 78 -
(including on overdue interest to the extent permitted by applicable law) at
a rate per annum equal to two percent (2%) over the Base Rate.
b. In the event of the existence of an Event
of Default, commencing on the first (1st) Banking Business Day following the
receipt by Borrowers of written notice of the occurrence of such Event of
Default from Agent Bank, the total of the unpaid balance of the principal and
the then accrued and unpaid interest owing under the Revolving Credit Note shall
collectively commence accruing interest at a rate equal to two percent (2%) over
the interest rate or rates otherwise accruing under the Credit Facility (the
"Default Rate") until such time as all payments and additional interest are
paid, together with the curing of any Events of Default which may exist, at
which time the interest rate shall revert to that rate of interest otherwise
accruing pursuant to the terms of the Revolving Credit Note.
c. In the event of the occurrence of an Event
of Default, Borrowers agree to pay all reasonable costs of collection, including
all reasonable attorneys' fees and costs, in addition to and at the time of the
payment of such sum of money and/or the performance of such acts as may be
required to cure such default. In the event legal action is commenced for the
collection of any sums owing hereunder or under the terms of the Notes the
Borrowers agree that any judgment issued as a consequence of such action against
Borrowers and/or any Subsidiary Guarantor shall bear interest at a rate equal to
the Default Rate until fully paid.
Section 2.12. NET PAYMENTS. All payments under this Credit
Agreement, the Revolving Credit Note, the Swingline Note and/or a L/C
Reimbursement Obligation shall be made without set-off, counterclaim,
recoupment or defense of any kind (other than prior payment) and in such
amounts as may be necessary in order that all such payments, after deduction
or withholding for or on account of any future taxes, levies, imposts, duties
or other charges of whatsoever nature imposed by the United States or any
Governmental Authority, other than franchise taxes or any tax on or measured
by the gross receipts or overall net income of any Lender pursuant to the
income tax laws of the United States or any State, or the jurisdiction where
each Lender's principal office is located (collectively "Taxes"), shall not
be less than the amounts otherwise specified to be paid under this Credit
Agreement and the Revolving Credit Note. A certificate as to any additional
amounts payable to the Lenders under this Section 2.12 submitted to the
Borrowers by the Lenders shall certify that such payments were actually
incurred by the applicable Lenders and shall show in reasonable detail an
accounting of the amount payable and the calculations used to determine in
good faith such amount and shall be conclusive absent manifest or
demonstrable error. Any amounts payable by the Borrowers under this Section
2.12 with respect to past payments shall be due within ten (10) days
following receipt by the Borrowers of such certificate from the Lenders; any
such amounts payable with respect to
- 79 -
future payments shall be due within ten (10) days after demand for such
future payments. With respect to each deduction or withholding for or on
account of any Taxes, the Borrowers shall promptly furnish to the Lenders
such certificates, receipts and other documents as may be required (in the
reasonable judgment of the Lenders) to establish any tax credit to which the
Lenders may be entitled.
Section 2.13. INCREASED COSTS. If after the Closing Date the
adoption of, or any change in, any applicable law, rule or regulation (including
without limitation Regulation D of the Board of Governors of the Federal Reserve
System and any successor thereto), or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender with any future request or future directive (whether or not having
the force of law) of any such Governmental Authority, central bank or comparable
agency:
a. Shall subject any Lender to any tax, duty
or other charge with respect to the Credit Facility, the Revolving Credit Note,
the Swingline Note and/or a L/C Reimbursement Obligation or such Lender's
obligation to make any funding of the Credit Facility, or shall change the basis
of taxation of payments to such Lender of the principal of, or interest on, the
Credit Facility or any other amounts due under the Revolving Credit Note, the
Swingline Note and/or a L/C Reimbursement Obligation in respect of the Credit
Facility or such Lender's obligation to fund the Credit Facility (except for
changes in the rate of tax on the overall net income of such Lender imposed by
the United States or any Governmental Authority pursuant to the income tax laws
of the United States or any State, or the jurisdiction where each Lender's
principal office is located); or
b. With respect to the Bank Facilities or the
obligation of the Lenders to advance Borrowings under the Credit Facility or to
issue or participate in Letters of Credit under the L/C Facility, shall impose,
modify or deem applicable any reserve imposed by the Board of Governors of the
Federal Reserve System, special deposit, capitalization, capital adequacy or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender; or
c. Shall impose on any Lender any other
condition affecting the Credit Facility, the Revolving Credit Note or such
Lender's obligation to advance Borrowings under the Credit Facility;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D or reserve requirements referred to above or a successor
thereto, to impose a cost on) such Lender of making or maintaining the Credit
Facility, or to reduce the amount of any sum received or receivable by such
Lender under the Revolving Credit Note, in each case in a
- 80 -
manner not otherwise given effect on the calculation of amounts payable by
Borrowers hereunder, then within ten (10) days after demand by such Lender,
the Borrowers shall pay directly to such Lender such additional amount or
amounts as will compensate such Lender for such increased cost (or in the
case of Regulation D or reserve requirements referred to above or a successor
thereto, such costs which may be imposed upon such Lender) or such reduction
of any sum received or receivable under the Revolving Credit Note. A
certificate as to any additional amounts payable to any Lender under this
Section 2.13 submitted to the Borrowers by such Lender shall certify that
such costs were actually incurred by such Lender and shall show in reasonable
detail an accounting of the amount payable and the calculations used to
determine in good faith such amount and shall be conclusive absent manifest
or demonstrable error.
Section 2.14. MITIGATION; EXCULPATION; REPLACEMENT LENDER.
a. Each Lender further agrees that it will use
reasonable efforts not materially disadvantageous to it (in its reasonable
determination) in order to avoid or minimize, as the case may be, the payment by
the Borrowers of any additional amounts pursuant to Section 2.12 or 2.13. Each
Lender represents, to the best of its knowledge, that as of the Closing Date no
such amounts are payable to it.
b. Borrowers shall not be liable to any Lender
for any payments under Section 2.12 or 2.13 arising to the extent of such
Lender's gross negligence or willful misconduct or for amounts which were
incurred more than ninety (90) days prior to the date Borrowers are notified of
the incurrence of such amount. If Borrowers make any payment to any Lender under
Section 2.12 or 2.13 and such Lender subsequently receives a refund or a credit
from the applicable Governmental Authority as a result of such payment, such
Lender shall promptly pay the amount of such refund or credit to the Borrowers
to the extent such Lender shall have previously received such amounts from the
Borrowers.
c. If the Borrowers become obligated to pay
additional amounts to any Lender described in Section 2.12 or 2.13, the
Borrowers may designate a financial institution reasonably acceptable to the
Agent Bank to replace such Lender by purchasing for cash and receiving an
assignment of such Lender's Syndication Interest in the Credit Facility without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding amounts owing to such Lender, or, so long as no Default
or Event of Default has occurred and remains continuing, may remove such Lender
by paying to such Lender such purchase price and reducing the Credit Facility by
an amount equal to the product of the Pro Rata Share of such Lender multiplied
by the Aggregate Commitment then in effect prior to such removal.
- 81 -
Section 2.15. COMMITMENT INCREASES AND TERM LOANS.
Concurrently with the written notice to be given to Agent Bank and Lenders in
connection with the Commitment Increases and Term Loans as provided below,
Borrowers may in their discretion offer to each Lender the opportunity to
participate in such Commitment Increases and Term Loans on the same terms as are
offered to other prospective lenders which are solicited by Borrowers as sources
of funding for such Commitment Increases and/or Term Loans.
a. LEVEL ONE COMMITMENT INCREASE. Borrowers
may, by written notice to the Agent Bank and the Lenders, increase the Aggregate
Commitment by an additional principal amount up to the lesser of (x) Fifty
Million Dollars ($50,000,000.00), and (y) the then amount of Level One
Availability (the actual amount of such increase to the Aggregate Commitment
being herein referred to as the "Level One Commitment Increase") subject to the
satisfaction of each of the following conditions precedent ("Level One
Commitment Increase Conditions"): (i) more than six (6) calendar months shall
have elapsed following the Closing Date, (ii) the Second Anniversary Date shall
not have occurred, (iii) the obligation to fund the Level One Commitment
Increase is assumed by a Lender or Lenders then party to this Credit Agreement
or by a Person or Persons that are Eligible Assignees, in each case acceptable
to Borrowers and, in the latter case, reasonably acceptable to the Agent Bank,
and in each instance evidenced in writing by execution of an Assumption and
Consent Agreement in substantially the form of Exhibit K attached hereto,
executed by each such assuming Lender or Eligible Assignee, Agent Bank and
Borrowers, provided that no Lender shall have any obligation to increase its
Syndication Interest in effect as of the Closing Date, (iv) each such assuming
Lender or Eligible Assignee concurrently purchases a Pro Rata Share of the
Funded Outstandings (and each Lender hereby agrees to sell the appropriate
proportion of its Pro Rata Share at par value to such assuming Lender or
Eligible Assignee) that is equivalent to the increased new Pro Rata Share of
each such assuming Lender or Eligible Assignee after giving effect to the Level
One Commitment Increase and such Lender's Syndication Interest in the Aggregate
Commitment; (v) Borrowers pay Agent Bank the appropriate fees as set forth in
the Fee Side Letter and any amount owing under Section 2.07(c), (vi) the Level
One Commitment Increase shall not increase the Pro Rata Share of the Aggregate
Commitment and the Pro Rata Share of the amount of the Funded Outstandings held
by any other Lender absent the express written consent of that Lender, (vii)
Borrowers, at Borrowers' expense, shall cause the Title Insurance Policies to be
endorsed with a 110.5 or other appropriate endorsements for the purpose of
assuring continuing coverage of the Security Documentation insured thereunder,
as such Security Documentation may be amended or modified in connection with the
Level One Commitment Increase, (viii) the Level One Commitment Increase shall be
made on a one-time basis only, and (ix) the Level One Commitment Increase shall
not be available for advance by Lenders until each condition precedent set forth
in Sections 3.33, 3.38, 3.41 (giving pro forma effect only to the Level One
Commitment Increase) and 3.43
- 82 -
of Article III C shall have occurred and been fully satisfied. Giving effect
to the Level One Commitment Increase and purchase of Pro Rata Shares of the
Funded Outstandings, adjustments shall be made to the Pro Rata Shares of the
Lenders in the Aggregate Commitment and the Pro Rata Shares of Funded
Outstandings such that the Pro Rata Shares of each Lender in the Aggregate
Commitment shall be identical to its Pro Rata Share of the Funded
Outstandings. The Agent Bank shall promptly thereafter prepare and circulate
to Borrowers and the Banks a revised Schedule of Lenders' Proportions in
Credit Facility reflecting such increased Aggregate Commitment and the
revised Pro Rata Shares of the Lenders in the Credit Facility, and such
revised Schedule of Lenders' Proportions in Credit Facility shall supersede
and replace the then existing Schedule of Lenders' Proportions in Credit
Facility.
b. LEVEL TWO COMMITMENT INCREASE. Borrowers
may, by written notice to the Agent Bank and the Lenders, increase the Aggregate
Commitment by an additional principal amount up to the lesser of (x) One Hundred
Fifty Million Dollars ($150,000,000.00), and (y) the then amount of Level Two
Availability (the actual amount of such increase to the Aggregate Commitment
being herein referred to as the "Level Two Commitment Increase") subject to the
satisfaction of each of the following conditions precedent ("Level Two
Commitment Increase Conditions"): (i) the Second Anniversary Date shall not have
occurred, (ii) the obligation to fund the Level Two Commitment Increase is
assumed by a Lender or Lenders then party to this Credit Agreement or by a
Person or Persons that are Eligible Assignees, in each case acceptable to
Borrowers and, in the latter case, reasonably acceptable to the Agent Bank, and
in each instance evidenced in writing by execution of an Assumption and Consent
Agreement in substantially the form of Exhibit K attached hereto, executed by
each such assuming Lender or Eligible Assignee, Agent Bank and Borrowers,
provided that no Lender shall have any obligation to increase its Syndication
Interest in effect as of the Closing Date, (iii) each such assuming Lender or
Eligible Assignee concurrently purchases a Pro Rata Share of the Funded
Outstandings (and each Lender hereby agrees to sell the appropriate proportion
of its Pro Rata Share at par value to such assuming Lender or Eligible Assignee)
that is equivalent to the increased new Pro Rata Share of each such assuming
Lender or Eligible Assignee after giving effect to the Level Two Commitment
Increase and such Lender's Syndication Interest in the Aggregate Commitment;
(iv) Borrowers pay Agent Bank the appropriate fees as set forth in the Fee Side
Letter and any amounts owing under Section 2.07(c), (v) the Level Two Commitment
Increase shall not increase the Pro Rata Share of the Aggregate Commitment and
the Pro Rata Share of the amount of the Funded Outstandings held by any other
Lender absent the express written consent of that Lender, (vi) Borrowers, at
Borrowers' expense, shall cause the Title Insurance Policies to be endorsed with
a 110.5 or other appropriate endorsements for the purpose of assuring continuing
coverage of the Security Documentation insured thereunder, as such Security
Documentation may be amended or modified in connection with the Level Two
Commitment Increase, (vii) the Level Two Commitment Increase shall be
- 83 -
made on a one-time basis only, and (viii) the Level Two Commitment Increase
shall not be available for advance by Lenders until each condition precedent
set forth in Article III C with reference to the Level Two Commitment
Increase shall have occurred and been fully satisfied. Giving effect to the
Level Two Commitment Increase and purchase of Pro Rata Shares of the Funded
Outstandings, adjustments shall be made to the Pro Rata Shares of the Lenders
in the Aggregate Commitment and the Pro Rata Shares of Funded Outstandings
such that the Pro Rata Shares of each Lender in the Aggregate Commitment
shall be identical to its Pro Rata Share of the Funded Outstandings. The
Agent Bank shall promptly thereafter prepare and circulate to Borrowers and
the Banks a revised Schedule of Lenders' Proportions in Credit Facility
reflecting such increased Aggregate Commitment and the revised Pro Rata
Shares of the Lenders in the Credit Facility, and such revised Schedule of
Lenders' Proportions in Credit Facility shall supersede and replace the then
existing Schedule of Lenders' Proportions in Credit Facility.
c. LEVEL ONE TERM LOAN. Borrowers may, by
written notice to the Agent Bank and the Lenders, incur the Level One Term Loan
in an aggregate principal amount up to the lesser of (x) Seventy-Five Million
Dollars ($75,000,000.00), and (y) the then amount of Level One Availability,
subject to the satisfaction of each of the following conditions precedent
("Level One Term Loan Conditions"): (i) the Borrowers shall not solicit the
participation of any commercial bank or any of their respective Subsidiaries or
Affiliates (other than the Lenders) for funding all or any portion of the Level
One Term Loan until six (6) calendar months shall have elapsed following the
Closing Date, (ii) the Second Anniversary Date shall not have occurred, (iii)
the Level One Term Loan is funded by a Person or Persons that are Eligible Term
Lenders, in each case acceptable to Borrowers and reasonably acceptable to the
Agent Bank, (iv) all material covenants, terms and conditions of such Level One
Term Loan shall be reasonably acceptable to the Requisite Lenders, (v) Agent
Bank and the holders of all Pari Passu Notes evidencing such Level One Term Loan
or the authorized agent, trustee or other representative thereof shall execute
an Intercreditor Agreement providing for such terms, conditions and
understandings as may be reasonably required by Agent Bank upon the approval of
Requisite Lenders, (vi) the Level One Term Loan shall be made on a one-time
basis only, (vii) Agent Bank and Lenders shall have received such information
concerning the Level One Term Loan and the holders of the applicable Pari Passu
Notes as may be reasonably requested, (viii) Agent Bank shall have received such
legal opinions and other assurances as the Requisite Lenders may reasonably
request, (ix) Borrowers shall deliver to Agent Bank a duly executed and
completed Compliance Certificate as of the end of the most recently ended Fiscal
Quarter, prepared on a pro forma basis based on the assumption that the Level
One Term Loan had occurred one (1) year prior to the end of the most recently
ended Fiscal Quarter showing no Default or Event of Default, (x) no Default or
Event of Default shall have occurred and remains continuing, and (xi) Borrowers
shall have reimbursed Agent Bank for all reasonable fees and out-of-pocket
expenses incurred by Agent Bank in connection with the Level One Term
- 84 -
Loan, including, but not limited to, escrow charges, title insurance
premiums, recording fees, reasonable attorney's fees of Henderson & Morgan,
LLC and co-counsel retained by Henderson & Morgan, LLC and all other like
reasonable fees and expenses remaining unpaid as of the closing of the Level
One Term Loan, provided that the amount then invoiced shall not thereafter
preclude Borrowers' obligation to pay such costs and expenses relating to the
closing of the Level One Term Loan or to reimburse Agent Bank for the payment
thereof.
d. LEVEL TWO TERM LOAN. Borrowers may, by
written notice to the Agent Bank and the Lenders, incur the Level Two Term Loan
in an aggregate principal amount up to the lesser of (x) One Hundred Fifty
Million Dollars ($150,000,000.00), and (y) the then amount of Level Two
Availability, subject to the satisfaction of each of the following conditions
precedent ("Level Two Term Loan Conditions"): (i) the Second Anniversary Date
shall not have occurred, (ii) the Level Two Term Loan is funded by a Person or
Persons that are Eligible Term Lenders, in each case acceptable to Borrowers and
reasonably acceptable to the Agent Bank, (iii) each condition precedent set
forth in Sections 3.30, 3.31, 3.32, 3.34, 3.35, 3.36, 3.37, 3.39, 3.40, 3.42 and
3.43 of Article III C shall have occurred and been fully satisfied, (iv) all
material covenants, terms and conditions of such Level Two Term Loan shall be
reasonably acceptable to the Requisite Lenders, (v) Agent Bank and the holders
of all Pari Passu Notes evidencing such Level Two Term Loan or the authorized
agent, trustee or other representative thereof shall execute an Intercreditor
Agreement providing for such terms, conditions and understandings as may be
reasonably required by Agent Bank upon the approval of Requisite Lenders, (vi)
the Level Two Term Loan shall be made on a one-time basis only, (vii) Agent Bank
and Lenders shall have received such information concerning the Level Two Term
Loan and the holders of the applicable Pari Passu Notes as may be reasonably
requested, (viii) Agent Bank shall have received such legal opinions and other
assurances as the Requisite Lenders may reasonably request, (ix) Borrowers shall
deliver to Agent Bank a duly executed and completed Compliance Certificate as of
the end of the most recently ended Fiscal Quarter, prepared on a pro forma basis
based on the assumption that the Level Two Term Loan had occurred one (1) year
prior to the end of the most recently ended Fiscal Quarter showing no Default or
Event of Default, (ix) no Default or Event of Default shall have occurred and
remains continuing.
ARTICLE III
CONDITIONS PRECEDENT TO THE CLOSING DATE
A. CLOSING CONDITIONS. The obligation of each of the Banks
hereunder is subject to the following conditions precedent, each of which shall
be satisfied prior to July 31, 1999 (unless all of the Banks, in their sole and
absolute discretion, shall agree
- 85 -
otherwise). The occurrence of the Closing Date is subject to and contingent
upon Agent Bank having received, in each case in form and substance
reasonably satisfactory to Agent Bank, or in the case of an occurrence,
action or event, the occurrence of, each of the following:
Section 3.01. CREDIT AGREEMENT. On or before the Closing Date,
executed counterparts of this Credit Agreement in sufficient duplicate originals
for Borrowers and each of the Banks shall be executed by Borrowers and Banks and
delivered to Agent Bank.
Section 3.02. THE NOTES.
a. The Revolving Credit Note duly executed by
the Borrowers in favor of Agent Bank.
b. The Swingline Note duly executed by the
Borrowers in favor of Swingline Lender.
Section 3.03. SECURITY DOCUMENTATION. The Security
Documentation duly executed by each applicable Borrower or other party thereto,
consisting of the following:
a. Security Agreement (Argosy), together with
a fully executed Irrevocable Stock Power for each stock certificate and an
allonge in favor of Agent Bank for each Intercompany Note which is pledged
thereunder;
b. Security Agreement (AGC), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
c. Security Agreement (AOLI), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
d. Security Agreement (CQP), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
e. Security Agreement (TIGC), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
- 86 -
f. Security Agreement (IGC), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
g. Security Agreement (Jazz), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
h. Security Agreement (MGC), together with a
fully executed Irrevocable Stock Power for each stock certificate and an allonge
in favor of Agent Bank for each Intercompany Note which is pledged thereunder;
i. Cash Collateral Pledge Agreement executed
by each of the Borrowers;
j. Argosy I Ship Mortgage;
k. Alton Belle II Ship Mortgage;
l. Argosy III Ship Mortgage;
m. Argosy IV Ship Mortgage;
n. Argosy V Ship Mortgage;
o. Spirit of America Ship Mortgage;
p. Alton Landing Ship Mortgage;
q. Baton Rouge Mortgage;
r. Riverside Deed of Trust;
s. Financing Statements (Argosy);
t. Financing Statements (AGC);
u. Financing Statements (AOLI);
v. Financing Statements (CQP);
- 87 -
w. Financing Statements (TIGC);
x. Financing Statements (IGC);
y. Financing Statements (Jazz);
z. Financing Statements (MGC);
aa. Trademark Security Agreement;
bb. Alton Assignment of Permits, Contracts,
Rents and Revenues;
cc. Baton Rouge Assignment of Permits,
Contracts, Rents and Revenues;
dd. Riverside Assignment of Permits, Contracts,
Rents and Revenues;
ee. Sioux City Assignment of Permits,
Contracts, Rents and Revenues;
ff. Assignment of Alton Development Agreement;
gg. Defeasance Account Agreement; and
hh. Baton Rouge Collateral Assignment.
Section 3.04. OTHER LOAN DOCUMENTS. The following Loan
Documents duly executed by each applicable Borrower and any other applicable
party thereto consisting of the following:
a. Environmental Certificate; and
b. Alton Development Agreement Estoppel
Certificate.
Section 3.05. ARTICLES OF INCORPORATION, BYLAWS, CORPORATE
RESOLUTION AND CERTIFICATE OF GOOD STANDING. Agent Bank shall have received from
each of Argosy, MGC, AGC, IGC, Jazz, AOLI and TIGC (collective the "Corporate
Borrowers"): (i) a Certificate of Good Standing each issued by the Secretary of
State for the State of the applicable state of incorporation and each dated
within thirty (30) calendar days of the Closing Date, (ii) a
- 88 -
copy of the respective articles of incorporation and by-laws certified as of
the Closing Date to be true, correct and complete by a duly Authorized
Representative of each of the Corporate Borrowers, respectively, (iii) an
original Certificate of Corporate Resolution and Certificate of Incumbency
executed by the Secretary of each of the Corporate Borrowers and attested to
by its respective President, Vice President, or Treasurer authorizing each
such Corporate Borrower to enter into all documents and agreements to be
executed by it pursuant to this Credit Agreement and further authorizing and
empowering the officer or officers who will execute such documents and
agreements with the authority and power to execute such documents and
agreements on behalf of each respective corporation.
Section 3.06. PARTNERSHIP DOCUMENTATION. Agent Bank shall have
received each of the Partnership Agreements, together with all amendments,
modifications and attachments to each such agreement, each certified as of the
Closing Date to be true, correct and complete by an Authorized Representative.
Section 3.07. CLOSING CERTIFICATE AND AUTHORIZED
REPRESENTATIVES CERTIFICATE. Agent Bank shall have received from each of the
Borrowers: (i) designation by corporate/partnership certificate ("Authorized
Representative Certificate"), substantially in the form of the Authorized
Representative Certificate marked "Exhibit I", affixed hereto and by this
reference incorporated herein and made a part hereof, of the officers/partners
of Borrowers who are authorized to give Notices of Borrowing,
Continuation/Conversion Notices, Pricing Certificates, Notices of Swingline
Advances, request for the issuance of Letters of Credit and all other notices,
requests, reports, consents, certifications, actions and authorizations on
behalf of the Borrowers (each individually an "Authorized Representative" and
collectively the "Authorized Representative") and (ii) an original closing
certificate ("Closing Certificate"), substantially in the form of the Closing
Certificate marked "Exhibit J", affixed hereto and by this reference
incorporated herein and made a part hereof, duly executed by an Authorized
Representative of each of the Borrowers.
Section 3.08. OPINION OF COUNSEL. One or more opinions of
counsel to the Borrowers and addressed to the Agent Bank on behalf of itself and
each of the Banks, together with their respective successors and assigns,
opining as to each of the matters set forth in the form of the legal opinion
marked "Exhibit O", affixed hereto and by this reference incorporated herein and
made a part hereof.
Section 3.09. TITLE INSURANCE POLICIES. The Title Insurance
Policies, and endorsements thereto, (or proforma commitment for the issuance
thereof) insuring the priority of the Riverside Deed of Trust and the Baton
Rouge Mortgage consistent with the requirements of the Closing Instructions.
- 89 -
Section 3.10. SURVEY. If the Title Insurance Company requires
a survey as a condition of issuing the Title Insurance Policies consistent with
the Closing Instructions, a current boundary and location survey for the real
property encumbered by the Shore Mortgages, which must (i) be certified to Agent
Bank and the Title Insurance Company, (ii) show the applicable real property to
be free of encroachments, overlaps, and other survey defects, (iii) show the
courses and distances of the lot lines for the real property, (iv) show that all
existing improvements are located within said lot and building lines, and (v)
show the location of all above and below ground easements, improvements,
appurtenances, utilities, rights-of-way, water rights and ingress and egress, by
reference to book and page numbers and/or filed map reference.
Section 3.11. PRIORITY OF SHIP MORTGAGES. The Ship Mortgages
shall be junior in priority only to (a) Permitted Encumbrances and (b) the
Senior Indenture Security Documents until no later than October 1, 2000.
Section 3.12. INDENTURES. On or before the Closing Date,
Agent Bank shall have received true and correct final execution copies of:
a. the Senior Indenture;
b. the Purchase/Solicitation Statement;
c. the Convertible Notes Indenture; and
d. the New Indenture.
Section 3.13. CONSUMMATION OF TENDER OFFER AND CONSENT
SOLICITATION.
a. Holders of the First Mortgage Notes shall
have tendered no less than 85.0% in aggregate principal amount of the First
Mortgage Notes in accordance with the Tender Offer and the Purchase/Solicitation
Statement.
b. The First Mortgage Notes Redemption shall
have occurred;
c. The Redemption Consideration and the
Consent Solicitation Consideration shall have been paid; and
d. The amendments to the Senior Indenture set
forth in the Consent Solicitation shall be in full force and effect and Agent
Bank should have received a true and correct fully executed copy of the Senior
Indenture Amendment.
- 90 -
Section 3.14. OUTSTANDING FIRST MORTGAGE NOTES PAYMENT
FUND. On or before the Closing Date, each of the following shall have occurred:
a. Borrowers, the Defeasance Custodian and
Agent Bank shall have executed and delivered the Defeasance Account Agreement
and the Defeasance Account Agreement shall be binding and enforceable on the
parties thereto in all respects; and
b. The Defeasance Consideration shall be
funded into the Defeasance Account or Agent Bank shall have been irrevocably
instructed by Borrowers to fund the Defeasance Account with the amount of the
Defeasance Consideration from the Closing Disbursement.
Section 3.15. NEW INDENTURE. The New Indenture shall be
prepared in a form and content acceptable to Agent Bank, consistent with the
requirements contained in the definition of Subordinated Debt, and executed by
all applicable parties thereto, the Initial Senior Subordinated Notes shall have
been issued by Argosy and Argosy shall have received the proceeds thereof, net
of any expenses, discounts and any other amounts due to the initial purchasers
or third parties in connection with offering and issuance of the Initial Senior
Subordinated Notes (the "Senior Subordinated Notes Effective Date").
Section 3.16. INSURANCE. Copies of the declaration pages of
each of the insurance policies certified to be true and correct by an Authorized
Representative of the Borrowers, together with original binders evidencing
Borrowers as named insured, and original certificates of insurance, loss payable
and mortgagee endorsements naming Agent Bank as mortgagee, loss payee and
additional insured, as required by the applicable insurance provisions set forth
in Section 5.09 of this Credit Agreement.
Section 3.17. PAYMENT OF FEES. Payment by Borrowers to
Agent Bank of the fees to the extent then due and payable on the Closing Date
as provided in Section 2.10(a) hereinabove.
Section 3.18. REIMBURSEMENT FOR EXPENSES AND FEES.
Reimbursement by Borrowers for all reasonable fees and out-of-pocket expenses
incurred by Agent Bank in connection with the Credit Facility, including, but
not limited to, escrow charges, title insurance premiums, environmental
examinations, recording fees, reasonable attorney's fees of Henderson & Morgan,
LLC and co-counsel retained by Henderson & Morgan, LLC and all other like fees
and expenses remaining unpaid as of the Closing Date to the extent then due and
payable on the Closing Date, provided that the amount then invoiced shall not
thereafter preclude Borrowers' obligation to pay such costs and expenses
relating to the
- 91 -
closing of the Credit Facility following the Closing Date or to reimburse
Agent Bank for the payment thereof.
Section 3.19. DEVELOPMENT AGREEMENTS AND LEASES. On or
before the Closing Date a true and correct copy of: (i) each of the
Development Agreements and of all amendments and modifications to any of such
instruments, and (ii) all leases of any portion of the Baton Rouge Real
Property and of all amendments and modifications to any of such instruments.
Section 3.20. ESTOPPEL CERTIFICATE. The Alton Development
Agreement Estoppel Certificate shall be duly executed by the respective
parties thereto. In the event it is not possible or practical to procure the
above-referenced estoppel certificate prior to the Closing Date, Agent Bank
may, in its discretion, permit Borrowers additional time to procure such
certificate, under such terms as Agent Bank shall reasonably determine.
Section 3.21. REGULATORY APPROVALS, PERMITS, CONSENTS, ETC.
Copies of those material permits, approvals or consents by all Governmental
Authorities permitting the use and operation of the Hotel/Casino Facilities,
together with all supporting documents and materials, reasonably requested by
Agent Bank.
Section 3.22. PRICING CERTIFICATE. A Pricing Certificate
prepared as of the end of the most recently ended Fiscal Quarter, giving pro
forma effect to the occurrence of the First Mortgage Notes Redemption, the First
Mortgage Notes Defeasance, the Closing Disbursement and the Senior Subordinated
Notes Effective Date.
Section 3.23. SCHEDULE OF ALL SIGNIFICANT LITIGATION. A
Schedule of Significant Litigation (Schedule 3.23) involving any member of the
Borrower Consolidation, in each instance setting forth the names of the other
parties thereto, a brief description of such litigation, whether or not such
litigation is covered by insurance and, if so, whether the defense thereof and
liability therefor has been accepted by the applicable insurance company
indicating whether such acceptance of such defenses with or without a
reservation of rights, the commencement date of such litigation and the amount
sought to be recovered by the adverse parties thereto or the amount which is
otherwise in controversy.
Section 3.24. FINANCIAL STATEMENTS. Audited financial
statements of Argosy on a consolidated basis, for the last Fiscal Year for which
such financial statements are available, together with a statement from the
Chief Financial Officer or Treasurer of Argosy to the effect that no Material
Adverse Change has occurred with respect to the Borrower Consolidation since the
date of the financial statements most recently given to Agent Bank.
- 92 -
Section 3.25. NO INJUNCTION OR OTHER LITIGATION. No law or
regulation shall prohibit, and no order, judgment or decree of any Governmental
Authority shall, and no litigation shall be pending or threatened which in the
reasonable judgment of the Agent Bank would or would reasonably be expected to,
enjoin, prohibit, limit or restrain the execution and delivery of this Credit
Agreement or the making of the Base Rate Loans or the LIBOR Loans or the
performance by the Borrowers of any other material obligations in respect
thereof or the ability of the Borrowers to conduct their business substantially
as presently conducted.
Section 3.26. ADDITIONAL DOCUMENTS AND STATEMENTS. Such
additional documents, affidavits, certificates and opinions as Lenders may
reasonably require to insure compliance with this Credit Agreement. The
statements set forth in Section 3.28 shall be true and correct.
B. CONDITIONS PRECEDENT TO ALL BORROWINGS. The
obligation of each Lender and Agent Bank to make any Borrowing requested to
be made on any Funding Date, except Borrowings made upon the demand of Agent
Bank for the purpose of funding repayment of Swingline Outstandings and/or
L/C Reimbursement Obligations, is subject to the occurrence of each of the
following conditions precedent as of such Funding Date:
Section 3.27. NOTICE OF BORROWING. With respect to any
Borrowing, the Agent Bank shall have received in accordance with Section 2.03 on
or before such Funding Date an original and duly executed Notice of Borrowing or
facsimile copy thereof, to be promptly followed by an original.
Section 3.28. CERTAIN STATEMENTS. On each such Funding
Date and as of the Closing Date the following statements shall be true and
correct:
a. The representations and warranties made by
the Borrowers contained in Article IV hereof or in any of the Loan Documents
(other than representations and warranties which expressly speak only as of a
different date which shall be true and correct as of such date) are true and
correct on and as of the Funding Date and as of the Closing Date in all material
respects as though made on and as of that date, except to the extent that such
representations and warranties are not true and correct as a result of a change
which is permitted by this Credit Agreement or by any other Loan Document, or
which is otherwise consented to by Agent Bank upon the approval of Requisite
Lenders;
b. Since the date of the financial statements
referred to in Section 3.24, no Material Adverse Change shall have occurred; and
- 93 -
c. No event or condition has occurred or as a
result of any Borrowings contemplated hereby would occur and is continuing, or
would result from the making thereof, which constitutes a Default or Event of
Default hereunder.
Section 3.29. GAMING PERMITS. The Borrower Consolidation shall
have all Gaming Permits material to or required for the conduct of the gaming
businesses and the conduct of games of chance at the Hotel/Casino Facilities and
such Gaming Permits shall not then be suspended, enjoined or prohibited (for any
length of time) by any Gaming Authority or any other Governmental Authority.
C. ADDITIONAL CONDITIONS PRECEDENT TO COMMITMENT INCREASES
AND TERM LOANS. In addition to the requirements set forth in Articles III A
and B, the obligation of Lenders (as such Lenders are defined as of the
applicable date of determination) and Agent Bank to make available the Level
Two Commitment Increase is subject to and contingent upon (i) satisfaction of
each of the conditions and requirements set forth in Section 2.15(b), and
(ii) Agent Bank having received in each case in form and substance reasonably
satisfactory to Agent Bank or in the case of an occurrence, action or event,
the occurrence of each of the following (or in the case of the Level One
Commitment Increase, Level One Term Loan and Level Two Term Loan (i)
satisfaction of each of the conditions and requirements set forth in Section
2.15(a), 2.15(c) and 2.15(d), respectively, and (ii) Agent Bank having
received in each case in form and substance reasonably satisfactory to Agent
Bank or in the case of an occurrence, action or event, the occurrence of
those Sections set forth below which are incorporated by reference in Section
2.15(a), 2.15(c) and 2.15(d), respectively):
Section 3.30. EVIDENCE OF LAWRENCEBURG BUYOUT. The
Lawrenceburg Buyout Effective Date shall have occurred and Agent Bank shall have
received all applicable documentation evidencing the Borrower Consolidation's
one hundred percent (100%) ownership of IGCLP and the Lawrenceburg Casino
Facilities subject only to the Lawrenceburg Permitted Encumbrances.
Section 3.31. ADDITIONAL SECURITY DOCUMENTS. The Security
Documentation duly executed by each applicable Borrower or other party thereto,
consisting of the following:
a. Lawrenceburg Mortgage;
b. Argosy VI Ship Mortgage;
c. Security Agreement (IGCLP);
- 94 -
d. Financing Statements (IGCLP);
e. Lawrenceburg Assignment of Permits,
Contracts, Rents and Revenues; and
f. A Subsidiary Guaranty duly executed by
IGCLP or other owner of the Lawrenceburg Casino Facilities if other than TIGC.
Section 3.32. OTHER LOAN DOCUMENTS. The following Loan
Documents duly executed by Borrowers and any other applicable party thereto
consisting of the following:
a. With respect to the Commitment Increases an
amendment and restatement of the Revolving Credit Note, in a form reasonably
acceptable to Agent Bank, in the amount of the Total Commitment as of the Level
One Commitment Effective Date or the Level Two Commitment Increase Effective
Date, as applicable; and
b. Environmental Certificate with respect to
the Lawrenceburg Casino Facilities executed by Borrowers.
Section 3.33. OPINION OF COUNSEL - COMMITMENT INCREASE. One or
more opinions of counsel to the Borrowers and addressed to the Agent Bank on
behalf of itself and each of the Banks, together with their respective
successors and assigns, opining as to such matters as are reasonably required by
Agent Bank and the Requisite Lenders.
Section 3.34. LAWRENCEBURG TITLE INSURANCE POLICY. As of
the Commitment Increase Effective Date, the Lawrenceburg Title Policy (or
proforma commitment for the issuance thereof) consistent with the requirements
of the Lawrenceburg Closing Instructions.
Section 3.35. SURVEY. If the Title Insurance Company requires
a survey as a condition of issuing the Lawrenceburg Title Insurance Policy
consistent with the Lawrenceburg Closing Instructions, a current boundary and
location survey for the Lawrenceburg Real Property, which must (i) be certified
to Agent Bank and the Title Insurance Company, (ii) show the Lawrenceburg Real
Property to be free of encroachments, overlaps, and other survey defects, (iii)
show the courses and distances of the lot lines for the Lawrenceburg Real
Property, (iv) show that all existing improvements are located within said lot
and building lines, and (v) show the location of all above and below ground
easements, improvements, appurtenances, utilities, rights-of-way, water rights
and ingress and egress, by reference to book and page numbers and/or filed map
reference.
- 95 -
Section 3.36. PAYMENT OF TAXES. Evidence satisfactory to Agent
Bank that all past and current real and personal property taxes and assessments
which are presently due and payable applicable to the Lawrenceburg Real Property
have been paid in full.
Section 3.37. LAWRENCEBURG INSURANCE. With respect to the
Lawrenceburg Casino Facilities, copies of the declaration pages of each of the
insurance policies certified to be true and correct by an Authorized
Representative of the Borrowers, together with original binders evidencing
Borrowers as named insured, and original certificates of insurance, loss payable
and mortgagee endorsements naming Agent Bank as mortgagee, loss payee and
additional insured, as required by the applicable insurance provisions set forth
in Section 5.09 of this Credit Agreement.
Section 3.38. REIMBURSEMENT FOR EXPENSES AND FEES.
Reimbursement by Borrowers for all reasonable fees and out-of-pocket expenses
incurred by Agent Bank in connection with the requirements of Article III C,
including, but not limited to, escrow charges, title insurance premiums,
environmental examinations, recording fees, reasonable attorney's fees of
Henderson & Morgan, LLC and co-counsel and insurance consultants retained by
Henderson & Morgan, LLC and all other like fees and expenses remaining unpaid as
of the Commitment Increase Effective Date, provided that the amount then
invoiced shall not thereafter preclude Borrowers' obligation to pay such costs
and expenses relating to the closing of the Credit Facility following the
Closing Date and the Commitment Increase Effective Date or to reimburse Agent
Bank for the payment thereof.
Section 3.39. PHASE I ENVIRONMENTAL SITE ASSESSMENTS.
a. A Phase I Environmental Site Assessment or
Assessments of the Lawrenceburg Real Property prepared in conformance with the
scope and limitations of ASTM Standard Designation E1527-94 and approved by
Agent Bank. Any recommended action to resolve any breach of Hazardous Materials
Laws shall have been completed by Borrowers.
b. Borrowers shall confirm the representations
contained in Sections 2.1 and 2.2 of the Environmental Certificate are true and
correct in all respects.
Section 3.40. NO INJUNCTION OR OTHER LITIGATION. No law or
regulation shall prohibit, and no order, judgment or decree of any Governmental
Authority shall, and no litigation shall be pending or threatened which in the
reasonable judgment of the Agent Bank would or would reasonably be expected to,
enjoin, prohibit, limit or restrain the acquisition of 100% ownership of the
Lawrenceburg Casino Facilities by the Borrower Consolidation and the perfection
of the Liens on the Lawrenceburg Casino Facilities to be evidenced by the
Security Documentation set forth in Section 3.31.
- 96 -
Section 3.41. PRO FORMA FINANCIAL COMPLIANCE. The Borrowers
shall deliver a duly executed and completed Compliance Certificate, as of the
end of the most recently ended Fiscal Quarter, prepared on a pro forma basis
based on the assumption that the Commitment Increase, the Lawrenceburg Buyout
and the designation of IGCLP, or other Subsidiary of Argosy which is the owner
of the Lawrenceburg Casino Facilities, as a Restricted Subsidiary, had occurred
one (1) year prior to the end of the most recently ended Fiscal Quarter.
Section 3.42. DESIGNATION OF RESTRICTED SUBSIDIARY.
Designation in writing by an Authorized Representative of IGCLP, or other
Subsidiary of Argosy which is (or will be as of the Lawrenceburg Buyout
Effective Date) the owner of the Lawrenceburg Casino Facilities, as a Restricted
Subsidiary.
Section 3.43. ADDITIONAL DOCUMENTS AND STATEMENTS. Such
additional documents, affidavits, certificates and opinions as Agent Bank may
reasonably require to insure compliance with this Credit Agreement. The
statements set forth in Section 3.28 shall be true and correct.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce Banks to enter into this Credit Agreement, Borrowers
make the following representations and warranties:
Section 4.01. ORGANIZATION; POWER AND AUTHORIZATION.
a. Argosy is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
MGC is a corporation duly organized, validly existing and in good standing under
the laws of the State of Missouri; AGC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Illinois; Jazz and
AOLI are each a corporation duly organized, validly existing and in good
standing under the laws of the State of Louisiana; IGC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Iowa; and TIGC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Indiana.
b. Each of MGC, AGC, IGC, AOLI, TIGC and Jazz
are wholly owned subsidiaries of Argosy.
- 97 -
c. CQP is a partnership in commendam duly
organized, validly existing and in good standing under the laws of the State of
Louisiana; AOLI is the owner of a ninety percent (90%) interest and Jazz is the
owner of a ten percent (10%) interest in CQP; TIGC is the holder of a 57.5%
general partnership interest in IGCLP; and IGC is the owner and holder of a
seventy percent (70%) general partnership in BOSCLP.
d. Each Borrower (i) has all requisite power,
authority and legal right to execute and deliver each document, agreement or
certificate to which it is a party or by which it is bound in connection with
the Bank Facilities, to consummate the transactions and perform its obligations
hereunder and thereunder, and to own its properties and assets and to carry on
and conduct its business as presently conducted or proposed to be conducted,
(ii) has taken all necessary action to authorize the execution, delivery and
performance of this Credit Agreement and the other Loan Documents to which it is
a party or by which it is bound and to consummate the transactions contemplated
hereunder and thereunder and (iii) is duly qualified as a foreign corporation or
partnership, as applicable, and is licensed and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification or license and where the
failure to so qualify and be licensed (other than with respect to the Gaming
Permits) would result in a Material Adverse Change.
e. Each Restricted Subsidiary, when formed:
(i) is a corporation duly formed, validly existing and in good standing under
the laws of its jurisdiction of organization, is duly qualified to do business
as a foreign organization and is in good standing as such in each jurisdiction
in which the conduct of its business or the ownership or leasing of its
properties and assets makes such qualification necessary where the failure to so
qualify would result in a Material Adverse Change and has all requisite power
and authority to conduct its business and to own and lease its properties and
assets, and (ii) has taken all necessary action to authorize the execution,
delivery and performance of the Subsidiary Guaranty executed and delivered by it
to Agent Bank as of the date of such execution and delivery.
Section 4.02. NO CONFLICT WITH, VIOLATION OF OR DEFAULT UNDER
LAWS OR OTHER AGREEMENTS. Neither the execution and delivery of this Credit
Agreement, the Revolving Credit Note, the Swingline Note, or any other Loan
Document, or any other agreement, certificate or instrument to which Borrowers
are a party or by which they, or any of them, are bound in connection with the
Bank Facilities, nor the consummation of the transactions contemplated hereunder
or thereunder, or the compliance with or performance of the terms and conditions
herein or therein, is prevented by, limited by, conflicts in any material
respect with, or will result in a material breach or violation of, or a material
default (with due notice or lapse of time or both) under, or the creation or
imposition of any lien, charge, or encumbrance of any nature whatsoever upon any
of their respective property or
- 98 -
assets by virtue of, the terms, conditions or provisions of (a) the Articles
of Incorporation, Bylaws or other documents of organization or charter of any
of the Borrowers, (b) any indenture, evidence of indebtedness, loan or
financing agreement, or other agreement or instrument of whatever nature to
which they, or any of them, are a party or by which they, or any of them, are
bound, (c) any of the Development Agreements, (d) the BOSCLP Partnership
Agreement; (e) IGCLP Partnership Agreement; or (f) to the best knowledge of
Borrowers, any provision of any existing law, rule, regulation, order, writ,
injunction or decree of any court or Governmental Authority to which they, or
any of them, are subject, where such breach could reasonably be expected to
result in a Material Adverse Change.
Section 4.03. LITIGATION. Except as disclosed on the Schedule
of Significant Litigation delivered in connection with Section 3.23, to the
actual knowledge of Borrowers there is no action, suit, proceeding, inquiry,
hearing or investigation pending or, to the best knowledge of Borrowers,
threatened, in any court of law or in equity, or before any Governmental
Authority, which could reasonably be expected to result in any Material Adverse
Change in the Hotel/Casino Facilities or in their respective business, financial
condition, properties or operations. Borrowers are not in violation of or
default with respect to any order, writ, injunction, decree or demand of any
such court or Governmental Authority where such default could reasonably be
expected to result in a Material Adverse Change.
Section 4.04. AGREEMENTS LEGAL, BINDING, VALID AND
ENFORCEABLE. This Credit Agreement, the Revolving Credit Note, the Swingline
Note, the Security Documentation and all other Loan Documents, when executed
and delivered by Borrowers in connection with the Bank Facilities will
constitute legal, valid and binding obligations of Borrowers, enforceable
against Borrowers in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
of general application relating to or affecting the enforcement of creditors'
rights and the exercise of judicial discretion in accordance with general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
Section 4.05. INFORMATION AND FINANCIAL DATA ACCURATE;
FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE. Any and all financial
statements heretofore furnished to Banks by Borrowers, or any of them: (a)
present fairly the financial position of the entity to which they relate as at
their respective dates and the results of operations and cash flows for the
periods to which they apply, and (b) have been prepared in conformity with GAAP
applied on a consistent basis throughout the periods involved. Since the date of
the most recent financial statements referred to in this Section 3.24., there
has been no Material Adverse Change.
- 99 -
Section 4.06. GOVERNMENTAL APPROVALS. All consents, approvals,
orders or authorizations of, or registrations, declarations, notices or filings
with any Governmental Authority and any other Person which may be required in
connection with the valid execution and delivery of this Credit Agreement and
the other Loan Documents by Borrowers and the carrying-out or performance of any
of the transactions required or contemplated hereunder, or thereunder, by
Borrowers, have been obtained or accomplished and are in full force and effect,
or can be obtained by Borrowers. All consents, approvals, orders or
authorizations of, or registrations, declarations, notices or filings with any
Governmental Authority and any other Person, the failure of which could
reasonably be expected to result in a Material Adverse Change, which may be
required by Borrowers in connection with the use and operation of the
Hotel/Casino Facilities have been obtained or accomplished and are in full force
and effect.
Section 4.07. PAYMENT OF TAXES. Borrowers, and each of them,
have duly filed or caused to be filed all federal, state and local tax reports
and returns which are required to be filed by them and have paid or made
provisions for the payment of, all material taxes, assessments, fees and other
governmental charges which have or may have become due pursuant to said returns
or otherwise pursuant to any assessment received by Borrowers except such taxes,
assessments, fees or other governmental charges, if any, as are being contested
in good faith by Borrowers by appropriate proceedings and for which Borrowers
have maintained adequate reserves for the payment thereof in accordance with
GAAP.
Section 4.08. TITLE TO PROPERTIES.
a. AGC is the owner of the Alton Casino
Facilities;
b. Argosy is the owner of the Riverside Real
Property; MGC occupies the Riverside Real Property pursuant to an agreement with
Argosy and is the owner of the Riverside Casino Facilities;
c. Jazz is the owner of a portion of the Baton
Rouge Fee Property and AOLI is the owner of the remainder of the Baton Rouge Fee
Property; CQP is the lessee or sublessee of all of the property material to the
operation of the Baton Rouge Casino Facilities and is the owner of the Baton
Rouge Casino Facilities.
d. IGC owns Argosy V; AGC owns Alton Landing
and has authorized IGC to lease the Alton Landing to BOSCLP; pursuant to the
Sioux City Vessel Lease IGC Leases the Sioux City Vessels to BOSCLP, together
with the FF&E situate thereon (other than the Gaming Devices which are owned by
BOSCLP); BOSCLP is the
- 100 -
grantee under the Sioux City Development Agreement and the owner of the Sioux
City Casino Facilities; and
e. IGCLP is the owner of the Lawrenceburg Casino
Facilities.
f. Borrowers have good and marketable title to
the Collateral as of the Closing Date and at all times during the term of the
Credit Facility. Each of the Borrowers has good and marketable title to: (i)
all of its properties and assets reflected in the most recent financial
statements referred to in Section 4.05 hereof as owned by it, including, but
not limited to, Borrowers' interest in patents, trademarks, tradenames,
servicemarks, and licenses relating to or pertaining to the Hotel/Casino
Facilities, and (ii) all properties and assets acquired by it subsequent to
the date of the most recent financial statements referred to in Section 4.05
hereof (except in each case for those properties and assets disposed of since
the date of said financial statements in the ordinary course of business or
those properties and assets which are no longer used or useful in the conduct
of its business). The Schedule of Intercompany Notes, Schedule 4.08(b), sets
forth the names of the payor, payee, face amount, date and unpaid principal
balance (as of the Closing Date) of each of the Intercompany Notes. The
Collateral is not subject to any liens, encumbrances or restrictions except
Permitted Encumbrances.
Section 4.09. NO UNTRUE STATEMENTS. All statements,
representations and warranties made by Borrowers, or any of them, in this
Credit Agreement, any other Loan Document and any other agreement, document,
certificate or instrument previously furnished by Borrowers, or any of them,
to Banks pursuant to the provisions of this Credit Agreement, at the time
they were made and on and as of the Closing Date: (a) are and shall be true,
correct and complete in all material respects, and (b) do not and shall not
contain any untrue statement of a material fact, and (iii) do not and shall
not omit to state a material fact necessary in order to make the information
contained herein or therein not misleading or incomplete. Borrowers
understand that all such statements, representations and warranties shall be
deemed to have been relied upon by Banks as a material inducement to
establish the Bank Facilities.
Section 4.10. BROKERAGE COMMISSIONS. No person is entitled to
receive any brokerage commission, finder's fee or similar fee or payment in
connection with the extensions of credit contemplated by this Credit Agreement
as a result of any agreement entered into by Borrowers. No brokerage or other
fee, commission or compensation is to be paid by Banks with respect to the
extensions of credit contemplated hereby as a result of any agreement entered
into by Borrowers, and Borrowers agree to indemnify Banks against any such
claims for brokerage fees or commissions and to pay all expenses including,
without limitation, reasonable attorney's fees incurred by Banks in connection
with the defense of any action or proceeding brought to collect any such
brokerage fees or commissions.
- 101 -
Section 4.11. NO DEFAULTS. Borrowers are not in violation of
or in default with respect to any applicable laws and/or regulations which
materially and adversely affect the Hotel/Casino Facilities or the business,
financial condition, property of Borrowers or operations of the Borrowers, or
any of them, or of the Hotel/Casino Facilities. Without limiting the generality
of the foregoing, Argosy is not in violation or default (nor is there any waiver
in effect which, if not in effect, would result in a violation or default) under
(a) the Senior Indenture, First Mortgage Notes, the Senior Indenture Security
Documents, Convertible Notes; or (b) under any indenture, evidence of
indebtedness, loan or financing agreement or other material agreement or
instrument of whatever nature to which it is a party or by which it is bound
which violation or default could reasonably be expected to result in a Material
Adverse Change.
Section 4.12. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.
No Reportable Event has occurred and is continuing with respect to any Pension
Plan under ERISA, that gives rise to liabilities that materially adversely
affect the financial condition or operations of Borrowers, or any of them.
Section 4.13. PARTNERSHIP AGREEMENTS, DEVELOPMENT
AGREEMENTS AND BATON ROUGE LEASES.
a. The copies of the Partnership Agreements and
modifications and amendments thereto (if any) which have been delivered to
Agent Bank in accordance with Section 3.06 are a true, correct and complete
copy of the respective original thereof, as in effect on the Closing Date,
and no amendments or modifications have been made to such Partnership
Agreements, except as set forth by documents delivered to Agent Bank in
accordance with said Section 3.06 or otherwise reasonably approved in writing
by Agent Bank or Requisite Lenders, as applicable, in accordance with Section
5.28. None of the Partnership Agreements have been terminated and they are
all in full force and effect. Neither AOLI, Jazz, BOSCLP nor IGCLP are in
default in the observance or performance of any of their respective material
obligations under the Partnership Agreements and have done all things
required to be done as of the Closing Date to keep unimpaired their
respective rights thereunder (except for possible defaults which may be the
subject of any litigation referred to by Schedule 3.23).
b. The copies of the Development Agreements and
modifications and amendments thereto (if any) which have been delivered to
Agent Bank in accordance with Section 3.19 are a true, correct and complete
copy of the respective original thereof, as in effect on the Closing Date,
and no amendments or modifications have been made to such Development
Agreements, except as set forth by documents delivered to Agent Bank in
accordance with said Section 3.19 or otherwise reasonably approved in writing
by Agent Bank or Requisite Lenders, as applicable, in accordance with Section
5.28. None of the
- 102 -
Development Agreements have been terminated and they are all in full force
and effect. Neither AGC, CQP, MGC, BOSCLP nor IGCLP are in default in the
observance or performance of any of their respective material obligations
under the Development Agreements and have done all things required to be done
as of the Closing Date to keep unimpaired their respective rights thereunder.
c. The copies of the leases of the Baton Rouge Real Property
and modifications and amendments thereto (if any) which have been delivered to
Agent Bank in accordance with Section 3.19 are a true, correct and complete copy
of the respective original thereof, as in effect on the Closing Date, and no
amendments or modifications have been made to such leases, except as set forth
by documents delivered to Agent Bank in accordance with said Section 3.19 or
otherwise reasonably approved in writing by Agent Bank or Requisite Lenders, as
applicable, in accordance with Section 5.28. The leases pursuant to which CQP or
Jazz occupy the Baton Rouge Lease Property: (i) have not been terminated and are
all in full force and effect; (ii) are not subject to any default in the
observance or performance of any material obligation of any lessor or lessee
thereunder; and (iii) CQP or Jazz, as the case may be, has done all things
required to be done as of the Closing Date to keep unimpaired its respective
rights thereunder.
Section 4.14. SENIOR INDENTURE.
a. The copy of the Senior Indenture and all
modifications and amendments thereto (if any) which have been delivered to
Agent Bank in accordance with Section 3.12 is a true, correct and complete
copy of the respective original thereof, as in effect on the Closing Date,
and no amendments or modifications have been made to such Senior Indenture,
except as set forth by documents delivered to Agent Bank in accordance with
said Section 3.12 or otherwise reasonably approved in writing by Requisite
Lenders. The Senior Indenture, as amended, has not been terminated and is in
full force and effect. Argosy is not in default in the observance or
performance of any of its material obligations under any of the Senior
Indenture and has done all things required to be done as of the Closing Date
to keep unimpaired its rights thereunder.
b. As of the Closing Date, Argosy shall have
purchased no less than 85.0% of the First Mortgage Notes and shall have
procured the requisite consents pursuant to the Consent Solicitation required
for the execution and delivery of the Senior Indenture Amendment. On the
Closing Date, the Senior Indenture Amendment shall be executed and delivered
by each Requisite Party thereto and shall be in full force and effect.
c. As of the Closing Date, Argosy shall have
caused the First Mortgage Notes Defeasance to have occurred and shall have
caused the Defeasance Account to be funded with the Defeasance Consideration.
- 103 -
Section 4.15. CONVERTIBLE NOTES. The copy of the Convertible
Notes Indenture and modifications and amendments thereto (if any) which have
been delivered to Agent Bank in accordance with Section 3.12 is a true, correct
and complete copy of the respective original thereof, as in effect on the
Closing Date, and no amendments or modifications have been made to such
Convertible Notes Indenture, except as set forth by documents delivered to Agent
Bank in accordance with said Section 3.12 or otherwise reasonably approved in
writing by Requisite Lenders. The Convertible Notes Indenture has not been
terminated and is in full force and effect. Argosy is not in default in the
observance or performance of any of its material obligations under the
Convertible Notes or the Convertible Notes Indenture and has done all things
required to be done as of the Closing Date to keep unimpaired its rights
thereunder.
Section 4.16. AVAILABILITY OF UTILITY SERVICES AND FACILITIES.
All utility services and facilities necessary for the Hotel/Casino Facilities
including, without limitation, electrical, water, gas and sewage services and
facilities are available and in use at the respective sites of the Hotel/Casino
Facilities.
Section 4.17. POLICIES OF INSURANCE. As of the date hereof,
each of the copies of the declaration pages, original binders and
certificates of insurance evidencing the Policies of Insurance relating to
the Hotel/Casino Facilities and all Vessels delivered to Agent Bank by
Borrowers is a true, correct and complete copy of the respective original
thereof as in effect on the date hereof, and no amendments or modifications
of any of said documents or instruments not included in such copies have been
made. The Policies of Insurance have not been terminated and is in full force
and effect. Borrowers, and each of them, are not in default in the observance
or performance of their respective obligations under said documents and
instruments, and Borrowers, and each of them, have done all things required
to be done as of the date of this Credit Agreement to keep unimpaired their
rights thereunder.
Section 4.18. GAMING PERMITS. All Gaming Permits required to
be held by Borrowers are current and in full force and effect and Borrowers
presently hold all Gaming Permits necessary for the continued operation of the
Hotel/Casino Facilities. Each of the Gaming Authorities have given all necessary
approvals of this Credit Agreement, the Notes and each Loan Document to be
executed by Borrowers in connection with the Bank Facilities.
Section 4.19. ENVIRONMENTAL CERTIFICATE. The
representations and certifications contained in the Environmental Certificate
are true and correct in all material respects.
- 104 -
Section 4.20. NEW VENTURE SUBSIDIARIES. A schedule of each
Restricted Subsidiary and Unrestricted Subsidiary existing as of the Closing
Date and a description of the New Venture owned in whole or part by each such
Restricted Subsidiary and Unrestricted Subsidiary is marked "Schedule 4.20",
affixed hereto and by this reference incorporated herein and made a part
hereof.
Section 4.21. COMPLIANCE WITH STATUTES, ETC. Except for
matters related to the compliance by the Borrowers with Hazardous Materials
Laws, which matters are governed by the Environmental Certificate and the Shore
Mortgages, each of the Borrowers is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
Governmental Authorities, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliance as would
not, in the aggregate, reasonably be expected to result in a Material Adverse
Change.
Section 4.22. INVESTMENT COMPANY ACT. Neither Argosy nor
any of its Subsidiaries is an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
Section 4.23. PUBLIC UTILITY HOLDING COMPANY ACT. Neither
Argosy nor any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 4.24. LABOR RELATIONS. There is no strike or work
stoppage in existence, or to the best knowledge of Borrowers threatened,
involving any member of the Borrower Consolidation or any of the Hotel/Casino
Facilities that could reasonably be expected to result in a Material Adverse
Change.
Section 4.25. PATENTS, LICENSES, FRANCHISES AND FORMULAS.
Except as disclosed in Schedule 4.25, the Borrower Consolidation owns all the
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or has a valid license or sublicense of rights with
respect to the foregoing, and has obtained assignments of all leases and other
rights of whatever nature, necessary for the present conduct of its business,
without any known conflict with the rights of others which, or the failure to
obtain which, as the case may be, could reasonably be expected to result in a
Material Adverse Change on the business, operations, property, assets or
condition (financial or otherwise) of the Borrower Consolidation taken as a
whole. Each of the patents, trademarks, servicemarks, tradenames and copyrights
owned by the Borrower Consolidation which is registered with any Governmental
Authority is set forth on Schedule 4.25, attached hereto.
- 105 -
Section 4.26. CONTINGENT LIABILITIES. As of the Closing Date,
Borrowers have incurred no material Contingent Liabilities (without limiting the
generality of the foregoing, any Contingent Liability in excess of One Million
Dollars ($1,000,000.00) being deemed material) other than those described on
Schedule 4.26.
ARTICLE V
GENERAL COVENANTS OF BORROWERS
To induce the Banks to enter into this Credit Agreement,
Borrowers covenant to Lenders as follows:
Section 5.01. FF&E. The Borrower Consolidation shall
furnish, fixture and equip the Hotel/Casino Facilities with FF&E it
reasonably deems appropriate for the operation of the Hotel/Casino
Facilities. All FF&E that is purchased and installed in the Hotel/Casino
Facilities shall be purchased free and clear of any liens, encumbrances or
claims, other than Permitted Encumbrances. If the Borrower Consolidation
should sell, transfer, convey or otherwise dispose of any FF&E to any Person
other than a member of the Borrower Consolidation (other than obsolete or
worn out FF&E or other FF&E no longer useful in the business of the
Borrowers) and not within one hundred twenty (120) days of such sale,
transfer, conveyance or other disposition replace such FF&E with purchased
items of equivalent value and utility or replace such FF&E with leased items
of equivalent value and utility, within the permissible leasing and purchase
agreement limitation set forth in Section 6.09(b) herein, to the extent the
Net Proceeds thereof not used to replace FF&E exceeds a cumulative aggregate
value of Five Million Dollars ($5,000,000.00) during any Fiscal Year or a
cumulative aggregate value of Ten Million Dollars ($10,000,000.00) during the
term of the Credit Facility (in either instance the "Excess Capital
Proceeds"), Borrowers (to the extent required by the Requisite Lenders) on
the later to occur of the one hundred twenty-first (121st) day following such
sale, transfer, conveyance or other dispositions or the fifth (5th) Banking
Business Day following written notice from Agent Bank of the requirement of
permanent reduction from Requisite Lenders, shall permanently reduce the
Maximum Permitted Balance of the Credit Facility by a Voluntary Permanent
Reduction in the amount of the Excess Capital Proceeds of the FF&E so
disposed of, subject, however, to the right of Agent Bank to verify to its
reasonable satisfaction the amount of said Excess Capital Proceeds.
Section 5.02. PERMITS; LICENSES AND LEGAL REQUIREMENTS.
a. Borrowers shall comply in all material
respects with and keep in full force and effect, as and when required, all
Gaming Permits and all material permits, licenses and approvals obtained from
any Governmental Authorities which are required for
- 106 -
the operation and use of the Hotel/Casino Facilities. Borrowers, and each of
them, shall comply in all material respects with all applicable material
existing and future laws, rules, regulations, orders, ordinances and
requirements of all Governmental Authorities, and with all recorded
restrictions affecting the Premises where the failure of such compliance
could reasonably be expected to result in a Material Adverse Change.
b. The Baton Rouge Real Property includes
sufficient parking areas to satisfy all parking requirements which are
imposed by Governmental Authorities with respect to operation of the Baton
Rouge Casino Facilities, without utilizing the Baton Rouge Parking Lot Parcel
or the Baton Rouge Hotel Property.
Section 5.03. DEVELOPMENT AGREEMENTS. Until Bank Facility
Termination: (i) AGC shall fully perform and comply with all material
agreements, covenants, terms and conditions imposed upon, or assumed by, AGC as
a party to the Alton Development Agreement; (ii) CQP shall fully perform and
comply with all material agreements, covenants, terms and conditions imposed
upon, or assumed by, CQP as a party to the Baton Rouge Development Agreement;
(iii) MGC shall fully perform and comply with all material agreements covenants,
terms and conditions imposed upon, or assumed by, MGC as a party to the
Riverside Development Agreement; (iv) Borrowers shall cause BOSCLP to fully
perform and comply with all material terms and conditions imposed upon, or
assumed by BOSCLP, as a party to the Sioux City Development Agreement; and (v)
Borrowers shall cause IGCLP to fully perform and comply with all material terms
and conditions imposed upon, or assumed by IGCLP as a party to the Lawrenceburg
Development Agreement.
Section 5.04. PROTECTION AGAINST LIEN CLAIMS. Borrowers
shall promptly pay and discharge or cause to be paid and discharged all
claims and liens for labor done and materials and services supplied and
furnished in connection with the Hotel/Casino Facilities in accordance with
this Section 5.04, except such claims and liens, if any, as are being
contested in good faith by Borrowers by appropriate proceedings and for which
Borrowers have maintained adequate reserves for the payment thereof in
accordance with GAAP. If any mechanic's lien or materialman's lien for a sum
in excess of Five Hundred Thousand Dollars ($500,000.00) shall be recorded,
filed or suffered to exist against the Hotel/Casino Facilities, or any of
them, or any interest therein by reason of work, labor, services or materials
supplied, furnished or claimed to have been supplied and furnished in
connection with the Hotel/Casino Facilities, or any of them, at any time
following thirty (30) days after demand for payment is made by such claimant
and such demand has not been satisfied, upon Borrowers receipt of written
notice from Agent Bank demanding the release and discharge of such lien, said
lien or claim shall be paid, released and discharged or expunged of record
within sixty (60) days following its receipt of such notice.
- 107 -
Section 5.05. NO CHANGE IN CHARACTER OF BUSINESS. Until Bank
Facility Termination, (a) the Hotel/Casino Facilities shall be operated by
members of the Borrower Consolidation, and (b) Borrowers shall not effect a
material change in the nature and character of its existing business at the
Hotel/Casino Facilities as presently conducted and as presently contemplated and
disclosed to Banks. Notwithstanding the foregoing, upon written notice to Agent
Bank, the Borrower Consolidation may make such changes to its business operation
as may be necessary or advisable to remain competitive in the gaming industry.
Section 5.06. PRESERVATION AND MAINTENANCE OF PROPERTIES
AND ASSETS; ACQUISITION OF ADDITIONAL PROPERTY; RELEASE OF BATON ROUGE HOTEL
PROPERTY.
a. Until Bank Facility Termination, Borrowers
shall not remove, demolish, materially alter, discontinue the use of, sell,
transfer, assign, hypothecate or otherwise dispose of to any Person, any part
of their respective properties and assets necessary for the continuance of
their respective businesses, as presently conducted and as presently
contemplated, other than in the normal course of Borrowers' business and as
provided in Sections 5.01, 5.07 and 6.13.
b. In the event any member of the Borrower
Consolidation, or any of them, or any Subsidiary thereof, shall acquire any
other real property, any other material Vessel or rights to the use of real
property, any material Vessel or any interest therein which is used in any
material manner in connection with the Hotel/Casino Facilities, such member
of the Borrower Consolidation shall or shall cause such Subsidiary, as
applicable, concurrently with the acquisition of such real property or Vessel
or the rights to the use of such real property or Vessel, to execute or cause
the execution of such documents as may be necessary to add such real property
or rights to the use of real property as Collateral under the Bank Facilities.
c. Notwithstanding anything herein contained to
the contrary, upon the written request of an Authorized Representative and so
long as no Default or Event of Default shall have occurred and remains
continuing, Agent Bank shall, without further consent or authorization of the
Banks, release the Baton Rouge Hotel Property as Collateral under the
Security Documentation on the condition that concurrently with such release,
title to the Baton Rouge Hotel Property is contributed to an Unrestricted
Subsidiary or conveyed to another Person which is not a member of the
Borrower Consolidation. In no event shall any member of the Borrower
Consolidation make any additional Investment in, to or for the benefit of the
Baton Rouge Hotel Property prior to such contribution or conveyance, other
than in connection with its continued use and maintenance as a parking lot.
- 108 -
Section 5.07. REPAIR OF PROPERTIES AND ASSETS. Until Bank
Facility Termination, Borrowers shall, at their own cost and expense, (a)
maintain, preserve and keep in a manner consistent with hotel and gaming casino
operating practices generally applicable to hotel/casino operations operating in
the jurisdictions in which such properties are located, their respective assets
and properties, including, but not limited to, the Collateral and all FF&E owned
or leased by Borrowers in good and substantial repair, working order and
condition, ordinary wear and tear excepted, (b) from time to time, make or cause
to be made, all necessary and proper repairs, replacements, renewals,
improvements and betterments to the Hotel/Casino Facilities, and (c) from time
to time, make such substitutions, additions, modifications and improvements as
may be necessary and as shall not materially impair the structural integrity,
operating efficiency and economic value of said assets included within the
Hotel/Casino Facilities. All alterations, replacements, renewals, or additions
made pursuant to this Section 5.07 shall become and constitute a part of said
assets and property and subject, INTER ALIA, to the provisions of Section 5.01
and subject to the lien of the Security Documentation.
Section 5.08. FINANCIAL STATEMENTS; REPORTS; CERTIFICATES
AND BOOKS AND RECORDS.
a. Until Bank Facility Termination, the Borrower
Consolidation shall, unless the Agent Bank (with the written approval of the
Requisite Lenders) otherwise consents, at Borrowers' sole expense, deliver to
the Agent Bank and each of the Lenders a full and complete copy of each of
the following and shall comply with each of the following financial
requirements:
(i) As soon as practicable, and in any
event within forty-five (45) days after the end of the first
three (3) Fiscal Quarters of each Fiscal Year, (a) the
consolidated balance sheet of the Borrower Consolidation as of
the end of such Fiscal Quarter and the consolidated statement
of operations for such Fiscal Quarter, and a statement of cash
flows for the portion of the Fiscal Year ended with such
Fiscal Quarter and (b) the consolidating balance sheets and
statements of operations of the Borrower Consolidation as of
and for the portion of the Fiscal Year ended with such Fiscal
Quarter, all in reasonable detail. Such financial statements
shall be certified by an Authorized Representative of the
Borrower Consolidation as fairly presenting the financial
condition, results of operations and cash flows of the
Borrower Consolidation in accordance with GAAP (other than
footnote disclosures) as at such date and for such periods,
subject only to normal year-end accruals and audit
adjustments;
- 109 -
(ii) As soon as practicable, and in any
event within forty-five (45) days after the end of each Fiscal
Quarter (including the fourth (4th) Fiscal Quarter in any
Fiscal Year), a pricing certificate in the form marked
"Exhibit G", affixed hereto and by this reference incorporated
herein and made a part hereof (the "Pricing Certificate")
setting forth a preliminary calculation of the Leverage Ratio
as of the last day of such Fiscal Quarter, and providing
reasonable detail as to the calculation thereof, which
calculations shall be based on the preliminary unaudited
financial statements of the Borrower Consolidation for such
Fiscal Quarter, and as soon as practicable thereafter, in the
event of any material variance in the actual calculation of
the Leverage Ratio from such preliminary calculation, a
revised Pricing Certificate setting forth the actual
calculation thereof; provided, however, that in the event that
Borrowers do not deliver a Pricing Certificate when due, then
until (but only until) such Pricing Certificate is delivered
as provided herein, the Leverage Ratio shall be deemed, for
the purpose of determining the Applicable Margin, to be
greater than 4.25 to 1.0 and the Applicable Margin determined
with respect thereto.
(iii) As soon as practicable, and in any
event within one hundred twenty (120) days after the end of
each Fiscal Year, (i) the consolidated and consolidating
balance sheet, statement of operations, statement of
stockholders' equity and cash flows (reconciled with year-end
audited statements) of the Borrower Consolidation as at the
end of such Fiscal year, all in reasonable detail. Such
financial statements shall be prepared in accordance with GAAP
and shall be accompanied by a report of independent public
accountants of recognized standing selected by Borrowers and
reasonably satisfactory to the Agent Bank (it being understood
that any "Big 5" accounting firm shall be automatically deemed
satisfactory to the Agent Bank), which report shall be
prepared in accordance with generally accepted auditing
standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor
to any other qualification or exception determined by the
Requisite Lenders in their good faith business judgment to be
adverse to the interests of the Banks. Such accountants'
report shall be accompanied by a certificate stating that, in
making the examination pursuant to generally accepted auditing
standards necessary for the certification of such financial
statements and such report, such accountants have obtained no
knowledge of any Default or, if, in the opinion of such
accountants, any such Default shall exist, stating the nature
and status of such Default, and stating that such accountants
have reviewed the Financial Covenants as at the end of such
Fiscal Year (which shall accompany such certificate) under
Sections 6.01 through 6.11, have read
- 110-
such Sections (including the definitions of all
defined terms used therein) and that nothing has come to the
attention of such accountants in the course of such
examination that would cause them to believe that the same
were not calculated by the Borrower Consolidation in the
manner prescribed by this Credit Agreement. Such financial
statements shall be certified by an Authorized Representative
of the Borrower Consolidation in the same manner as required
with respect to financial statements delivered pursuant to
Section 5.08(a)(i);
(iv) As soon as practicable, and in any
event no later than forty-five (45) days following the
commencement of each Fiscal Year, a budget (including a
Capital Expenditure budget) and projection by Fiscal Quarter
for that Fiscal Year and by Fiscal Year for the next occurring
two (2) consecutive Fiscal Years, INCLUDING for the first such
Fiscal Year, projected consolidated and consolidating balance
sheets, statements of operations and statements of cash flow
of the Borrower Consolidation, all in reasonable detail;
(v) Concurrently with the financial
statements and reports required pursuant to Sections
5.08(a)(i) and 5.08(a)(iii), a Compliance Certificate signed
by an Authorized Representative;
(vi) As soon as practicable, and in any
event within forty-five (45) days (or, in the case of the
fourth (4th) Fiscal Quarter in each Fiscal Year, ninety (90)
days) after the end of each Fiscal Quarter, a written report
(to the extent not reported under Section 5.08(vii)
hereinbelow), in form and detail reasonably acceptable to the
Agent Bank, with respect to the status of each New Venture,
including the amounts of New Venture Capital Expenditures and
New Venture Investments made, and reasonably anticipated to be
made, with respect thereto; and
(vii) Promptly after the same are
available, copies of each annual report, proxy or financial
statement or other report or communication that shall have
been sent to the stockholders of Argosy, and copies of all
annual, regular, periodic and special reports (including,
without limitation, each 10Q and 10K report) and registration
statements which Argosy shall have filed or be required to
file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, and not otherwise required to be delivered to the
Banks pursuant to other provisions of this Section 5.08.
- 111 -
b. Until Bank Facility Termination, Borrowers,
and each of them, shall keep and maintain complete and accurate books and
records in accordance with GAAP in all material respects, consistently applied.
Borrowers, and each of them, shall permit Banks and any authorized
representatives of Banks to have reasonable access to and to inspect, examine
and make copies of the books and records, any and all accounts, data and other
documents of Borrowers and to consult with Borrowers and Borrowers' accountants
and auditors at all reasonable times upon the giving of reasonable notice of
such intent. In addition: (i) in the event of the occurrence of any Default or
Event of Default, or (ii) in the event any Material Adverse Change occurs,
Borrowers shall promptly, and in any event within three (3) Banking Business
Days after actual knowledge thereof by the corporate controller or a senior
executive officer, notify Agent Bank in writing of such occurrence.
c. Until Bank Facility Termination, Borrowers,
and each of them, shall furnish to Agent Bank, with sufficient copies for
distribution to each of the Banks any financial information or other information
bearing on the financial status of the Borrowers or their Subsidiaries, or any
of them, which is reasonably requested by Agent Bank or Requisite Lenders.
Section 5.09. INSURANCE. Until Bank Facility Termination,
Borrowers shall obtain, or cause to be obtained, and shall maintain or cause to
be maintained with respect to the Collateral, including without limitation, the
Vessels, at their own cost and expense, and shall deposit with Agent Bank on or
before the Closing Date:
a. PROPERTY INSURANCE. Borrowers shall
maintain a special causes of loss (ISO form or equivalent), perils policy
covering the buildings and improvements, and any other permanent structures
for one hundred percent (100%) of the replacement cost. Borrowers shall
maintain a Fifty Million Dollar ($50,000,000.00) sublimit of coverage for the
peril of earthquake covering the Collateral (this includes coverage for real
property, personal property and business interruption). Upon the request of
Agent Bank, replacement cost for insurance purposes will be established by an
independent appraiser mutually selected by Borrowers and Agent Bank. The
policy will include Agreed Amount (waiving co-insurance), replacement cost
valuation and building ordinance endorsements. The policy will include a
standard mortgagee clause (ISO form or equivalent, i.e. Borrowers' Acts will
not impair Mortgagee's right to recover, exclusive payment of loss to
Mortgagee and automatic notice of cancellation/non-renewal to Mortgagee) and
provide that all losses in excess of Five Hundred Thousand Dollars
($500,000.00) be adjusted with the Agent Bank. The Borrowers waive any and
all rights of subrogation against Banks resulting from losses to property.
The Borrower Consolidation shall also maintain or cause to be maintained with
respect to each of the Hotel/Casino Facilities which is located within a
flood zone that participates in the National Flood Insurance Program (FEMA),
that maximum
- 112 -
amount of flood insurance coverage available thereunder that complies
with any applicable regulations of the Board of Governors of the Federal Reserve
System.
b. PERSONAL PROPERTY (INCLUDING MACHINERY,
EQUIPMENT, FURNITURE, FIXTURES, STOCK). Borrowers shall maintain a special
causes of loss perils "All Risk" property coverage for all personal property
owned, leased or for which Borrowers are legally liable. The coverage will
include a lenders' loss payable endorsement in favor of Agent Bank.
The policy providing real property and personal
property coverages, as specified in 5.09(a) and (b) hereinabove, may include
a deductible of no more than One Hundred Thousand Dollars ($100,000.00) for
any single occurrence. Earthquake deductibles can be no more than two percent
(2%) of insured value, if a separate deductible applies.
c. BUSINESS INTERRUPTION/EXTRA EXPENSE. The
Borrower Consolidation shall maintain with respect to each Restricted
Subsidiary Venture which is a land based casino/gaming operation, maintain
combined Business Interruption/Extra Expense coverage with a limit
representing no less than seventy-five percent (75%) of the projected annual
net profit plus continuing expenses (including debt service) for each such
Restricted Subsidiary Venture. Such coverage shall include extensions for off
premises power losses at Two Million Dollars ($2,000,000.00) and extended
period of indemnity of one hundred twenty (120) days endorsement. These
coverages may have deductible of no greater than forty-eight (48) hours, or
One Hundred Thousand ($100,000.00), if a separate deductible applies. This
coverage will be specifically endorsed to include Agent Bank as Loss Payee or
collateral assignee.
d. BOILER AND MACHINERY. Borrowers shall
maintain a Boiler and Machinery policy for the Hotel/Casino Facilities
written on a Comprehensive Form with a combined direct and indirect limit of
no less than Twenty-Five Million Dollars ($25,000,000.00). The policy shall
include extensions for Agreed Amount (waiving co-insurance) and Replacement
Cost Valuation. The policy may contain deductibles of no greater than Fifty
Thousand Dollars ($50,000.00) direct and forty-eight (48) hours indirect.
e. CRIME INSURANCE. Borrowers shall obtain a
comprehensive crime policy, including the following coverages:
(i) employee dishonesty - Three Million Dollars
($3,000,000.00);
(ii) money and securities (inside) - One Million
Dollars ($1,000,000.00);
- 113 -
(iii) money and securities (outside) - One Million
Dollars ($1,000,000.00);
(iv) depositor's forgery - Three Million Dollars
($3,000,000.00);
(v) computer fraud - Three Million Dollars
($3,000,000.00).
The policy must be amended so that money is defined
to include "tokens and chips". The policy may contain deductibles of no greater
than Five Hundred Thousand Dollars ($500,000.00) for coverages (i), (iv) and (v)
listed above and One Hundred Thousand Dollars ($100,000.00) for coverages (ii)
and (iii) listed above.
f. COMMERCIAL GENERAL LIABILITY (1998 ISO FORM
OR EQUIVALENT). Borrowers shall maintain a Commercial General Liability
policy with a One Million Dollar ($1,000,000.00) combined single limit for
bodily injury and property damage, including Products Liability, Contractual
Liability, and all standard policy form extensions. The policy must provide a
Two Million Dollar ($2,000,000.00) general aggregate (per location, if
multi-location risk) and be written on an "occurrence form". The policy will
be extended to provide watercraft Liability for permanently moored barges
while stationary. The policy will also include extensions for Liquor Legal
Liability and Employee Benefits Legal Liability, Innkeepers Legal and Safe
Deposit Box Legal coverages. If the general liability policy contains a
self-insured retention, it shall be no greater than Fifty Thousand Dollars
($50,000.00) per occurrence, with an aggregate retention of no more than One
Million Dollars ($1,000,000.00) including expenses.
The policy shall be endorsed to include Agent Bank as
an additional insured on behalf of the Banks. Definition of additional insured
shall include all officers, directors, employees, agents and representatives of
the additional insured. The coverage for additional insured shall apply on a
primary basis irrespective of any other insurance whether collectible or not
(ISO Endorsement Form CG 20261185 Additional Insured - Designated Person or
Organization or Equivalent).
g. AUTOMOBILE. Borrowers shall maintain a
comprehensive Automobile Liability Insurance Policy written under coverage
"symbol 1", providing a One Million Dollar ($1,000,000.00) combined single
limit for bodily injury and property damage covering all owned, non-owned and
hired vehicles of the Borrowers. If the policy contains a self insured
retention it shall be no greater than Twenty-Five Thousand Dollars
($25,000.00) per occurrence, with an aggregate retention of no more than One
Million Dollars ($1,000,000.00) including expenses. The following additional
coverages must be purchased by Borrowers:
- 114 -
(i) GARAGEKEEPERS LEGAL LIABILITY. Evidence that
Borrowers, or each contracting party with whom any member of
the Borrower Consolidation has entered into an agreement for
valet and other parking related services at any of the
Hotel/Casino Facilities, maintains coverage in the amount of a
One Million Dollar ($1,000,000.00) limit, or more, for
comprehensive and collision coverages for physical damage to
vehicles in the Borrowers', or such contracting party, care,
custody and control. Each of such policies can be subject to a
deductible of no greater than Five Thousand Dollars
($5,000.00) for each auto and Twenty-Five Thousand Dollars
($25,000.00) for each loss.
h. WORKERS COMPENSATION AND EMPLOYERS
LIABILITY INSURANCE. Borrowers shall maintain a standard workers compensation
policy covering the states of Indiana, Illinois, Iowa, Missouri and Louisiana
and any other state where the company is operating, including employers
liability coverage subject to a limit of no less than One Million Dollars
($1,000,000.00) each employee, One Million Dollars ($1,000,000.00) each
accident, One Million Dollars ($1,000,000.00) policy limit. The policy shall
include endorsements for Voluntary Compensation, Stop Gap Liability,
Long-Shoreman's and Harbors Workmans Compensation Act and Maritime Coverages (as
applicable). If the Borrowers have elected to self-insure Workers Compensation
coverage in any of the States of Indiana, Illinois, Iowa, Missouri and Louisiana
(or any other state), the Agent Bank must be furnished with a copy of the
certificate from the state(s) permitting self-insurance and evidence of a Stop
Loss Excess Workers Compensation policy with a specific retention of no greater
than Three Hundred Thousand Dollars ($300,000.00) per occurrence.
i. MARINE INSURANCE (FOR ALL VESSELS THAT ARE
OWNED OR LEASED BY ANY MEMBER OF THE BORROWER CONSOLIDATION OR FOR WHICH ANY
MEMBER OF THE BORROWER CONSOLIDATION IS LEGALLY LIABLE).
(i) HULL AND MACHINERY COVERAGE. This policy will
provide the broadest possible scope of property coverage
available including all Traditional Commercial Hull insuring
conditions, American Institute clauses (including liner
negligence, SR&CC, vandalism and theft clauses) covering the
vessel for physical damage at a value that represents one
hundred percent (100%) of the replacement cost for each
Vessel. The policy will include Agreed Amount (waving
co-insurance) and replacement cost valuation endorsements.
The policy shall include appropriate Mortgagee, Breach of
Warranty and Loss Payee endorsements in favor of Agent Bank.
The policy may contain a deductible of no greater than two
percent (2%) of insured value per occurrence.
- 115 -
(ii) CASINO BOAT BUSINESS INTERRUPTION. Borrowers
will purchase, or cause to be purchased by TIGC with respect
to the Lawrenceburg Casino Facilities, business interruption
coverage under a "comprehensive facility form" indemnifying
each applicable Vessel operation for loss of net profits and
continuing expenses (including debt service) for loss arising
from casualty to the applicable Vessel and any other cause
beyond the control of the Borrowers. The limit purchase must
represent no less than seventy-five percent (75%) of the
annual net profit plus continuing expenses attributable to
TIGC's proportionate share of partnership net profit and
expenses with respect to the Lawrenceburg Casino Facilities
and fifty percent (50%) of the annual net profit plus
continuing expenses with respect to each of the other
Hotel/Casino Facilities. The policy or policies may have a
deductible of no greater than fourteen (14) days for each
Vessel at the Lawrenceburg Casino Facilities and thirty (30)
days for each other Vessel. This coverage will be specifically
endorsed to include Agent Bank as "Loss Payee".
(iii) PROTECTION AND INDEMNITY. Protection and
Indemnity coverage will be written with a One Million Dollar
($1,000,000.00) combined single limit for bodily injury and
property damage, including all standard policy form extensions
and be supplemented by Bumbershoot Liability coverage as
described in Paragraph l below. The policy shall be written on
an occurrence form. The Agent Bank and Banks will be included
as additional insureds under the policy.
(iv) COMPREHENSIVE POLLUTION LIABILITY. Borrowers
shall purchase Comprehensive Pollution Liability coverage with
a limit of no less than Five Million Dollars ($5,000,000.00)
per incident covering any loss or damage resulting from any
discharge, emission, spillage or leakage on or into water,
including governmental mandated clean up and be supplemented
by Bumbershoot Liability coverage as described in Paragraph l
below. The Agent Bank and Banks will be included as additional
insureds under the policy.
j. UNDERGROUND STORAGE TANK LIABILITY. In
the event any underground storage tanks are located on or at any of the
Hotel/Casino Facilities, Borrowers shall maintain an underground storage tank
liability policy providing first party (property damage) and third party
(bodily/property damage) coverages for environmental claims resulting from
underground storage tanks at the Hotel/Casino Facilities. If required to be
maintained hereunder, the policy will include coverage for all governmental
and regulatory agency mandated clean ups. If required to be maintained
hereunder, the policy shall provide limits of no less than Five Million
- 116 -
Dollars ($5,000,000.00) each incident, Five Million Dollars ($5,000,000.00)
in the aggregate, with a sublimit of One Million Two Hundred Fifty Thousand
Dollars ($1,250,000.00) for covering defense expenses for first and third
party coverages. If required to be maintained hereunder, the policy may
contain a deductible of no greater than Five Hundred Thousand Dollars
($500,000.00) for first and third party coverages.
k. If Borrowers' general liability and
automobile policies include a self-insured retention, it is agreed and fully
understood that Borrowers are solely responsible for payment of all amounts due
within said self-insured retentions. Any Indemnification/Hold Harmless provision
is extended to cover all liabilities associated with said self-insured
retentions.
l. UMBRELLA/BUMBERSHOOT LIABILITY. An
Umbrella/Bumbershoot Liability policy shall be purchased with a limit of not
less than One Hundred Fifty Million Dollars ($150,000,000.00) providing excess
coverage over all limits and coverages indicated in paragraphs (f), (g), (h),
(i)(iii) and (iv) above. The limits can be secured by a combination of Primary
and Excess Umbrella/Bumbershoot policies, provided that all layers follow form
with the underlying policies indicated in (f), (g), (h) and (i)(iii) and (iv)
and are written on an "occurrence" form. This policy shall be endorsed to
include the Agent Bank as an additional insured on behalf of the Banks.
m. All policies indicated above shall be
written with insurance companies licensed and admitted to do business in all
states where the Borrower Consolidation, or any of them, is operating and shall
be rated no lower than "A XII" in the most recent addition of A.M. Best's and
"AA" in the most recent edition of Standard & Poor's, or such other carrier
reasonably acceptable to Agent Bank. All policies discussed above shall be
endorsed to provide that in the event of a cancellation, non-renewal or material
modification, Agent Bank shall receive thirty (30) days prior written notice
thereof. The Borrowers shall furnish Agent Bank with Certificates of Insurance
executed by an authorized agent evidencing compliance with all insurance
provisions discussed above on an annual basis. The Borrowers, shall also furnish
policy endorsements evidencing Agent Bank's appropriate status (mortgagee, loss
payee, additional insured, etc.) under each policy. Certificates of Insurance
executed by an authorized agent of each carrier providing insurance evidencing
continuation of all coverages will be provided on the Closing Date and annually
on or before ten (10) days prior to the expiration of each policy. All
certificates and other notices related to the insurance program shall be
delivered to Agent Bank concurrently with the delivery of such certificates or
notices to such carrier or to Borrowers, or any of them, as applicable.
n. Any other insurance reasonably requested by
Agent Bank or Requisite Lenders in such amount and covering such risks as may be
reasonably requested.
- 117 -
Section 5.10. TAXES. Throughout the term of the Credit
Facility, Borrowers shall prepare and timely file or cause to be prepared and
timely filed all material federal, state and local tax returns required to be
filed by them, and Borrowers shall pay and discharge prior to delinquency all
material taxes, assessments and other governmental charges or levies imposed
upon them, or in respect of any of their respective properties and assets except
such taxes, assessments and other governmental charges or levies, if any, as are
being contested in good faith by Borrowers in the manner which is set forth for
such contests by Section 4.07 herein.
Section 5.11. RELEASE OF SENIOR INDENTURE SECURITY DOCUMENTS.
a. Each of the Senior Indenture Security
Documents described on the Schedule of Senior Indenture Security Documents
attached hereto as Schedule 5.11, together with all other Liens securing
repayment or performance under the Senior Indenture and First Mortgage Notes
shall be fully released, terminated and reconveyed on or before October 1, 2000
and the Agent Bank shall have received such documents and other evidence thereof
as it shall reasonably require on or before such date.
b. Concurrently with the release, termination
and reconveyance of the Senior Indenture Security Documents as provided in
subsection (a) hereinabove, Borrowers agree that all Liens and other security
interests held by any member of the Borrower Consolidation securing repayment of
any one or more of the Intercompany Notes, shall be subordinated in priority and
right to payment to the Security Documentation.
Section 5.12. LAWRENCEBURG CASINO FACILITIES.
a. The Borrower Consolidation shall not sell
less than its entire ownership/partnership interest in TIGC or the IGCLP and the
Lawrenceburg Casino Facilities under any Lawrenceburg Sale consummated by them,
or any of them.
b. So long as the Lawrenceburg Sale has not
occurred, in no event shall TIGC approve the incurrence of any Indebtedness by
IGCLP which prohibits or otherwise restricts by its terms the ability of IGCLP:
(i) to pay dividends or make any other Distributions to its partners which
Distributions are permitted by applicable Gaming Laws, or (ii) to pay any
Indebtedness owed or owing to TIGC.
Section 5.13. FURTHER ASSURANCES. Borrowers, Agent
Bank and each of the Banks will, at the expense of the Borrowers, do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, such amendments or supplements hereto or to any of the Loan
Documents and such further documents, instruments and transfers as any such
party may reasonably require for the curing of any defect in the execution or
- 118 -
acknowledgment hereof or in any of the Loan Documents, or in the description
of the Collateral or for the proper evidencing of giving notice of each lien
or security interest securing repayment of the Bank Facilities. Further, upon
the execution and delivery of the Mortgages and each of the Loan Documents
and thereafter, from time to time, Borrowers shall cause the Mortgages and
each of the Loan Documents and each amendment and supplement thereto to be
filed, registered and recorded and to be refiled, re-registered and
re-recorded in such manner and in such places as may be reasonably required
by the Agent Bank, in order to publish notice of and fully protect the liens
of the Mortgages and the Loan Documents and to protect or continue to perfect
the security interests created by the Mortgages and Loan Documents in the
Collateral and to perform or cause to be performed from time to time any
other actions required by law and execute or cause to be executed any and all
instruments of further assurance that may be necessary for such publication,
perfection, continuation and protection.
Section 5.14. INDEMNIFICATION. Borrowers agree to and do
hereby jointly and severally indemnify, protect, defend and save harmless
Agent Bank and each of the Banks and their respective directors, trustees,
officers, employees, agents, attorneys and shareholders (individually an
"Indemnified Party" and collectively the "Indemnified Parties") from and
against any and all losses, damages, expenses or liabilities of any kind or
nature from any investigations, suits, claims, demands or other proceedings,
including reasonable counsel fees incurred in investigating or defending such
claim, suffered by any of them and caused by, relating to, arising out of,
resulting from, or in any way connected with this Credit Agreement, with any
other Loan Document or with the transactions contemplated herein and thereby;
provided, however, Borrowers shall not be obligated to indemnify, protect,
defend or save harmless an Indemnified Party if, and to the extent, the loss,
damage, expense or liability was caused by (a) the gross negligence or wilful
misconduct of such Indemnified Party, or (b) the breach of this Credit
Agreement or any other Loan Document by such Indemnified Party as determined
by a court of competent jurisdiction in a final non-appealable judgment or
order. In case any action shall be brought against any Indemnified Party
based upon any of the above and in respect to which indemnity may be sought
against Borrowers, Agent Bank shall promptly notify Borrowers in writing, and
Borrowers shall assume the defense thereof, including the employment of
counsel selected by Borrowers and reasonably satisfactory to Agent Bank, the
payment of all costs and expenses and the right to negotiate and settle any
such action with the prior written consent of Agent Bank, which consent shall
not be unreasonably withheld. Upon reasonable determination made by an
Indemnified Party that such counsel would have a conflict representing such
Indemnified Party and Borrowers, the applicable Indemnified Party shall have
the right to employ, at the expense of Borrowers, separate counsel in any
such action and to participate in the defense thereof. Borrowers shall not be
liable for any settlement of any such action effected without their consent,
which consent shall not be unreasonably withheld. In the event that any
Person is adjudged by a court of competent jurisdiction not to have been
entitled to
- 119 -
indemnification under this Section 5.14, it shall repay all amounts with
respect to which it has been so adjudged. If and to the extent that the
indemnification provisions contained in this Section 5.14 are unenforceable
for any reason, the Borrowers hereby agree to make the maximum contribution
to the payment and satisfaction of such obligations that is permissible under
applicable law. The provisions of this Section 5.14 shall survive the
termination of this Credit Agreement and the repayment of the Credit Facility.
Section 5.15. INSPECTION OF THE COLLATERAL AND APPRAISAL.
a. Subject to compliance with all applicable
Gaming Laws, at all times during the term of the Credit Facility, Borrowers
shall provide or cause to be provided to Banks and any authorized
representatives of Banks, accompanied by representatives of Borrowers and
coordinated with Agent Bank, the reasonable right of entry and free access to
the Hotel/Casino Facilities to inspect same on reasonable prior notice to
Borrowers.
b. If at any time any Qualified Appraisal of
the Hotel/Casino Facilities, or any of them, is required to be made by any
banking regulatory authority or determined to be necessary by Agent Bank or
Requisite Lenders after the occurrence and continuance of an Event of Default,
Borrowers agree to pay all fees, costs and expenses incurred by Agent Bank in
connection with the preparation of such Qualified Appraisal.
Section 5.16. COMPLIANCE WITH OTHER LOAN DOCUMENTS,
EXECUTION OF SUBSIDIARY GUARANTIES AND PLEDGE OF RESTRICTED SUBSIDIARY STOCK.
Borrowers shall comply with each and every term, condition and agreement
contained in the Loan Documents to which they, or any of them, are a party.
Borrowers shall notify Agent Bank in writing on or before ten (10) days
following the creation thereof, of each Restricted Subsidiary and
Unrestricted Subsidiary, together with a description of each New Venture
owned or to be acquired by such Restricted Subsidiary or Unrestricted
Subsidiary. Borrowers shall further cause each Restricted Subsidiary created
or otherwise occurring from time to time following the Closing Date to join
in the execution of the Subsidiary Guaranty in favor of Agent Bank and to
deliver the original thereof, or a duly executed Certificate of Joinder in
the form attached to the Subsidiary Guaranty as Exhibit A, to Agent Bank
promptly, but in no event later than thirty (30) days following the creation
or other occurrence of such Restricted Subsidiary. Argosy shall execute or
cause to be executed a Restricted Subsidiary Security Agreement no later than
thirty (30) days following the creation or other occurrence of each
Restricted Subsidiary. In the case of a Restricted Subsidiary which is the
holder of Gaming Permits, Argosy shall use its best efforts to cause all
necessary Governmental Authorities to consent to the delivery of the
applicable stock certificates, together with a stock power executed in blank,
to Agent Bank as soon as reasonably practical. Argosy shall deliver the
applicable stock certificates to Agent Bank promptly following receipt of
such approval. In
- 120 -
the case of a Restricted Subsidiary that is not the holder of any
Gaming Permits, the applicable stock certificates, together with a stock power
executed in blank, shall be delivered to Agent Bank concurrently with the
execution of the Restricted Subsidiary Security Agreement. In each case, the
Restricted Subsidiary Security Agreements and delivery of the applicable stock
certificates shall be subject to the Senior Indenture Security Documents and
Argosy's obligations thereunder until such Senior Indenture Security Documents
have been terminated and released.
Section 5.17. SUITS OR ACTIONS AFFECTING BORROWERS. Until
Bank Facility Termination, Borrowers shall promptly advise Agent Bank in writing
within ten (10) days of an executive officer of any member of the Borrower
Consolidation obtaining actual knowledge of (a) any Significant Litigation, (b)
any material labor controversy resulting in or threatening to result in a strike
against the Hotel/Casino Facilities, (c) any written proposal by any
Governmental Authority to acquire any of the material assets or business of any
member of the Borrower Consolidation, and (d) any tax lien contests involving
amounts in excess of One Million Dollars ($1,000,000.00).
Section 5.18. OCCURRENCE OF SENIOR SUBORDINATED NOTES
EFFECTIVE DATE AND REQUIRED PAYMENTS FROM PROCEEDS OF SENIOR SUBORDINATED NOTES.
As of the Closing Date, Lenders do hereby consent to the issuance of the Senior
Subordinated Notes by Argosy in accordance with and pursuant to the New
Indenture, in the form of the Senior Subordinated Notes and New Indenture (in
form and content as reviewed and approved by Agent Bank consistent with the
requirement contained in the definition of Subordinated Debt), up to the
aggregate outstanding amount at any time of Three Hundred Million Dollars
($300,000,000.00). The Senior Subordinated Notes Effective Date shall occur
prior to or concurrently with the Closing Date. Concurrently with the Senior
Subordinated Notes Effective Date, Borrowers shall cause the First Mortgage
Notes Defeasance to occur.
Section 5.19. CONSENTS OF AND NOTICE TO GAMING AUTHORITIES.
Borrowers shall comply in all material respects with all applicable statutes,
rules and regulations requiring reports and disclosures to all applicable Gaming
Authorities; provided, however, that disciplinary complaints against any member
of the Borrower Consolidation not involving the potential loss of a Gaming
Permit shall not be deemed a violation of this Section 5.19.
Section 5.20. TRADENAMES, TRADEMARKS AND SERVICEMARKS.
Borrowers shall not assign or in any other manner alienate their interest in any
material tradenames, trademarks or servicemarks relating or pertaining to the
Hotel/Casino Facilities during the term of the Credit Facility, except pursuant
to the Security Documentation. Borrowers shall not change their names without
first giving written notice to Agent Bank, together with evidence reasonably
satisfactory to the Agent Bank that all notices and other documents
- 121 -
required to be delivered, recorded or filed in order to perfect and protect the
security interest granted by the Borrowers to the Banks in such trademarks,
tradenames and servicemarks and the other Collateral have been so delivered,
recorded and/or filed.
Section 5.21. NOTICE OF HAZARDOUS MATERIALS. Within thirty
(30) days after an executive officer of the Borrowers obtaining actual knowledge
thereof, Borrowers shall immediately advise Agent Bank in writing and deliver a
copy of (a) any and all enforcement, clean-up, removal or other governmental or
regulatory actions expected to cost in excess of One Million Dollars
($1,000,000.00) instituted, completed or threatened pursuant to any applicable
federal, state or local laws, ordinances or regulations relating to any
Hazardous Materials (as defined in the Environmental Certificate) affecting the
Collateral ("Hazardous Materials Laws"); and (b) all claims made or threatened
by any third party against Borrowers or the Hotel/Casino Facilities in excess of
One Million Dollars ($1,000,000.00) relating to damage, contribution, cost
recovery compensation, loss or injury resulting from any Hazardous Materials
(the matters set forth in clauses (a) and (b) above are hereinafter referred to
as "Hazardous Materials Claims").
Section 5.22. COMPLIANCE WITH STATUTES, ETC. Argosy will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
Governmental Authorities, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliance which would not, in the aggregate,
reasonably be expected to result in a Material Adverse Change on the business,
operations, property, assets, or financial condition of the Borrower
Consolidation taken as a whole.
Section 5.23. COMPLIANCE WITH ACCESS LAWS.
a. Borrowers agree that Borrowers, the
Hotel/Casino Facilities shall at all times comply in all material respects
with the requirements of the Americans with Disabilities Act of 1990; the
Fair Housing Amendments Act of 1988; and other federal, state or local laws
or ordinances related to disabled access; or any statute, rule, regulation,
ordinance, order of Governmental Authorities, or order or decree of any court
adopted or enacted with respect thereto, as now existing or hereafter amended
or adopted (collectively, the "Access Laws"). At any time (but no more
frequently than once annually), Agent Bank may require a certificate of
compliance with the Access Laws. Agent Bank may also require a certificate of
compliance (but no more frequently than once annually) with the Access Laws
from an architect, engineer, or other third party acceptable to Agent Bank.
b. Borrowers agree to give prompt written notice
to Agent Bank of the receipt by Borrowers of any claims of violation of any
of the Access Laws and of the
- 122 -
commencement of any proceedings or investigations which relate to compliance
with any of the Access Laws (except proceedings or investigations which do
not involve material claims of violation or non-compliance).
c. Borrowers shall indemnify, defend and hold
harmless Indemnified Parties from and against any and all claims, demands,
damages, costs, expenses, losses, liabilities, penalties, fines and other
proceedings including, without limitation, reasonable attorneys' fees and
expenses arising directly or indirectly from or out of or in any way connected
with any failure of the Hotel/Casino Facilities to comply with any of the Access
Laws. The obligations and liabilities of Borrowers under this section shall
survive Bank Facility Termination, but shall terminate upon any satisfaction,
assignment, judicial or nonjudicial foreclosure proceeding, or delivery of a
deed in lieu of foreclosure for violations relating to conditions not in
existence as of the date of such satisfaction, assignment, judicial or
nonjudicial foreclosure proceeding or deed in lieu of foreclosure.
Section 5.24. DESIGNATION OF BANK FACILITIES AS DESIGNATED
SENIOR DEBT. Concurrently with the occurrence of the Senior Subordinated Notes
Effective Date, Argosy shall cause the Bank Facilities to be designated as
"Designated Senior Debt" as defined and described in the New Indenture pursuant
to an officers' certificate issued by Argosy and delivered to the trustee under
the New Indenture, all in accordance with the requirements and procedures set
forth in the New Indenture.
Section 5.25. PROHIBITION ON PREPAYMENT OR DEFEASANCE OF
SUBORDINATED DEBT. Notwithstanding anything contained in the Credit Agreement to
the contrary, no member of the Borrower Consolidation shall, except with the
prior written consent of the Requisite Lenders, purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking, defeasance or
other analogous fund for, the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the principal of
or interest on, or any other amount owing in respect of, the Senior Subordinated
Notes or required pursuant to the terms of any other Subordinated Debt, except
for: (a) regularly scheduled payments of principal and interest in respect of
such Senior Subordinated Notes required pursuant to the instruments evidencing
such Senior Subordinated Notes and the New Indenture or required pursuant to the
terms of any other Subordinated Debt, and (b) full payment of the Convertible
Notes on or before July 1, 2000.
Section 5.26. YEAR 2000 COMPLIANCE. Borrowers shall perform
all acts reasonably necessary to ensure that (i) Borrowers and the hotel casino
and related businesses conducted by Borrowers at the Hotel/Casino Facilities
become Year 2000 Compliant in a timely manner. Such acts shall include, without
limitation, performing a comprehensive review and assessment of all of
Borrowers' material systems and adopting a detailed plan, with itemized budget,
for the remediation, monitoring and testing of such systems. As used
- 123 -
in this paragraph, "Year 2000 Compliant" shall mean, in regard to any entity,
that all material software, hardware, firmware, equipment, goods or systems
of the Borrower Consolidation material to the business operations or
financial condition of the Borrower Consolidation, will properly perform date
sensitive functions before, during and after the year 2000. Borrowers shall,
promptly upon request, provide to Agent Bank such certifications or other
evidence of Borrowers' compliance with the terms of this paragraph as Agent
Bank or Requisite Lenders may from time to time reasonably require.
Section 5.27. ACCELERATION OF MATURITY DATE. In the event
Borrowers shall fail to fully pay or cause to be fully paid the Convertible
Notes and the Outstanding First Mortgage Notes on or before July 1, 2000, the
Maturity Date shall be automatically accelerated to July 1, 2000.
Section 5.28. RESTRICTION ON AMENDMENTS TO DEVELOPMENT
AGREEMENTS, PARTNERSHIP AGREEMENTS AND BATON ROUGE LEASES. No amendments or
modifications shall be made to, nor shall any agreement be made or entered into
to amend or modify any Development Agreements, Partnership Agreements or Baton
Rouge Leases without the prior written consent of Agent Bank, or if in the
opinion of Agent Bank such amendment or modification is material or in any
manner adverse to the Borrower Consolidation, or any of them, without the prior
written consent of Requisite Lenders, which consent shall not be unreasonably
withheld.
ARTICLE VI
FINANCIAL COVENANTS
From and after the Closing Date, until payment in full of all
sums owing hereunder and under the Notes and the occurrence of Bank Facilities
Termination, the Borrower Consolidation agrees, as set forth below, to comply or
cause compliance, in the case of the Argosy Consolidation, with the following:
Section 6.01. TOTAL LEVERAGE RATIO. Commencing as of the first
Fiscal Quarter ending subsequent to the Closing Date and continuing as of each
Fiscal Quarter end thereafter occurring until Bank Facilities Termination, the
Argosy Consolidation shall maintain a Total Leverage Ratio no greater than the
ratios described in Table A hereinbelow; provided that in the event of the
occurrence of the Lawrenceburg Buyout Effective Date commencing as of the first
Fiscal Quarter ending subsequent to the Lawrenceburg Buyout Effective Date and
continuing as of each Fiscal Quarter end thereafter occurring until Bank
Facilities Termination, the Argosy Consolidation shall maintain a Total Leverage
Ratio no greater than the ratios described in Table B hereinbelow, in either
case to be calculated as of the end of each Fiscal Quarter in accordance with
the following schedule:
- 124 -
PERIOD TABLE A TABLE B
- ------------------------------------------------------------------------------
MAXIMUM
MAXIMUM TOTAL TOTAL
FISCAL QUARTER LEVERAGE LEVERAGE
END RATIO RATIO
- ------------------------------------------------------------------------------
As of the Closing Date
through the Fiscal
Quarter ending
December 31, 1999
4.75 to 1.00 4.75 to 1.00
- ------------------------------------------------------------------------------
As of the Fiscal Quarter
ending March 31, 2000
through the Fiscal
Quarter ending
December 31, 2000
4.50 to 1.00 4.75 to 1.00
- ------------------------------------------------------------------------------
As of the Fiscal Quarter
ending March 31, 2001
through the Fiscal
Quarter ending
December 31, 2001
4.25 to 1.00 4.50 to 1.00
- ------------------------------------------------------------------------------
As of the Fiscal Quarter
ending March 31, 2002
through the Fiscal
Quarter ending
December 31, 2002
3.75 to 1.00 4.00 to 1.00
- ------------------------------------------------------------------------------
- 125 -
PERIOD TABLE A TABLE B
- ------------------------------------------------------------------------------
MAXIMUM
MAXIMUM TOTAL TOTAL
FISCAL QUARTER LEVERAGE LEVERAGE
END RATIO RATIO
- ------------------------------------------------------------------------------
As of the Fiscal Quarter
ending March 31, 2003
and as of the end of each
Fiscal Quarter thereafter
occurring until the
occurrence of Bank
Facilities Termination
3.50 to 1.00 3.75 to 1.00
==============================================================================
Section 6.02. SENIOR LEVERAGE RATIO. Commencing as of the
first Fiscal Quarter ending subsequent to the Closing Date and continuing as of
each Fiscal Quarter end until Bank Facilities Termination, the Argosy
Consolidation shall maintain a Senior Leverage Ratio no greater than the ratios
described in Table A hereinbelow; provided that in the event of the occurrence
of the Lawrenceburg Buyout Effective Date commencing as of the first Fiscal
Quarter ending subsequent to the Lawrenceburg Buyout Effective Date and
continuing as of each Fiscal Quarter end thereafter occurring until Bank
Facilities Termination, the Argosy Consolidation shall maintain a Total Leverage
Ratio no greater than the ratios described in Table B hereinbelow, in either
case to be calculated as of the end of each Fiscal Quarter in accordance with
the following schedule:
==============================================================================
PERIOD TABLE A TABLE B
- ------------------------------------------------------------------------------
MAXIMUM MAXIMUM
SENIOR SENIOR
FISCAL QUARTER LEVERAGE LEVERAGE
END RATIO RATIO
- ------------------------------------------------------------------------------
As of the Closing Date
through the Fiscal
Quarter ending
December 31, 2000
2.75 to 1.00 2.95 to 1.00
- ------------------------------------------------------------------------------
- 126 -
==============================================================================
PERIOD TABLE A TABLE B
- ------------------------------------------------------------------------------
MAXIMUM MAXIMUM
SENIOR SENIOR
FISCAL QUARTER LEVERAGE LEVERAGE
END RATIO RATIO
- ------------------------------------------------------------------------------
As of the Fiscal Quarter
ending March 31, 2001
through the Fiscal
Quarter ending
December 31, 2002
2.60 to 1.00 2.75 to 1.00
- ------------------------------------------------------------------------------
As of the Fiscal Quarter
ending March 31, 2003
and as of the end of each
Fiscal Quarter thereafter
occurring until the
occurrence of Bank
Facilities Termination
2.50 to 1.00 2.50 to 1.00
==============================================================================
Section 6.03. FIXED CHARGE COVERAGE RATIO. Commencing as of
the first Fiscal Quarter ending subsequent to the Closing Date and continuing as
of each Fiscal Quarter end until the occurrence of Bank Facilities Termination,
the Argosy Consolidation shall maintain a Fixed Charge Coverage Ratio no less
than 1.25 to 1.00; provided that in the event of the occurrence of the
Lawrenceburg Buyout Effective Date commencing as of the first Fiscal Quarter
ending subsequent to the Lawrenceburg Buyout Effective Date and continuing as of
each Fiscal Quarter end thereafter occurring until Bank Facilities Termination,
the Argosy Consolidation shall maintain a Fixed Charge Coverage Ratio no less
than 1.10 to 1.00.
Section 6.04. MINIMUM NET WORTH. The Argosy Consolidation
shall maintain as of the end of each Fiscal Quarter following the Closing Date,
a Net Worth equal to or greater than the sum of (a) ninety percent (90%) of the
Net Worth of the Argosy Consolidation as of the most recent Fiscal Quarter end
preceding the Closing Date, plus (b) seventy-five percent (75%) of Net Income of
the Argosy Consolidation after taxes realized as of each Fiscal Quarter end
occurring on and after the Closing Date (without
- 127 -
reduction for any net losses), plus (c) fifty percent (50%) of the proceeds
received in Cash or Cash Equivalents (net of reasonable expenses, including,
without limitation, underwriting commissions and discounts and legal and
accounting costs, if any) from all additional Equity Offerings made after the
Closing Date, less (d) financing costs, including, without limitation,
premiums, commissions, legal and accounting costs incurred by the Borrower
Consolidation in connection with the First Mortgage Notes Defeasance, full
payment of the Convertible Notes, the closing of the Credit Agreement and the
Bank Facilities (including, without limitation, the Commitment Increases and
Term Loans) and the New Indenture and any Subordinated Debt incurred
subsequent to the Closing Date, less (e) any adjustments to the book value of
AOLI, Jazz and/or CQP relating to the Baton Rouge Casino Facility.
Section 6.05. CAPITAL EXPENDITURE REQUIREMENTS.
a. During each Fiscal Year, commencing with
the Fiscal Year commencing January 1, 1999, the Borrower Consolidation shall
make or cause to be made, Non-Financed Capital Expenditures to the Argosy Owned
Facilities in a minimum aggregate amount equal to or greater than three percent
(3%) of Net Gaming Revenues ("Minimum Cap Ex Requirement") derived from the
Argosy Owned Facilities by the Borrower Consolidation during the immediately
preceding Fiscal Year, but in no event shall Non-Financed Capital Expenditures
to the Argosy Owned Facilities during any Fiscal Year exceed a maximum aggregate
amount equal to six percent (6%) of Net Gaming Revenues ("Maximum Cap Ex Limit")
derived from the Argosy Owned Facilities by the Borrower Consolidation during
the immediately preceding Fiscal Year; provided, however, to the extent the
Borrower Consolidation spends less than the Maximum Cap Ex Limit during any
Fiscal Year, the unused amount may be expended by the Borrower Consolidation for
Non-Financed Capital Expenditures to the Argosy Owned Facilities during the next
occurring Fiscal Year in addition to the Maximum Cap Ex Limit required during
the next occurring Fiscal Year. The amount of any such carryover shall be deemed
the first expenditures made during the next such ensuing Fiscal Year.
b. Notwithstanding and in addition to the
provisions set forth in Section 6.05(a) hereinabove, the Borrower
Consolidation may make the Capital Expenditures to the Argosy Owned
Facilities which are described on the Schedule of Excluded Capital
Expenditures, Schedule 6.05(b), from assets of the Borrower Consolidation and
from advances under the Bank Facilities.
c. During each Fiscal Year, commencing with the
Fiscal Year commencing January 1, 1999, the Borrower Consolidation shall
cause to be made Non- Financed Capital Expenditures to the Lawrenceburg
Casino Facilities in a minimum aggregate amount equal to Five Million Dollars
($5,000,000.00) during each Fiscal Year.
- 128 -
d. Notwithstanding anything contained to the
contrary in this Section 6.05, in no event shall the Borrower Consolidation
make any Capital Expenditures except to the extent permitted under the
definition of Aggregate Expenditure Availability.
Section 6.06. CONTINGENT LIABILITY(IES). Other than with
respect to the liability of IGC and TIGC in their respective capacities as the
general partners of BOSCLP and IGCLP, respectively, the Borrower Consolidation
shall not directly or indirectly incur any Contingent Liability(ies) in excess
of the cumulative aggregate principal amount of Ten Million Dollars
($10,000,000.00) at any time outstanding without the prior written consent of
Requisite Lenders. In no event shall any Contingent Liabilities be secured by a
Lien on any property or assets of any member of the Borrower Consolidation.
Section 6.07. INVESTMENT RESTRICTIONS. Other than Investments
permitted herein or approved in writing by Requisite Lenders, the Borrower
Consolidation shall not make any Investments (whether by way of loan, stock
purchase, capital contribution or otherwise) other than the following:
a. Cash and Cash Equivalents;
b. Loans and advances to officers, employees and
directors in the ordinary course of business not exceeding Five Hundred
Thousand Dollars ($500,000.00) in the aggregate at any one time;
c. Contribution and/or conveyance of the Baton
Rouge Hotel Property in accordance with the provisions set forth in Section
5.06(c);
d. Investments subsequent to the Closing Date in
BOSCLP, IGCLP or any Unrestricted Subsidiaries at the discretion of Borrowers
up to the maximum amount of the then applicable Aggregate Expenditure
Availability, in each instance measured by the amount actually invested
without adjustment for subsequent increases or decreases in the value of such
Investment;
e. Investments in Restricted Subsidiaries and
any member of the Borrower Consolidation, so long as after giving effect to
such Investment no Default or Event of Default would result from the making
of such Investment;
f. Capital Expenditures for the Hotel/Casino
Facilities, except to the extent restricted by the Aggregate Expenditure
Availability, during each Fiscal Year, up to the maximum amounts permitted
under Section 6.05;
- 129 -
g. The Lawrenceburg Buyout in accordance with
the requirements of Sections 2.15(b) and 2.15(d) and Article III C; and
h. Investments outside of the Borrower
Consolidation existing as of the Closing Date which are described on the
Schedule of Existing Unrestricted Subsidiary Investments, Schedule 6.07(h)
affixed hereto.
Section 6.08. TOTAL LIENS. The Borrower Consolidation shall
not directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any of their respective assets or any of the Collateral,
whether now owned or hereafter acquired, or any income or profits therefrom, or
file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any of the
Collateral under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
a. Permitted Encumbrances;
b. The Senior Indenture Security Documents
until October 1, 2000;
c. Liens granted or permitted pursuant to the
Security Documentation, which secure obligations of the Borrower Consolidation
under the Loan Documents and Secured Interest Rate Hedges;
d. Liens on the FF&E and other goods securing
Indebtedness to finance the purchase price thereof; PROVIDED that (i) such Liens
shall extend only to the other goods and FF&E so financed and the proceeds
thereof, and (ii) such Liens shall not secure an outstanding principal amount of
Indebtedness in excess of Fifteen Million Dollars ($15,000,000.00) in the
aggregate at any time; and
e. The Liens set forth on the Schedule of
Liens marked "Schedule 6.09" attached hereto.
Section 6.09. LIMITATION ON INDEBTEDNESS. The Borrower
Consolidation (and the Argosy Consolidation where specifically indicated below)
will not incur any Indebtedness, except as specifically permitted hereinbelow:
a. Interest Rate Hedges up to the maximum
aggregate notional principal amount of One Hundred Fifty Million Dollars
($150,000,000.00) at any time outstanding; provided that upon the occurrence of
the Level Two Commitment Increase Effective Date, Interest Rate Hedges may be
incurred up to the maximum notational
- 130 -
principal amount of Two Hundred Fifty Million Dollars ($250,000,000.00) at
any time outstanding;
b. With respect to the Argosy Consolidation,
Secured Indebtedness of the type permitted under Section 6.08(d) and Capital
Lease Liabilities, up to a maximum cumulative aggregate principal amount at any
time outstanding equal to Fifteen Million Dollars ($15,000,000.00);
c. Unsecured Indebtedness up to the maximum
cumulative aggregate principal amount of Five Million Dollars ($5,000,000.00) at
any time outstanding;
d. The Indebtedness evidenced by the New
Indenture and Senior Subordinated Notes;
e. Subordinated Debt incurred subsequent to
the Closing Date, provided that one hundred percent (100%) of the principal
amount of such Subordinated Debt (unless otherwise agreed in writing by
Requisite Lenders), not otherwise applied to repay, retire, redeem, defease or
otherwise acquire other Subordinated Debt, in excess of the sum of (x) the
aggregate amount of the proceeds of such Subordinated Debt used to fund,
directly or indirectly, the costs of the Lawrenceburg Buyout plus (y) all costs,
fees and expenses (including without limitation underwriting, placement,
financial advisory and similar fees and expenses) incurred in connection with
the placement or incurrence of such Subordinated Debt plus (z) all premium and
interest paid with respect to Indebtedness refinanced, retired, defeased,
replaced or repaid with the proceeds of such Subordinated Debt, shall be used by
the Borrower Consolidation to make a Voluntary Permanent Reduction promptly
following the incurrence of such Subordinated Debt;
f. The Indebtedness evidenced by the Bank
Facilities;
g. The Indebtedness evidenced by the
Outstanding First Mortgage Notes until July 1, 2000;
h. Indebtedness evidenced by the Convertible
Notes until July 1, 2000;
i. Indebtedness between members of the
Borrower Consolidation;
j. Indebtedness constituting Investments
permitted under Section 6.08; and
- 131 -
k. Indebtedness constituting Contingent
Liabilities permitted to be incurred under Section 6.07.
Section 6.10. MINIMUM SUBORDINATED DEBT. The Borrower
Consolidation shall maintain at all times commencing on the Closing Date and
continuing until the occurrence of Bank Facilities Termination, Subordinated
Debt in an aggregate principal amount no less than One Hundred Fifty Million
Dollars ($150,000,000.00).
Section 6.11. RESTRICTION ON DISTRIBUTIONS AND ARGOSY
DIVIDENDS.
a. No member of the Borrower Consolidation
shall make any Distributions, other than to other members of the Borrower
Consolidation, during any period in which a Default or Event of Default has
occurred and remains continuing.
b. No member of the Borrower Consolidation
shall make any Argosy Dividends (other than Share Repurchases to the extent
hereinafter permitted) without the prior written consent of the Requisite
Lenders.
c. Share Repurchases may be made by Argosy to
its shareholders so long as: (i) eight (8) full Fiscal Quarters shall have
elapsed following the Closing Date; (ii) at the time of the declaration and of
the payment of such Share Repurchases, the Senior Leverage Ratio of the Argosy
Consolidation as of the most recently ended Fiscal Quarter is no greater than
1.5 to 1.0, calculated on a pro forma basis based on the assumption that the
Share Repurchases had occurred during the most recently ended Fiscal Quarter;
(iii) such Share Repurchases do not exceed the amount of the lesser of: (x) Ten
Million Dollars ($10,000,000.00) in the aggregate during any consecutive twelve
(12) month period, or (y) Twenty-Five Million Dollars ($25,000,000.00) in
maximum cumulative aggregate amount during the life of the Bank Facilities; (iv)
the payment of such Share Repurchases does not constitute a Default or Event of
Default; and (v) such Share Repurchases are permitted to be made under the terms
of the New Indenture.
d. In no event shall the aggregate of
Distributions made during any Fiscal Year exceed the Net Income of the
Borrower Consolidation for the most recently ended Fiscal Year.
Section 6.12. NO CHANGE OF CONTROL. Until the occurrence
of Bank Facility Termination, no Change of Control shall occur.
Section 6.13. CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
- 132 -
a. Other than as approved in writing by
Requisite Lenders, no member of the Borrower Consolidation shall wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation (except a merger or consolidation with another entity within the
Borrower Consolidation), or convey, sell, lease or otherwise dispose of (or make
an agreement to do any of the foregoing at any time prior to Bank Facility
Termination) all or any material part of its respective property or assets
(except to another entity within the Borrower Consolidation), except that the
following shall be permitted: (i) the Borrowers may make sales of inventory and
other assets in the ordinary course of business, (ii) so long as no Default or
Event of Default shall have occurred and remains continuing the Borrowers may,
in the ordinary course of business, sell equipment and FF&E as provided in
Section 5.01, and (iii) so long as no Default or Event of Default shall have
occurred and remains continuing, Argosy may sell any Unrestricted Subsidiary or
New Venture Investment (or all or a portion of its Investment therein) in
exchange for its fair value;
b. Notwithstanding the foregoing, however, in
the event the New Indenture or provisions of any Subordinated Debt requires an
amount calculated by reference to proceeds realized by the Borrower
Consolidation from the sale of FF&E, any Unrestricted Subsidiary or New Venture
Investment or any other property or assets to be paid to or for the benefit of
the holders of Senior Subordinated Notes or the Subordinated Debt, as the case
may be, if not paid to the Lenders under the Credit Facility or for redemption
of Subordinated Debt as a result thereof, such Net Proceeds shall be paid to
Agent Bank for the account of the Lenders under the Credit Facility as a
Voluntary Permanent Reduction and not to the holders of such Subordinated Debt
unless otherwise agreed in writing by the Requisite Lenders;
c. In the event of the Lawrenceburg Sale: (i) Net
Proceeds shall be promptly applied by the Borrower Consolidation to the Credit
Facility as a Voluntary Permanent Reduction, and (ii) the Borrower Consolidation
shall immediately cause Bank Facilities Termination to occur unless (x) the
EBITDA attributable to the Lawrenceburg Casino Facilities (after accounting for
the Minority Interest Percentage applicable thereto) for the most recently ended
four (4) consecutive Fiscal Quarter period is less than thirty-three and
one-third percent (33-1/3%) of the EBITDA of the Argosy Consolidation at the
time of such Lawrenceburg Sale for such period and (y) after giving pro forma
effect to such Lawrenceburg Sale, no Default or Event of Default will occur.
Section 6.14. TRANSACTIONS WITH AFFILIATES. Other than: (i)
between and amongst the Borrower Consolidation, or (ii) in connection with
Investments in a New Venture and/or New Venture Subsidiaries, no transactions
shall be made by the Borrower Consolidation with Affiliates or Unrestricted
Subsidiaries of the Borrower Consolidation other than arms length transactions
for fair market value.
- 133 -
Section 6.15. NO TRANSFER OF OWNERSHIP. Argosy shall not
transfer or hypothecate its ownership interests in any direct or indirect
Subsidiary which is a member of the Borrower Consolidation or any Restricted
Subsidiary except in connection with the Security Documentation; provided,
however, Borrowers shall have the right to sell any Unrestricted Subsidiary
or New Venture Investment (or all or a portion of its Investment therein) in
exchange for its fair value.
Section 6.16. ERISA. Borrowers shall:
a. Not permit at any time any Pension Plan
which is maintained by such Borrower, and use its best efforts not to permit any
Pension Plan with respect to which such Borrower is obligated to contribute on
behalf of its perspective employees, to:
(i) engage in any nonexempt "prohibited
transaction", as such term is defined in Section 4975 of the
Code, which may reasonably be expected to result in material
liability of such Borrower to the Pension Plan or the Pension
Benefit Guaranty Corporation,
(ii) incur any material "accumulated
funding deficiency", as that term is defined in Section 302 of
ERISA, which may reasonably be expected to result in material
liability of such Borrower to the Pension Plan or the Pension
Benefit Guaranty Corporation.
b. Upon such Borrower becoming aware thereof,
promptly notify the Agent Bank of the occurrence of any "reportable event" (as
defined in Section 4043 of ERISA) or of any non-exempt "prohibited transaction"
(as defined in Section 4975 of the Code) with respect to any Pension Plan which
is maintained by such Borrower or to which such Borrower is obligated to
contribute on behalf of its employees or any trust created thereunder.
c. Not, at any time, permit any Pension Plan
which is maintained by such Borrower to fail to comply with ERISA or other
applicable laws that would result in a Material Adverse Change.
Section 6.17. MARGIN REGULATIONS. No part of the proceeds of
the Credit Facility, Swingline Facility or L/C Facility will be used by
Borrowers, or any of them, in violation of or inconsistent with the provisions
of Regulations T, U or X of the Board of Governors of the Federal Reserve
System.
- 134 -
Section 6.18. LIMITATION ON ADDITIONAL SUBSIDIARIES. No
Subsidiary of Argosy which is a member of the Borrower Consolidation shall
create any additional Subsidiaries without the prior written consent of
Requisite Lenders.
Section 6.19. LIMITATION ON CONSOLIDATED TAX LIABILITY. No
member of the Borrower Consolidation shall be liable for federal income taxes
relating to the taxable income of any Subsidiary or Affiliate of Argosy which
is not a member of the Borrower Consolidation, or any of them, in excess of
the amount of federal income taxes it would pay if reporting as a separate
entity, unless such member of the Borrower Consolidation is fully reimbursed
by such Subsidiary or Affiliate of Argosy on or before the payment of such
taxes.
Section 6.20. CHANGE IN ACCOUNTING PRINCIPLES. Except as
otherwise provided herein, if any changes in accounting principles from those
used in the preparation of the most recent financial statements delivered to
Agent Bank pursuant to the terms hereof are hereinafter required or permitted by
the rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Borrowers with the agreement of their independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, standards or terms found herein, the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
the financial condition of Borrowers shall be the same after such changes as if
such changes had not been made; provided, however, that no change in GAAP that
would affect the method of calculation of any of the financial covenants,
standards or terms shall be given effect in such calculations until such
provisions are amended, in a manner reasonably satisfactory to Agent Bank and
Requisite Lenders, to so reflect such change in accounting principles.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. EVENTS OF DEFAULT. Any of the following
events and the passage of any applicable notice and cure periods shall
constitute an Event of Default hereunder:
a. Any representation or warranty made by
Borrowers pursuant to or in connection with this Credit Agreement, the Notes,
the Environmental Certificate, or any other Loan Document or in any report,
certificate, financial statement or other writing furnished by Borrowers in
connection herewith, shall prove to be false, incorrect or misleading in any
materially adverse aspect as of the date when made.
- 135 -
b. Borrowers shall have defaulted in the
payment of any interest on the Revolving Credit Note or Swingline Note for a
period of five (5) days from the date such payment is due or shall have
defaulted in the payment of any principal on the Revolving Credit Note when due;
c. An event of default, a defined thereunder,
shall occur under any of the Security Documentation or any of the Security
Documentation or any provision thereof shall cease to be in full force and
effect in any material respect or shall cease to give the Agent Bank in any
material respect the liens, rights, powers and privileges purported to be
created thereby or the Borrowers shall default in the due performance or
observance of any term, covenant or agreement on their part to be performed
or observed pursuant to the Security Documentation for a period beyond any
applicable grace period therein defined;
d. Borrowers shall have defaulted in the
payment of any fees required to be paid under the Fee Side Letter, Commitment
Fees, expenses, indemnities or any other amount owing under any Loan Document
for a period of five (5) days after written notice thereof to Borrowers from
Agent Bank;
e. Borrowers or any Restricted Subsidiary
shall fail duly and punctually to perform or comply with: (i) any term,
covenant, condition or promise contained in Sections 5.11, 5.24, 5.25, 5.27,
6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.11, 6.12, 6.13,
6.15 or 6.17, or (ii) any other term, covenant, condition or promise contained
in this Credit Agreement, the Notes, the Mortgages or any other Loan Document
and, in the case of any term, covenant, condition or promise covered by this
clause (ii), such failure shall continue thirty (30) days after written notice
thereof is delivered to Borrowers by Agent Bank (or such shorter period
following such notice as may be specified in any other Loan Document);
f. Borrowers, or any of them, or IGCLP, or
any Restricted Subsidiary shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to it or its
debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official, for all or
substantially all of its property, or shall consent to any such relief or to the
appointment or taking possession by any such official in any involuntary case or
other proceeding against it;
g. An involuntary case or other proceeding
shall be commenced against Borrowers, or any of them, or IGCLP, or any
Restricted Subsidiary seeking liquidation, reorganization or other relief with
respect to itself or its debts under the Bankruptcy Code or any bankruptcy,
insolvency or other similar law now or hereafter in
- 136 -
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official, for all or substantially all of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of ninety (90) days;
h. Borrowers or any of them, or IGCLP, or any
Restricted Subsidiary makes an assignment of all or substantially all of their
assets for the benefit of its creditors;
i. Borrowers default, beyond any applicable
grace period, under the terms of the New Indenture or the terms of any
Subordinated Debt or Pari Passu Notes if the effect thereof is to permit the
acceleration or require prepayment, purchase or redemption thereof by the
holders thereof or Borrowers shall fail to make any payment when due (whether by
scheduled maturity, required prepayment, offer to purchase, redemption,
acceleration, demand or otherwise, in each case beyond the grace period provided
with respect to such Indebtedness) on any Indebtedness (other than any
Indebtedness under this Credit Agreement), if the aggregate amount of such
Indebtedness is Five Million Dollars ($5,000,000.00), or more, or any breach,
default or event of default shall occur, or any other event shall occur or
condition shall exist, under any instrument, agreement or indenture pertaining
thereto if the effect thereof is to accelerate the maturity of any such
Indebtedness or require prepayment, purchase or redemption thereof or permit the
holders thereof to accelerate or require prepayment, purchase or redemption
thereof; or any such Indebtedness shall be declared to be due and payable or
shall be required to be prepaid, purchased or redeemed (other than by a
regularly scheduled required prepayment purchase or redemption) prior to the
stated maturity thereof; or the holder of any Lien in any amount, shall commence
foreclosure of such Lien upon property of Borrowers having a value in excess of
Five Million Dollars ($5,000,000.00) and such foreclosure shall continue against
such property to a date less than thirty (30) days prior to the date set for the
occurrence of the foreclosure sale;
j. The occurrence of any event of default,
beyond any applicable grace period, under the terms of any agreement with any
Lender in connection with a Secured Interest Rate Hedge relating to the Credit
Facility;
k. The occurrence of any Reportable Event
which Agent Bank reasonably determines in good faith constitutes proper grounds
for, and could reasonably be expected to result in, the termination of any
employee pension benefit plan or pension plan of Borrowers covered by ERISA by
the Pension Benefit Guaranty Corporation or for the appointment by an
appropriate United States District Court of a trustee to administer any such
plan, should occur and should continue for thirty (30) days after written notice
of such determination shall have been given to Borrowers by Agent Bank;
- 137 -
l. Any money judgment, writ or warrant of
attachment or similar process involving (i) in any individual case an amount in
excess of Five Million Dollars ($5,000,000.00) or (ii) in the aggregate at any
time an amount in excess of Ten Million Dollars ($10,000,000.00) (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
any Borrower or any of their respective assets and shall remain unpaid,
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days
(or in any event later than five (5) days prior to the date of any proposed sale
thereunder);
m. The loss, revocation, non-renewal or
suspension (for a period in excess of ten (10) consecutive calendar days) of the
Gaming Permits issued by the applicable Gaming Authorities for any of the
Hotel/Casino Facilities as a result of action or inaction by such applicable
Gaming Authorities, or any of them, or the failure of Borrowers to maintain
gaming activities at any of the Hotel/Casino Facilities, other than on account
of force majeure or periodic drydocking in compliance with USCG requirements, at
least to the same general extent as is presently conducted thereon for a period
in excess of thirty (30) consecutive days;
n. Any order, judgment or decree shall be
entered against any Borrower decreeing its involuntary dissolution or split up
and such order shall remain undischarged and unstayed for a period in excess of
sixty (60) days;
o. Argosy sells, transfers, assigns,
hypothecates or otherwise alienates its interest in all or any portion of the
common voting stock of any Subsidiary which is a member of the Borrower
Consolidation, other than in connection with a Restricted Subsidiary Security
Agreement in favor of Agent Bank or sells its interest in the Lawrenceburg
Casino Facilities except on the terms and subject to the conditions herein
contained in Section 6.13(c) in connection with the Lawrenceburg Sale;
p. The occurrence of any Change in Control;
q. AGC shall fail to perform for a period in
excess of thirty (30) consecutive days any material obligation which it may have
under the Alton Development Agreement;
r. The occurrence of a Material Adverse Change
with respect to the Borrower Consolidation taken as a whole;
s. Any Subsidiary Guaranty shall cease to be
in full force or effect in any material respect, or any Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor's obligations under the
Subsidiary Guaranty, or such Subsidiary
- 138 -
Guarantor shall default for a period of thirty (30) days after notice thereof
from Agent Bank in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to the Subsidiary
Guaranty.
Section 7.02. DEFAULT REMEDIES. Upon the occurrence of any
Event of Default, Agent Bank may and, upon the consent of Requisite Lenders
shall declare the unpaid balance of the Notes, together with the interest
thereon, to be fully due and payable, and, in addition, the applicable Banks, as
set forth below, may, at their option, or shall, as indicated below, exercise
any or all of the following remedies:
a. Agent Bank may, upon the consent of
Requisite Lenders, or at the direction of the Requisite Lenders shall terminate
the obligation of Lenders to make any advances for Borrowings and/or declare all
or part of the outstanding unpaid Indebtedness hereunder and under the Revolving
Credit Note and other Loan Documents together with all accrued interest thereon
immediately due and payable without presentation, demand, protest or notice of
any kind. This remedy will be deemed to have been automatically exercised on the
occurrence of any event set out in Sections 7.01(f), (g) or (h).
b. The Swingline Lender shall, upon receipt of
written notice of the occurrence of an Event of Default, terminate its
obligation to make any advances under the Swingline Facility and may declare all
outstanding unpaid Indebtedness hereunder and under the Swingline Note, together
with all accrued interest thereon immediately due and payable without
presentation, demand, protest or notice of any kind. This remedy will be deemed
to have been automatically exercised on the occurrence of any event set out in
Sections 7.01(f), (g) or (h).
c. The L/C Issuer shall, upon receipt of
written notice of the occurrence of an Event of Default, terminate its
obligation to issue Letters of Credit and/or any Letter of Credit which may be
terminated in accordance with its terms. This remedy will be deemed to have been
automatically exercised on the occurrence of any event set out in Sections
7.01(f), (g) or (h).
d. Agent Bank and/or L/C Issuer may, or at the
direction of the Requisite Lenders will, direct the Borrowers to pay (and each
of the Borrowers hereby jointly and severally agree upon receipt of such notice
to pay) to the L/C Issuer an amount in Cash equal to the then outstanding L/C
Exposure, such Cash to be held by L/C Issuer in the Cash Collateral Account as
security for the repayment of all L/C Reimbursement Obligations thereafter
occurring.
e. The Banks and/or Agent Bank may exercise
any and all remedies available to Banks or Agent Bank under the Loan Documents.
- 139 -
f. The Banks and/or Agent Bank may exercise
any other remedies available to Banks or Agent Bank at law or in equity,
including requesting the appointment of a receiver to perform any acts required
of Borrowers, or any of them, under this Credit Agreement.
Agent Bank on behalf of Lenders may exercise one or more of
Lenders' remedies simultaneously and all its remedies are nonexclusive and
cumulative. Lenders shall not be required to pursue or exhaust any Collateral
or remedy before pursuing any other Collateral or remedy. Lenders' failure to
exercise any remedy for a particular default shall not be deemed a waiver of
(i) such remedy, nor their rights to exercise any other remedy for that
default, nor (ii) their right to exercise that remedy for any subsequent
default.
Section 7.03. APPLICATION OF PROCEEDS. All payments and
proceeds received and all amounts held or realized from the sale or other
disposition of all or any part of the Collateral, which are to be applied
hereunder towards satisfaction of Borrowers' obligations under this Credit
Agreement, shall be applied in the following order of priority:
a. First, to the payment of all reasonable
fees, costs and expenses (including reasonable attorney's fees and expenses)
incurred by Agent Bank and Banks, their agents or representatives in connection
with the realization upon any of the Collateral;
b. Next, to the payment in full of any other
amounts due under this Credit Agreement, the Security Documentation, or any
other Loan Documents (other than the Notes and any liability under the Secured
Interest Rate Hedges);
c. Next, to the balance of interest remaining
unpaid on the Notes;
d. Next, to the balance of principal remaining
unpaid on the Notes and any liability under the Secured Interest Rate Hedges on
a pari passu basis;
e. Next, the balance, if any, of such payments
or proceeds to whomever may be legally entitled thereto.
Section 7.04. NOTICES. In order to entitle Agent Bank and/or
Banks to exercise any remedy available hereunder, it shall not be necessary for
Agent Bank and/or Banks to give any notice, other than such notice as may be
required expressly herein.
Section 7.05. AGREEMENT TO PAY ATTORNEY'S FEES AND EXPENSES.
Upon the occurrence of an Event of Default, as a result of which Agent Bank
and/or Banks shall
- 140 -
require and employ attorneys or incur other expenses for the collection of
payments due or to become due or the enforcement or performance or observance
of any obligation or agreement on the part of Borrowers contained herein,
Borrowers shall, on demand, pay to Agent Bank and Banks the actual and
reasonable fees of such attorneys (including actual and reasonable allocated
costs of in-house legal counsel) and such other reasonable expenses so
incurred by Agent Bank and Banks.
Section 7.06. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER.
In the event any agreement contained in this Credit Agreement should be
breached by either party and thereafter waived by the other party, such
waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
Section 7.07. LICENSING OF AGENT BANK AND LENDERS. In the
event of the occurrence of an Event of Default hereunder or under any of the
Loan Documents and it shall become necessary, or in the opinion of Requisite
Lenders advisable, for an agent, supervisor, receiver or other representative of
Agent Bank and Banks to become licensed under the provisions of the laws of any
applicable jurisdiction, or rules and regulations adopted pursuant thereto, as a
condition to receiving the benefit of any Collateral encumbered by the Security
Documentation or other Loan Documents for the benefit of Lenders or otherwise to
enforce their rights hereunder, Borrowers do hereby give their consent to the
granting of such license or licenses and agree to execute such further documents
as may be required in connection with the evidencing of such consent.
Section 7.08. EXERCISE OF RIGHTS SUBJECT TO APPLICABLE LAW.
All rights, remedies and powers provided by this Article VII may be exercised
only to the extent that the exercise thereof does not violate any applicable
provision of the laws of any Governmental Authority and all of the provisions of
this Article VII are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they will not render this Credit Agreement invalid,
unenforceable or not entitled to be recorded or filed under the provisions of
any applicable law.
Section 7.09. DISCONTINUANCE OF PROCEEDINGS. In case Agent
Bank and/or Banks shall have proceeded to enforce any right, power or remedy
under this Credit Agreement, the Notes, the Security Documentation or any other
Loan Document by foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to Banks, then and in every such case Borrowers, Agent Bank and/or
Banks shall be restored to their former positions and rights hereunder with
respect to the Collateral, and all rights, remedies and powers of Agent Bank and
Banks shall continue as if such proceedings had not been taken, subject to any
binding rule by the applicable court or other tribunal in any such proceeding.
- 141 -
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. NO ABATEMENT OF PAYMENTS. If all or any part
of the Collateral shall be materially damaged or destroyed, or if title to or
the temporary use of the whole or any part of any of the Collateral shall be
taken or condemned by a competent authority for any public use or purpose or
by exercise of the power of eminent domain, there shall be no abatement or
reduction in the amounts payable by Borrowers hereunder or under the Notes,
and Borrowers shall continue to be obligated to make such payments.
Section 8.02. DISTRIBUTION OF CAPITAL PROCEEDS UPON OCCURRENCE
OF FIRE, CASUALTY, OTHER PERILS OR CONDEMNATION. All monies received from
insurance policies under Section 5.09(a) and (b), including flood and
earthquake, covering any of the Collateral or from condemnation or similar
actions in regard to said Collateral, shall be paid directly to Agent Bank. In
the event the amount paid to Agent Bank is equal to or less than Ten Million
Dollars ($10,000,000.00), such amount shall be paid to Borrowers, unless a
Default in the payment of any principal or interest owing under the terms of the
Bank Facilities or an Event of Default shall have occurred hereunder and is
continuing. In the event the amount paid to Agent Bank is greater than Ten
Million Dollars ($10,000,000.00), then, unless a Default or Event of Default has
occurred hereunder and is then continuing, the entire amount so collected or so
much thereof as may be required (any excess to be returned to Borrowers) to
repair or replace the destroyed or condemned property, shall, subject to the
conditions set forth below, be released to Borrowers for repair or replacement
of the property destroyed or condemned or to reimburse Borrowers for the costs
of such repair or replacement incurred prior to the date of such release. If a
Default or Event of Default has occurred hereunder and is then continuing such
amount may, at the option of Requisite Lenders, be applied to pay the
outstanding balance of the Credit Facility. In the event the amount so collected
is applied to pay or reduce the outstanding balance of the Credit Facility, the
amount received by Agent Bank shall be applied in the priority set forth in
Section 7.03. In the event Banks are required to release all or a portion of the
collected funds to Borrower for such repair or re placement of the property
destroyed or condemned, such release of funds shall be made in accordance with
the following terms and conditions:
a. The repairs, replacements and rebuilding
shall be made in accordance with plans and specifications to be reasonably
approved by Requisite Lenders and in accordance with all applicable laws,
ordinances, rules, regulations and requirements of Governmental Authorities;
b. Borrowers shall provide Agent Bank with a
reasonable detailed estimate of the costs of such repairs or restorations;
- 142 -
c. Borrowers shall satisfy the Requisite
Lenders that after the reconstruction is completed, the value of the Collateral
will not be materially less than the value of the Collateral immediately prior
to the damage, destruction, condemnation or taking;
d. In the Requisite Lenders' sole reasonable
opinion, any undisbursed portion of the Available Borrowings contemplated
hereunder, after deposit of such proceeds, is sufficient to pay all costs of
reconstruction of the Hotel/Casino Facilities or other Collateral; or if the
undisbursed portion of such Credit Facility is not sufficient, Borrowers
deposit additional funds with the Agent Bank or raise additional equity
capital, sufficient to pay such additional costs of reconstructing the
Collateral;
e. Borrowers have delivered to the Agent Bank
a construction contract for the work of reconstruction in form and content,
including insurance requirements, acceptable to the Requisite Lenders with a
contractor reasonably acceptable to the Requisite Lenders;
f. The Requisite Lenders in their reasonable
discretion have determined that after the work of reconstruction is completed,
the Hotel/Casino Facilities will produce income sufficient to pay all costs of
operations and maintenance of the Hotel/Casino Facilities with a reasonable
reserve for repairs, and service all Indebtedness secured by the Security
Documentation;
g. No Default in the payment of any principal
or interest owing under the terms of the Bank Facilities, and no Event of
Default, has occurred and is continuing;
h. Borrowers have deposited with the Agent
Bank that amount reasonably determined by the Requisite Lenders (taking into
consideration the amount of Credit Facility funds available for such purpose,
and the amount of proceeds, if any, of insurance policies covering property
damage and business interruption in connection with the Hotel/Casino Facilities
accruing and immediately forthcoming to the Agent Bank) to be sufficient to
service the Indebtedness secured hereby during the period of reconstruction, as
reasonably estimated by the Requisite Lenders;
i. Before commencing any such work, Borrowers
shall, at their own cost and expense, furnish Agent Bank with appropriate
endorsements, if needed, to the "All Risk" insurance policy which Borrowers are
then presently maintaining to cover all of the risks during the course of such
work; and
- 143 -
j. Such work shall be commenced by Borrowers
within one hundred twenty (120) days after (i) settlement shall have been made
with the insurance companies, and (ii) all the necessary governmental approvals
shall have been obtained, and such work shall be completed within a reasonable
time, free and clear of all liens and encumbrances other than Permitted
Encumbrances.
ARTICLE IX
AGENCY PROVISIONS
Section 9.01. APPOINTMENT.
a. Each Lender hereby (i) designates and
appoints WFB as the Agent Bank of such Lender under this Credit Agreement and
the Loan Documents, (ii) authorizes and directs Agent Bank to enter into the
Loan Documents other than this Credit Agreement and to act as the collateral and
administrative agent for the benefit of Lenders, and (iii) authorizes Agent Bank
to take such action on its behalf under the provisions of this Credit Agreement
and the Loan Documents and to exercise such powers as are set forth herein or
therein, together with such other powers as are reasonably incidental thereto,
including, without limitation execution and filing of a Corporate Securities and
Finance Compliance Affidavit with the Missouri Gaming Commission pursuant to 11
CSR 45-10.040 and other regulatory requirements of any Gaming Authority
consistent with the intents and purposes of this Credit Agreement, subject to
the limitations referred to in Sections 9.10(a) and 9.10(b). Agent Bank agrees
to act as such on the express conditions contained in this Article IX.
b. The provisions of this Article IX are
solely for the benefit of Agent Bank and Lenders, and Borrowers shall not have
any rights to rely on or enforce any of the provisions hereof (other than as set
forth in the provisions of Sections 9.03, 9.09 and 9.10), provided, however,
that the foregoing shall in no way limit Borrowers' obligations under this
Article IX. In performing its functions and duties under this Credit Agreement,
Agent Bank shall act solely as Agent Bank of Lenders and does not assume and
shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for Borrowers or any other Person.
Section 9.02. NATURE OF DUTIES. Agent Bank shall not have any
duties or responsibilities except those expressly set forth in this Credit
Agreement or in the Loan Documents. The duties of Agent Bank shall be
administrative in nature. Subject to the provisions of Sections 9.05 and 9.07,
Agent Bank shall administer the Bank Facilities in the same manner as it
administers its own loans. Promptly following the effectiveness of this Credit
Agreement, Agent Bank shall send to each Lender a duplicate executed original,
to
- 144 -
the extent the same are available in sufficient numbers, of the Credit
Agreement and a copy of each other Loan Document in favor of Lenders and a
copy of the filed or recorded Security Documentation, with the originals of
the latter to be held and retained by Agent Bank for the benefit of all
Lenders. Agent Bank shall not have by reason of this Credit Agreement a
fiduciary relationship in respect of any Lender. Nothing in this Credit
Agreement or any of the Loan Documents, expressed or implied, is intended or
shall be construed to impose upon Agent Bank any obligation in respect of
this Credit Agreement or any of the Loan Documents except as expressly set
forth herein or therein. Each Lender shall make its own independent
investigation of the financial condition and affairs of the Borrowers and the
Collateral in connection with the making and the continuance of the Bank
Facilities hereunder and shall make its own appraisal of the creditworthiness
of the Borrowers and the Collateral, and, except as specifically provided
herein, Agent Bank shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the Closing Date or at any time or times thereafter.
Section 9.03. DISBURSEMENT OF BORROWINGS.
a. Not later than the same Banking Business
Day with respect to Base Rate Loans and the next Banking Business Day with
respect to LIBOR Loans, in each case following receipt of a Notice of Borrowing,
Agent Bank shall send a copy thereof by facsimile to each Lender and shall
otherwise notify each Lender of the proposed Borrowing and the Funding Date.
Each Lender shall make available to Agent Bank (or the funding bank or entity
designated by Agent Bank), the amount of such Lender's Pro Rata Share of such
Borrowing in immediately available funds not later than the times designated in
Section 9.03(b). Unless Agent Bank shall have been notified by any Lender not
later than the close of business (San Francisco time) on the Banking Business
Day immediately preceding the Funding Date in respect of any Borrowing that such
Lender does not intend to make available to Agent Bank such Lender's Pro Rata
Share of such Borrowing, Agent Bank may assume that such Lender shall make such
amount available to Agent Bank. If any Lender does not notify Agent Bank of its
intention not to make available its Pro Rata Share of such Borrowing as
described above, but does not for any reason make available to Agent Bank such
Lender's Pro Rata Share of such Borrowing, such Lender shall pay to Agent Bank
forthwith on demand such amount, together with interest thereon at the Federal
Funds Rate. In any case where a Lender does not for any reason make available to
Agent Bank such Lender's Pro Rata Share of such Borrowing, Agent Bank, in its
sole discretion, may, but shall not be obligated to, fund to Borrowers such
Lender's Pro Rata Share of such Borrowing. If Agent Bank funds to Borrowers such
Lender's Pro Rata Share of such Borrowing and if such Lender subsequently pays
to Agent Bank such corresponding amount, such amount so paid shall constitute
such Lender's Pro Rata Share of such Borrowing. Nothing in this
- 145 -
Section 9.03(a) shall alter the respective rights and obligations of the
parties hereunder in respect of a Defaulting Lender or a Non-Pro Rata
Borrowing.
b. Requests by Agent Bank for funding by Lenders
of Borrowings will be made by telecopy. Each Lender shall make the amount of
its Pro Rata Share of such Borrowing available to Agent Bank in Dollars and
in immediately available funds, to such bank and account, in San Francisco,
California as Agent Bank may designate, not later than 9:00 A.M. (San
Francisco time) on the Funding Date designated in the Notice of Borrowing
with respect to such Borrowing, but in no event later than one Banking
Business Day notice with respect to Bank Rate Loans and two (2) Banking
Business Days notice with respect to LIBOR Loans, in each case following
Lender's receipt of the applicable Notice of Borrowing.
c. Nothing in this Section 9.03 shall be
deemed to relieve any Lender of its obligation hereunder to make its Pro Rata
Share of Borrowings on any Funding Date, nor shall any Lender be responsible for
the failure of any other Lender to perform its obligations to advance its Pro
Rata Share of any Borrowing hereunder, and the Pro Rata Share of the Aggregate
Commitment of any Lender shall not be increased or decreased as a result of the
failure by any other Lender to perform its obligation to advance its Pro Rata
Share of any Borrowing.
Section 9.04. DISTRIBUTION AND APPORTIONMENT OF PAYMENTS.
a. Subject to Section 9.04(b), payments
actually received by Agent Bank for the account of Lenders shall be paid to them
promptly after receipt thereof by Agent Bank, but in any event within one (1)
Banking Business Day, provided that Agent Bank shall pay to Lenders interest
thereon, at the Federal Funds Rate from the Banking Business Day following
receipt of such funds by Agent Bank until such funds are paid in immediately
available funds to Lenders. Subject to Section 9.04(b), all payments of
principal and interest in respect of Aggregate Outstandings, all payments of the
fees described in this Credit Agreement, and all payments in respect of any
other Obligations shall be allocated among such Lenders as are entitled thereto,
in proportion to their respective Pro Rata Shares or otherwise as provided
herein. Agent Bank shall promptly distribute, but in any event within one (1)
Banking Business Day, to each Lender at its primary address set forth on the
appropriate signature page hereof or on the applicable Assumption and Consent
Agreement or Assignment and Assumption Agreement, or at such other address as a
Lender may request in writing, such funds as it may be entitled to receive,
provided that Agent Bank shall in any event not be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Lender and may suspend all payments and seek appropriate relief (including,
without limitation, instructions from Requisite Lenders or all Lenders, as
applicable, or an action in the nature of interpleader) in
- 146 -
the event of any doubt or dispute as to any apportionment or distribution
contemplated hereby. The order of priority herein is set forth solely to
determine the rights and priorities of Lenders as among themselves and may at
any time or from time to time be changed by Lenders as they may elect, in
writing in accordance with Section 10.01. All payments or other sums received
by Agent Bank for the account of Lenders (including, without limitation,
principal and interest payments, the proceeds of any and all insurance
maintained with respect to any of the Collateral, and any and all
condemnation proceeds with respect to any of the Collateral) shall not
constitute property or assets of the Agent Bank and shall be held by Agent
Bank, solely in its capacity as administrative and collateral agent for
itself and the other Lenders, subject to the Loan Documents.
b. Notwithstanding any provision hereof to the
contrary, until such time as a Defaulting Lender has funded its Pro Rata Share
of Borrowing which was previously a Non Pro Rata Borrowing, or all other Lenders
have received payment in full (whether by repayment or prepayment) of the
principal due in respect of such Non Pro Rata Borrowing, all principal sums
owing to such Defaulting Lender hereunder shall be subordinated in right of
payment to the prior payment in full of all principal, in respect of all Non Pro
Rata Borrowing in which the Defaulting Lender has not funded its Pro Rata Share.
This provision governs only the relationship among Agent Bank, each Defaulting
Lender, and the other Lenders; nothing hereunder shall limit the obligation of
Borrowers to repay all Borrowings in accordance with the terms of this Credit
Agreement. The provisions of this section shall apply and be effective
regardless of whether an Event of Default occurs and is then continuing, and
notwithstanding (i) any other provision of this Credit Agreement to the
contrary, (ii) any instruction of Borrowers as to their desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote on
matters which are subject to the consent or approval of Requisite Lenders or all
Lenders. No Commitment Fee or L/C Fees shall accrue in favor of, or be payable
to, such Defaulting Lender from the date of any failure to fund Borrowings or
reimburse Agent Bank for any Liabilities and Costs as herein provided until such
failure has been cured, and Agent Bank shall be entitled to (A) withhold or
setoff, and to apply to the payment of the defaulted amount and any related
interest, any amounts to be paid to such Defaulting Lender under this Credit
Agreement, and (B) bring an action or suit against such Defaulting Lender in a
court of competent jurisdiction to recover the defaulted amount and any related
interest. In addition, the Defaulting Lender shall indemnify, defend and hold
Agent Bank and each of the other Lenders harmless from and against any and all
Liabilities and Costs, plus interest thereon at the Default Rate, which they may
sustain or incur by reason of or as a direct consequence of the Defaulting
Lender's failure or refusal to abide by its obligations under this Credit
Agreement.
Section 9.05. RIGHTS, EXCULPATION, ETC. Neither Agent Bank,
any Affiliate of Agent Bank, nor any of their respective officers, directors,
employees, agents, attorneys or consultants, shall be liable to any Lender for
any action taken or omitted by them
- 147 -
hereunder or under any of the Loan Documents, or in connection herewith or
therewith, except that Agent Bank shall be liable for its gross negligence or
willful misconduct. In the absence of gross negligence or willful misconduct,
Agent Bank shall not be liable for any apportionment or distribution of
payments made by it in good faith pursuant to Section 9.04, and if any such
apportionment or distribution is subsequently determined to have been made in
error the sole recourse of any Person to whom payment was due, but not made,
shall be to recover from the recipients of such payments any payment in
excess of the amount to which they are determined to have been entitled.
Agent Bank shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Credit Agreement, any of the Security Documentation or
any of the other Loan Documents, or any of the transactions contemplated
hereby and thereby; or for the financial condition of the Borrowers or any of
their Affiliates. Agent Bank shall not be required to make any inquiry
concerning either the performance or observance of any of the terms,
provisions or conditions of this Credit Agreement or any of the Loan
Documents or the financial condition of the Borrowers or any of their
Affiliates, or the existence or possible existence of any Default or Event of
Default.
Section 9.06. RELIANCE. Agent Bank shall be entitled to rely
upon any written notices, statements, certificates, orders or other documents,
telecopies or any telephone message believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the proper Person, and with
respect to all matters pertaining to this Credit Agreement or any of the Loan
Documents and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for Borrowers), independent public accountant and other
experts selected by it.
Section 9.07. INDEMNIFICATION. To the extent that Agent Bank
is not reimbursed by Borrowers, Lenders will reimburse, within ten (10) Banking
Business Days after notice from Agent Bank, and indemnify and defend Agent Bank
for and against any and all Liabilities and Costs which may be imposed on,
incurred by, or asserted against it in any way relating to or arising out of
this Credit Agreement, the Security Documentation or any of the other Loan
Documents or any action taken or omitted by Agent Bank or under this Credit
Agreement, the Security Documentation or any of the other Loan Documents, in
proportion to each Lender's Pro Rata Share; provided that no Lender shall be
liable for any portion of such Liabilities and Costs resulting from Agent Bank's
gross negligence or willful misconduct. The obligations of Lenders under this
Section 9.07 shall survive the payment in full of all Obligations and the
termination of this Credit Agreement. In the event that after payment and
distribution of any amount by Agent Bank to Lenders, any Lender or third party,
including Borrowers, any creditor of Borrowers or a trustee in bankruptcy,
recovers from Agent Bank any amount found to have been wrongfully paid to Agent
Bank or disbursed by Agent Bank to any Lender, then such Lender shall reimburse
Agent Bank for
- 148 -
all such amounts. Notwithstanding the foregoing, Agent Bank shall not be
obligated to advance Liabilities and Costs and may require the deposit by
each Lender of its Pro Rata Share of any material Liabilities and Costs
anticipated by Agent Bank before they are incurred or made payable.
Section 9.08. AGENT INDIVIDUALLY. With respect to its Pro
Rata Share of the Credit Facility, Agent Bank shall have and may exercise the
same rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders", "Requisite Lenders" or any similar terms may include Agent
Bank in its individual capacity as a Lender or one of the Requisite Lenders,
but Requisite Lenders shall not include Agent Bank solely in its capacity as
Agent Bank and need not necessarily include Agent Bank in its capacity as a
Lender. Agent Bank and any Lender and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking, trust or
other business with Borrowers or any of their Affiliates as if it were not
acting as Agent Bank or Lender pursuant hereto.
Section 9.09. SUCCESSOR AGENT BANK; RESIGNATION OF AGENT
BANK; REMOVAL OF AGENT BANK.
a. Agent Bank may resign from the performance
of all its functions and duties hereunder at any time by giving at least thirty
(30) Banking Business Days' prior written notice to Lenders and Borrowers, and
shall automatically cease to be Agent Bank hereunder in the event a petition in
bankruptcy shall be filed by or against Agent Bank or the Federal Deposit
Insurance Corporation or any other Governmental Authority shall assume control
of Agent Bank or Agent Bank's interests under the Bank Facilities. Further,
Lenders (other than Agent Bank) may unanimously remove Agent Bank at any time
upon the occurrence of gross negligence or wilful misconduct by Agent Bank by
giving at least thirty (30) Banking Business Days' prior written notice to Agent
Bank, Borrowers and all other Lenders. Such resignation or removal shall take
effect upon the acceptance by a successor Agent Bank of appointment pursuant to
clause (b) or (c).
b. Upon any such notice of resignation by or
removal of Agent Bank, Requisite Lenders shall appoint a successor Agent Bank
which appointment shall be subject to Borrowers' consent (other than upon the
occurrence and during the continuance of any Event of Default), which shall not
be unreasonably withheld or delayed. Any successor Agent Bank must be a Bank (i)
the senior debt obligations of which (or such bank's parent's senior unsecured
debt obligations) are rated not less than Baa-2 by Moody's Investors Services,
Inc. or a comparable rating by a rating agency acceptable to Requisite Lenders
and (ii) which has total assets in excess of Ten Billion Dollars
($10,000,000,000.00).
- 149 -
c. If a successor Agent Bank shall not have
been so appointed within said thirty (30) Banking Business Day period, the
retiring or removed Agent Bank, with the consent of Borrowers (other than upon
the occurrence and during the continuance of any Event of Default) which may not
be unreasonably withheld or delayed, shall then appoint a successor Agent Bank
who shall meet the requirements described in subsection (b) above and who shall
serve as Agent Bank until such time, if any, as Requisite Lenders, with the
consent of Borrowers (other than upon the occurrence and during the continuance
of any Event of Default), appoint a successor Agent Bank as provided above.
Section 9.10. CONSENT AND APPROVALS.
a. Each consent, approval, amendment,
modification or waiver specifically enumerated in this Section 9.10(a) shall
require the consent of Requisite Lenders:
(i) Approval of less than one hundred
percent (100%) ownership of Restricted Subsidiary (definition
of Minority Venture Project);
(ii) Consent to Liens (definition
of Permitted Encumbrances and Restricted Subsidiary Permitted
Encumbrances);
(iii) Approval of Subordinated Debt in
reasonable credit judgment (definition of Subordinated Debt);
(iv) Approval of Borrowings with less than
full compliance with requirements of Article IIIB (Section
2.04);
(v) Advise LIBOR Loan does not
reflect costs (Section 2.05(g));
(vi) Approval of Intercreditor Agreement,
legal opinions and other assurances regarding Term Loans
(Section 2.15(c) and (d));
(vii) Approval of opinions of
counsel (Section 3.33);
(viii) Approval of amendments to
Partnership Agreements (Section 4.13);
(ix) Approval of amendments to
Senior Indenture (Section 4.14);
- 150 -
(x) Approval of amendments to
Convertible Notes (Section 4.15);
(xi) Approval of use of Excess
Capital Proceeds (Section 5.01);
(xii) Consent to modification of the Alton
Belle Development Agreement (Section 5.03);
(xiii) Consent to modification to or waiver
of financial reporting requirements or production of
additional financial or other information (Section 5.08);
(xiv) Requirement of Qualified
Appraisal after Event of Default (Section 5.15(b));
(xv) Approval of Contingent Liabilities
in excess of Ten Million Dollars ($10,000,000.00) (Section
6.06);
(xvi) Approval of Investments
(Section 6.07);
(xvii) Approval of Argosy Dividends (other
than Share Repurchases) (Section 6.11(b));
(xviii) Approval of merger, consolidation,
sale of assets, etc. (Section 6.13);
(xix) Approval of additional
Subsidiaries by Subsidiaries (Section 6.18);
(xx) Approval of a change in the method of
calculation of any financial covenants, standards or terms as
a result of a change in accounting principle (Section 6.20);
(xxi) Direct Agent Bank to declare the
unpaid balance of the Credit Facility fully due and payable
(Section 7.02);
(xxii) Direct the disposition of insurance
proceeds or condemnation awards under certain circumstances
(Section 8.02);
- 151 -
(xxiii) Approval of appointment of
successor Agent Bank (Section 9.09);
(xxiv) Approval of a Post-Foreclosure
Plan and related matters (Section 9.11(e));
(xxv) Consent to action or proceeding
against Borrowers or the Collateral by any Lender (Section
9.12);
(xxvi) Except as referred to in subsection
(b) below, approval of any amendment, modification or
termination of this Credit Agreement, or waiver of any
provision herein (Section 10.01); and
(xxvii) Approval of advances (Section
10.14).
b. Each consent, approval, amendment,
modification or waiver specifically enumerated in Section 10.01 shall require
the consent of all Lenders.
c. In addition to the required consents or
approvals referred to in subsection (a) above, Agent Bank may at any time
request instructions from Requisite Lenders with respect to any actions or
approvals which, by the terms of this Credit Agreement or of any of the Loan
Documents, Agent Bank is permitted or required to take or to grant without
instructions from any Lenders, and if such instructions are promptly requested,
Agent Bank shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from taking any action or withholding any approval under
any of the Loan Documents until it shall have received such instructions from
Requisite Lenders. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against Agent Bank as a result of Agent Bank acting
or refraining from acting under this Credit Agreement, the Security
Documentation or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders or, where applicable, all Lenders. Agent Bank
shall promptly notify each Lender at any time that the Requisite Lenders have
instructed Agent Bank to act or refrain from acting pursuant hereto.
d. Each Lender agrees that any action taken by
Agent Bank at the direction or with the consent of Requisite Lenders in
accordance with the provisions of this Credit Agreement or any Loan Document,
and the exercise by Agent Bank at the direction or with the consent of Requisite
Lenders of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and binding
upon all Lenders, except for actions specifically requiring the approval of all
Lenders. All communications from Agent Bank to Lenders requesting Lenders'
- 152 -
determination, consent, approval or disapproval (i) shall be given in the
form of a written notice to each Lender, (ii) shall be accompanied by a
description of the matter or thing as to which such determination, approval,
consent or disapproval is requested, or shall advise each Lender where such
matter or thing may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a
Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to Agent Bank by
Borrowers in respect of the matter or issue to be resolved, and (iv) shall
include Agent Bank's recommended course of action or determination in respect
thereof. Each Lender shall reply promptly, but in any event within ten (10)
Banking Business Days (the "Lender Reply Period"). Unless a Lender shall give
written notice to Agent Bank that it objects to the recommendation or
determination of Agent Bank (together with a written explanation of the
reasons behind such objection) within the Lender Reply Period, such Lender
shall be deemed to have approved of or consented to such recommendation or
determination. With respect to decisions requiring the approval of Requisite
Lenders or all Lenders, Agent Bank shall submit its recommendation or
determination for approval of or consent to such recommendation or
determination to all Lenders and upon receiving the required approval or
consent shall follow the course of action or determination recommended to
Lenders by Agent Bank or such other course of action recommended by Requisite
Lenders, and each non-responding Lender shall be deemed to have concurred
with such recommended course of action.
Section 9.11. AGENCY PROVISIONS RELATING TO COLLATERAL.
a. In addition to other rights it may have
hereunder, Agent Bank is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, from time to time
prior to an Event of Default, to take any action with respect to any Collateral
or Loan Document which may be necessary to perfect and maintain Liens of the
Security Documentation upon the Collateral granted pursuant to the Loan
Documents. Agent Bank may make, and shall be reimbursed by Lenders (in
accordance with their Pro Rata Shares), to the extent not reimbursed by
Borrowers, for, Protective Advance(s) (i) expended to pay real estate taxes,
assessments and governmental charges or levies imposed upon such Collateral, and
(ii) expended to pay insurance premiums for policies of insurance related to
such Collateral.
b. Lenders hereby irrevocably authorize Agent
Bank, at its option and in its discretion, to release any Security Documentation
granted to or held by Agent Bank upon any Collateral (i) upon Bank Facility
Termination and repayment and satisfaction of all Borrowings, and all other
Obligations and the termination of this Credit Agreement, or (ii) if approved,
authorized or ratified in writing by Agent Bank at the direction of all Lenders.
Agent Bank shall not be required to execute any document to evidence the release
of the Security Documentation granted to Agent Bank for the benefit
- 153 -
of Lenders herein or pursuant hereto upon any Collateral if, in Agent Bank's
opinion, such document would expose Agent Bank to liability or create any
obligation or entail any consequence other than the release of such Security
Documentation without recourse or warranty, and such release shall not in any
manner discharge, affect or impair the Obligations or any Security
Documentation upon (or obligations of Borrowers in respect of) any property
which shall continue to constitute part of the Collateral.
c. Except as provided in this Credit
Agreement, Agent Bank shall have no obligation whatsoever to any Lender or to
any other Person to assure that the Collateral exists or is owned by Borrowers
or is cared for, protected or insured or has been encumbered or that the
Security Documentation granted to Agent Bank herein or in any of the other Loan
Documents or pursuant hereto or thereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any
particular priority.
d. Should Agent Bank (i) employ counsel for
advice or other representation (whether or not any suit has been or shall be
filed) with respect to any Collateral or any part thereof, or any of the Loan
Documents, or the attempt to enforce any security interest or Security
Documentation on any of the Collateral, or (ii) commence any proceeding or in
any way seek to enforce its rights or remedies under the Loan Documents,
irrespective of whether as a result thereof Agent Bank shall acquire title to
any Collateral, either through foreclosure, deed in lieu of foreclosure or
otherwise, each Lender, upon demand therefor from time to time, shall
contribute its share (based on its Pro Rata Share) of the reasonable costs
and/or expenses of any such advice or other representation, enforcement or
acquisition, including, but not limited to, fees of receivers or trustees,
court costs, title company charges, filing and recording fees, appraisers'
fees and fees and expenses of attorneys to the extent not otherwise
reimbursed by Borrowers; provided that Agent Bank shall not be entitled to
reimbursement of its attorneys' fees and expenses incurred in connection with
the resolution of disputes between Agent Bank and other Lenders unless Agent
Bank shall be the prevailing party in any such dispute. Any loss of principal
and interest resulting from any Event of Default shall be shared by Lenders
in accordance with their respective Pro Rata Shares. It is understood and
agreed that in the event Agent Bank determines it is necessary to engage
counsel for Lenders from and after the occurrence of an Event of Default,
said counsel shall be selected by Agent Bank.
e. In the event that all or any portion of the
Collateral is acquired by Agent Bank as the result of a foreclosure or the
acceptance of a deed or assignment in lieu of foreclosure, or is retained in
satisfaction of all or any part of Borrowers' obligations, title to any such
Collateral or any portion thereof shall be held in the name of Agent Bank or a
nominee or subsidiary of Agent Bank, as agent, for the ratable benefit of Agent
Bank and Lenders. Agent Bank shall prepare a recommended course of action for
such Collateral (the "Post-Foreclosure Plan"), which shall be subject to the
approval of the
- 154 -
Requisite Lenders. In the event that Requisite Lenders do not approve such
Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative
Post-Foreclosure Plan to Agent Bank, and Agent Bank shall submit any and all
such additional Post-Foreclosure Plans to the Lenders for evaluation and the
approval of Requisite Lenders. In accordance with the approved
Post-Foreclosure Plan, Agent Bank shall manage, operate, repair, administer,
complete, construct, restore or otherwise deal with the Collateral acquired
and administer all transactions relating thereto, including, without
limitation, employing a management agent, leasing agent and other agents,
contractors and employees, including agents of the sale of such Collateral,
and the collecting of rents and other sums from such Collateral and paying
the expenses of such Collateral; actions taken by Agent Bank with respect to
the Collateral, which are not provided for in the approved Post-Foreclosure
Plan or reasonably incidental thereto, shall require the consent of Requisite
Lenders by way of supplement to such Post- Foreclosure Plan. In the event a
Post-Foreclosure Plan is not adopted by Lenders, Agent Bank shall have the
right, but no obligation, to do all reasonable acts, and to receive
indemnification from Lenders in proportion to each Lender's Pro Rata Share,
to protect the Collateral until a Post-Foreclosure Plan is adopted by
Lenders. Upon demand therefor from time to time, each Lender will contribute
its share (based on its Pro Rata Share) of all reasonable costs and expenses
incurred by Agent Bank pursuant to the Post-Foreclosure Plan in connection
with the construction, operation, management, maintenance, leasing and sale
of such Collateral. In addition, Agent Bank shall render or cause to be
rendered by the managing agent, to each of the Lenders, monthly, an income
and expense statement for such Collateral, and each of the Lenders shall
promptly contribute its Pro Rata Share of any operating loss for such
Collateral, and such other expenses and operating reserves as Agent Bank
shall deem reasonably necessary pursuant to and in accordance with the Post-
Foreclosure Plan. To the extent there is net operating income from such
Collateral, Agent Bank shall, in accordance with all applicable Gaming Laws
and the Post-Foreclosure Plan, determine the amount and timing of
distributions to Lenders. All such distributions shall be made to Lenders in
accordance with their respective Pro Rata Shares. Lenders acknowledge that if
title to any Collateral is obtained by Agent Bank or its nominee, such
Collateral will not be held as a permanent investment but will be liquidated
as soon as practicable. Agent Bank shall undertake to sell such Collateral,
at such price and upon such terms and conditions as the Requisite Lenders
shall reasonably determine to be most advantageous. Any purchase money
mortgage or deed of trust taken in connection with the disposition of such
Collateral in accordance with the immediately preceding sentence shall name
Agent Bank, as agent for Lenders, as the beneficiary or mortgagee. In such
case, Agent Bank and Lenders shall enter into an agreement with respect to
such purchase money mortgage defining the rights of Lenders in the same Pro
Rata Shares as provided hereunder, which agreement shall be in all material
respects similar to this Article IX insofar as the same is appropriate or
applicable.
- 155 -
Section 9.12. LENDER ACTIONS AGAINST COLLATERAL AND
RESTRICTION ON EXERCISE OF SET-OFF. Each Lender agrees with the other Lenders
that it will not take any action, nor institute any actions or proceedings,
against Borrowers or any other obligor hereunder, under the Security
Documentation or under any other Loan Documents with respect to exercising
claims against or rights in any Collateral or exercise any set-off under Section
10.23 or under common law without the prior consent of Requisite Lenders.
Section 9.13. RATABLE SHARING. Except as otherwise
expressly provided herein to the contrary, upon the occurrence of an Event of
Default, Lenders agree among themselves that (i) with respect to all amounts
received by them which are applicable to the payment of the Obligations,
equitable adjustment will be made so that, in effect, all such amounts will
be shared among them ratably in accordance with their Pro Rata Shares,
whether received by voluntary payment, by counterclaim or cross action or by
the enforcement of any or all of the Obligations, or the Collateral, (ii) if
any of them shall by voluntary payment or by the exercise of any right of
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of the Obligations held by it which is greater than its Pro Rata Share
of the payments on account of the Obligations, the one receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest
and participation (which it shall be deemed to have done simultaneously upon
the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably
in accordance with their Pro Rata Shares; provided, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to that party to the extent necessary
to adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such
recovery. Borrowers agree that any Lender so purchasing a participation from
another Lender pursuant to this Section 9.13 may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Lender were the direct creditor of
Borrowers in the amount of such participation. No Lender shall exercise any
setoff, banker's lien or other similar right in respect to any Obligations
without the prior written approval by Agent Bank.
Section 9.14. DELIVERY OF DOCUMENTS. Agent Bank shall as soon
as reasonably practicable distribute to each Lender at its primary address set
forth on the appropriate counterpart signature page hereof, or at such other
address as a Lender may request in writing, (i)copies of all documents to which
such Lender is a party or of which is executed or held by Agent Bank on behalf
of such Lender, (ii) all documents of which Agent Bank receives copies from
Borrowers pursuant to Article VI and Section 10.03, (iii) all other documents or
information which Agent Bank is required to send to Lenders pursuant to the
terms of this Credit Agreement, (iv) other information or documents received by
Agent Bank at the request of any Lender, and (v) all notices received by Agent
Bank pursuant to Section
- 156 -
5.21. In addition, within fifteen (15) Banking Business Days after receipt of
a request in writing from a Lender for written information or documents
provided by or prepared by Borrowers, Agent Bank shall deliver such written
information or documents to such requesting Lender if Agent Bank has
possession of such written information or documents in its capacity as Agent
Bank or as a Lender.
Section 9.15. NOTICE OF EVENTS OF DEFAULT. Agent Bank shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default (other than nonpayment of principal of or interest on the Bank
Facilities) unless Agent Bank has received notice in writing from a Lender or
Borrowers referring to this Credit Agreement or the other Loan Documents,
describing such event or condition and expressly stating that such notice is a
notice of a Default or Event of Default. Should Agent Bank receive such notice
of the occurrence of a Default or Event of Default, or should Agent Bank send
Borrowers a notice of Default or Event of Default, Agent Bank shall promptly
give notice thereof to each Lender.
Section 9.16. SYNDICATION AGENT, DOCUMENTATION AGENT AND
MANAGING AGENT. Syndication Agent, Documentation Agent and Managing Agent
shall not have any right, power, obligation, liability, responsibility or
duty under this Credit Agreement or any of the Loan Documents, other than
those applicable to them in their respective capacity as a Lender. Without
limiting the foregoing, neither Syndication Agent, Documentation Agent nor
Managing Agent shall have or be deemed to have any fiduciary or special
relationship with any of the Banks. Notwithstanding the foregoing,
Syndication Agent, Documentation Agent and Managing Agent shall be entitled
to the benefits of Section 5.14. Each Bank acknowledges that it has not
relied, and will not rely, on Syndication Agent, Documentation Agent or
Managing Agent in deciding to enter into this Credit Agreement or in taking
or not taking any action hereunder or under any of the Loan Documents.
ARTICLE X
GENERAL TERMS AND CONDITIONS
The following terms and conditions shall be applicable until
Bank Facility Termination:
Section 10.01. AMENDMENTS AND WAIVERS. (a) No amendment or
modification of any provision of this Credit Agreement shall be effective
without the written agreement of Requisite Lenders (after notice to all Lenders)
and Borrowers (except for rights and priorities of Lenders as amongst themselves
as provided in Section 9.04(a) which do not require the consent of Borrowers),
and (b) no termination or waiver of any provision of this Credit Agreement, or
consent to any departure by Borrowers therefrom shall in any event
- 157 -
be effective without the written concurrence of Requisite Lenders (after
notice to all Lenders), which Requisite Lenders shall have the right to grant
or withhold at their sole discretion, except that the following amendments,
modifications or waivers shall require the consent of all Lenders:
(i) modify any requirement hereunder that any
particular action be taken by all the Lenders or by the Requisite Lenders,
modify this Section 10.01 or change the definition of "Requisite Lenders";
(ii) removal of Agent Bank under Section
9.09(a) (without regard to the vote of Agent Bank as a Lender);
(iii) except as provided in Section 2.15(a) and
2.15(b) increase the Aggregate Commitment or modify the respective Syndication
Interests of any Lender;
(iv) release any material portion of the
Collateral except as specifically provided in this Credit Agreement in
connection with the Baton Rouge Hotel Property or sale of assets;
(v) extend the Maturity Date or change any
provision expressly requiring the consent of all Lenders;
(vi) reduce any fees described in Section
2.10(b) or (c) or extend the due date for, or reduce or postpone the amount of,
any payments on the Credit Facility, or reduce the rate of interest or postpone
the payment of interest on the Credit Facility; or
(vii) release any Borrower or Subsidiary
Guarantor (except in the event a Restricted Subsidiary is designated as an
Unrestricted Subsidiary in accordance with the terms hereof).
No amendment, modification, termination or waiver of any provision of Article IX
or any other provision referring to Agent Bank shall be effective without the
written concurrence of Agent Bank, but only if such amendment, modification,
termination or waiver alters the obligations or rights of Agent Bank. Any waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Borrowers in any case
shall entitle Borrowers to any other further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.01 shall be binding on each
assignee, transferee or recipient of Agent Bank's or any Lender's respective
Syndication Interest in the Credit Facility at the time outstanding. No
modification of Section 2.08 or the
- 158 -
Swingline Note shall be made without the consent of the Swingline Lender. No
modification of Section 2.09 shall be made without the consent of the L/C
Issuer.
Section 10.02. FAILURE TO EXERCISE RIGHTS. Nothing herein
contained shall impose upon Banks or Borrowers any obligation to enforce any
terms, covenants or conditions contained herein. Failure of Banks or Borrowers,
in any one or more instances, to insist upon strict performance by Borrowers or
Banks of any terms, covenants or conditions of this Credit Agreement or the
other Loan Documents, shall not be considered or taken as a waiver or
relinquishment by Banks or Borrowers of their right to insist upon and to
enforce in the future, by injunction or other appropriate legal or equitable
remedy, strict compliance by Borrowers or Banks with all the terms, covenants
and conditions of this Credit Agreement and the other Loan Documents. The
consent of Banks or Borrowers to any act or omission by Borrowers or Banks shall
not be construed to be a consent to any other or subsequent act or omission or
to waive the requirement for Banks' or Borrowers' consent to be obtained in any
future or other instance.
Section 10.03. NOTICES AND DELIVERY. Unless otherwise
specifically provided herein, any consent, notice or other communication
herein required or permitted to be given shall be in writing and may be
personally served, telecopied or sent by courier service or United States
mail and shall be deemed to have been given when delivered in person or by
courier service, upon receipt of a telecopy (or on the next Banking Business
Day if such telecopy is received on a non-Banking Business Day or after 5:00
p.m. on a Banking Business Day) or four (4) Banking Business Days after
deposit in the United States mail (registered or certified, with postage
prepaid and properly addressed). Notices to Agent Bank pursuant to Articles
II shall not be effective until received by Agent Bank. For the purposes
hereof, the addresses of the parties hereto (until notice of a change thereof
is delivered as provided in this Section 10.03) shall be as set forth below
each party's name on the signature pages hereof, or, as to each party, at
such other address as may be designated by such party in an Assumption and
Consent Agreement or Assignment and Assumption Agreement or in a written
notice to all of the other parties. All deliveries to be made to Agent Bank
for distribution to the Lenders shall be made to Agent Bank at the addresses
specified for notice on the signature page hereto and in addition, a
sufficient number of copies of each such delivery shall be delivered to Agent
Bank for delivery to each Lender at the address specified for deliveries on
the signature page hereto or such other address as may be designated by Agent
Bank in a written notice.
Section 10.04. MODIFICATION IN WRITING. This Credit Agreement
and the other Loan Documents constitute the entire agreement between the parties
and supersede all prior agreements whether written or oral with respect to the
subject matter hereof, including, but not limited to, the Commitment Letter and
any term sheets furnished by any of the Banks to Borrowers. Neither this Credit
Agreement, nor any other Loan Documents, nor any
- 159 -
provision herein, or therein, may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
Section 10.05. OTHER AGREEMENTS. If the terms of any
documents, certificates or agreements delivered in connection with this Credit
Agreement are inconsistent with the terms of the Credit Agreement, Borrowers
shall use their best efforts to amend such document, certificate or agreement to
the satisfaction of Agent Bank to remove such inconsistency.
Section 10.06. COUNTERPARTS. This Credit Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which when taken together shall constitute one and the same
instrument. The signature and acknowledgment pages of any counterpart may be
detached therefrom without impairing the legal effect of the signatures and
acknowledgments thereto, provided such signature and acknowledgment pages are
attached to any other counterpart identical thereto except having additional
signature and acknowledgment pages executed by other parties to this Credit
Agreement attached thereto.
Section 10.07. RIGHTS, POWERS AND REMEDIES ARE CUMULATIVE.
None of the rights, powers and remedies conferred upon or reserved to Agent
Bank, Banks or Borrowers in this Credit Agreement are intended to be
exclusive of any other available right, power or remedy, but each and every
such right, power and remedy shall be cumulative and not alternative, and
shall be in addition to every right, power and remedy herein specifically
given or now or hereafter existing at law, in equity or by statute. Any
forbearance, delay or omission by Agent Bank, Banks or Borrowers in the
exercise of any right, power or remedy shall not impair any such right, power
or remedy or be considered or taken as a waiver or relinquishment of the
right to insist upon and to enforce in the future, by injunction or other
appropriate legal or equitable remedy, any of said rights, powers and
remedies given to Agent Bank, Banks or Borrowers herein. The exercise of any
right or partial exercise thereof by Agent Bank, Banks or Borrowers shall not
preclude the further exercise thereof and the same shall continue in full
force and effect until specifically waived by an instrument in writing
executed by Agent Bank or Banks, as the case may be.
Section 10.08. CONTINUING REPRESENTATIONS. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Credit Agreement, the making of the Bank Facilities hereunder
and the execution and delivery of each other Loan Document until final payment
of all sums owing under the Bank Facilities and Bank Facility Termination has
occurred.
- 160 -
Section 10.09. SUCCESSORS AND ASSIGNS. All of the terms,
covenants, warranties and conditions contained in this Credit Agreement shall be
binding upon and inure to the sole and exclusive benefit of the parties hereto
and their respective successors and assigns.
Section 10.10. ASSIGNMENT OF LOAN DOCUMENTS BY BORROWERS OR
SYNDICATION INTERESTS BY LENDERS.
a. This Credit Agreement and the other Loan
Documents to which Borrowers are a party will be binding upon and inure to the
benefit of Borrowers, the Agent Bank, each of the Banks, and their respective
successors and assigns, EXCEPT that, Borrowers may not assign their rights
hereunder or thereunder or any interest herein or therein without the prior
written consent of all the Lenders. Any attempted assignment or delegation in
contravention of the foregoing shall be null and void. Any Lender may at any
time pledge its Syndication Interest in the Credit Facility, the Credit
Agreement and the Loan Documents to a Federal Reserve Bank, but no such pledge
shall release that Lender from its obligations hereunder or grant to such
Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such
pledge.
b. Each Lender may assign all or any part of
its Syndication Interest in the Credit Facility to any Affiliate of such
Lender or to any other Lender without consent and to one or more financial
institutions that are Eligible Assignees that are not competitors or an
Affiliate of any competitor of the Hotel/Casino Facilities in the gaming
industry (it being acknowledged that a bank or financial institution shall
not be deemed a competitor or Affiliate of a competitor merely because it
lends money or otherwise extends credit to any such competitor or Affiliate
of a competitor) with the prior consent of the Agent Bank (which consent
shall not be unreasonably withheld or delayed) and, so long as no Default or
Event of Default has occurred and remains continuing, with the prior consent
of the Borrowers' (which consent shall not be unreasonably withheld or
delayed); PROVIDED, however, that the minimum amount of each such assignment
shall be Five Million Dollars ($5,000,000.00), or such lesser amount as
constitutes the remaining amount of a Lender's Syndication Interest in the
Credit Facility (except that there shall be no minimum assignment among the
Lenders or to their Affiliates), and as a condition to the effectiveness of
the assignment, each assignee Lender (or assignor if so agreed between the
assignee Lender and such assignor) shall pay to the Agent Bank an assignment
fee of Three Thousand Five Hundred Dollars ($3,500.00) with respect to each
such assignment. Each such assignment shall be evidenced by an assignment
substantially in the form of an Assignment and Assumption Agreement or other
form reasonably acceptable to Agent Bank and Borrowers. Upon any such
assignment, the assignee financial institution shall become a Lender for all
purposes under the Credit Agreement and each of the Loan Documents and the
assigning Lender shall be released from its further obligations hereunder to
the extent of such
- 161 -
assignment. Notwithstanding the foregoing, the rights of the Lenders to make
assignments shall be subject to the approval by the Gaming Authorities of the
assignee or participant, to the extent required by applicable Gaming Laws,
and to applicable securities laws.
c. Each Lender may sell participations
without notice to or consent of the Borrowers, or any of them, or Agent Bank to
any Eligible Subparticipant which is not a competitor or an Affiliate of any
competitor of the Hotel/Casino Facilities in the gaming industry (it being
acknowledged that a bank or financial institution shall not be deemed a
competitor or Affiliate of a competitor merely because it lends money or
otherwise extends credit to any such competitor or Affiliate of a competitor),
for all or any part of its Syndication Interest in the Credit Facility;
PROVIDED, however, that (i) such Lender shall remain responsible for its total
obligations under the Credit Agreement and each of the Loan Documents, (ii) the
Borrowers and the Agent Bank shall continue to deal solely with such Lender in
connection with such Lender's rights and obligations under the Credit Agreement
and each of the Loan Documents, (iii) each Lender shall remain the holder of the
Obligations for all purposes under the Loan Documents, and (iv) such Lender
shall not sell any participation under which the participant would have rights
to approve any amendment or waiver relating to the Credit Agreement or any Loan
Document except to the extent any such amendment or waiver would (w) extend the
final maturity date or the date for the payment of any installments of fees,
principal or interest due in respect of the Credit Facility, (x) reduce the
interest rates applicable to the Credit Facility or (y) release any material
portion of the Collateral or any Borrower or Subsidiary Guarantor.
Notwithstanding the foregoing, the rights of the Lenders to grant participations
shall be subject to the approval by the Gaming Authorities of the assignee or
participant, to the extent required by applicable Gaming Laws, and to applicable
securities laws.
d. In the event any Lender is found unsuitable
as a Lender under the Credit Facility by the Gaming Authorities or the
Governmental Authorities of any other State of the United States ("Unsuitable
Lender"): (a) Agent Bank shall use its best efforts to find a replacement
Lender, (b) Borrowers shall have the right to make a Voluntary Reduction in
the amount necessary to reduce the Aggregate Commitment by the amount of the
Syndication Interest held by the Unsuitable Lender (without any penalties,
including any Breakage Charges) until a replacement Lender, if any, commits
to acquire the Syndication Interest of the Unsuitable Lender, at which time
the Aggregate Commitment shall be increased by the amount of the Voluntary
Reduction, and (c) upon full payment of all outstanding amounts of principal
and interest owing it, such Unsuitable Lender shall execute such documents as
may be required by Agent Bank, Borrower or any applicable Gaming Authorities
to evidence the termination of its Syndication Interest in the Credit
Facility.
Section 10.11. ACTION BY LENDERS. Whenever Banks shall have
the right to make an election, or to exercise any right, or their consent shall
be required for any action
- 162 -
under this Credit Agreement or the Loan Documents, then such election,
exercise or consent shall be given or made for all Banks by Agent Bank in
accordance with the provisions of Sections 10.01. Notices, reports and other
documents required to be given by Borrowers to Banks hereunder may be given
by Borrowers to Agent Bank on behalf of Banks, with sufficient copies for
distribution to each of the Banks, and the delivery to Agent Bank shall
constitute delivery to Banks. In the event any payment or payments are
received by a Lender other than Agent Bank, Borrowers consent to such
payments being shared and distributed as provided herein.
Section 10.12. TIME OF ESSENCE. Time shall be of the
essence of this Credit Agreement.
Section 10.13. CHOICE OF LAW AND FORUM. This Credit Agreement
shall be governed by and construed in accordance with the internal laws of the
State of California without regard to principles of conflicts of law. Borrowers
further agree that the full and exclusive forum for the determination of any
action relating to this Credit Agreement, the Loan Documents, or any other
document or instrument delivered in favor of Banks pursuant to the terms hereof
shall be either an appropriate Court of the State of California or the United
States District Court, and the Borrowers hereby irrevocably submit to the
jurisdiction thereof.
Section 10.14. ADVANCES. Until Bank Facility Termination,
if any Borrower should fail (i) to perform or observe, or (ii) to cause to be
performed or observed, any covenant or obligation of such Borrower under this
Credit Agreement or any of the other Loan Documents, the failure of which
could reasonably be expected to result in a Material Adverse Change, then
Agent Bank, upon the giving of reasonable notice and the approval of
Requisite Lenders, may (but shall be under no obligation to) take such steps
as are necessary to remedy any such non-performance or non-observance and
provide for payment thereof. All amounts advanced by Agent Bank or Lenders
pursuant to this Section 10.14 shall become an additional obligation of
Borrowers to Lenders secured by the Security Documentation and other Loan
Documents, shall reduce the amount of Available Borrowings and shall become
due and payable by Borrowers on the next interest payment date, together with
interest thereon at a rate per annum equal to the Default Rate (such interest
to be calculated from the date of such advancement to the date of payment
thereof by Borrowers).
Section 10.15. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, BORROWERS AND EACH OF THE BANKS EACH MUTUALLY HEREBY EXPRESSLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND,
OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS CREDIT AGREEMENT, THE NOTES
OR ANY
- 163 -
OF THE LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE DEALINGS OF BORROWERS AND BANKS WITH RESPECT TO THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS AND EACH OF THE BANKS EACH
MUTUALLY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT THE
DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING
PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Section 10.16. SCOPE OF APPROVAL AND REVIEW. Any inspection of
the Hotel/Casino Facilities shall be deemed to be made solely for Banks'
internal purposes and shall not be relied upon by the Borrowers or any third
party. In no event shall Lenders be deemed or construed to be joint venturers or
partners of Borrowers.
Section 10.17. SEVERABILITY OF PROVISIONS. In the event any
one or more of the provisions contained in this Credit Agreement shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
Section 10.18. CUMULATIVE NATURE OF COVENANTS. All
covenants contained herein are cumulative and not exclusive of each other
covenant. Any action allowed by any covenant shall be allowed only if such
action is not prohibited by any other covenant.
Section 10.19. CONFIDENTIALITY. Each of the Banks agrees
to hold any non- public information that it may receive from Borrowers
pursuant to this Credit Agreement (or pursuant to any other Loan Document) in
confidence and consistent with their respective policies for handling
material non-public information, except for disclosure: (a) To the other
Banks; (b) To legal counsel and accountants for Borrowers or any of the
Banks; (c) To the other professional advisors to Borrowers or any of the
Banks, provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section 10.19; (d) To
regulatory officials having jurisdiction over that Bank; (e) To any Gaming
Authority having regulatory jurisdiction over Borrowers or their respective
Subsidiaries, provided that each of the Banks agrees to endeavor to notify
Borrowers of any such disclosure; (f) As required by law or legal process or
in connection with any legal proceeding, provided that such disclosing Bank
uses reasonable efforts to notify Borrowers prior to any such disclosure; and
(g) To another financial institution in connection with a
- 164 -
disposition or proposed disposition to that financial institution of all or
part of that Lender's Syndication Interest hereunder or in the Note, provided
that the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 10.19. For purposes of the
foregoing, "non-public information" shall mean any information respecting
Borrowers or their respective Subsidiaries reasonably considered by Borrowers
to be material and not available to the public, OTHER THAN (i) information
previously filed with any governmental agency and available to the public,
(ii) information which is available to the general public at the time of use
or disclosure, (iii) information which becomes available to the general
public, other than by manner of unauthorized disclosure or use, or (iv)
information previously published in any public medium from a source other
than, directly or indirectly, that Bank. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the
Agent Bank or the Banks to Borrowers.
Section 10.20. COSTS TO PREVAILING PARTY. If any action or
arbitration proceeding is brought by any party against any other party under
this Credit Agreement or any of the Loan Documents, the prevailing party shall
be entitled to recover such costs and attorney's fees as the court in such
action or proceeding may adjudge reasonable.
Section 10.21. EXPENSES.
a. GENERALLY. Borrowers agree within ten (10)
Banking Business Days following demand to pay, or reimburse Agent Bank for,
all of Agent Bank's documented reasonable out-of-pocket costs and expenses of
every type and nature incurred by Agent Bank at any time (whether prior to,
on or after the date of this Credit Agreement) in connection with (i) any
requests for consent, waiver or other modification of any Loan Document made
by Borrowers, other than to correct errors attributable to the Banks; (ii)
the negotiation, preparation and execution of this Credit Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in Article III), the Security Documentation
and the other Loan Documents and the advance of Borrowings; (iii) the
subordination of any Collateral, including title charges, recording fees and
reasonable attorneys' fees and costs incurred in connection therewith; (iv)
any appraisals performed after the occurrence of an Event of Default; (v) the
creation, perfection or protection of the Security Documentation on the
Collateral (including, without limitation, any fees and expenses for title
and lien searches, local counsel in various jurisdictions, filing and
recording fees and taxes, duplication costs and corporate search fees); and
(vi) the protection, collection or enforcement of any of the Obligations or
the Collateral, including pre-foreclosure sale Protective Advances.
b. AFTER EVENT OF DEFAULT. Borrowers further
agree to pay, or reimburse Agent Bank and Lenders, for all reasonable
out-of-pocket costs and expenses, including without limitation reasonable
attorneys' fees and disbursements incurred by Agent
- 165 -
Bank and each Lender after the occurrence of an Event of Default (i) in
enforcing any Obligation or in foreclosing against the Collateral or
exercising or enforcing any other right or remedy available by reason of such
Event of Default; (ii) in connection with any refinancing or restructuring of
the credit arrangements provided under this Credit Agreement in the nature of
a "work-out" or in any insolvency or bankruptcy proceeding; (iii) in
commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal
proceeding relating to Borrowers and related to or arising out of the
transactions contemplated hereby; (iv) in taking any other action in or with
respect to any suit or proceeding (whether in bankruptcy or otherwise); (v)
in protecting, preserving, collecting, leasing, selling, taking possession
of, or liquidating any of the Collateral; or (vi) in attempting to enforce or
enforcing any lien in any of the Collateral or any other rights under the
Security Documentation.
Section 10.22. SECURITY AND LOAN DOCUMENTATION. The Security
Documentation and other Loan Documents (other than this Credit Agreement) may be
held in the name of WFB as the Agent Bank of all Banks hereunder pursuant to the
terms of this Credit Agreement.
Section 10.23. SETOFF. In addition to any rights and
remedies of the Banks provided by law, if any Event of Default exists, each
Bank is authorized at any time and from time to time by the Borrowers,
without prior notice to the Borrowers, any such notice being waived by the
Borrowers to the fullest extent permitted by law, to set-off and apply any
and all deposits (general or special, time or demand, provisional or final)
at any time held by such Bank to or for the credit or the account of
Borrowers against any and all obligations of Borrowers under the Bank
Facilities, now or hereafter existing, irrespective of whether or not the
Agent Bank or any such Bank shall have made demand under this Credit
Agreement or any Loan Document and although such amounts owed may be
contingent or unmatured. Agent Bank agrees promptly to notify the Borrowers
and the Agent Bank (and Agent Bank shall promptly notify each other Bank)
after any such setoff and application made by Agent Bank; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this Section 10.23 are
in addition to the other rights and remedies (including other rights of
setoff) which each such Bank may have.
Section 10.24. BORROWERS' WAIVERS AND CONSENTS.
a. Each Borrower shall be jointly and
severally liable for the repayment of all Aggregate Outstandings.
b. Each Borrower agrees that neither the
Agent Bank nor any Bank shall have any responsibility to inquire into the
apportionment, allocation or
- 166 -
disposition of any Borrowings, Swingline Advances and/or Letters of Credit as
among the Borrowers.
c. For the purpose of implementing the joint
borrower provisions of this Credit Agreement and each of the Loan Documents,
each Borrower hereby irrevocably appoints each other Borrower as its agent and
attorney-in-fact for all purposes of this Credit Agreement and each of the Loan
Documents, including without limitation the giving and receiving of notices and
other communications, the making of requests for, or conversions or
continuations of, Borrowings, Swingline Advances and/or Letters of Credit, the
execution and delivery of certificates and the receipt and allocation of
disbursements from the Banks.
d. Each Borrower acknowledges that the
handling of the Bank Facilities on a joint borrowing basis as set forth in this
Credit Agreement is solely an accommodation to Borrowers and is done at their
request. Each Borrower agrees that neither the Agent Bank, nor any Bank, shall
incur any liability to any Borrower due to such joint borrowing basis. To induce
the Agent Bank and the Banks to enter into this Credit Agreement, and in
consideration thereof, in accordance with the provisions set forth in Section
5.14 of this Credit Agreement, each Borrower hereby agrees to indemnify the
Agent Bank and each Bank and hold each such entity harmless from and against any
and all liabilities, expenses, losses, damages and/or claims of damage or injury
asserted against such entity by any Borrower or by any other Person arising from
or incurred by reason of the structuring of the Bank Facilities as herein
provided, reliance by the Agent Bank or the Banks on any requests or
instructions from any Borrower, or any other action taken by the Agent Bank or a
Bank hereunder. This Section shall survive termination of this Credit Agreement.
e. Each Borrower represents and warrants to the
Agent Bank and the Banks that (i) it has established adequate means of
obtaining from each other Borrower on a continuing basis financial and other
information pertaining to the business, operations and condition (financial
and otherwise) of each of the other Borrowers and its respective property,
and (ii) each Borrower now is and hereafter will be completely familiar with
the business, operations and condition (financial and otherwise) of each
other Borrower, and its property. Each Borrower hereby waives and
relinquishes any duty on the part of the Agent Bank or any Bank to disclose
to such Borrower any matter, fact or thing relating to the business,
operations or condition (financial or otherwise) of any other Borrower, or
the property of any other Borrower, whether now or hereafter known by the
Agent Bank or any Bank at any time through Bank Facility Termination.
f. Each Borrower acknowledges that the
Aggregate Outstandings, or portions thereof, may derive from value provided
directly to another Person
- 167 -
and, in full recognition of that fact, each Borrower consents and agrees that
the Agent Bank and any Bank may, at any time and from time to time, without
notice or demand, and without affecting the enforceability or security of the
Loan Documents:
(i) accept partial payments on the Bank
Facilities;
(ii) receive and hold additional security or
guaranties for the Bank Facilities or any part thereof;
(iii) release, reconvey, terminate, waive, abandon,
subordinate, exchange, substitute, transfer and enforce any
security or guaranties, and apply any security and direct the
order or manner of sale thereof, as the Agent Bank or such
Bank in its sole and absolute discretion may determine;
(iv) release any party or any guarantor from any
personal liability with respect to the Bank Facilities or any
part thereof;
(v) settle, release on terms satisfactory to the
Agent Bank or such Bank or by operation of applicable laws or
otherwise liquidate or enforce any Bank Facilities and any
security or guaranty in any manner, consent to the transfer of
any security and bid and purchase at any sale; and/or
(vi) consent to the merger, change or any other
restructuring or termination of the corporate existence of any
other Borrower or any other Person, and correspondingly
restructure the Bank Facilities, continuing existence of any
lien or encumbrance under any other Loan Document to which any
Borrower is a party or the enforceability hereof or thereof
with respect to all or any part of the Bank Facilities.
Each Borrower expressly waives any right to require
the Agent Bank or any Bank to marshal assets in favor of any
Borrower, any other party or any other Person or to proceed
against any other Borrower or any other party or any
Collateral provided by any other Borrower or any other party,
and agrees that the Agent Bank and any Bank may proceed
against Borrowers and/or the Collateral in such order as they
shall determine in their sole and absolute discretion. The
Agent Bank and any Bank may file a separate action or actions
against any Borrower, whether action is brought or prosecuted
with respect to any other security or against any other
Person, or whether any other Person is joined in any such
action or actions. Each Borrower agrees that the Agent Bank or
any Bank and any other Borrower may deal with each other in
connection with the Bank Facilities or otherwise, or alter any
- 168 -
contracts or agreements now or hereafter existing between any
of them, in any manner whatsoever, all without in any way
altering or affecting the obligations of such Borrower under
the Loan Documents. Each Borrower expressly waives any and all
defenses now or hereafter arising or asserted by reason of:
(a) any disability or other defense of any other Borrower or
any other party with respect to any Bank Facilities, (b) the
unenforceability or invalidity as to any other Borrower or any
other party of the Bank Facilities, (c) the unenforceability
or invalidity of any security or guaranty for the Bank
Facilities or the lack of perfection or continuing perfection
or failure of priority of any security for the Bank
Facilities, (d) the cessation for any cause whatsoever of the
liability of any Borrower or any other party (other than by
reason of the full payment and performance of all Bank
Facilities), (e) to the extent permitted by applicable law,
any failure of the Agent Bank or any Bank to give notice of
sale or other disposition to any Borrower or any defect in any
notice that may be given in connection with any sale or
disposition, (f) any act or omission of the Agent Bank or any
Bank or others that directly or indirectly results in or aids
the discharge or release of any Borrower or any other Person
or the Bank Facilities or any other security or guaranty
therefor by operation of law or otherwise, (g) any law which
provides that the obligation of a surety or guarantor must
neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces a
surety's or guarantor's obligation in proportion to the
principal obligation, (h) any failure of the Agent Bank or any
Bank to file or enforce a claim in any bankruptcy or other
proceeding with respect to any Person, (i) the election by the
Agent Bank or any Bank, in any bankruptcy proceeding of any
Person, of the application or non-application of Section
1111(b)(2) of the United States Bankruptcy Code, (j) any
extension of credit or the grant of any lien or encumbrance
under Section 364 of the United States Bankruptcy Code, (k)
any use of cash collateral under Section 363 of the United
States Bankruptcy Code, (l) any agreement or stipulation with
respect to the provision of adequate protection in any
bankruptcy proceeding of any Person, (m) the avoidance of any
lien or encumbrance in favor of the Agent Bank or any Bank for
any reason, (n) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of
the obligations (or any interest thereon) in or as a result of
any such proceeding, or (o) any election of remedies by the
Agent Bank or any Bank, even if the effect thereof is to
destroy or impair any Borrower's right to subrogation,
reimbursement, exoneration, indemnification or contribution.
In connection with the foregoing, each Borrower waives, in
accordance with California Civil Code Section 2856, all
- 169 -
rights and defenses arising out of an election of remedies
by the Agent Bank or any Bank, even though that election of
remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed the
Borrower's rights of subrogation and reimbursement against
any other Borrower or Subsidiary Guarantor by the operation
of Section 580d of the California Code of Civil Procedure or
otherwise.
Notwithstanding anything to the contrary contained in
the Loan Documents, each Borrower shall be entitled to raise a defense that Bank
Facility Termination has irrevocably occurred and the defense of statute of
limitations, but not any defenses available as a result of any failure of
consideration, lack of authority by Borrowers or fraud by Borrowers.
g. In the event that all or any part of the
Bank Facilities at any time are secured by any one or more deeds of trust or
mortgages creating or granting liens on any interests in real property, each
Borrower authorizes the Agent Bank and any Bank, upon the acceleration of the
Indebtedness then owing under the Bank Facilities, at their sole option, without
any other notice or demand and without affecting any of the Bank Facilities or
the validity or enforceability of any liens or encumbrance in favor of the Agent
Bank or any Bank on any Collateral, to foreclose any or all of such deeds of
trust or mortgages by judicial or nonjudicial sale. To the extent permitted by
applicable law, each Borrower expressly waives any defenses to the enforcement
of the Loan Documents or any liens or encumbrances created or granted under the
Loan Documents or to the recovery by the Agent Bank or any Bank against any
other Borrower or any guarantor or any other Person liable therefor of any
deficiency after a judicial or nonjudicial foreclosure or sale, even though such
a foreclosure or sale may impair the subrogation rights of a Borrower and may
preclude a Borrower from obtaining reimbursement or contribution from any
Borrower.
h. Notwithstanding anything to the contrary
elsewhere contained herein or in any other Loan Document to which any
Borrower is a party, each Borrower hereby expressly agrees with respect to
the other Borrowers and their successors and assigns (including any surety)
and any other Person which is directly or indirectly a creditor of the other
Borrowers or any surety for any other Borrower, not to exercise, until Bank
Facility Termination has irrevocably occurred, any rights at law or in equity
to subrogation, to reimbursement, to exoneration, to contribution, to setoff
or to any other rights that could accrue to a surety against a principal, to
a guarantor against a maker or obligor, to an accommodation party against the
party accommodated, or to a holder or transferee against a maker, and which
such Borrower may have or hereafter acquire against the other Borrowers or
any other such Person in connection with or as a result of such Borrower's
execution, delivery and/or performance of this Credit Agreement or any other
Loan Document to which such Borrower is a party.
- 170 -
Section 10.25. SCHEDULES ATTACHED. Schedules are
attached hereto and incorporated herein and made a part hereof as follows:
Schedule 2.01(a) - Schedule of Lenders' Proportions in
Credit Facility
Schedule 2.01(c) - Total Commitment Reduction
Schedule
Schedule 3.23 - Schedule of Significant Litigation
Schedule 4.08(b) - Schedule of Intercompany Notes
Schedule 4.20 - Schedule of Restricted and Unrestricted
Subsidiaries
Schedule 4.25 - Schedule of Trademarks, Patents,
Licenses, Franchises, Formulas and
Copyrights
Schedule 4.26 - Schedule of Contingent Liabilities
Schedule 5.11 - Schedule of Senior Indenture Security
Documents
Schedule 6.05(b) - Schedule of Excluded Capital
Expenditures
Schedule 6.07(h) - Schedule of Existing Unrestricted
Subsidiary Investments
Schedule 6.09 - Schedule of Liens
Section 10.26. EXHIBITS ATTACHED. Exhibits are attached
hereto and incorporated herein and made a part hereof as follows:
Exhibit A - Revolving Credit Note - Form
Exhibit B - Swingline Note - Form
Exhibit C - Notice of Borrowing - Form
- 171 -
Exhibit D - Continuation/Conversion Notice - Form
Exhibit E - Notice of Swingline Advance - Form
Exhibit F - Compliance Certificate - Form
Exhibit G - Pricing Certificate - Form
Exhibit H - Defeasance Account Agreement - Form
Exhibit I - Authorized Representative Certificate - Form
Exhibit J - Closing Certificate - Form
Exhibit K - Assumption and Consent Agreement - Form
Exhibit L - Assignment and Assumption Agreement - Form
Exhibit M - Cash Collateral Pledge Agreement
Exhibit N - Subsidiary Guaranty - Form
Exhibit O - Legal Opinion - Form
Exhibit P - Alton Real Property Description
Exhibit Q - Riverside Real Property Description
Exhibit R - Sioux City Real Property Description
Exhibit S - Baton Rouge Hotel Property Description
Exhibit T - Baton Rouge Real Property Description
- 172 -
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed as of the day and year first above written.
BORROWERS:
ARGOSY GAMING COMPANY,
a Delaware corporation
By /s/ Dale R. Black
--------------------------
Name Dale R. Black
------------------------
Title Vice President and CFO
-----------------------
THE MISSOURI GAMING COMPANY,
a Missouri corporation
By /s/ Dale R. Black
--------------------------
Name Dale R. Black
------------------------
Title Treasurer
-----------------------
ALTON GAMING COMPANY,
an Illinois corporation
By /s/ Dale R. Black
--------------------------
Name Dale R. Black
------------------------
Title Treasurer
-----------------------
S-1
ARGOSY OF LOUISIANA, INC.,
a Louisiana corporation
By /s/ Dale R. Black
---------------------------
Name Dale R. Black
-------------------------
Title Treasurer
------------------------
JAZZ ENTERPRISES, INC.,
a Louisiana corporation
By /s/ Dale R. Black
---------------------------
Name Dale R. Black
-------------------------
Title Treasurer
------------------------
S-2
CATFISH QUEEN PARTNERSHIP IN
COMMENDAM, a Louisiana
partnership in commendam
By: ARGOSY OF LOUISIANA, INC., a
Louisiana corporation,
General Partner
By /s/ Dale R. Black
-----------------------
Name Dale R. Black
---------------------
Title Treasurer
--------------------
By: JAZZ ENTERPRISES, INC.,
a Louisiana corporation,
General Partner
By /s/ Dale R. Black
-----------------------
Name Dale R. Black
---------------------
Title Treasurer
--------------------
IOWA GAMING COMPANY,
an Iowa corporation
By /s/ Dale R. Black
--------------------------------
Name Dale R. Black
------------------------------
Title Treasurer
-----------------------------
S-3
THE INDIANA GAMING COMPANY,
an Indiana corporation
By /s/ Dale R. Black
--------------------------------
Name Dale R. Black
------------------------------
Title Treasurer
Address for Borrowers:
219 Piasa Street
Alton, Illinois 62002-6232
Attn: Dale Black, CFO
Telephone: (618) 474-7668
Facsimile: (618) 474-7420
BANKS:
WELLS FARGO BANK,
National Association,
Agent Bank, Lender, Swingline Lender
and L/C Issuer
By
---------------------------------
Casey Potter,
Vice President
Address:
One East First Street
Reno, NV 89501
Telephone: (775) 334-5631
Facsimile: (775) 334-5637
S-4
BANKS:
WELLS FARGO BANK,
National Association,
Agent Bank, Lender, Swingline Lender
and L/C Issuer
By /s/ Casey Potter
---------------------------------
Casey Potter,
Vice President
Address:
One East First Street
Reno, NV 89501
Telephone: (775) 334-5631
Facsimile: (775) 334-5637
SOCIETE GENERALE,
as a Syndication Agent and
a Lender
By
----------------------------------
Donald L. Schubert,
Managing Director
Address:
Societe Generale
2029 Century Park East
Suite 2900
Los Angeles, CA 90067
Attn: Donald L. Schubert,
Managing Director
Telephone: (310) 788-7104
Facsimile: (310) 551-1537
S-4
BANKS:
WELLS FARGO BANK,
National Association,
Agent Bank, Lender, Swingline Lender
and L/C Issuer
By
---------------------------------
Casey Potter,
Vice President
Address:
One East First Street
Reno, NV 89501
Telephone: (775) 334-5631
Facsimile: (775) 334-5637
SOCIETE GENERALE,
as a Syndication Agent and
a Lender
By /s/ Alex Y. Kim
----------------------------------
Alex Y. Kim
Vice President
Address:
Societe Generale
2029 Century Park East
Suite 2900
Los Angeles, CA 90067
Attn: Donald L. Schubert,
Managing Director
Telephone: (310) 788-7104
Facsimile: (310) 551-1537
S-4
KEYBANK NATIONAL ASSOCIATION,
as a Documentation Agent
and a Lender
By /s/ Mary K. Young
---------------------------
Name Mary K. Young
-------------------------
Title Assistant Vice President
-------------------------
Address:
700 Fifth Avenue
46th Floor
Seattle, WA 98104
Attn: Tom Crandell, V.P.
Telephone: (206) 684-6037
Facsimile: (206) 684-6035
THE FIRST NATIONAL BANK
OF CHICAGO, as a Managing
Agent and Lender
By
-------------------------
James Junker,
Vice President
Address:
777 S. Figueroa Street
4th Floor
Los Angeles, CA 90017-5801
Attn: James Junker
Telephone: (213) 683-4948
Facsimile: (213) 683-4999
S-5
KEYBANK NATIONAL ASSOCIATION,
as a Documentation Agent
and a Lender
By
------------------------
Name
----------------------
Title
----------------------
Address:
700 Fifth Avenue
46th Floor
Seattle, WA 98104
Attn: Tom Crandell, V.P.
Telephone: (206) 684-6037
Facsimile: (206) 684-6035
THE FIRST NATIONAL BANK
OF CHICAGO, as a Managing
Agent and Lender
By /s/ Mark A. Isley
-------------------------
Mark A. Isley
First Vice President
Address:
777 S. Figueroa Street
4th Floor
Los Angeles, CA 90017-5801
Attn: Mark A. Isley, 1st V.P.
Telephone: (213) 683-4948
Facsimile: (213) 683-4999
S-5
LASALLE BANK, N.A.,
as a Lender
By /s/ James M. Minich
-------------------------------
Name James. M. Minich
-----------------------------
Title First Vice President
----------------------------
Address:
135 South LaSalle Street
2nd Floor
Chicago, IL 60603
Attn: Jim Minich, V.P.
Telephone: (312) 904-2121
Facsimile: (312) 904-0432
CIBC, INC.,
as a Lender
By
------------------------------
Name
----------------------------
Title
---------------------------
Address:
350 S. Grand Ave., Ste. 2600
Los Angeles, CA 90017
Attn: Dean Decker
Telephone: (213) 617-6245
Facsimile: (213) 346-0157
S-6
LASALLE BANK, N.A.,
as a Lender
By
-------------------------------
Name
-----------------------------
Title
----------------------------
Address:
135 South LaSalle Street
2nd Floor
Chicago, IL 60603
Attn: Jim Minich, V.P.
Telephone: (312) 904-2121
Facsimile: (312) 904-0432
CIBC, INC.,
as a Lender
By /s/ Dean Decker
------------------------------
Name Dean Decker
----------------------------
Title Executive Director
---------------------------
CIBC World Markets Corp., AS AGENT
Address:
350 S. Grand Ave., Ste. 2600
Los Angeles, CA 90017
Attn: Dean Decker
Telephone: (213) 617-6245
Facsimile: (213) 346-0157
S-6
FIRSTAR BANK,
as a Lender
By /s/ Thomas D. Gibbons
-----------------------------
Name Thomas D. Gibbons
---------------------------
Title Vice President
--------------------------
Address:
425 Walnut Street
M.L. 8160
Cincinnati, OH 45201
Attn: Brian Gallagher, A.V.P.
Telephone: (513) 632-4716
Facsimile: (513) 632-2068
HIBERNIA NATIONAL BANK,
as a Lender
By
------------------------------
Name
---------------------------
Title
---------------------------
Address:
313 Carondelet St.
New Orleans, LA 70130
Attn: Ross Wales, V.P.
Telephone: (504) 533-5719
Facsimile: (504) 533-2060
S-7
FIRSTAR BANK,
as a Lender
By
-----------------------------
Name
---------------------------
Title
---------------------------
Address:
425 Walnut Street
M.L. 8160
Cincinnati, OH 45201
Attn: Brian Gallagher, A.V.P.
Telephone: (513) 632-4716
Facsimile: (513) 632-2068
HIBERNIA NATIONAL BANK,
as a Lender
By /s/ Ross S. Wales
------------------------------
Name Ross S. Wales
---------------------------
Title Vice President
---------------------------
Address:
313 Carondelet St.
New Orleans, LA 70130
Attn: Ross Wales, V.P.
Telephone: (504) 533-5719
Facsimile: (504) 533-2060
S-7