EXHIBIT 10.1
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AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 14, 2001
among
WHEELING ISLAND GAMING, INC.
as Borrower,
The Lenders and Syndication Agent referred to herein
and
BANK OF AMERICA, N.A.,
as Administrative Agent
for itself and the other Lenders.
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Sole Book Manager.
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TABLE OF CONTENTS
PAGE
Article 1
DEFINITIONS AND ACCOUNTING TERMS.....................................................................2
1.1 Defined Terms...............................................................................2
1.2 Use of Defined Terms.......................................................................26
1.3 Accounting Terms...........................................................................26
1.4 Rounding...................................................................................26
1.5 Exhibits and Schedules.....................................................................27
1.6 References to "and its Subsidiaries".......................................................27
1.7 References to Times........................................................................27
1.8 Miscellaneous Terms........................................................................27
Article 2
LOANS AND LETTERS OF CREDIT.........................................................................28
2.1 Loans-General..............................................................................28
2.2 Base Rate Loans............................................................................29
2.3 LIBOR Loans................................................................................29
2.4 Letters of Credit..........................................................................30
2.5 Voluntary Reduction of Commitment..........................................................33
2.6 Scheduled Reductions of Commitment.........................................................33
2.7 Mandatory Reductions of Commitment.........................................................33
2.8 Optional Increases to the Commitment.......................................................34
2.9 Administrative Agent's Right to Assume Funds Available for Advances........................35
Article 3
PAYMENTS AND FEES...................................................................................37
3.1 Principal and Interest.....................................................................37
3.2 Upfront Fee................................................................................38
3.3 Administrative Agency Fees.................................................................38
3.4 Commitment Fees............................................................................38
3.5 Letter of Credit Fees......................................................................38
3.6 Increased Commitment Costs.................................................................39
3.7 LIBOR Costs and Related Matters............................................................39
3.8 Late Payments..............................................................................43
3.9 Computation of Interest and Fees...........................................................43
3.10 Non-Business Days..........................................................................43
3.11 Manner and Treatment of Payments...........................................................43
3.12 Funding Sources............................................................................44
3.13 Failure to Charge Not Subsequent Waiver....................................................44
3.14 Administrative Agent's Right to Assume Payments Will be Made by
Borrower...................................................................................45
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3.15 Fee Determination Detail...................................................................45
3.16 Survival...................................................................................45
Article 4
REPRESENTATIONS AND WARRANTIES......................................................................46
4.1 Existence and Qualification; Power; Compliance With Laws...................................46
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations.....................................................................46
4.3 No Governmental Approvals Required.........................................................47
4.4 Subsidiaries...............................................................................47
4.5 Financial Statements.......................................................................47
4.6 No Material Adverse Effects................................................................48
4.7 Title to Property..........................................................................48
4.8 Intangible Assets..........................................................................48
4.9 Public Utility Holding Company Act.........................................................48
4.10 Litigation.................................................................................48
4.11 Binding Obligations........................................................................48
4.12 No Default.................................................................................48
4.13 ERISA......................................................................................49
4.14 Regulations T, U and X; Investment Company Act.............................................49
4.15 Disclosure.................................................................................49
4.16 Tax Liability..............................................................................49
4.17 Projections................................................................................50
4.18 Hazardous Materials........................................................................50
4.19 Applicable Regulations.....................................................................50
4.20 Security Interests.........................................................................50
4.21 Solvency...................................................................................50
4.22 Collateral and Guarantees..................................................................50
4.23 Senior Indebtedness........................................................................50
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS).............................................................................52
5.1 Payment of Taxes and Other Potential Liens.................................................52
5.2 Preservation of Existence..................................................................52
5.3 Maintenance of Properties..................................................................52
5.4 Maintenance of Insurance...................................................................52
5.5 Compliance With Laws.......................................................................53
5.6 Inspection Rights..........................................................................53
5.7 Keeping of Records and Books of Account....................................................53
5.8 Compliance With Agreements.................................................................53
5.9 Use of Proceeds............................................................................53
5.10 Hazardous Materials Laws...................................................................54
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5.11 Completion of Expansion Project............................................................54
5.12 Construction Matters.......................................................................54
5.13 Delivery of Plans, Budget and Timetable....................................................55
Article 6
NEGATIVE COVENANTS..................................................................................56
6.1 Prepayment of Indebtedness.................................................................56
6.2 Prepayment of Certain Obligations..........................................................56
6.3 Hostile Tender Offers......................................................................57
6.4 Mergers, Acquisitions, Sales of Assets, Etc................................................57
6.5 Distributions and Management Fees..........................................................57
6.6 ERISA......................................................................................58
6.7 Change in Nature of Business...............................................................58
6.8 Liens and Negative Pledges.................................................................58
6.9 Indebtedness...............................................................................58
6.10 Contingent Obligations.....................................................................59
6.11 New Subsidiaries...........................................................................59
6.12 Transactions with Affiliates...............................................................59
6.13 Leverage Ratio.............................................................................59
6.14 Fixed Charge Coverage Ratio................................................................60
6.15 Capital Expenditures.......................................................................60
6.16 Acquisitions and Investments...............................................................61
6.17 New Subsidiaries...........................................................................61
6.18 Senior Unsecured Notes.....................................................................61
6.19 Construction Covenants.....................................................................61
Article 7
INFORMATION AND REPORTING REQUIREMENTS..............................................................63
7.1 Financial and Business Information.........................................................63
7.2 Compliance Certificates....................................................................66
Article 8
CONDITIONS..........................................................................................67
8.1 The Effective Date.........................................................................67
8.2 Any Advance................................................................................69
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT................................................70
9.1 Events of Default..........................................................................70
9.2 Remedies Upon Event of Default.............................................................72
Article 10
THE ADMINISTRATIVE AGENT............................................................................75
10.1 Appointment and Authorization..............................................................75
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10.2 Administrative Agent and Affiliates........................................................75
10.3 Proportionate Interest in any Collateral...................................................75
10.4 Lenders' Credit Decisions..................................................................75
10.5 Action by Administrative Agent.............................................................76
10.6 Liability of Administrative Agent..........................................................77
10.7 Indemnification............................................................................78
10.8 Successor Administrative Agent.............................................................78
10.9 Foreclosure on Collateral..................................................................78
10.10 No Obligations of Borrower.................................................................79
10.11 Permitted Release of Collateral............................................................79
Article 11
MISCELLANEOUS.......................................................................................80
11.1 Cumulative Remedies; No Waiver.............................................................80
11.2 Amendments; Consents.......................................................................80
11.3 Costs, Expenses and Taxes..................................................................81
11.4 Nature of Lenders' Obligations.............................................................81
11.5 Survival of Representations and Warranties.................................................82
11.6 Notices....................................................................................82
11.7 Execution of Loan Documents................................................................82
11.8 Binding Effect; Assignment.................................................................82
11.9 Right of Setoff............................................................................85
11.10 Sharing of Setoffs.........................................................................85
11.11 Indemnity by Borrower......................................................................86
11.12 Nonliability of the Lenders................................................................87
11.13 No Third Parties Benefitted................................................................87
11.14 Confidentiality............................................................................87
11.15 Further Assurances.........................................................................88
11.16 Principles of Restatement..................................................................88
11.17 Governing Law..............................................................................88
11.18 Severability of Provisions.................................................................89
11.19 Headings...................................................................................89
11.20 Time of the Essence........................................................................89
11.21 Foreign Lenders and Participants...........................................................89
11.22 Waiver of Right to Trial by Jury...........................................................89
11.23 Purported Oral Amendments..................................................................90
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SCHEDULES AND EXHIBITS
Schedule 4.1 Ownership of Borrower
Schedule 4.3 Governmental Approvals
Schedule 4.4 Subsidiaries
Schedule 4.8 Intangible Assets
Schedule 4.17 Projections
Schedule 4.18 Hazardous Materials
Schedule 6.8 Existing Liens
Schedule 6.9 Existing Indebtedness
Schedule 6.19 Material Amenities of the Proposed Expansion
Exhibit A - Assignment Agreement
Exhibit B - Compliance Certificate
Exhibit C - Note
Exhibit D - Request for Letter of Credit
Exhibit E - Request for Loan
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AMENDED AND RESTATED
LOAN AGREEMENT
Dated as of December 14, 2001
This Amended and Restated
Loan Agreement is entered into by and
among Wheeling Island Gaming, Inc., a Delaware corporation, each lender whose
name is set forth on the signature pages of this Agreement and each lender which
may hereafter become a party to this Agreement pursuant to Section 11.8
(collectively, the "Lenders" and individually, a "Lender") and Bank of America,
N.A., as Administrative Agent for itself and for the other Lenders, with
reference to the following facts:
A. Wheeling Downs Racing Association, Inc., a West Virginia
corporation (the "Prior Borrower") heretofore entered into a
Loan Agreement
dated as of June 30, 2000 among the Prior Borrower, the lenders described
therein, and Bank of America, N.A., as Administrative Agent, pursuant to which a
$20,000,000 revolving credit facility was made available to the Prior Borrower
(as amended, the "Existing
Loan Agreement"). Pursuant to an Assignment Agreement
dated as of September 7, 2000, WesBanco Bank, Inc. became a lender under the
Existing
Loan Agreement (Bank of America, N.A. and WesBanco Bank, Inc. in their
capacity as Lenders under the Existing
Loan Agreement, collectively, the
"Existing Lenders").
B. As of November 27, 2001, the Prior Borrower merged with and into
the Borrower, with the Borrower as the survivor of such merger.
C. Substantially concurrently herewith, Borrower has issued not less
than $125,000,000 in senior unsecured notes (the "Senior Unsecured Notes", and
such issuance, the "Senior Unsecured Note Issuance") and concurrently with the
effectiveness hereof Borrower shall use the proceeds thereof (i) to redeem all
of the Borrower's capital stock now owned by WHX Entertainment (the "WHX
Entertainment Redemption") pursuant to the Stock Redemption Agreement, (ii) to
repay the outstanding Indebtedness under the Existing
Loan Agreement, (iii) to
pay related transactional expenses, and (iv) thereafter for general corporate
purposes.
D. Borrower has indicated its intention to expand its existing
facilities at its Wheeling Downs facility located at Wheeling, West Virginia, to
include (i) additional gaming space sufficient to accommodate 550 additional
slot machines (ii) the installation of approximately 550 additional slot
machines, (iii) additional restaurant and bar facilities; (iv) an approximately
150 room hotel with related conference facilities and (v) a covered parking
facility all in accordance with the Plans, Budget and Timetable to be submitted
to the Administrative Agent (the "Expansion Project").
E. By this Agreement, Borrower and the Lenders party to the Existing
Loan Agreement desire to admit ▇▇▇▇▇ Fargo Bank, N.A., as an additional Lender,
to increase
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the Commitment from $20,000,000 to $40,000,000 and to amend and restate the
Existing
Loan Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"ACQUISITION" means any transaction, or any series of related
transactions, by which Borrower directly or indirectly (i) acquires any
going business or all or substantially all of the assets of any firm,
partnership, joint venture, limited liability company, corporation or
division thereof, whether through purchase of assets, merger or otherwise,
or (ii) acquires (in one transaction or as the most recent transaction in
a series of transactions) control of at least a majority in ordinary
voting power of the securities of a corporation which have ordinary voting
power for the election of directors, or (iii) acquires control of a 50% or
more ownership interest in any partnership, limited liability company or
joint venture.
"ADJUSTED INTEREST EXPENSE" means, (a) as of the last day of each of
the first four Fiscal Quarters ending after the Effective Date, (i)
Average Total Debt determined as of that date TIMES (ii) the combined
weighted average interest rate per annum for such Total Debt as of the
last day of such Fiscal Quarter, and (b) as of the last day of each
subsequent Fiscal Quarter, Interest Expense for the four Fiscal Quarter
period ending on that date.
"ADMINISTRATIVE AGENT" means Bank of America, when acting in its
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"ADMINISTRATIVE SERVICES AGREEMENT" means the Administrative
Services Agreement dated as of December 14, 2001 by and between Borrower,
Sportsystems and Delaware North, as amended from time to time.
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"ADVANCE" means any advance made or to be made by any Lender to
Borrower as provided in Article 2, and includes each Base Rate Advance,
each LIBOR Advance and any Advances under the Existing Loan Agreement
outstanding on the Effective Date.
"AFFILIATE" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); PROVIDED that, in any event, any Person that owns, directly or
indirectly, 20% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation that
has more than 100 record holders of such securities, or 20% or more of the
partnership or other ownership interests of any other Person that has more
than 100 record holders of such interests, will be deemed to control such
corporation, partnership or other Person.
"AGGREGATE EFFECTIVE AMOUNT" means, as of any date of determination
and with respect to all Letters of Credit then outstanding, the SUM of (a)
the aggregate effective face amounts of all such Letters of Credit not
then paid by the Issuing Lender PLUS (b) the aggregate amounts paid by the
Issuing Lender under such Letters of Credit not then reimbursed to the
Issuing Lender by Borrower pursuant to Section 2.4(d) and not the subject
of Advances made pursuant to Section 2.4(e).
"AGREEMENT" means this Loan Agreement, either as originally executed
or as it may from time to time be supplemented, modified, amended,
restated or extended.
"APPLICABLE REGULATIONS" means all Laws pursuant to which any
Regulatory Board possesses regulatory, licensing or permit authority over
gambling, gaming, casino, wagering, parimutuel and other similar
activities conducted by Borrower or any of its Subsidiaries within its
jurisdiction.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement substantially
in the form of Exhibit A.
"AVERAGE TOTAL DEBT" means, as of the last day of any Fiscal
Quarter, the arithmetic average of the Total Debt as of that date and as
of the last day of each of the two previous constituent fiscal months in
that Fiscal Quarter, PROVIDED that for the first Fiscal Quarter ending
following the Effective Date, the principal amount of the Unsecured Senior
Notes and the Obligations incurred on the Effective Date shall be included
in the Total Debt as of each such date on a pro forma basis (but without
duplication).
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"BANK OF AMERICA" means Bank of America, N.A., its successors and
assigns.
"BASE RATE" means, as of any date of determination, the rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) 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 1/2 of 1%. Interest shall
accrue on an actual/365-366-day basis and shall be payable quarterly in
arrears.
"BASE RATE ADVANCE" means an Advance made hereunder and specified to
be a Base Rate Advance in accordance with Article 2 and includes all
Advances outstanding on the Effective Date.
"BASE RATE LOAN" means a Loan made hereunder and specified to be a
Base Rate Loan in accordance with Article 2.
"BASE RATE MARGIN" means, for the initial Pricing Period 1.75% per
annum and, for each subsequent Pricing Period, the percentage per annum
set forth opposite the Leverage Ratio as of the last day of the Fiscal
Quarter ending two months prior to the first day of that Pricing Period:
Leverage Ratio Base Rate Margin
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Greater than or equal to 3.50:1.00 2.00%
Less than 3.50:1.00 but greater 1.75%
than or equal to 3.00:1.00
Less than 3.00:1.00 but greater 1.25%
than or equal to 2.50:1.00
Less than 2.50:1.00 but greater 1.00%
than or equal to 2.00:1.00
Less than 2.00:1.00 0.75%
"BORROWER" means Wheeling Island Gaming, Inc., a Delaware
corporation which is the successor to the Prior Borrower, its successors
and permitted assigns. It is acknowledged that, pursuant to Section
11.8(a), Borrower may assign the Commitment to a limited liability company
to be formed.
"BORROWER SECURITY AGREEMENT" means the Amended and Restated
Borrower Security Agreement executed and delivered by Borrower on the
Effective Date in favor of the Administrative Agent for the benefit of the
Creditors, either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
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"BUDGET" means the budget for the design, development and
construction of the Expansion Project submitted to and approved by the
Administrative Agent pursuant to Section 5.13.
"BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday, OTHER THAN a day on which banks are authorized or required to be
closed in California and West Virginia.
"CAPITAL EXPENDITURE" means any expenditure that is considered a
capital expenditure under Generally Accepted Accounting Principles,
INCLUDING any amount which is required to be treated as an asset subject
to a Capital Lease Obligation.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance with
Generally Accepted Accounting Principles, is classified as a capital
lease.
"CASH" means, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with Generally Accepted Accounting Principles, consistently
applied.
"CASH EQUIVALENTS" means, when used in connection with any Person,
that Person's Investments in:
(a) Government Securities due within one year after the date of the
making of the Investment;
(b) readily marketable direct obligations of any State of the United
States of America or any political subdivision of any such State or any public
agency or instrumentality thereof given on the date of such Investment a credit
rating of at least Aa by ▇▇▇▇▇'▇ Investors Service, Inc. or AA by Standard &
Poor's Ratings Group, in each case due within one 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 any bank incorporated under the
Laws of the United States of America, any State thereof or the District of
Columbia and having on the date of such Investment combined capital, surplus and
undivided profits of at least $250,000,000, in each case due within one 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
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$500,000,000, in each case due within one year after the date of the making of
the Investment; and
(e) readily marketable commercial paper or master notes 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 clause (C) or (D) above given on the date of
such Investment a credit rating of at least P-2 by ▇▇▇▇▇'▇ Investors Service,
Inc. or A-2 by Standard & Poor's Ratings Group, in each case due within 90 days
after the date of the making of the Investment.
"CERTIFICATE OF A RESPONSIBLE OFFICIAL" means a certificate signed
by a Responsible Official of the Person providing the certificate.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(a) Delaware North fails to own (directly or indirectly),
beneficially and of record, and control the power to vote at least a
majority of the issued and outstanding capital stock of Borrower; or
(b) Delaware North fails to control (directly or indirectly) the
management of the affairs of the Borrower (including without limitation,
any failure of Delaware North or its wholly-owned Subsidiaries to be the
managing member of any limited liability company which assumes the
Obligations pursuant to Section 11.8(a); or
(c) any event which constitutes a "Change of Control" or "Change in
Control" or similar event with respect to Indebtedness of Borrower or any
of its Subsidiaries in a principal amount which is in excess of
$1,000,000, in the aggregate which permits the holders thereof to
accelerate the maturity of such Indebtedness or require the prepayment
thereof prior to the stated or final maturity thereof.
"CLOSING DATE" means June 30, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by the Collateral
Documents, including without limitation the personal property,
improvements, fixtures and real property constituting Wheeling Downs and
the Expansion Project.
"COLLATERAL DOCUMENTS" means, collectively, the Deeds of Trust, the
Borrower Security Agreement, the Subsidiary Security Agreement, and each
other security agreement, pledge agreement, deed of trust, mortgage or
other collateral security agreement hereafter executed and delivered by
Borrower or any other Obligor to secure the Obligations.
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"COMMITMENT" means, subject to any increase or decrease in the
amount thereof pursuant to Sections 2.5, 2.6, 2.7 or 2.8, $40,000,000.
"COMMITMENT FEE RATE" means, for the initial Pricing Period, 0.625%
per annum and for each subsequent Pricing Period, the percentage per annum
set forth opposite the Leverage Ratio as of the last day of the Fiscal
Quarter ending two months prior to the first day of that Pricing Period:
Leverage Ratio Commitment Fee Rate
-------------- -------------------
Greater than or equal to 3.00:1.00 0.625%
Less than 3.00:1.00 0.50%
"COMPLETION DATE" means the date upon which (a) the Expansion
Project has been completed in accordance with applicable laws, the Plans
and the Budget, (b) Borrower has obtained all necessary material licenses,
permits and approvals required in connection with the operation of the
amenities described in the Plans, (c) the Expansion Project, including all
material amenities described in the Plans, is open and ready to
accommodate hotel guests and patrons and (d) Borrower has delivered a
certificate executed by a Senior Officer, certifying each of the
foregoing.
"COMPLIANCE CERTIFICATE" means a certificate in the form of Exhibit
B, properly completed and signed by a Senior Officer of Borrower.
"CONSTRUCTION CONSULTANT" means, Professional Associates
Construction Services, the construction consultant engaged by the
Administrative Agent to review the progress of the Expansion Project on
behalf of the Lenders.
"CONSTRUCTION PROGRESS REPORT" means a report prepared by the
Construction Consultant in a form which is reasonably acceptable to the
Administrative Agent describing the progress of construction of the
Expansion Project, which report shall include an analysis and comparison
of the progress of construction to the Budget.
"CONTINGENT OBLIGATION" means, as to any Person, any (a) guarantee
by that Person of Indebtedness of, or other obligation performable by, any
other Person or (b) assurance given by that Person to an obligee of any
other Person with respect to the performance of an obligation by, or the
condition or maintenance of the financial condition of, such other Person,
whether direct, indirect or contingent, INCLUDING any purchase or
repurchase agreement covering such obligation, any interest rate swap
agreement, forward contract or other arrangement of such Person, or any
collateral security therefor, any agreement to provide funds (by means of
loans, capital contributions or otherwise) to such other Person, any
agreement to support the solvency or level of any balance sheet item of
such other Person or any "keep-well" or
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other arrangement of whatever nature given for the purpose of assuring or
holding harmless such obligee against loss with respect to any obligation
of such other Person; PROVIDED, HOWEVER, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation (unless the
Contingent Obligation 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 the Person in good faith.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of
any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or by
which it or any of its Property is bound.
"CREDITORS" means, collectively, the Administrative Agent, the
Syndication Agent, the Issuing Lender and the Lenders.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"DEEDS OF TRUST" means (i) the Amended and Restated Deed of Trust,
Assignment of Rents and Fixture Filing executed and delivered on the
Effective Date by Borrower with respect to Wheeling Downs, (ii) the Deed
of Trust, Assignment of Rents and Fixture Filing executed and delivered on
the Effective Date by
Wheeling Land Development Corporation with respect
to the proposed location of Borrower's kennels for Wheeling Downs in
Brooke County, West Virginia to secure its guaranty of the Obligations,
(iii) the Deed of Trust, Assignment of Rents and Fixture Filing executed
and delivered on the Effective Date by
Wheeling Land Development
Corporation with respect to certain other land in Ohio County, West
Virginia to secure its guaranty of the Obligations, and (iv) each other
mortgage or deed of trust hereafter delivered pursuant to this Agreement,
in each case either as originally executed or as it may from time to time
be supplemented, modified, amended, restated or extended.
"DEFAULT" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"DEFAULT RATE" means the interest rate prescribed in Section 3.8.
"DELAWARE NORTH" means Delaware North Companies, Incorporated, a
Delaware corporation, and its successors.
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"DESIGNATED EURODOLLAR MARKET" means, with respect to any LIBOR
Loan, (a) the London Eurodollar Market, (b) if prime banks in the London
Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that the
London Eurodollar Market does not represent at the relevant time the
effective pricing to the Lenders for deposits of Dollars in the London
Eurodollar Market, the Cayman Islands Eurodollar Market or (c) if prime
banks in the Cayman Islands Eurodollar Market are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent determines in
good faith that the Cayman Islands Eurodollar Market does not represent at
the relevant time the effective pricing to the Lenders for deposits of
Dollars in the Cayman Islands Eurodollar Market, such other Eurodollar
Market as may from time to time be selected by the Administrative Agent
with the approval of Borrower and the Requisite Lenders.
"DISBURSEMENT ACCOUNT" means a deposit account designated by
Borrower by written notification to the Administrative Agent.
"DISPOSITION" means the voluntary sale, transfer or other
disposition of any asset of Borrower or any of its Subsidiaries OTHER THAN
(a) Cash, Cash Equivalents, inventory or other assets sold, leased or
otherwise disposed of in the ordinary course of business of Borrower or
its Subsidiaries, (b) equipment (including any aircraft) sold or otherwise
disposed of where substantially similar equipment in replacement thereof
has theretofore been acquired, or thereafter within 90 days is acquired,
by Borrower or its Subsidiaries, (c) leases of retail space by Borrower,
as lessor, in the ordinary course of the business of Borrower and in a
manner consistent with other similarly situated businesses, (d) a
disposition to Borrower or any of its Subsidiaries, (e) Distributions
permitted by Section 6.5, and (f) other transactions involving the sale,
transfer or other disposition, in one transaction or a series of related
transactions, of Property having a value of not more than $500,000 in any
such transaction or series of related transactions (and in any event
having a value of not more than $5,000,000 during the term of this
Agreement).
"DISTRIBUTION" means, with respect to shares of capital stock or any
warrant or option to purchase an equity security or other equity security
issued by a Person, (i) the retirement, redemption, purchase, or other
acquisition for Cash or for Property by such Person of any such security,
(ii) the declaration or (without duplication) payment by such Person of
any dividend in Cash or in Property on or with respect to any such
security, (iii) any Investment by such Person in the holder of 5% or more
of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution, and (iv) any other
payment in Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security. It is understood that
payments under the Administrative Services Agreement shall not be
considered to be Distributions.
"DOLLARS" or "$" means United States dollars.
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"EBITDA" for any period means Borrower's consolidated (a) net
income, PLUS, to the extent deducted in arriving at net income, (b)
Interest Expense, plus (c) the aggregate amount of federal, state and
local taxes on or measured by income (whether or not payable during that
period), PLUS (d) depreciation and amortization expenses, PLUS (e)
non-cash non-recurring expenses, in each case as determined in accordance
with Generally Accepted Accounting Principles.
"EFFECTIVE DATE" means the date upon which each of the conditions
precedent set forth in Section 8.1 to the effectiveness hereof are
satisfied or waived. The Administrative Agent shall notify Borrower and
the Lenders of the date that is the Effective Date.
"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 $100,000,000 or more, (d) any (i) savings
bank, savings and loan association or similar financial institution or
(ii) insurance company engaged in the business of writing insurance which,
in either case (A) has a net worth of $200,000,000 or more, (B) is engaged
in the business of lending money and extending credit under credit
facilities similar to those extended under this Agreement and (C) is
operationally and procedurally able to meet the obligations of a Lender
hereunder to the same degree as a commercial bank and (e) any other
financial institution (INCLUDING a mutual fund or other fund) having total
assets of $250,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (d) above; PROVIDED that (I) each
Eligible Assignee must either (a) be organized under the Laws of the
United States of America, any State thereof or the District of Columbia or
(b) be organized under the Laws of the Cayman Islands or any country which
is a member of the Organization for Economic Cooperation and Development,
or a political subdivision of such a country, and (i) act hereunder
through a branch, agency or funding office located in the United States of
America and (ii) be exempt from withholding of tax on interest and deliver
the documents related thereto pursuant to Section 11.21.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced and as
in effect from time to time.
"EURODOLLAR BASE RATE" means, with respect to any LIBOR Loan, the
average per annum interest rate at which deposits in Dollars would be
offered for the applicable Interest Period by major banks in the
Designated Eurodollar Market, as shown on the Telerate Page 3750 (or such
other page as may replace it) at approximately 11:00 a.m. London time two
Eurodollar Market Days before the commencement of the Interest Period. If
such rate does not appear on the Telerate Page 3750 (or such other page
that may replace it), the rate for that interest period will be determined
by such alternate method as reasonably selected by the Administrative
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Agent. The Administrative Agent's determination of the Eurodollar Base
Rate shall be conclusive in the absence of manifest error.
"EURODOLLAR MARKET" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"EURODOLLAR MARKET DAY" means any Business Day on which dealings in
Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"EVENT OF DEFAULT" shall have the meaning provided in Section 9.1.
"EXCESS CASH" means, as of the last day of each Fiscal Quarter
ending following the Completion Date, EBITDA for the period beginning on
January 1, 2002 and ending on that date MINUS, (a) Interest Expense for
the same period, (b) the aggregate amount of federal, state and local
taxes on or measured by income of Borrower and its Subsidiaries during
that period (whether or not payable during that period), (c) Maintenance
Capital Expenditures made during that period, (d) Distributions made
during that period, in each case without duplication and as determined in
accordance with Generally Accepted Accounting Principles, and MINUS (e)
the aggregate amount expended in connection with the repurchase of Senior
Unsecured Notes pursuant to Section 6.1(a), PLUS (f) the net amount (after
deduction of transactional expenses) of all equity securities issued by
Borrower following the Effective Date.
"EXISTING LENDERS" shall have the meaning provided in the recitals
hereto.
"EXISTING LOAN AGREEMENT" shall have the meaning provided in the
recitals hereto.
"EXPANSION PROJECT" shall have the meaning provided in the recitals
hereto.
"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 such successor, the "Composite 3:30 p.m. Quotations") 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
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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
Administrative Agent. For purposes of this 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.
"FISCAL QUARTER" means the fiscal quarter of Borrower consisting
approximately of a three-month fiscal period ending on or about each March
31, June 30, September 30 and December 31.
"FISCAL YEAR" means the fiscal year of Borrower consisting of a
twelve-month period ending on or about each December 31.
"FIXED CHARGE COVERAGE RATIO" means, as of each date of
determination, the ratio of (a) EBITDA for the four Fiscal Quarter period
ending on that date PLUS the amount of any Management Fees which were paid
both prior to the Effective Date and during that four Fiscal Quarter
period, to (b) the SUM OF (i) Adjusted Interest Expense, (ii) Required
Debt Reductions for the four Fiscal Quarter period beginning on that date,
(iii) Maintenance Capital Expenditures, and (iv) Distributions (other than
Permitted Tax Distributions) in each case for the four Fiscal Quarter
period ending on that date.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means accounting
principles, as in effect on and after the Effective Date, as (a) set forth
as generally accepted in the currently effective Opinions of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in the currently
effective Statements of the Financial Accounting Standards Board or (c)
that are approved by such other entity as may be approved by a significant
segment of the accounting profession in the United States of America. The
term "CONSISTENTLY APPLIED," as used in connection therewith, means that
the accounting principles applied are consistent in all material respects
with those applied at prior dates or for prior periods.
"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, or (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 AGENCY" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission,
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department, instrumentality or public body, or (c) any court or
administrative tribunal of competent jurisdiction.
"HAZARDOUS MATERIALS" means substances regulated as hazardous
substances pursuant to (a) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 ▇.▇.▇.▇▇. 9601 et seq., or as
hazardous or toxic wastes or pollutants pursuant to the Hazardous
Materials Transportation Act, 49 ▇.▇.▇.▇▇. 1801, et seq., the Resource
Conservation and Recovery Act, 42 ▇.▇.▇.▇▇. 6901, et seq., or (b) any
other Law regulating hazardous substances or hazardous or toxic wastes or
pollutants or regulating the generation, use, storage, treatment, handling
or transportation of any such substances, in each case as such Laws are
amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all federal, state or local laws,
ordinances, rules or regulations governing the disposal, transfer,
generation, storage or treatment of Hazardous Materials applicable to any
of the Real Property.
"INDEBTEDNESS" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with customary trade terms),
INCLUDING any Contingent Obligation with respect to any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (a) that
is non-recourse to the credit of such Person but is secured by assets of
such Person, to the extent of the value of such assets, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising under
bankers' acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (e) any direct or contingent
obligations of such Person under letters of credit issued for the account
of such Person , and the aggregate amount drawn under letters of credit or
other similar instruments and not reimbursed, and (f) any net obligations
of such Person under a Swap Agreement.
"INDENTURE" means the Indenture dated December 19, 2001 between
Borrower and U.S. Bank, N.A., as Trustee, governing the Senior Unsecured
Notes, as at any time amended.
"INTANGIBLE ASSETS" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, INCLUDING customer
lists, goodwill, copyrights, trade names, trademarks and patents.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment of a
LIBOR Loan on a day other than the last day of the applicable Interest
Period and with respect to any failure to borrow a LIBOR Loan on the date
or in the amount specified in any Request for Loan, (a) the per annum
interest rate payable (or, with respect to a failure to borrow, the
interest rate which would have been payable) pursuant to Section 3.1(c)
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with respect to the LIBOR Loan MINUS (b) the LIBOR on, or as near as
practicable to, the date of the prepayment or failure to borrow for a
LIBOR Loan with an Interest Period commencing on such date and ending on
the last day of the Interest Period of the LIBOR Loan so prepaid or which
would have been borrowed on such date.
"INTEREST EXPENSE" means, for any Person, for any fiscal period, the
SUM OF (a) all interest, fees, charges and related expenses paid or
payable (without duplication) for that fiscal period by that Person to a
lender in connection with borrowed money or the deferred purchase price of
assets that are considered "interest expense" under Generally Accepted
Accounting Principles, PLUS (b) the portion of rent paid or payable
(without duplication) for that fiscal period by that Person under Capital
Lease Obligations that should be treated as interest in accordance with
Financial Accounting Standards Board Statement No. 13.
"INTEREST PERIOD" means, as to each LIBOR Loan, the period
commencing on the date specified by Borrower pursuant to Section 2.1(b)
and ending 1, 2, 3 or 6 months thereafter, as specified by Borrower in the
applicable Request for Loan; PROVIDED that:
(a) The first day of any Interest Period shall be a Eurodollar
Market Day;
(b) Any Interest Period that would otherwise end on a day that is
not a Eurodollar Market Day shall be extended to the next succeeding
Eurodollar Market Day unless such Eurodollar Market Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Market Day;
(c) Borrower may not specify an Interest Period that extends beyond
any Reduction Date unless (i) the aggregate principal amount of the LIBOR
Loans having an Interest Period ending after such Reduction Date PLUS (ii)
the aggregate maximum amount available for drawing under Letters of Credit
for which the expiry date is after such Reduction Date, does not exceed
the Commitment (after giving effect to any reduction thereto scheduled to
be made on such Reduction Date pursuant to Section 2.6); and
(d) No Interest Period shall extend beyond the Maturity Date.
"INVESTMENT" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
INCLUDING any partnership and joint venture interests of such Person. The
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
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"ISSUING LENDER" means Bank of America, N.A.
"LAWS" means, collectively, all federal, state and local statutes,
rules, regulations, ordinances, codes and administrative or judicial
precedents, or other matters having the force of law and binding upon the
parties hereto.
"LENDERS" has the meaning set forth in the preamble hereto.
"LETTER OF CREDIT FEE RATE" means, for the initial Pricing Period
2.75% per annum and, for each subsequent Pricing Period, the percentage
per annum set forth opposite the Leverage Ratio as of the last day of the
Fiscal Quarter ending two months prior to the first day of that Pricing
Period:
Leverage Ratio Letter of Credit Fee Rate
-------------- -------------------------
Greater than or equal to 3.50:1.00 3.00%
Less than 3.50:1.00 but greater than
or equal to 3.00:1.00 2.75%
Less than 3.00:1.00 but greater than
or equal to 2.50:1.00 2.25%
Less than 2.50:1.00 but greater than
or equal to 2.00:1.00 2.00%
Less than 2.00 to1.00 1.75%
"LETTERS OF CREDIT" means any of the letters of credit issued by the
Issuing Lender under the Commitment pursuant to Section 2.4, either as
originally issued or as the same may be supplemented, modified, amended,
renewed, extended or supplanted and includes all Letters of Credit
outstanding on the Effective Date.
"LEVERAGE RATIO" means, as of the last day of each Fiscal Quarter,
the ratio of (a) Average Total Debt to (b) EBITDA for the four Fiscal
Quarter period then ended PLUS the amount of any Management Fees which
were paid both prior to the Effective Date and during that four Fiscal
Quarter period.
"LIBOR" means, with respect to any LIBOR Loan, an interest rate per
annum (rounded upward, if necessary, to the nearest 1/100 of one percent)
determined pursuant to the following formula:
LIBOR= Eurodollar Base Rate
---------------------------------
1.00 - Reserve Percentage
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"LIBOR ADVANCE" means an Advance made hereunder and specified to be
a LIBOR Advance in accordance with Article 2 and includes all LIBOR
Advances outstanding on the Effective Date.
"LIBOR LOAN" means a Loan made hereunder and specified to be a LIBOR
Loan in accordance with Article 2 and includes all LIBOR Loans outstanding
on the Effective Date.
"LIBOR MARGIN" means, for the initial Pricing Period 2.75% per annum
and, for each subsequent Pricing Period, the percentage per annum set
forth opposite the Leverage Ratio as of the last day of the Fiscal Quarter
ending two months prior to the first day of that Pricing Period:
Leverage Ratio Libor Margin
-------------- ------------
Greater than or equal to 3.50:1.00 3.00%
Less than 3.50:1.00 but greater than 2.75%
or equal to 3.00:1.00
Less than 3.00:1.00 but greater than 2.25%
or equal to 2.50:1.00
Less than 2.50:1.00 but greater than 2.00%
or equal to 2.00:1.00
Less than 2.00 to 1.00 1.75%
"LIBOR OFFICE" means, as to each Lender, its office or branch so
designated by written notice to the Administrative Agent as its LIBOR
Office. If no LIBOR Office is designated by a Lender, its LIBOR Office
shall be its office at its address for purposes of notices hereunder.
"LICENSE REVOCATION" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, supervisor or similar
official with respect to, any racetrack, casino, gambling or gaming
license issued by any Regulatory Board covering Wheeling Downs or any
other racetrack, casino, gambling or other gaming facility owned or
operated by Borrower or its Subsidiaries.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge of
any kind, whether voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, INCLUDING any agreement to grant any of
the foregoing, any conditional sale or other title retention agreement,
any lease in the nature of a security interest, and/or the filing of or
agreement to give any financing statement (OTHER THAN a precautionary
financing statement with respect to a lease that is not in the nature of a
security interest
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or customary pre-filings of financing statements in connection with any
refinancing) under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"LOAN" means the aggregate of the Advances made at any one time by
the Lenders pursuant to Article 2 and includes all Loans outstanding on
the Effective Date.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes,
each Letter of Credit, the Subsidiary Guaranty, the Collateral Documents,
each Request for Loan, each Request for Letter of Credit, each Compliance
Certificate and any other agreements of any type or nature hereafter
executed and delivered by Borrower or any of its Subsidiaries or
Affiliates to the Administrative Agent or to any Lender in any way
relating to or in furtherance of this Agreement, in each case either as
originally executed or as the same may from time to time be supplemented,
modified, amended, restated, extended or supplanted.
"MAINTENANCE CAPITAL EXPENDITURES" means Capital Expenditures for
the maintenance, repair, restoration or refurbishment of Wheeling Downs,
but EXCLUDING any Capital Expenditure which adds to or further improves
Wheeling Downs (including any Capital Expenditure associated with the
initial construction of the Expansion Project).
"MANAGEMENT FEES" means the management fees or incentive fees
payable by Borrower to its owners on or prior to the Effective Date.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or events
which (a) has or may reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan
Document, (b) is or may reasonably be expected to be material and adverse
to the financial condition or business operations of Borrower and its
Subsidiaries, taken as a whole, or (c) materially impairs or may
reasonably be expected to materially impair the ability of Borrower and
its Subsidiaries, taken as a whole, to perform the Obligations.
"MATURITY DATE" means the EARLIER OF (a) December 31, 2006 and (b)
the date which is the fifth anniversary of the Effective Date.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that contains a
covenant binding on Borrower or any of its Subsidiaries that prohibits
Liens on any of its or
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their Property, OTHER THAN (a) any such covenant contained in a
Contractual Obligation granting a Lien permitted under Section 6.8 which
affects only the Property that is the subject of such permitted Lien and
(b) any such covenant that does not apply to Liens securing the
Obligations.
"NET CASH PROCEEDS" means with respect to any Disposition of
Collateral, the gross sales proceeds received by Borrower and its
Subsidiaries from such Disposition NET OF brokerage commissions, legal
expenses and other transactional costs payable by Borrower and its
Subsidiaries with respect to such Disposition and NET OF an amount
determined in good faith by Borrower to be the estimated amount of income,
transfer, or value added taxes payable by Borrower attributable to such
Disposition and any reserves required to be established in accordance with
Generally Accepted Accounting Principles by Borrower or its Subsidiaries
as a reserve against any liabilities associated with such Disposition,
including without limitation pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under indemnification obligations associated with such Disposition.
"NOTE" means any of the promissory notes made by Borrower to a
Lender evidencing Advances under that Lender's Pro Rata Share of the
Commitment, substantially in the form of Exhibit C, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"OBLIGATIONS" means all present and future obligations of every kind
or nature of Borrower or any other Obligor at any time and from time to
time owed to the Administrative Agent, the Issuing Lender or the Lenders
or any one or more of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, INCLUDING obligations of
performance as well as obligations of payment, and INCLUDING interest that
accrues after the commencement of any proceeding under any Debtor Relief
Law by or against Borrower or any Subsidiary or Affiliate of Borrower.
"OBLIGOR" means Borrower, each Subsidiary Guarantor, each other
future guarantor of the Obligations, and each other Subsidiary of Borrower
which has at any time executed any Loan Document.
"OPINIONS OF COUNSEL" means the favorable written legal opinion of
Bailey, Riley, Buch & ▇▇▇▇▇▇, special counsel to the Obligors, and
in-house counsel, in each case issued on the Effective Date and in a form
solely acceptable to the Administrative Agent, together with copies of all
factual certificates and legal opinions upon which such counsel have
relied.
"OUTSTANDING OBLIGATIONS" means, as of each date of determination,
and giving effect to the making of any such credit accommodations
requested on that date, the
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aggregate principal amount of the outstanding Loans, plus the Aggregate
Effective Amount of all Letters of Credit.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), OTHER THAN a Multiemployer
Plan, which is subject to Title IV of ERISA and is maintained by Borrower
or any of its Subsidiaries or to which Borrower or any of its Subsidiaries
contributes or has an obligation to contribute.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction on or maintenance of
Real Property; or Liens incident to construction on or maintenance of Real
Property now or hereafter filed of record for which adequate reserves have
been set aside (or deposits made pursuant to applicable Law) and which are
being contested in good faith by appropriate proceedings and have not
proceeded to judgment, PROVIDED that, by reason of nonpayment of the
obligations secured by such Liens, no such Real Property is subject to a
material risk of loss or forfeiture;
(b) Liens for taxes and assessments on Real Property which are not
yet past due; or Liens for taxes and assessments on Real Property for
which adequate reserves have been set aside and are being contested in
good faith by appropriate proceedings and have not proceeded to judgment,
PROVIDED that, by reason of nonpayment of the obligations secured by such
Liens, no such Real Property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title to any Real Property
which in the aggregate do not materially impair the fair market value or
use of the Real Property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, licenses, reservations, or other
agreements for the purpose of pipelines, conduits, cables,
telecommunications, wire communication lines, power lines and substations,
streets, trails, walkways, drainage, irrigation, water, and sewerage
purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other
minerals, and other like purposes affecting Real Property, facilities, or
equipment which in the aggregate do not materially burden or impair the
fair market value or use of such Real Property for the purposes for which
it is or may reasonably be expected to be held;
-19-
(e) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, the use of any Real Property;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, any right, power, franchise, grant, approval, license, or
permit;
(g) present or future zoning laws and ordinances or other Laws and
ordinances restricting the occupancy, use, or enjoyment of Real Property;
(h) statutory Liens, other than those described in clauses (A) or
(B) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good faith
by appropriate proceedings, PROVIDED that, if delinquent, adequate
reserves have been set aside with respect thereto and, by reason of
nonpayment, no Property is subject to a material risk of loss or
forfeiture;
(i) rights of tenants under leases and rental agreements covering
Real Property entered into in the ordinary course of business of the
Person owning such Real Property;
(j) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens
of judgments thereunder which are not currently dischargeable;
(k) other non-consensual Liens incurred in the ordinary course of
business but not in connection with an extension of credit, which do not
in the aggregate, when taken together with all other Liens, materially
impair the value or use of the Property of Borrower and the Subsidiaries
of Borrower, taken as a whole; and
(l) the matters disclosed on Schedule B to any of the ALTA lenders
policies of title insurance delivered to the Administrative Agent pursuant
to Section 8.1.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting of
(a) an interest (other than a legal or equitable co-ownership interest, an
option or right to acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease), that does not
materially impair the value or use of Property for the purposes for which
it is or may reasonably be expected to be held, (b) an option or right to
acquire a Lien that would be a Permitted Encumbrance, (c) any licenses or
concessions to operate retail businesses granted in accordance with
industry customs, or any options to receive any such licenses or
concessions, or (d) any Right of Others granted in connection with a
proposed Disposition permitted by Section 6.4.
-20-
"PERMITTED TAX DISTRIBUTIONS" means Distributions made by Borrower
pursuant to the Tax Sharing Agreement providing for payment by the
Borrower to its shareholders or other owners with respect to any period of
amounts representing not more than the amount of tax that would be payable
by Borrower for such period had the Borrower and its Subsidiaries filed a
separate consolidated or combined tax return as a Subchapter C corporation
for the relevant taxing jurisdiction (less any tax directly paid by such
Persons with respect to such period).
"PERSON" means any individual or entity, INCLUDING a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"PLANS" mean the construction plans for the Expansion Project
submitted to and approved by the Administrative Agent pursuant to Section
5.13.
"PRICING PERIOD" means (a) the period beginning on the Effective
Date and ending on December 31, 2001, and (b) each of the succeeding three
month periods beginning on each January 1, April 1, July 1 and October 1.
"PRIME RATE" means the rate of interest publicly announced from time
to time by Bank of America as its "prime rate." It is a rate set by Bank
of America based upon various factors including Bank of America's costs
and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in the Prime Rate
announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.
"PROJECTIONS" means the financial projections attached hereto as
Schedule 4.17.
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, as of each date of determination and with
respect to each Lender, the percentage of the Commitment owned by that
Lender (or, if the Commitment has been terminated, the percentage of the
Outstanding Obligations owned by that Lender). As of the Effective Date,
the Pro Rata Share of each Lender is as set forth on the signature pages
hereto. The records of the Administrative Agent shall be presumed to
correctly reflect the Pro Rata Share of the Lenders then party to this
Agreement.
"QUARTERLY PAYMENT DATE" means each March 31, June 30, September 30
and December 31 to occur following the date of this Agreement.
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"REAL PROPERTY" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by Borrower or any
of its Subsidiaries.
"REDUCTION AMOUNT" means, with respect to each Reduction Date,
$2,500,000, PROVIDED that from and after the date of any increase of the
Commitment in accordance with Section 2.8, the amount of the Reduction
Amount for each subsequent Reduction Date shall be increased in the
proportion that (a) $40,000,000 PLUS the amount of such increase bears to
(b) $40,000,000.
"REDUCTION DATE" means December 31, 2003, and the last day of each
succeeding March, June, September and December through and including
September 30, 2005, and the Maturity Date.
"REGULATION D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"REGULATIONS T, U AND X" means Regulations T, U and X, as at any
time amended, of the Board of Governors of the Federal Reserve System, or
any other regulations in substance substituted therefor.
"REGULATORY BOARD" means, collectively, (a) the West Virginia Racing
Commission, the West Virginia Lottery Commission, and (b) any other
Governmental Agency that holds regulatory, licensing or permit authority
over gambling, gaming or casino activities conducted by Borrower or any of
its Subsidiaries within its jurisdiction.
"REQUEST FOR LETTER OF CREDIT" means a written request for a Letter
of Credit substantially in the form of Exhibit D, signed by a Responsible
Official of Borrower and properly completed to provide all information
required to be included therein.
"REQUEST FOR LOAN" means a written request for a Loan substantially
in the form of Exhibit E, signed by a Responsible Official of Borrower and
properly completed to provide all information required to be included
therein.
"REQUIRED DEBT REDUCTIONS" means, for any period, the aggregate
principal amount, without duplication, of (a) any scheduled principal
payments required to be made with respect to Total Debt during that
period, (b) any principal payments required to be made during that period
with respect to Total Debt on the basis of a contingency which has
actually occurred as of the date of calculation which is certain to occur
during that period; (c) any scheduled reduction to a revolving credit
facility during that period to the extent that Total Debt under that
credit facility (determined as of the last day of such period) is in
excess of the remaining amount of the credit facility following such
reductions.
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"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"REQUISITE LENDERS" means, as of each date of determination (a) if
the Commitment is then in effect, Lenders having Pro Rata Shares
constituting 51% of the Commitment (but if there are only two Lenders,
both Lenders), and (b) if the Commitment has then been terminated and
there are then any Obligations outstanding, Lenders holding 51% or more of
the Outstanding Obligations (but if there are only two Lenders, both
Lenders).
"RESERVE PERCENTAGE" means, with respect to any LIBOR Loan, the
maximum reserve percentage (expressed as a decimal, rounded upward, if
necessary, to the nearest 1/100th of 1%) in effect on the date the
Eurodollar Base Rate for that LIBOR Loan is determined (whether or not
applicable to any Lender) under regulations issued from time to time by
the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred to
as "eurocurrency liabilities") having a term comparable to the Interest
Period for such LIBOR Loan. The determination by the Administrative Agent
of any applicable Reserve Percentage shall be conclusive in the absence of
manifest error.
"RESPONSIBLE OFFICIAL" means (a) when used with reference to a
Person other than an individual, any officer of such Person, general
partner of such Person, officer of a corporate general partner of such
Person, or corporate officer of a corporate general partner of a
partnership that is a general partner of such Person, or any other
responsible official thereof duly acting on behalf thereof, and (b) when
used with reference to a Person who is an individual, such Person. Any
document or certificate hereunder that is signed or executed by a
Responsible Official of another Person shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other
action on the part of such other Person.
"RIGHT OF OTHERS" means, as to any Property in which a Person has an
interest, any legal or equitable right, title or other interest (other
than a Lien) held by any other Person in that Property, and any option or
right held by any other Person to acquire any such right, title or other
interest in that Property, INCLUDING any option or right to acquire a
Lien.
"SENIOR OFFICER" means the (a) chief executive officer, (b)
president, (c) any vice president, (d) chief financial officer, (e)
treasurer or (f) assistant treasurer of the Person designated.
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"SENIOR UNSECURED NOTES" means Borrower's 10 1/8th% Senior Unsecured
Notes due 2009.
"SENIOR UNSECURED NOTE ISSUANCE" shall have the meaning provided in
the recitals hereto.
"SOLVENT" means, as of any date of determination, and as to any
Person, that on such date: (a) the fair valuation of the assets of such
Person is greater than the fair valuation of such Person's probable
liability in respect of existing debts; (b) such Person does not intend
to, and does not believe that it will, incur debts beyond such Person's
ability to pay as such debts mature; (c) such Person is not engaged in a
business or transaction, and is not about to engage in a business or
transaction, which would leave such Person with assets remaining which
would constitute unreasonably small capital after giving effect to the
nature of the particular business or transaction; and (d) such Person is
generally paying its debts as they become due. For purposes of the
foregoing (1) the "fair valuation" of any assets means the amount
realizable within a reasonable time, either through collection or sale, of
such assets at their regular market value, which is the amount obtainable
by a capable and diligent businessman from an interested buyer willing to
purchase such assets within a reasonable time under ordinary
circumstances; and (2) the term "debts" includes any legal liability
whether matured or unmatured, liquidated or unliquidated, absolute, fixed
or contingent.
"SPECIAL LIBOR CIRCUMSTANCE" means the application or adoption after
the Effective Date of any Law or interpretation, or any change after the
Effective Date therein or thereof, or any change after the Effective Date
in the interpretation or administration thereof by any Governmental
Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any Lender or
its LIBOR Office with any request or directive (whether or not having the
force of Law) of any such Governmental Agency, central bank or comparable
authority issued after the Effective Date, or the existence or occurrence
after the Effective Date of circumstances affecting the Designated
Eurodollar Market generally that are beyond the reasonable control of the
Lenders.
"SPORTSYSTEMS" means Sportsystems Corporation, a Delaware
corporation, and its successors and assignees.
"STOCK REDEMPTION AGREEMENT" means the Stock Redemption Agreement
dated November 16, 2001 among Borrower, WHX Entertainment and Sportsystems
Corporation, as in effect on the Effective Date.
"SUBORDINATED OBLIGATIONS" means any Indebtedness of Borrower which
is subordinated in right of payment to the Obligations, the terms of which
are approved
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by the Administrative Agent, acting with the consent of the Requisite
Lenders, in writing.
"SUBSIDIARY" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in either case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a
majority of the securities having ordinary voting power for the election
of directors or other governing body (other than securities having such
power only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority of the
partnership or other voting ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries.
"SUBSIDIARY GUARANTORS" means WDRA Food Service, Inc.,
Wheeling Land
Development Corp. and each of the other Subsidiaries listed on Schedule
4.4 hereto, and each other Person which hereafter issues a joinder to the
Subsidiary Guaranty in accordance with Section 6.17.
"SUBSIDIARY GUARANTY" means the Amended and Restated Subsidiary
Guaranty executed delivered by each Subsidiary of Borrower on the
Effective Date, together with any joinders thereto hereafter executed by
any Subsidiary pursuant to Section 6.17, either as originally executed or
as it may from time to time be supplemented, modified, amended, or
supplanted.
"SUBSIDIARY SECURITY AGREEMENT" means the Amended and Restated
Subsidiary Security Agreement executed and delivered by each Subsidiary of
Borrower on the Effective Date in favor of the Administrative Agent for
the benefit of the Creditors, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"SWAP AGREEMENT" means a written agreement between Borrower and one
or more financial institutions providing for "swap", "cap", "collar" or
other interest rate protection with respect to any Indebtedness.
"SYNDICATION AGENT" means ▇▇▇▇▇ Fargo Bank, N.A. The capacity of the
Syndication Agent is purely titular in nature, and the Syndication Agent
shall have no rights or obligations over those of a Lender hereunder or
under the other Loan Documents.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement effective as
of January 1, 2001, by and among Delaware North, Sportsystems and
Borrower, as amended from time to time.
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"TO THE BEST KNOWLEDGE OF" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with
the exercise of reasonable due diligence under the circumstances (in
accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or, in
the case of a Person other than a natural Person, would have been known by
a Responsible Official of that Person).
"TIMETABLE" means the construction timetable for the Expansion
Project submitted to and approved by the Administrative Agent pursuant to
Section 5.13.
"TOTAL DEBT" means, as of the last day of each Fiscal Quarter, the
consolidated Indebtedness of Borrower and its Subsidiaries as of such
date, after elimination of inter-company items in accordance with
Generally Accepted Accounting Principles.
"TYPE", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or
Advance, or a LIBOR Loan or Advance.
"VENUE" means any gaming, pari-mutuel, racing or other entertainment
venue now or hereafter operated by Borrower or any of its Subsidiaries.
"WHEELING DOWNS" means the Wheeling Downs Racetrack & Gaming Center
located in Ohio County, West Virginia.
"WHX ENTERTAINMENT" means WHX Entertainment Corp., a Delaware
corporation, and its successors and assignees.
"WHX ENTERTAINMENT REDEMPTION" shall have the meaning provided in
the recitals hereto.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural shall refer
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles as in effect on the Effective Date,
applied on a consistent basis.
1.4 ROUNDING. Any financial ratios required to be maintained by Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the
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other component, carrying the result to one place more than the number of places
by which such ratio is expressed in this Agreement and rounding the result up or
down to the nearest number (with a round-up if there is no nearest number) to
the number of places by which such ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this 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. A
matter disclosed on one Schedule shall be deemed disclosed on all Schedules.
1.6 REFERENCES TO "AND ITS SUBSIDIARIES". Any reference herein to "and its
Subsidiaries" or the like shall refer solely to the subject Person during such
times as the subject Person shall have no Subsidiaries. No use of the term
"Subsidiary" or any derivative thereof in the Loan Documents shall imply a right
in any Person to make any Investments in or Acquisitions of any other Person.
1.7 REFERENCES TO TIMES. Each reference to a time of day set forth in the
Loan Documents shall, unless expressly stated to the contrary, be a reference to
the then prevailing California local time.
1.8 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
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Article 2
LOANS AND LETTERS OF CREDIT
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Effective Date through the Business
Day immediately prior to the Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable Commitment,
make Advances to Borrower under the Commitment in such amounts as Borrower may
request that do not result in the Outstanding Obligations being in excess of the
then effective Commitment. Subject to the limitations set forth herein, the
Advances by each Lender under its Pro Rata Share of the Commitment may be
prepaid without premium or penalty and may be borrowed, repaid and reborrowed.
(b) Subject to the next sentence, each Loan shall be made pursuant
to a Request for Loan which shall specify the requested (i) date of such Loan,
(ii) type of Loan, (iii) amount of such Loan, and (iv) in the case of a LIBOR
Rate Loan, the Interest Period for such Loan. Unless the Administrative Agent,
in its sole and absolute discretion, has notified Borrower to the contrary,
Loans may be requested by telephone by a Responsible Official of Borrower, in
which case Borrower shall confirm such request by promptly delivering a Request
for Loan in person or by telecopier conforming to the preceding sentence to the
Administrative Agent. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request purportedly made by a
Responsible Official of Borrower, and Borrower hereby agrees to indemnify each
Creditor from any loss, cost, expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or telecopier (and if
by telephone, promptly confirmed by telecopier) of the date and type of the
Loan, any applicable Interest Period, and that Lender's Pro Rata Share of the
Loan. Not later than 11:00 a.m., California local time, on the date specified
for any Loan (which must be a Business Day), each Lender shall make its Pro Rata
Share of the Loan in immediately available funds available to the Administrative
Agent at the Administrative Agent's Office. Upon satisfaction of the applicable
conditions set forth in Article 8, all Advances shall be credited on that date
in immediately available funds to the Disbursement Account.
(d) Unless the Requisite Lenders otherwise consent, each Loan shall
be in an integral multiple of $250,000 which is not less than $1,000,000.
(e) The Advances made by each Lender shall be evidenced by that
Lender's Note.
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(f) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for Loan referred
to in the second sentence of Section 2.1(b), if applicable) has been made within
the requisite notice periods set forth in Section 2.2 or 2.3 prior to the end of
the Interest Period for any LIBOR Loan, then on the last day of such Interest
Period, such LIBOR Loan shall be automatically converted into a Base Rate Loan
in the same amount.
(h) If a Loan is to be made on the same date that another Loan is
due and payable the Lenders shall make available to the Administrative Agent (or
the Administrative Agent shall make available to the Lenders) the net amount of
funds giving effect to both such Loans and the effect for purposes of this
Agreement shall be the same as if separate transfers of funds had been made with
respect to each such Loan.
2.2 BASE RATE LOANS. Each request by Borrower for a Base Rate Loan shall
be made pursuant to a Request for Loan (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(b), if applicable) received by
the Administrative Agent, at the Administrative Agent's Office, not later than
9:00 a.m. California local time, on the date (which must be a Business Day) of
the requested Base Rate Loan. All Loans shall constitute Base Rate Loans unless
properly designated as a LIBOR Loan pursuant to Section 2.3.
2.3 LIBOR LOANS.
(a) Each request by Borrower for a LIBOR Loan shall be made pursuant
to a Request for Loan (or telephonic or other request for Loan referred to in
the second sentence of Section 2.1(b), if applicable) received by the
Administrative Agent, at the Administrative Agent's Office, not later than 9:00
a.m., California local time, at least three Eurodollar Business Days before the
first day of the applicable Interest Period.
(b) On the date which is two Eurodollar Business Days before the
first day of the applicable Interest Period, the Administrative Agent shall
confirm its determination of the applicable Eurodollar Rate (which determination
shall be conclusive in the absence of manifest error) and promptly shall give
notice of the same to Borrower and the Lenders by telephone or telecopier (and
if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than twenty five LIBOR Loans shall be outstanding at
any one time.
(d) No LIBOR Loan may be requested during the continuation of a
Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund any
LIBOR Advance in the Designated Eurodollar Market.
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2.4 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at any time and from
time to time from the Effective Date through the Business Day immediately prior
to the Maturity Date, the Issuing Lender shall issue such Letters of Credit
under the Commitment as Borrower may request by a Request for Letter of Credit;
PROVIDED that (i) giving effect to all such Letters of Credit, the Outstanding
Obligations do not exceed the then applicable Commitment, and (ii) the Aggregate
Effective Amount under all outstanding Letters of Credit shall not exceed
$5,000,000. Each Letter of Credit shall be in a form reasonably acceptable to
the Issuing Lender. Unless all the Lenders otherwise consent in a writing
delivered to the Administrative Agent, the term of any Letter of Credit shall
not exceed one year or extend beyond the Maturity Date.
(b) Each Request for Letter of Credit shall be submitted to the
Issuing Lender, with a copy to the Administrative Agent, at least three Business
Days prior to the date upon which the related Letter of Credit is proposed to be
issued. The Administrative Agent shall promptly notify the Issuing Lender
whether such Request for Letter of Credit, and the issuance of a Letter of
Credit pursuant thereto, conforms to the requirements of this Agreement. Upon
issuance of a Letter of Credit, the Issuing Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify the
Lenders, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased at par a pro rata participation in such Letter of
Credit from the Issuing Lender in an amount equal to that Lender's Pro Rata
Share. Without limiting the scope and nature of each Lender's participation in
any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed by Borrower for any payment required to be made by the Issuing Lender
under any Letter of Credit, each Lender shall, pro rata according to its Pro
Rata Share, pay the purchase price for such participation to the Issuing Lender
through the Administrative Agent promptly upon demand therefor. The obligation
of each Lender to so pay the participation purchase price to the Issuing Lender
shall be absolute and unconditional and shall not be affected by the occurrence
of an Event of Default or any other occurrence or event. Any such payment of the
purchase price shall not relieve or otherwise impair the obligation of Borrower
to reimburse the Issuing Lender for the amount of any payment made by the
Issuing Lender under any Letter of Credit together with interest as hereinafter
provided.
(d) Borrower agrees to pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the Issuing Lender
with respect to each Letter of Credit upon demand by the Issuing Lender
therefor, together with interest on such amount from the date of any payment
made by the Issuing Lender at the Default Rate. The principal amount of any such
payment shall be used to reimburse the Issuing Lender for the payment made by it
under the Letter of Credit and, to the extent that the Lenders have not
reimbursed the Issuing Lender pursuant to Section 2.4(c), the interest
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amount of any such payment shall be for the account of the Issuing Lender. Each
Lender that has paid the participation purchase price to the Issuing Lender
pursuant to Section 2.4(c) shall thereupon acquire a pro rata participation, to
the extent of such payment, in the claim of the Issuing Lender against Borrower
for reimbursement of principal and interest under this Section 2.4(d) and shall
share, in accordance with that pro rata participation, in any principal payment
made by Borrower with respect to such claim and in any interest payment made by
Borrower with respect to such claim.
(e) Borrower may, pursuant to a Request for Loan, request that
Advances be made pursuant to Section 2.1(a) to provide funds for the payment
required by Section 2.4(d) and, for this purpose, the conditions precedent set
forth in Article 8 shall not apply. The proceeds of such Advances shall be paid
directly to the Issuing Lender to reimburse it for the payment made by it under
the Letter of Credit.
(f) If Borrower fails to make the payment required by Section 2.4(d)
on a timely basis then, in lieu of the payment of the participation purchase
price to the Issuing Lender under Section 2.4(c), the Issuing Lender may (but is
not required to), without notice to or the consent of Borrower, instruct the
Administrative Agent to cause Advances to be made by the Lenders under their Pro
Rata Shares of the Commitment in an aggregate amount equal to the amount paid by
the Issuing Lender with respect to that Letter of Credit and, for this purpose,
the conditions precedent set forth in Article 8 shall not apply. The proceeds of
such Advances shall be paid directly to the Issuing Lender to reimburse it for
the payment made by it under the Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in all
respects the same as the issuance of a new Letter of Credit.
(h) The obligation of Borrower to pay to the Issuing Lender the
amount of any payment made by the Issuing Lender under any Letter of Credit
shall be absolute, unconditional, and irrevocable, subject only to performance
by the Issuing Lender of its obligations to Borrower under Uniform Commercial
Code Section 5109. Without limiting the foregoing, the obligations of Borrower
to the Issuing Lender shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against the Issuing Lender, the
Administrative Agent
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or any Lender, any beneficiary of the Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or any other Person,
whether in connection with the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) payment by the Issuing Lender in good faith under the
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of the Letter of
Credit;
(vi) the existence, character, quality, quantity, condition,
packing, value or delivery of any Property purported to be represented by
documents presented in connection with any Letter of Credit or any
difference between any such Property and the character, quality, quantity,
condition, or value of such Property as described in such documents;
(vii) the time, place, manner, order or contents of shipments
or deliveries of Property as described in documents presented in
connection with any Letter of Credit or the existence, nature and extent
of any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival of
any Property;
(x) any error in the transmission of any message relating to a
Letter of Credit not caused by the Issuing Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any correspondent of the
Issuing Lender in connection with a Letter of Credit (but without
prejudice to any claim by Borrower against such correspondent);
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the Issuing Lender;
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(xiii) so long as the Issuing Lender in good faith determines
that the contract or document appears to comply with the terms of the
Letter of Credit, the form, accuracy, genuineness or legal effect of any
contract or document referred to in any document submitted to the Issuing
Lender in connection with a Letter of Credit; and
(xiv) where the Issuing Lender has acted in good faith and
observed general business usage, any other circumstances whatsoever.
(i) The Issuing Lender shall be entitled to the protection accorded
to the Administrative Agent pursuant to Article 10, MUTATIS MUTANDIS.
(j) The Uniform Customs and Practice for Documentary Credits, as
published in its most current version by the International Chamber of Commerce,
shall be deemed a part of this Section and shall apply to all Letters of Credit
to the extent not inconsistent with applicable Law.
2.5 VOLUNTARY REDUCTION OF COMMITMENT. Borrower shall have the right, at
any time and from time to time, without penalty or charge, upon at least three
Business Days' prior written notice by Borrower to the Administrative Agent, to
voluntarily reduce, permanently and irrevocably, in amounts which are integral
multiples of $500,000, or to terminate, all or a portion of the then undisbursed
portion of the Commitment. Borrower shall also have the right, at any time and
from time to time, without penalty or charge, upon notice on the same Business
Day by Borrower to the Administrative Agent, to voluntarily prepay any Base Rate
Advances. Borrower shall also have the right, at any time and from time to time,
without penalty or charge, upon at least three business days' prior notice by
Borrower to the Administrative Agent, to voluntarily prepay any LIBOR Advances.
Each voluntary reduction shall be applied first to the amount of the Commitment
scheduled to be required to be reduced on the Maturity Date and then to
Reduction Amounts in the inverse order of their occurrence. The Administrative
Agent shall promptly notify the Lenders of any reduction or termination of the
Commitment under this Section, and of any changes to the Reduction Amounts.
2.6 SCHEDULED REDUCTIONS OF COMMITMENT. The Commitment shall
automatically and permanently reduce on each Reduction Date by the related
Reduction Amount.
2.7 MANDATORY REDUCTIONS OF COMMITMENT.
(a) The Commitment shall permanently reduce in the amount of any
mandatory prepayments required pursuant to Section 3.1(f).
(b) In the event that Borrower hereafter makes any Investment of the
type described in Section 6.16(c), the Commitment shall also permanently
reduce upon the date of the making of any subsequent Loan or issuance of
any subsequent Letter of
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Credit hereunder, in each case in the then outstanding principal amount of
such Investment.
(c) Any reduction of the Commitment pursuant to this Section 2.7
shall be in addition to the scheduled reductions described in Section 2.6.
2.8 OPTIONAL INCREASES TO THE COMMITMENT.
(a) PROVIDED that no Default or Event of Default then exists,
Borrower may at any time request in writing that the then effective
Commitment be increased (on the same terms and conditions set forth
herein) to an amount which is not greater than $50,000,000 MINUS the
amount of any reductions to the Commitment which have then occurred
pursuant to Sections 2.5, 2.6 or 2.7, in accordance with the provisions of
this Section, PROVIDED that any such increase shall, unless all of the
Lenders otherwise consent, be requested prior to the date which is 18
months following the Effective Date. Any request under this Section shall
be submitted by Borrower to the Administrative Agent not less than thirty
days prior to the proposed increase, specify the proposed effective date
and amount of such increase and be accompanied by (i) a Certificate of a
Responsible Official, signed by a Senior Officer of Borrower, stating that
no Default or Event of Default exists as of the date of the request or
will result from the requested increase, (ii) amendments, in form and
substance acceptable to the Administrative Agent, to the Deeds of Trust,
increasing the amount of the obligations secured thereby to the amount of
the Commitment (as so increased), together with endorsements to the policy
of title insurance held by the Administrative Agent in relation thereto
reflecting a similar increase, and (iii) a written consent to the increase
in the amount of the Commitment executed by each Guarantor. Borrower may
also specify any fees offered to those Lenders which agree to an increase
in the amount of their Pro Rata Shares (which fees may be variable based
upon the amount which any such Lender is willing to assume as an increase
to the amount of its Pro Rata Share). The consent of the Lenders, as such,
shall not be required for an increase in the amount of the Commitment
pursuant to this Section.
(b) Each Lender may approve or reject a request for an increase in
the amount of the Commitment in its sole and absolute discretion and,
absent an affirmative written response within fifteen days after receipt
of such request, shall be deemed to have rejected the request. The
rejection of such a request by any number of Lenders shall not affect
Borrower's right to increase the Commitment pursuant to this Section.
(c) In responding to a request under this Section, each Lender which
is willing to increase the amount of its Pro Rata Share of the increased
Commitment shall specify the amount of the proposed increase which it is
willing to assume. Each consenting Lender shall be entitled to participate
ratably (based on its Pro Rata Share before such increase) in any
resulting increase in the Commitment, subject to the right
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of the Administrative Agent to adjust allocations of the increased
Commitment so as to result in the amounts of the Pro Rata Shares of the
Lenders being in integral multiples of $250,000.
(d) If the aggregate principal amount offered to be assumed by the
consenting Lenders is less than the amount requested, Borrower may (i)
reject the proposed increase in its entirety, (ii) accept the offered
amounts or (iii) designate new lenders who qualify as Eligible Assignees
and which are reasonably acceptable to the Administrative Agent as
additional Lenders hereunder in accordance with clause (e) of this Section
(each, a "New Lender"), which New Lenders may assume the amount of the
increase in the Commitment that has not been assumed by the consenting
Lenders.
(e) Each New Lender designated by Borrower and reasonably acceptable
to the Administrative Agent shall become an additional party hereto as a
New Lender concurrently with the effectiveness of the proposed increase in
the Commitment upon its execution of an instrument of joinder to this
Agreement which is in form and substance acceptable to the Administrative
Agent and which, in any event, contains the representations, warranties,
indemnities and other protections afforded to the Administrative Agent and
the other Lenders which would be granted or made by an Eligible Assignee
by means of the execution of an Assignment Agreement.
(f) Subject to the foregoing, any increase to the Commitment
requested under this Section shall be effective as of the date proposed by
Borrower shall be in the principal amount equal to (i) the amount which
consenting Lenders are willing to assume as increases to the amount of
their Pro Rata Share PLUS (ii) the amount offered by any New Lenders. Upon
the effectiveness of any such increase, Borrower and the Co-Borrowers
shall issue replacement Notes to each affected Lender, and the percentage
Pro Rata Shares of each Lender will be adjusted to give effect to the
increase in the Commitment.
2.9 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR ADVANCES.
Unless the Administrative Agent shall have been notified by a Lender no later
than the Business Day prior to the funding by the Administrative Agent of any
Loan that such Lender does not intend to make available to the Administrative
Agent such Lender's Pro Rata Share of that Loan, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on the date of the Loan and the Administrative Agent may, in reliance upon
such assumption, make available to Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower based on such
assumption and such corresponding amount is not in fact made available to the
Administrative Agent by such Lender, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent promptly shall notify Borrower and
Borrower shall pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such
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Lender interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent to
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (a) the Federal Funds Rate
for the first two days following a demand by the Administrative Agent and (b)
thereafter, the rate of interest then payable by Borrower with respect to Base
Rate Advances. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its share of the Commitment or to prejudice any rights
which the Administrative Agent or Borrower may have against any Lender as a
result of any default by such Lender hereunder.
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Article 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth or provided for
herein before and after default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law, with interest on overdue interest at the Default Rate to the
fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on each Quarterly
Payment Date, and on the date of any prepayment of the Notes pursuant to Section
3.1(f) or Section 3.1(g), shall be due and payable on that day. EXCEPT as
otherwise provided in Section 3.8, the unpaid principal amount of each Base Rate
Loan shall bear interest at a fluctuating rate per annum equal to the Base Rate
PLUS the Base Rate Margin. Each change in the interest rate under this Section
3.1(b) due to a change in the Base Rate shall take effect simultaneously with
the corresponding change in the Base Rate.
(c) Interest accrued on each LIBOR Loan which is for a term of three
months or less shall be due and payable on the last day of the related Interest
Period. Interest accrued on each other LIBOR Loan shall be due and payable on
the date which is three months after the date such LIBOR Loan was made and on
the last day of the related Interest Period. EXCEPT as otherwise provided in
Sections 3.1(d) and 3.8, the unpaid principal amount of any LIBOR Loan shall
bear interest at a rate per annum equal to the LIBOR for that LIBOR Loan PLUS
the LIBOR Margin.
(d) During the existence of a Default or Event of Default, the
Requisite Lenders may determine that any or all then outstanding LIBOR Loans
shall be converted to Base Rate Loans. Such conversion shall be effective upon
notice to Borrower from the Requisite Lenders (or from the Administrative Agent
on behalf of the Requisite Lenders) and shall continue so long as such Default
or Event of Default continues to exist.
(e) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the principal amount of each LIBOR Loan shall be payable
on the last day of the Interest Period for such Loan;
(ii) the amount, if any, by which the Outstanding Obligations
at any time exceed the Commitment shall be payable immediately; and
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(iii) the principal Indebtedness evidenced by the Notes shall
in any event be payable on the Maturity Date.
(f) Concurrently with the receipt by Borrower or any of its
Subsidiaries of any Net Cash Proceeds, Borrower shall prepay the Notes by an
amount equal to the amount of such Net Cash Proceeds.
(g) The Notes may, at any time and from time to time, voluntarily be
paid or prepaid in whole or in part without premium or penalty, EXCEPT that with
respect to any voluntary prepayment under this Section, (i) any partial
prepayment shall be not less than $500,000 and in integral multiples of
$100,000, (ii) the Administrative Agent shall have received written notice of
any prepayment by 10:00 a.m. on the Business Day of such prepayment (which must
be a Business Day) in the case of a Base Rate Loan, and, in the case of a LIBOR
Loan, three Eurodollar Market Days before the date of prepayment, which notice
shall identify the date and amount of the prepayment and the Loans being
prepaid, (iii) each prepayment of principal shall be accompanied by payment of
interest accrued to the date of payment on the amount of principal paid and (iv)
any payment or prepayment of all or any part of any LIBOR Loan on a day other
than the last day of the applicable Interest Period shall be subject to Section
3.7(d).
3.2 UPFRONT FEE. On the Effective Date, Borrower shall pay an upfront
fee to the Administrative Agent in an amount heretofore agreed upon in a letter
agreement with the Administrative Agent.
3.3 ADMINISTRATIVE AGENCY FEES. Pursuant to a letter agreement of even
date herewith with the Administrative Agent, Borrower shall pay administrative
agency fees to the Administrative Agent on the dates and in the amounts
heretofore agreed upon, and shall also pay to the Administrative Agent a
periodic fee to reimburse it for the expenses of the Construction Consultant.
3.4 COMMITMENT FEES. From the Effective Date, Borrower shall pay to the
Administrative Agent, for the ratable accounts of the Lenders according to their
Pro Rata Shares, an unused commitment fee equal to the then applicable
Commitment Fee Rate per annum TIMES the average daily amount by which (a) the
Commitment exceeds (b) the Outstanding Obligations. Unused commitment fees shall
be payable quarterly in arrears on each Quarterly Payment Date, on the date of
any termination of the Commitment, and on the Maturity Date.
3.5 LETTER OF CREDIT FEES. With respect to each Letter of Credit,
Borrower shall pay the following fees:
(a) concurrently with the issuance of each Letter of Credit, a
letter of credit issuance fee to the Issuing Lender for the sole account of the
Issuing Lender, in an amount set forth in a letter agreement between Borrower
and the Issuing Lender;
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(b) quarterly in arrears on each Quarterly Payment date, and upon
any termination of the Commitment, a letter of credit fee to the Administrative
Agent (for the ratable account of the Lenders in accordance with their Pro Rata
Shares) in an amount equal to the applicable Letter of Credit Fee Rate per annum
as of the date of such issuance TIMES the face amount of such Letter of Credit
for the period each Letter of Credit is outstanding during the calendar quarter
then ended; and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Letter of Credit, to the Issuing Lender for the sole account
of the Issuing Lender, issuance, negotiation, drawing and amendment fees in the
amounts set forth from time to time as the Issuing Lender's customary schedule
of fees for such services.
3.6 INCREASED COMMITMENT COSTS. If any Lender shall determine in good
faith that the introduction after the Effective Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its LIBOR Office) or
any corporation controlling the Lender, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, upon demand of such
Lender, Borrower shall pay to such Lender, from time to time as specified in
good faith by such Lender, additional amounts sufficient to compensate such
Lender in light of such circumstances, to the extent reasonably allocable to
such obligations under this Agreement. Each Lender's determination of such
amounts shall be conclusive in the absence of manifest error.
3.7 LIBOR COSTS AND RELATED MATTERS.
(a) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance:
(1) shall subject any Lender or its LIBOR Office to any tax,
duty or other charge or cost with respect to any LIBOR Advance, any of its
Notes evidencing LIBOR Loans or its obligation to make LIBOR Advances, or
shall change the basis of taxation of payments to any Lender attributable
to the principal of or interest on any LIBOR Advance or any other amounts
due under this Agreement in respect of any LIBOR Advance, any of its Notes
evidencing LIBOR Loans or its obligation to make LIBOR Advances,
EXCLUDING, in the case of each Lender, the Administrative Agent and each
Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes
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imposed on or measured in whole or in part by its overall net income,
gross income or gross receipts or capital and franchise taxes imposed on
it, by (A) any jurisdiction (or political subdivision thereof) in which it
is organized or maintains its principal office or LIBOR Office or (B) any
jurisdiction (or political subdivision thereof) in which it is "doing
business" (unless it would not be doing business in such jurisdiction (or
political subdivision thereof) absent the transactions contemplated
hereby), (ii) any withholding taxes or other taxes based on gross income
imposed by the United States of America (other than withholding taxes and
taxes based on gross income resulting solely from or attributable to any
change in any law, rule or regulation or any change in the interpretation
or administration of any law, rule or regulation by any Governmental
Agency) or (iii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with respect
to which it has failed to provide Borrower with the appropriate form or
forms required by Section 11.21, to the extent such forms are then
required by applicable Laws;
(2) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (INCLUDING, without
limitation, any reserve imposed by the Board of Governors of the Federal
Reserve System, BUT EXCLUDING the Reserve Percentage taken into account in
calculating the LIBOR), special deposit, capital or similar requirements
against assets of, deposits with or for the account of, or credit extended
by, any Lender or its LIBOR Office; or
(3) shall impose on any Lender or its LIBOR Office or the
Designated LIBOR Market any other condition affecting any LIBOR Advance,
any of its Notes evidencing LIBOR Loans, its obligation to make LIBOR
Advances or this Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its LIBOR Office of
making or maintaining any LIBOR Advance or in respect of any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its obligation to make
LIBOR Advances or reduces the amount of any sum received or receivable by
such Lender or its LIBOR Office with respect to any LIBOR Advance, any of
its Notes evidencing LIBOR Loans or its obligation to make LIBOR Advances
(assuming such Lender's LIBOR Office had funded 100% of its LIBOR Advance
in the Designated LIBOR Market), then, within five Business Days after
demand by such Lender (with a copy to the Administrative Agent), Borrower
shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction (determined as
though such Lender's LIBOR Office had funded 100% of its LIBOR Advance in
the Designated LIBOR Market). Borrower hereby indemnifies each Lender
against, and agrees to hold each Lender harmless from and reimburse such
Lender within ten (10) Business Days after demand for (without
duplication) all costs, expenses, claims, penalties, liabilities, losses,
reasonable legal fees and damages incurred or sustained by each Lender in
connection with this Agreement, or any of the rights, obligations or
transactions
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provided for or contemplated herein, as a direct result of the existence
or occurrence of any Special LIBOR Circumstance. A statement of any Lender
claiming compensation under this subsection and setting forth in
reasonable detail the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. Each
Lender agrees to promptly notify Borrower of any event of which it has
actual knowledge, occurring after the Effective Date, which will entitle
such Lender to compensation pursuant to this Section, and agrees to
designate a different LIBOR Office if such designation will avoid the need
for or reduce the amount of such compensation and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender. If any Lender claims compensation under this Section,
Borrower may at any time, upon at least four (4) Eurodollar Market Days'
prior notice to the Administrative Agent and such Lender and upon payment
in full of the amounts provided for in this Section through the date of
such payment PLUS any prepayment fee required by Section 3.7(d), pay in
full the affected LIBOR Advances of such Lender or request that such LIBOR
Advances be converted to Base Rate Advances.
(b) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance shall make it unlawful or impossible for such Lender
or its LIBOR Office to make, maintain or fund its portion of any LIBOR Loan, or
materially restrict the authority of such Lender to purchase or sell, or to take
deposits of, Dollars in the Designated LIBOR Market, or to determine or charge
interest rates based upon the LIBOR, and such Lender shall so notify the
Administrative Agent, and if the Administrative Agent reasonably determines that
the Special LIBOR Circumstances have broad applicability to Lenders in the
market for syndicated loans of the general type described in this Agreement,
then the affected Lender's obligation to make LIBOR Advances shall be suspended
for the duration of such illegality or impossibility and the Administrative
Agent forthwith shall give notice thereof to the other Lenders and Borrower.
Upon receipt of such notice, the outstanding principal amount of such Lender's
LIBOR Advances, together with accrued interest thereon, automatically shall be
converted to Base Rate Advances with Interest Periods corresponding to the LIBOR
Loans of which such LIBOR Advances were a part on either (1) the last day of the
Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully
continue to maintain and fund such LIBOR Advances to such day(s) or (2)
immediately if such Lender may not lawfully continue to fund and maintain such
LIBOR Advances to such day(s), PROVIDED that in such event the conversion shall
not be subject to payment of a prepayment fee under Section 3.7(d). Each Lender
agrees to promptly notify Borrower of any event of which it has actual
knowledge, occurring after the Effective Date, which will cause that Lender to
notify the Administrative Agent under this Section 3.7(b), and agrees to
designate a different LIBOR Office if such designation will avoid the need for
such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender. In the event that any Lender is
unable, for the reasons set forth above, to make, maintain or fund its portion
of any LIBOR Loan, such Lender shall fund such amount as a Base Rate Advance for
the same period of time, and such amount shall be treated in all respects as a
Base Rate Advance. Any Lender whose obligation to make LIBOR Advances
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has been suspended under this Section 3.7(b) shall promptly notify the
Administrative Agent and Borrower of the cessation of the Special LIBOR
Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed LIBOR Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated LIBOR Market generally
that are beyond the reasonable control of the Lenders, deposits in Dollars
(in the applicable amounts) are not being offered to any Lender in the
Designated LIBOR Market for the applicable Interest Period; or
(2) the Requisite Lenders advise the Administrative Agent that
the LIBOR as determined by the Administrative Agent (i) does not represent
the effective pricing to such Lenders for deposits in Dollars in the
Designated LIBOR Market in the relevant amount for the applicable Interest
Period, or (ii) will not adequately and fairly reflect the cost to such
Lenders of making the applicable LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of the Lenders to make any future LIBOR
Advances shall be suspended. If at the time of such notice there is then
pending a Request for Loan that specifies a LIBOR Loan, such Request for
Loan shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any LIBOR Advance (OTHER THAN as
the result of a conversion required under Section 3.7(b)), on a day other than
the last day in the applicable Interest Period (whether voluntarily,
involuntarily, by reason of acceleration, or otherwise), or upon the failure of
Borrower (for a reason other than the failure of a Lender to make an Advance) to
borrow on the date or in the amount specified for a LIBOR Loan in any Request
for Loan, Borrower shall pay to the appropriate Lender within ten (10) Business
Days after demand a prepayment fee or failure to borrow fee, as the case may be
(determined as though 100% of the LIBOR Advance had been funded in the
Designated LIBOR Market) equal to the SUM of:
(1) the principal amount of the LIBOR Advance prepaid or not
borrowed, as the case may be, TIMES the number of days between the date of
prepayment or failure to borrow, as applicable, and the last day in the
applicable Interest Period, DIVIDED BY 360, TIMES the applicable Interest
Differential (PROVIDED that the product of the foregoing formula must be a
positive number); PLUS
(2) all reasonable out-of-pocket expenses incurred by the
Lender reasonably attributable to such payment, prepayment or failure to
borrow.
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Each Lender's determination of the amount of any prepayment fee payable
under this Section 3.7(d) shall be conclusive in the absence of manifest
error.
3.8 LATE PAYMENTS. If any Event of Default occurs and remains
continuing, the Loans shall thereafter bear interest, to the fullest extent
permitted by applicable Laws at a fluctuating interest rate per annum at all
times equal to 2% in excess of the rate of interest otherwise payable. Accrued
and unpaid interest on past due amounts (INCLUDING, without limitation, interest
on past due interest) shall be compounded monthly, on the last day of each
calendar month, to the fullest extent permitted by applicable Laws.
3.9 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans and all fees under this Agreement shall be calculated on the basis of
a year of 365 or 366 days, as the case may be, and the actual number of days
elapsed; computation of interest on LIBOR Loans shall be calculated on the basis
of a year of 360 days and the actual number of days elapsed. Borrower
acknowledges that such latter calculation method will result in a higher yield
to the Lenders than a method based on a year of 365 or 366 days. Interest shall
accrue on each Loan for the day on which the Loan is made; interest shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid. Any Loan that is repaid on the same day on which it is made
shall bear interest for one day.
3.10 NON-BUSINESS DAYS. If any payment to be made by Borrower or any
other Obligor under any Loan Document shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest
and fees.
3.11 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder or on the Notes or under any other Loan
Document shall be made to the Administrative Agent, at the Administrative
Agent's Office, for the account of each of the Lenders or the Administrative
Agent, as the case may be, in immediately available funds not later than 12:00
p.m. on the day of payment (which must be a Business Day). All payments received
after 12:00 p.m. on any Business Day, shall be deemed received on the next
succeeding Business Day. The amount of all payments received by the
Administrative Agent for the account of each Lender shall be immediately paid by
the Administrative Agent to the applicable Lender in immediately available funds
and, if such payment was received by the Administrative Agent by 12:00 p.m. on a
Business Day and not so made available to the account of a Lender on that
Business Day, the Administrative Agent shall reimburse that Lender for the cost
to such Lender of funding the amount of such payment at the Federal Funds Rate.
All payments shall be made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each Lender
comprising such Loan.
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(c) Each Lender shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to each of its
Notes and, subject to Section 10.6(g), such record shall, as against Borrower,
be presumptive evidence of the amounts owing. Notwithstanding the foregoing
sentence, no Lender shall be liable to any Obligor for any failure to keep such
a record.
(d) Each payment of any amount payable by Borrower or any other
Obligor under this Agreement or any other Loan Document shall be made free and
clear of, and without reduction by reason of, any taxes, assessments or other
charges imposed by any Governmental Agency, central bank or comparable
authority, EXCLUDING, in the case of each Lender, the Administrative Agent and
each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes
imposed on or measured in whole or in part by its overall net income, gross
income or gross receipts or capital and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes based on gross income
resulting solely from or attributable to any change in any law, rule or
regulation or any change in the interpretation or administration of any law,
rule or regulation by any Governmental Agency) or (iii) any withholding taxes or
other taxes based on gross income imposed by the United States of America for
any period with respect to which it has failed to provide Borrower with the
appropriate form or forms required by Section 11.21, to the extent such forms
are then required by applicable Laws (all such non-excluded taxes, assessments
or other charges being hereinafter referred to as "Taxes"). To the extent that
Borrower is obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this Agreement,
Borrower shall (i) make such deduction or withholding and pay the same to the
relevant Governmental Agency and (ii) pay such additional amount to that Lender
as is necessary to result in that Lender's receiving a net after-Tax amount
equal to the amount to which that Lender would have been entitled under this
Agreement absent such deduction or withholding. If and when receipt of such
payment results in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrower.
3.12 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.13 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest arising under Section 3.8), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (INCLUDING interest arising under Section 3.8), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
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3.14 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE BY
BORROWER. Unless the Administrative Agent shall have been notified by Borrower
prior to the date on which any payment to be made by Borrower hereunder is due
that Borrower does not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower has remitted such payment when so
due and the Administrative Agent may, in its discretion and in reliance upon
such assumption, make available to each Lender on such payment date an amount
equal to such Lender's share of such assumed payment. If Borrower has not in
fact remitted such payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
3.15 FEE DETERMINATION DETAIL. The Administrative Agent and each Lender
shall provide reasonable detail to Borrower regarding the manner in which the
amount of any payment of fees or costs to the Administrative Agent and the
Lenders, or that Lender, under Article 3 has been determined, concurrently with
demand for such payment.
3.16 SURVIVAL. All of Borrower's obligations under Sections 3.5, 3.6 and
11.22 shall survive for ninety days following the date on which the Commitment
is terminated, and all Loans hereunder are fully paid.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Creditors that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Borrower
is a corporation duly formed, validly existing and in good standing under the
Laws of Delaware (or, in the event any assignment of the type described in the
second sentence of Section 11.8(a) is made, is a limited liability company duly
formed, validly existing and in good standing under the Laws of the jurisdiction
of its formation). As of the Effective Date, Sportsystems has the ownership
interests in Borrower described in Schedule 4.1, is duly formed and in good
standing under the laws of its jurisdictions of formation. As of the Effective
Date, Sportsystems is the wholly-owned Subsidiary of Delaware North Companies,
Inc. Borrower and each other Obligor is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in which the conduct
of its business or the ownership or leasing of its Properties makes such
qualification or registration necessary, EXCEPT where the failure so to qualify
or register and to be in good standing may not reasonably be expected to have a
Material Adverse Effect. Borrower and each other Obligor has all requisite
corporate or other organizational power and authority to conduct its business,
to own and lease its Properties and to execute and deliver each Loan Document to
which it is a party and to perform its Obligations. All outstanding shares of
the capital stock of Borrower and each other Obligor are duly authorized and
validly issued, fully paid and non-assessable, and no holder thereof has any
enforceable right of rescission under any applicable state or federal securities
Laws. Borrower and each Subsidiary is in compliance with all Laws and other
legal requirements applicable to its business, has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, EXCEPT where the failure so to comply, file,
register, qualify or obtain exemptions may not reasonably be expected to have a
Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS AND
GOVERNMENT REGULATIONS. The execution, delivery and performance of the Loan
Documents by Borrower and each Obligor, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) Require any consent or approval not heretofore obtained of any
director, stockholder, security holder or (in the case of any Creditor except
where the failure to obtain any such creditor's consent may not reasonably be
expected to have any Material Adverse Effect) any creditor of such Obligor;
(b) Violate or conflict with any provision of such Obligor's
articles of incorporation or bylaws;
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(c) Except to the extent contemplated by the Loan Documents, result
in or require the creation or imposition of any Lien or Right of Others upon or
with respect to any Property now owned or leased or hereafter acquired by such
Obligor;
(d) Violate any Requirement of Law applicable to such Obligor, in
any material respect, or in any event require any consent of the West Virginia
Lottery Commission, West Virginia Racing Commission or any other Regulatory
Board not heretofore obtained;
(e) Result in a breach of or constitute a default under, or cause or
permit the acceleration of any obligation owed under, any indenture or loan or
credit agreement or any other Contractual Obligation involving Property or
obligations in excess of $1,000,000 to which Borrower or any of its Subsidiaries
is a party or by which Borrower or any of its Subsidiaries or any of its
Property is bound or affected;
and neither Borrower, any of its Subsidiaries nor any other Obligor is in
violation of, or default under, any Requirement of Law or Contractual
Obligation, or any indenture, loan or credit agreement described in Section
4.2(e), in any respect that may reasonably be expected to have a Material
Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as set forth in Schedule
4.3 or previously obtained or made, no material authorization, consent,
approval, order, license or permit from, or material filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by
Borrower, any other Obligor of the Loan Documents to which it is a party. All
authorizations from, or filings with, any Governmental Agency described in
Schedule 4.3 will be accomplished as of the Effective Date or such other date as
is specified in Schedule 4.3.
4.4 SUBSIDIARIES. As of the Effective Date, Borrower does not have any
Subsidiaries which are not described on Schedule 4.4 and Borrower does not own
any capital stock, equity interest or debt security which is convertible, or
exchangeable, for capital stock or equity interests in any Person. Each such
Subsidiary is a corporation duly formed, validly existing and in good standing
under the Laws of its state of formation, is duly qualified or registered to
transact business and is in good standing in each other jurisdiction in which
the conduct of its business or the ownership or leasing of its Properties makes
such qualification or registration necessary, EXCEPT where the failure so to
qualify or register and to be in good standing may not reasonably be expected to
have Material Adverse Effect.
4.5 FINANCIAL STATEMENTS. Borrower has furnished the audited
consolidated financial statements of Borrower and its Subsidiaries for the
Fiscal Year ended December 31, 2000 and the unaudited consolidated financial
statements of Borrower and its Subsidiaries for the nine month period ended
September 30, 2001, to the Administrative Agent and the Lenders, which financial
statements fairly present the financial condition, results of operations
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and changes in financial position of Borrower and its Subsidiaries as of such
date and for such period in conformity with Generally Accepted Accounting
Principles, consistently applied.
4.6 NO MATERIAL ADVERSE EFFECTS. As of the Effective Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since December 31, 2000.
4.7 TITLE TO PROPERTY. Borrower and its Subsidiaries have valid title to
the Property reflected in the financial statements described in Section 4.5,
other than immaterial items of Property and Property subsequently sold or
disposed of in the ordinary course of business, free and clear of all Liens and
Rights of Others, OTHER THAN Permitted Encumbrances, Permitted Rights of Others
and Liens or Rights of Others described in Schedule 6.8 or permitted by Section
6.8.
4.8 INTANGIBLE ASSETS. Each of Borrower and its Subsidiaries owns, or
possesses the right to use to the extent necessary in its respective business,
all material trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets which are used in the
conduct of its business as now operated, and no such Intangible Asset, to the
best knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to the
extent that such conflict may reasonably be expected to have a Material Adverse
Effect. Each registered patent, trademark or copyright owned by Borrower and its
Subsidiaries, or as to which any of them is a licensee, is described on Schedule
4.8.
4.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower 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.
4.10 LITIGATION. There are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries or any Property of any
of them (including the Real Property) before any Governmental Agency, which may
reasonably be expected to have a monetary impact which is in excess of
$1,000,000, and no such action, suit, proceeding or investigation may reasonably
be expected to have a Material Adverse Effect.
4.11 BINDING OBLIGATIONS. Each of the Loan Documents to which Borrower,
each other Obligor is a party will, when executed and delivered by such Person,
constitute the legal, valid and binding obligation of such Person, enforceable
against such Person in accordance with its terms, EXCEPT as enforcement may be
limited by Debtor Relief Laws, Applicable Regulations or equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
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4.12 NO DEFAULT. No event has occurred and is continuing that is a
Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance may
reasonably be expected to have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that may
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that may reasonably be expected to have a Material
Adverse Effect; and
(iv) neither Borrower nor any of its Subsidiaries has engaged
in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code) that may reasonably be expected to have a Material Adverse
Effect.
(b) Neither Borrower nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that may
reasonably be expected to have a Material Adverse Effect.
4.14 REGULATIONS T, U AND X; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations T, U and X. Neither Borrower nor any of its
Subsidiaries is or is required to be registered as an "investment company" under
the Investment Company Act of 1940.
4.15 DISCLOSURE. No statement made by Borrower or any of its Affiliates
to the Administrative Agent or any Lender in connection with this Agreement, or
in connection with any Loan, as of the date thereof contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statement made not misleading in light of all the circumstances existing at the
date the statement was made.
4.16 TAX LIABILITY. Borrower and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
any of its Subsidiaries, EXCEPT (a) such taxes, if any, as are being contested
in good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
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item or portion of Property of Borrower or any of its Subsidiaries is in
jeopardy of being seized, levied upon or forfeited.
4.17 PROJECTIONS. As of the Effective Date, to the best knowledge of
Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to Borrower, and the
Projections are reasonably based on such assumptions. Nothing in this Section
shall be construed as a representation or covenant that the Projections in fact
will be achieved.
4.18 HAZARDOUS MATERIALS. Except as described in Schedule 4.18 or except
as would not individually or in the aggregate have a Material Adverse Effect,
(a) to the best knowledge of Borrower, none of Borrower nor any of its
Subsidiaries nor any of their affiliated predecessors in interest at any time
has disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under any Real Property in violation of any Hazardous
Materials Law, (b) to the best knowledge of Borrower, no condition exists that
violates any Hazardous Material Law affecting any Real Property, (c) to the best
knowledge of Borrower, no Real Property nor any portion thereof is or has been
utilized by Borrower or any of its Subsidiaries as a site for the manufacture of
any Hazardous Materials and (d) to the extent that any Hazardous Materials are
used, generated or stored by Borrower or any of its Subsidiaries on any Real
Property, or transported to or from any Real Property, such use, generation,
storage and transportation are in compliance in all material respects with all
Hazardous Materials Laws.
4.19 APPLICABLE REGULATIONS. Borrower and its Subsidiaries are in
compliance in all material respects with all Applicable Regulations that are
applicable to them.
4.20 SECURITY INTERESTS. Upon the execution and delivery thereof, each of
the Borrower Security Agreement and the Subsidiary Security Agreement will
create valid security interests in the Collateral described therein securing the
Obligations of the parties thereto, and all action necessary to perfect the
security interests so created, other than filing of the UCC-1 financing
statements delivered to the Administrative Agent pursuant to Section 8.1 with
the appropriate Governmental Agency, shall have been taken and completed to the
fullest extent that such Liens may be perfected by filing. Upon the making of
such filings, the security interests granted to the Administrative Agent by the
Security Agreement will be perfected and of first priority, subject only to the
matters disclosed on Schedule 6.8 or permitted by Section 6.8, to the fullest
extent that such Liens may be perfected by filing.
4.21 SOLVENCY. After giving effect to this Agreement and the other Loan
Documents (including after giving effect to Advances under this Agreement as of
the Effective Date), Borrower and each Subsidiary Guarantor is and shall be
Solvent.
4.22 COLLATERAL AND GUARANTEES. The Obligations shall be guaranteed by the
Subsidiary Guarantors and secured by the Collateral pursuant to the Collateral
Documents.
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4.23 SENIOR INDEBTEDNESS. The Obligations shall be and hereby are
designated as "Senior Indebtedness" with respect to all Subordinated Obligations
and all payments with respect to any Subordinated Obligations shall be subject
to Section 6.1.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding or any other Obligation remains unpaid or unperformed, or any
portion of the Commitment remains in force, Borrower shall cause each of its
Subsidiaries and each other Obligor to, unless the Administrative Agent (with
the written approval of the Requisite Lenders) otherwise consents:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and discharge promptly
all taxes, assessments and governmental charges or levies imposed upon any of
them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, EXCEPT that Borrower and its
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material item or portion of Property of
Borrower or any of its Subsidiaries is in jeopardy of being seized, levied upon
or forfeited.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their respective
existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business, EXCEPT where the
failure to so preserve and maintain the existence of any Subsidiary or such
authorizations would not constitute a Material Adverse Effect; and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties EXCEPT where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of their
respective depreciable Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste or
unreasonable deterioration of their respective Properties, EXCEPT that the
failure to maintain, preserve and protect a particular item of depreciable
Property that is not of significant value, either intrinsically or to the
operations of Borrower and its Subsidiaries, taken as a whole, shall not
constitute a violation of this covenant.
5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar
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businesses and owning similar assets in the general areas in which Borrower and
its Subsidiaries operate.
5.5 COMPLIANCE WITH LAWS. Comply, within the time period, if any, given
for such compliance by the relevant Governmental Agency or Agencies with
enforcement authority, with all Requirements of Law noncompliance with which
constitutes a Material Adverse Effect, EXCEPT that Borrower and its Subsidiaries
need not comply with a Requirement of Law then being contested in good faith by
appropriate proceedings.
5.6 INSPECTION RIGHTS Borrower shall permit the Administrative Agent or
any Lender, or any authorized employee, agent or representative thereof, to
examine, audit and make copies and abstracts from the records and books of
account of, and to visit and inspect the Properties of, Borrower and its
Subsidiaries and to discuss the affairs, finances and accounts of Borrower and
its Subsidiaries with any of their officers, key employees or accountants. All
rights of the Administrative Agent and the Lenders under this Section may be
exercised upon reasonable advance notice and at any time during regular business
hours and as often as reasonably requested (but not so as to materially
interfere with the business of Borrower or any of its Subsidiaries). The costs
of all such monitoring, examining, auditing and inspection by and at the request
of the Administrative Agent or any Lender shall be borne by the Borrower,
PROVIDED that when no Default or Event of Default exists, Borrower shall not be
obligated to reimburse the Administrative Agent or the Lenders for the costs of
more than one examination, inspection or audit during any calendar year.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate records and
books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied, and in material
conformity with all applicable requirements of any Governmental Agency having
regulatory jurisdiction over Borrower or any of its Subsidiaries.
5.8 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a Lender or another
Person, EXCEPT for any such Contractual Obligations (a) the performance of which
would cause a Default or (b) then being contested by any of them in good faith
by appropriate proceedings or if the failure to comply with such agreements,
indentures, leases or instruments does not constitute a Material Adverse Effect.
5.9 USE OF PROCEEDS. Use the proceeds of the Loans (a) to finance the
purchase by Borrower of additional personal property (including without
limitation gaming equipment and gaming-related furniture, fixtures and
equipment) and the costs of related construction and improvement in connection
with the Expansion Project and (b) for other working capital and other general
corporate purposes.
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5.10 HAZARDOUS MATERIALS LAWS. Keep and maintain all Real Property and
each portion thereof in compliance in all material respects with all applicable
Hazardous Materials Laws and promptly notify the Administrative Agent in writing
(attaching a copy of any pertinent written material) of (a) any and all material
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened in writing by a Governmental Agency pursuant
to any applicable Hazardous Materials Laws with regard to the Real Property, (b)
any and all material claims made or threatened in writing by any Person against
Borrower or any of its Subsidiaries relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from any Hazardous Materials
with regard to the Real Property, and (c) any Senior Officer of Borrower
receives written notice or other clear evidence of any material occurrence or
condition on any real property adjoining or in the vicinity of such Real
Property and affecting the Real Property that may reasonably be expected to
cause such Real Property or any part thereof to be subject to any restrictions
on the ownership, occupancy, transferability or use of such Real Property under
any applicable Hazardous Materials Laws.
5.11 COMPLETION OF EXPANSION PROJECT. Proceed diligently and without
material interruption to cause the Completion Date to occur in all material
respects in accordance with the Plans, the Budget and the Timetable, and in any
event to cause the Completion Date to occur by December 31, 2003.
5.12 CONSTRUCTION MATTERS. Without limitation on other provisions of this
Agreement:
(a) provide the Construction Consultant any and all requested access
to the Expansion Project upon reasonable prior notice;
(b) cooperate in the preparation of each Construction Progress
Report;
(c) maintain a full set of working drawings at the construction
office for the Expansion Project for review by the Construction
Consultant;
(d) within 15 days following any request by the Administrative
Agent, deliver (i) then current Plans for the Expansion Project, (ii) then
current lists of each material contractor, subcontractor and material
supplier with respect to the Expansion Project and the dollar value and
amounts paid with respect to the related contracts, and (iii) then current
versions of the construction schedule for all uncompleted work on the
Expansion Project and all executed contracts and subcontracts for such
work, and (iv) any other information or materials reasonably requested by
the Administrative Agent or the Construction Consultant; and
(e) If requested by the Administrative Agent, promptly cause the
Expansion Project's architect and general contractor to certify that the
improvements
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constructed as of the date of any Construction Progress Report or the
Completion Date conform to the Plans in all material respects.
5.13 DELIVERY OF PLANS, BUDGET AND TIMETABLE. Deliver to Administrative
Agent a true, correct and complete copy of the Plans, the Budget and the
Timetable (each of which shall be in form and substance reasonably satisfactory
to the Administrative Agent) and appropriate licensure documentation from the
West Virginia Lottery Commission entitling Borrower to operate not fewer than
2100 gaming positions at Wheeling Downs on or prior to the date that Borrower
(or any of its Subsidiaries or other Obligors) makes Capital Expenditures
associated with the Expansion Project which, in aggregate, exceed $15,000,000.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding or any other Obligation remains unpaid or unperformed, or any
portion of the Commitment remains in force, Borrower shall not, and each shall
not permit any of its Subsidiaries or any other Obligor to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 PREPAYMENT OF INDEBTEDNESS.
(a) Prepay any principal or interest on the Senior Unsecured Notes
prior to the date when due, or make any payment or deposit with any Person
that has the effect of providing for the satisfaction of the Senior
Unsecured Notes prior to the date when due; EXCEPT THAT following the
Completion Date Borrower may (and may permit its Subsidiaries or any other
Obligor to), when no Default or Event of Default exists or would result
therefrom, purchase Senior Unsecured Notes in an aggregate principal
amount not to exceed $20,000,000, PROVIDED THAT Borrower shall not
repurchase Senior Unsecured Notes except:
(i) to the extent that, giving PRO FORMA effect to the making
of such repurchases as of the last day of the most recent Fiscal
Quarter, the Leverage Ratio would not exceed 3.00:1.00; or
(ii) to the extent that such repurchases are made using Excess
Cash; provided that such purchases from Excess Cash shall not exceed
$5,000,000 in the aggregate unless and until Borrower has
demonstrated to the reasonable satisfaction of the Administrative
Agent that the aggregate amount of Excess Cash is in excess of
$5,000,000.
(b) Prepay any principal or interest on any other Indebtedness of
Borrower or any of its Subsidiaries (other than the Obligations) prior to
the date when due, or make any payment or deposit with any Person that has
the effect of providing for the satisfaction of any such Indebtedness of
Borrower or any of its Subsidiaries prior to the date when due, except
where no Default or Event of Default exists or would result therefrom.
6.2 PREPAYMENT OF CERTAIN OBLIGATIONS. Prepay any of the any amounts due
under the Administrative Services Agreement more than one month prior to the
date when due, or prepay any principal (INCLUDING sinking fund payments) or any
other amount with respect to any Subordinated Obligation, or purchase or redeem
any Subordinated Obligation EXCEPT
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when no Default or Event of Default exists or would result therefrom, and then
only to the extent permitted by the applicable subordination provisions thereof.
6.3 HOSTILE TENDER OFFERS. Make any offer to purchase or acquire, or
consummate a purchase or acquisition of, 5% or more of the capital stock of any
corporation or other business entity if the board of directors or management of
such corporation or business entity has notified Borrower or any of its
Subsidiaries that it opposes such offer or purchase.
6.4 MERGERS, ACQUISITIONS, SALES OF ASSETS, ETC. Wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of any of its property or assets in
a transaction which would constitute a Disposition, or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any substantial part of the property or assets
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person (or agree to do any
of the foregoing at any future time), except that, (i) to the extent that no
Default or Event of Default exists or would result therefrom, and (ii) as a
result thereof, no Change of Control has occurred, Borrower and its Subsidiaries
may (a) make sales of inventory in the ordinary course of business, (b) sell or
otherwise dispose of obsolete or worn-out equipment or materials in the ordinary
course of business, and (c) make the Acquisitions contemplated by Section 6.16.
6.5 DISTRIBUTIONS AND MANAGEMENT FEES. Make any Distribution, whether from
capital, income or otherwise, or pay any Management Fees or other amounts to the
direct or indirect owners of Borrower, in each case, whether in Cash or other
Property OTHER THAN:
(a) Distributions from any Subsidiary of Borrower to Borrower;
(b) Distributions payable solely in capital stock of Borrower of the
same class as that to which such Distributions are payable;
(c) The WHX Entertainment Redemption;
(e) other Distributions made when no Default or Event of Default
exists (i) made prior to the Completion Date in an aggregate amount not to
exceed $5,000,000 provided that the Requisite Lenders have consented thereto in
writing, and (ii) to its parent in an amount equal to the net cash proceeds
received by Borrower in connection with any issuance of its equity securities
(after transactional expenditures and the amount of taxes reasonably anticipated
by Borrower to be payable by Borrower in connection with such transactions);
(f) Permitted Tax Distributions; and
(g) Other Distributions made following the Completion Date and when
no Default or Event of Default exists or would result therefrom, PROVIDED that,
giving PRO FORMA
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effect to the making of such Distribution as of the last day of the then most
recently ended Fiscal Quarter, Borrower is in PRO FORMA compliance with Section
6.14.
6.6 ERISA. (a) At any time, permit any Pension Plan to: (i) engage in any
non-exempt "prohibited transaction" (as defined in Section 4975 of the Code);
(ii) fail to comply with ERISA or any other applicable Laws; (iii) incur any
material "accumulated funding deficiency" (as defined in Section 302 of ERISA);
or (iv) terminate in any manner, which, with respect to each event listed above,
may reasonably be expected to result in a Material Adverse Effect, or (b)
withdraw, completely or partially, from any Multiemployer Plan if to do so may
reasonably be expected to result in a Material Adverse Effect.
6.7 CHANGE IN NATURE OF BUSINESS. Make any material change in the nature
of the business of Borrower and its Subsidiaries, taken as a whole or engage
(directly or indirectly) in any business other than the operation of the present
Wheeling Island racing, gaming and entertainment facilities, the Expansion
Project, and reasonably related businesses at the same general locations.
6.8 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer to exist
any Lien or Negative Pledge upon or with respect to any property or assets (real
or personal, tangible or intangible) whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Borrower or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the Uniform Commercial Code or any other similar notice of Lien
under any similar recording or notice statute, OTHER THAN:
(a) Permitted Encumbrances;
(b) Liens and Rights of Others disclosed on Schedule 6.8; and
(c) Purchase money Liens securing Indebtedness permitted by Section
6.9(c)
6.9 INDEBTEDNESS. Contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Loan Documents; and
(b) Indebtedness outstanding on the Effective Date and described on
Schedule 6.9, without giving effect to any subsequent extension, renewal or
refinancing thereof except to the extent set forth on Schedule 6.9, provided
that the aggregate principal amount of the Indebtedness to be extended, renewed
or refinanced does not increase from that amount outstanding at the time of any
such extension, renewal or refinancing;
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(c) Purchase money Indebtedness, PROVIDED that the aggregate
principal amount of such Indebtedness which is incurred during the term of this
Agreement does not exceed $7,500,000; and
(d) The Senior Unsecured Notes.
6.10 CONTINGENT OBLIGATIONS. Guarantee or assume to agree to become
liable in any way, either directly or indirectly, for any additional
Indebtedness or liabilities of others except to endorse checks or drafts in the
ordinary course of business, or otherwise assume any Contingent Obligation.
6.11 NEW SUBSIDIARIES. Permit Borrower or any of its Subsidiaries to
establish, create or acquire any Subsidiary without the consent of the
Administrative Agent and the Requisite Lenders, which consent shall not be
unreasonably withheld.
6.12 TRANSACTIONS WITH AFFILIATES. Enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate of Borrower or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Borrower or such Subsidiary of Borrower as would reasonably be obtained at that
time in a comparable arm's-length transaction with a Person other than an
Affiliate, except for (a) Distributions and other amounts paid in accordance
with Section 6.5 and Investments permitted by Section 6.16(c), and (b) Payment
of amounts accrued following the Effective Date in accordance with the
Administrative Services Agreement in an aggregate amount not to exceed (i)
during any period of four Fiscal Quarters ending prior to the Completion Date,
the greater of $1,200,000 or 1.5% of the revenues of Borrower in such period
(but not any prepayments thereof).
6.13 LEVERAGE RATIO. Permit the Leverage Ratio as of the last day of any
Fiscal Quarter described in the matrix set forth below, to exceed the ratio set
forth opposite that Fiscal Quarter:
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Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
December 31, 2001 through
December 31, 2003 4.00:1.00
March 31, 2004 3.75:1.00
June 30, 2004 3.50:1.00
September 30, 2004 3.25:1.00
December 31, 2004 3.00:1.00
March 31, 2005 and thereafter 2.75:1.00
6.14 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage Ratio
as of the last day of any Fiscal Quarter described in the matrix set forth
below, to be less than the ratio set forth opposite that Fiscal Quarter:
Fiscal Quarters Ending Minimum Ratio
---------------------- -------------
December 31, 2001 through
June 30, 2004 1.25:1.00
September 30, 2004 and thereafter 1.50:1.00
6.15 CAPITAL EXPENDITURES. Make or commit to make any Capital Expenditure
other than:
(a) Capital Expenditures associated with the Expansion Project in an
aggregate amount that does not exceed $65,000,000.
(b) Capital Expenditures associated with the installation of
approximately 150 new slot machines at Wheeling Downs, the relocation of the
kennels and construction of the proposed paddock in an aggregate amount not to
exceed $12,500,000 in the aggregate;
(c) Maintenance Capital Expenditures in an aggregate amount not to
exceed (i) prior to the Completion Date, $1,000,000 in any Fiscal Year and (ii)
following the Completion Date, $2,000,000 in any Fiscal Year, PROVIDED that any
amount not so expended during any Fiscal Year may be expended in the following
Fiscal Year; and
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(d) other Capital Expenditures associated with the Wheeling Island
facility or its support facilities which are in an aggregate amount not to
exceed $10,000,000 during the term of this Agreement.
6.16 ACQUISITIONS AND INVESTMENTS. Make any Acquisition or make any
Investment, OTHER THAN:
(a) Investments in Subsidiaries;
(b) Investments in Cash Equivalents; and
(c) Investments made in Indebtedness of Delaware North following the
Completion Date and when no Default or Event of Default exists or would
result therefrom in an aggregate amount not to exceed $20,000,000,
PROVIDED that (i) as of the last day of the then most recently ended
Fiscal Quarter, and after giving PRO FORMA effect to the making of the
Investment as of that date, the Leverage Ratio shall be less than
3.00:1.00, (ii) no Loans or Letters of Credit shall be outstanding
hereunder as of the date of the making of such Investment, and (iii)
concurrently with the making of such Investment, Borrower shall obtain a
negotiable promissory note having a maturity of not more than two years
(subject to provisions allowing its renewal for periods resulting in its
remaining life to maturity being not in excess of two years) evidencing
such Investment and bearing a market rate of interest, which shall contain
a conspicuous legend stating that it is subject to a lien in favor of the
Administrative Agent.
6.17 NEW SUBSIDIARIES. Fail to cause any Person which hereafter becomes a
Subsidiary of Borrower to execute and deliver to the Administrative Agent (a) a
joinder to the Subsidiary Guaranty, a joinder to the Subsidiary Security
Agreement and, to the extent that Person owns any Property of the type described
therein, (b) a joinder to the Trademark Security Agreement, and (c) to deliver
the certificates evidencing all equity interests in such Subsidiary to the
Administrative Agent in pledge pursuant to the Security Agreement.
6.18 SENIOR UNSECURED NOTES. Amend the terms or conditions of the Senior
Unsecured Notes, the Indenture or other material transaction document relating
to the Senior Unsecured Notes in any respect that is materially adverse to the
interests of the Lenders.
6.19 CONSTRUCTION COVENANTS.
(a) Make any change to the Plans or Budget which would (i) result in
any material change in the scope of the Expansion Project, or (ii) delete
or materially amend any of the amenities described on Schedule 6.19.
(b) Fail to construct the Expansion Project in a good and
workmanlike manner in accordance with sound building practices and without
material deviation
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from the Plans (except to the extent approved by the Requisite Lenders),
and comply in all material respects with all existing Laws and
requirements of all Governmental Agencies having jurisdiction and in all
material respects with all future Laws and requirements that become
applicable to the Expansion Project.
(c) Purchase or contract for any materials, equipment, furnishings,
fixtures or articles of personal property to be placed or installed on the
Expansion Project (or on the existing Wheeling Downs facility as
contemplated pursuant to the Plans) under any security agreement or other
agreement where the seller reserves or purports to reserve title or the
right of removal or repossession (EXCEPT for such reservations as may
arise solely by operation of Law), or the right to consider such materials
personal property after their incorporation in the work of construction,
unless the Administrative Agent in each instance has authorized the
Borrower to do so in writing in each case except as permitted by Section
6.9(c).
(d) Fail to promptly pay prior to delinquency (subject to applicable
retentions) or otherwise discharge all claims and Liens for labor done and
materials and services furnished in connection with the construction of
the Expansion Project (and any improvements to the existing Wheeling Downs
facility contemplated by the Plans), EXCEPT for claims contested in good
faith by appropriate proceedings and without prejudice to the construction
timetable, PROVIDED that any such claims are covered by such payment bonds
or title insurance policy endorsements as may be reasonably requested by
the Administrative Agent.
(e) Fail to properly obtain, comply with and keep in effect all
material permits, licenses and approvals which are customarily required to
be obtained from Governmental Agencies in order to construct and occupy
the Expansion Project as of the then current stage of construction, and
deliver copies of all such permits, licenses and approvals to the
Administrative Agent promptly following a written request therefor.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance remains
unpaid, any Letter of Credit remains outstanding, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains in
force, Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Lenders) otherwise consents, at their sole expense,
deliver to the Administrative Agent, a sufficient number of copies for all of
the Lenders, of the following:
(a) Within 45 days after the close of the first three quarterly
accounting periods in each fiscal year of Borrower, (i) the consolidated balance
sheet of Borrower and its Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statement of income and retained
earnings and statement of cash flows for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the related periods in the prior fiscal
year, all of which shall be certified by the Chief Financial Officer of
Borrower, subject to normal year-end audit adjustments and (ii) a management
narrative of the important operational and financial developments during the
year-to-date period;
(b) Within 120 days after the close of each fiscal year of Borrower,
(i) the consolidated balance sheet of Borrower and its Subsidiaries as at the
end of such fiscal year and the related consolidated statement of income and
retained earnings and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year, and (ii) a management
narrative of the important operational and financial developments during the
respective fiscal year. The financial statements referred to in clause (i) shall
be prepared in accordance with Generally Accepted Accounting Principles,
consistently applied, accompanied by a report and opinion of
PricewaterhouseCoopers LLP, or other independent public accountants of
recognized national standing selected by Borrower and reasonably satisfactory to
the Requisite Lenders, which report shall be based on an audit conducted in
accordance with generally accepted auditing standards as at such date, and which
opinion shall be an unqualified opinion.
(c) Promptly after Borrower's or any of its Subsidiaries' receipt
thereof, a copy of the "management letter" (if any) received from its certified
public accountants and management's response thereto.
(d) As promptly as practicable and in any event no later than 90
days following the first day of each fiscal year of Borrower, a budget in form
satisfactory to the Administrative Agent (including budgeted statements of
income and sources and uses of cash and balance sheets) prepared by Borrower for
each of the months of such fiscal year prepared in detail;
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(e) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to Borrower by independent accountants in connection
with the accounts or books of Borrower or any of its Subsidiaries, or any audit
of any of them;
(f) Promptly after the filing or delivery thereof, copies of all
financial information, proxy materials and reports, if any, which Borrower or
any of its Subsidiaries shall publicly file with the Securities and Exchange
Commission or its Successors or deliver to holders of its Indebtedness pursuant
to the terms of the documentation governing such Indebtedness (or any trustee,
agent or other representative therefor);
(g) Promptly after the same are available, copies of any written
communication to Borrower or any Subsidiary of Borrower from any Regulatory
Board advising it of a violation of or non-compliance with any Applicable
Regulation by Borrower or any Subsidiary of Borrower;
(h) Notice in writing within 30 days after any change of Borrower's
senior management personnel;
(i) Promptly after an officer of any Party obtains knowledge
thereof, notice of one or more of the following environmental matters, unless
such environmental matters could not, individually or when aggregated with all
other such environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Borrower and its Subsidiaries
taken as a whole:
(i) any pending or threatened Environmental Claim against
Borrower or any of its Subsidiaries or any Real Property owned or operated
by Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by Borrower or any of its Subsidiaries that (a)
results in noncompliance by Borrower or any of its Subsidiaries with any
applicable Environmental Law or (b) could be expected to form the basis of
an Environmental Claim against Borrower or any of its Subsidiaries or any
such Real Property;.
(iii) any condition or occurrence on any Real Property owned
or operated by Borrower or any of its Subsidiaries that could be expected
to cause such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by Borrower or any of its
Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned or
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operated by Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency;
PROVIDED, that in any event Borrower shall deliver to each Lender all
notices received by Borrower or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA which
identify Borrower or any of its Subsidiaries as potentially responsible
parties for remediation costs or which otherwise notify Borrower or any of
its Subsidiaries of potential liability under CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and Borrower's or such Subsidiary's response thereto.
(j) Promptly after (i) Borrower or any of its Subsidiaries receives
any correspondence or other written communication from any Regulatory Board
(other than correspondence relating to routine operating matters of Borrower or
any of its Subsidiaries in the ordinary course of business) or (ii) Borrower or
any of its Subsidiaries delivers any correspondence or other written
communication to any Regulatory Board (other than correspondence relating to
routine operating matters of Borrower or any of its Subsidiaries), Borrower
shall deliver copies of any such correspondence or other written communication
to each of the Lenders;
(k) Promptly after request by the Administrative Agent or any
Lender, copies of any other material report or other document that was filed by
Borrower or any of its Subsidiaries with any Governmental Agency;
(l) Promptly, and in any event within ten Business Days upon a
Senior Officer becoming aware, of the occurrence of any (i) "reportable event"
(as such term is defined in Section 4043 of ERISA) or (ii) "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) in connection with any Pension Plan or any trust created thereunder,
telephonic notice specifying the nature thereof, and, no more than five Business
Days after such telephonic notice, written notice again specifying the nature
thereof and specifying what action Borrower or any of its Subsidiaries is taking
or proposes to take with respect thereto, and, when known, any action taken by
the Internal Revenue Service with respect thereto;
(m) Promptly upon, and in any event within five Business Days after
an officer of any Party obtains knowledge thereof, notice of the occurrence of
any event which constitutes a Default or an Event of Default; and
(n) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through the
Administrative Agent) or the Requisite Lenders.
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7.2 COMPLIANCE CERTIFICATES. For so long as any Advance remains unpaid,
any Letter of Credit remains outstanding any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains outstanding, Borrower
shall deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Sections 7.1(a)
a properly completed Compliance Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
8.1 THE EFFECTIVE DATE. The effectiveness of the amendment and
restatement of this Agreement is subject to the following conditions precedent,
each of which shall be satisfied prior to the effectiveness hereof (unless all
of the Lenders, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified, each
properly executed by a Responsible Official of each party thereto, each dated as
of the Effective Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise specified or, in
the case of the date of any of the following, unless the Administrative Agent
otherwise agrees or directs):
(1) executed counterparts of this Agreement, sufficient in
number for distribution to the Lenders and Borrower;
(2) Notes issued to each Lender in the principal amount of
that Lender's Pro Rata Share;
(3) the Subsidiary Guaranty executed by each Subsidiary of
Borrower;
(4) the Deeds of Trust executed by Borrower and
Wheeling Land
Development Corporation in forms which are suitable for recordation in the
relevant West Virginia recorder's offices;
(5) such documentation with respect to Borrower, each
Subsidiary Guarantor and each other Obligor as the Administrative Agent
may require to establish its due organization, valid existence and good
standing, its qualification to engage in business in each material
jurisdiction in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform the Loan
Documents, the identity, authority and capacity of each Responsible
Official thereof authorized to act on its behalf, INCLUDING certified
copies of articles of incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing and/or qualification to
engage in business, tax clearance certificates, certificates of corporate
resolutions, and incumbency certificates;
(6) the Opinions of Counsel;
(7) such assurances as the Administrative Agent deems
appropriate that the relevant Governmental Agencies and Regulatory Boards
have approved the
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credit facilities to be provided hereunder to the extent that such
approval is required by Applicable Regulations;
(8) a Certificate of a Responsible Official signed by a Senior
Officer of Borrower certifying that the conditions specified in Sections
8.1(d), 8.1(e) and 8.1(g) have been satisfied;
(9) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent reasonably may require.
(b) The Administrative Agent shall have received assurances of the
recordation acceptable to it from First American Title Insurance Company,
together with its commitment to issue its ALTA lenders policy of title insurance
in the amount of $40,000,000 with such endorsements to coverage and exceptions
from coverage as the Administrative Agent may request.
(c) Evidence that the security interests of the Administrative Agent
in the Collateral are of first priority.
(d) The representations and warranties of Borrower contained in
Article 4 shall be true and correct.
(e) Borrower, the other Obligors shall be in compliance with all the
terms and provisions of the Loan Documents, and after giving effect to the
initial Advance, no Default or Event of Default shall have occurred and be
continuing.
(f) The fees due and payable on the Effective Date pursuant to
Article 3 shall have been paid.
(g) No Material Adverse Effect shall have occurred since December
31, 2000.
(h) Delivery of all financial statements as set forth in Article 7.
(i) Such environmental reviews and assessments as the Lenders may
require with respect to the Real Property.
(j) Receipt by the Agent of a lenders loss payable endorsement
indicating insurance coverages acceptable to the Lender.
(k) The West Virginia State Lottery Commission shall have approved
this Agreement and the other Loan Documents in accordance with the requirements
of ▇.▇▇. Codess.29-22a-7(a)(5).
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(l) Borrower shall have received, or shall concurrently receive, not
less than $125,000,000 in gross proceeds from the issuance of the Senior
Unsecured Notes, and Administrative Agent shall have received executed copies of
the Stock Redemption Agreement, the Indenture and all of the material
instruments, documents and agreements executed in relation thereto, which
documents shall (i) provide that the Senior Unsecured Notes shall mature no
earlier than seven years after the Effective Date and (ii) otherwise be in form
and substance satisfactory to Administrative Agent.
(m) the WHX Entertainment Redemption shall have been completed, all
on terms and conditions satisfactory to the Administrative Agent.
(n) All legal matters relating to the Loan Documents shall be
reasonably satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special
counsel to the Administrative Agent.
8.2 ANY ADVANCE. The obligation of each Lender to make any Advance which
would increase the outstanding principal Indebtedness evidenced by the Notes and
the obligation of the Lenders to make any LIBOR Loan is subject to the
conditions precedent that:
(a) EXCEPT as disclosed by the Obligors and approved in writing by
the Requisite Lenders, the representations and warranties contained in Article 4
(OTHER THAN the representations set forth in Sections 4.4, 4.10 and 4.17) shall
be true and correct on the date of such Advance as though made on that date;
(b) There shall not be any pending or threatened action, suit,
proceeding or investigation affecting Borrower or any of its Subsidiaries before
any Governmental Agency that constitutes a Material Adverse Effect;
(c) EXCEPT as provided for in Section 2.1(g), the Administrative
Agent shall have timely received a Request for Loan in compliance with Article 2
(or telephonic or other request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) or, in the appropriate case, a Request for Letter
of Credit;
(d) no Default or Event of Default shall have occurred and remain
continuing or will result from such Advance;
(e) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or the Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 EVENTS OF DEFAULT. The existence or occurrence of any one or more of
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the Notes, or any
portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the Notes, or any
fees under Section 3.3 or any portion thereof, within two Business Days after
the date when due; or fails to pay promptly any other fee or amount payable to
the Lenders under any Loan Document, or any portion thereof after demand
therefor; or
(c) Borrower fails to comply with any of the covenants contained in
Section 5.13 or in Article 6; or
(d) Borrower or any other Obligor fails to perform or observe any
other covenant or agreement (not specified in clauses (a), (b) or (c) above)
contained in any Loan Document on its part to be performed or observed within
ten Business Days after the giving of notice by the Administrative Agent on
behalf of the Requisite Lenders of such Default; or
(e) Any representation or warranty of Borrower or any other Obligor
made in any Loan Document, or in any certificate or other writing delivered by
Borrower pursuant to any Loan Document, proves to have been incorrect when made
or reaffirmed; or
(f) Borrower or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, of any present or future Indebtedness
for borrowed money of $5,000,000 or more, or any guaranty of present or future
Indebtedness for borrowed money of $5,000,000 or more, on its part to be paid,
when due (or within any stated grace period), whether at the stated maturity,
upon acceleration, by reason of required prepayment, the exercise of any "put"
exercised by the holder of such Indebtedness or otherwise or (ii) fails to
perform or observe any other term, covenant or agreement on its part to be
performed or observed, or suffers any event to occur, in connection with any
present or future Indebtedness for borrowed money of $5,000,000 or more, or of
any guaranty of present or future indebtedness for borrowed money of $5,000,000
or more, if as a result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or their behalf) has the right to declare
such indebtedness due before the date on which it otherwise would become due; or
(g) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their behalf) the
right to declare such Subordinated Obligation due before the date on which it
otherwise would become due, or the
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right to require the issuer thereof to redeem or purchase, or offer to redeem or
purchase, all or any portion of any Subordinated Obligation; or
(h) Any Loan Document, at any time after its execution and delivery
and for any reason OTHER THAN the agreement of the Lenders or satisfaction in
full of all the Obligations ceases to be in full force and effect or is declared
by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the reasonable opinion
of the Requisite Lenders, is materially adverse to the interests of the Lenders;
or any Obligor or other party thereto denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind same; or
(i) A final judgment against Borrower or any of its Subsidiaries is
entered for the payment of money in excess of $1,000,000 (other than any money
judgment covered in full by insurance) and, absent procurement of a stay of
execution, such judgment remains unsatisfied for sixty calendar days after the
date of entry of judgment, or in any event later than five days prior to the
date of any proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any part of the
Property of any such Person and is not released, vacated or fully bonded within
sixty calendar days after its issue or levy; or
(j) Borrower or any of its Subsidiaries institutes or consents to
the institution of any proceeding under a Debtor Relief Law relating to it or to
all or any part of its Property, or is unable or admits in writing its inability
to pay its debts as they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty calendar days; or any proceeding
under a Debtor Relief Law relating to any such Person or to all or any part of
its Property is instituted without the consent of that Person and continues
undismissed or unstayed for sixty calendar days; or
(k) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or
(l) Any determination is made by a court of competent jurisdiction
that any Subordinated Obligation is not subordinated in accordance with its
terms to the Obligations; or
(m) Any Pension Plan maintained by Borrower or any of its
Subsidiaries is determined to have an "accumulated funding deficiency" as that
term is defined in Section 302 of ERISA and the result is a Material Adverse
Effect; or
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(n) The occurrence of any License Revocation which results in the
legal inability of Borrower to operate video lottery terminals or slot machines
at Wheeling Downs for a period of five consecutive calendar days; or
(o) The occurrence of any Change of Control; or
(p) any event occurs which gives the holders of any Senior Unsecured
Note (or an agent or trustee on its or their behalf) the right to require the
issuer to redeem or purchase, or offer to redeem or purchase, all or any portion
of the Senior Unsecured Notes which are in excess of $5,000,000, except to the
extent that Borrower is then entitled to repurchase Senior Unsecured Notes in
the amount which is the subject of such offered repurchase or required purchase
pursuant to Section 6.1(a).
9.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other rights or
remedies of the Administrative Agent or the Lenders provided for elsewhere in
this Agreement, or in the other Loan Documents, or by applicable Law, or in
equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default OTHER THAN an Event of Default described in Section 9.1(j):
(1) the Commitment to make Advances and issue Letters of
Credit and all other obligations of the Creditors to the Obligors and all
rights of Borrower and the other Obligors under the Loan Documents shall
be suspended without notice to or demand upon Borrower, which are
expressly waived by Borrower, EXCEPT that all of the Lenders or the
Requisite Lenders (as the case may be, in accordance with Section 11.2)
may waive an Event of Default or, without waiving, determine, upon terms
and conditions satisfactory to the Lenders or Requisite Lenders, as the
case may be, to reinstate the Commitment and make further Advances and
issue further Letters of Credit, which waiver or determination shall apply
equally to, and shall be binding upon, all the Lenders; and
(2) the Issuing Lender may demand immediate payment by
Borrower of an amount equal to the aggregate amount of all outstanding
Letters of Credit to be held by the Issuing Lender as collateral
hereunder; and
(3) the Requisite Lenders may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the Commitment
and may declare all or any part of the unpaid principal of the Notes, all
interest accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind, all
of which are expressly waived by Borrower.
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(b) Upon the occurrence of any Event of Default described in Section
9.1(j):
(1) the Commitment to make Advances and issue Letters of
Credit, and all other obligations of the Creditors to the Obligors and all
rights of Borrower and any other Obligors under the Loan Documents shall
terminate without notice to or demand upon Borrower, which are expressly
waived by Borrower, EXCEPT that all the Lenders may waive the Event of
Default or, without waiving, determine, upon terms and conditions
satisfactory to all the Lenders, to reinstate the Commitment and make
further Advances and issue further Letters of Credit, which determination
shall apply equally to, and shall be binding upon, all the Lenders; and
(2) an amount equal to the aggregate amount of all outstanding
Letters of Credit shall be immediately due and payable to the Issuing
Lender without notice to or demand upon Borrower or any Co-Borrower, which
are expressly waived by Borrower and the Co-Borrowers, to be held by the
Issuing Lender in an interest- bearing cash collateral account as
collateral hereunder; and
(3) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan Documents
shall be forthwith due and payable, without protest, presentment, notice
of dishonor, demand or further notice of any kind, all of which are
expressly waived by Borrower.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Lenders and the Administrative Agent, or any of them, without
notice to (EXCEPT as expressly provided for in any Loan Document) or demand upon
Borrower, which are expressly waived by Borrower (EXCEPT as to notices expressly
provided for in any Loan Document), may proceed (but only with the consent of
the Requisite Lenders) to protect, exercise and enforce their rights and
remedies under the Loan Documents against Borrower and any other Obligor and
such other rights and remedies as are provided by law or equity. In the event
that the Administrative Agent provides any notice to the Borrower of the
occurrence of any Event of Default hereunder, the Administrative Agent agrees
for the benefit of the West Virginia State Lottery Commission and the West
Virginia Racing Commission that it shall provide concurrent notice to the West
Virginia State Lottery Commission and the West Virginia Racing Commission
thereof (and the Borrower hereby consents to the giving of such notice),
PROVIDED that the Borrower shall not have any rights under this sentence. All
such notices shall be provided to the West Virginia Lottery Commission and the
West Virginia Racing Commission at the following addresses:
West Virginia Lottery
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
West Virginia Racing Commission
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Department of Tax and Revenue
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(d) The order and manner in which the Lenders' rights and remedies
are to be exercised shall be determined by the Requisite Lenders in their sole
discretion, and all payments received by the Administrative Agent and the
Lenders, or any of them, shall be applied first to the costs and expenses
(including reasonable attorneys' fees and disbursements and the reasonably
allocated costs of attorneys employed by the Administrative Agent or by any
Lender) of the Administrative Agent and of the Lenders, and thereafter paid pro
rata to the Lenders in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all the Lenders, without priority or preference
among the Lenders. Regardless of how each Lender may treat payments for the
purpose of its own accounting, for the purpose of computing Borrower's
Obligations hereunder and under the Notes, payments shall be applied FIRST, to
the costs and expenses of the Administrative Agent and the Lenders, as set forth
above, SECOND, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each of the
Loan Documents), and THIRD, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the Lenders under
the Loan Documents. No application of payments will cure any Event of Default,
or prevent acceleration, or continued acceleration, of amounts payable under the
Loan Documents, or prevent the exercise, or continued exercise, of rights or
remedies of the Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Subject to Section 10.8, each Creditor
hereby irrevocably appoints and authorizes the Administrative Agent to take such
action as administrative agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Administrative Agent by the terms
thereof or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as a trustee or agent for any Lender or as
representative of any Lender for any other purpose and, EXCEPT as specifically
set forth in the Loan Documents to the contrary, the Administrative Agent shall
take such action and exercise such powers only in an administrative and
ministerial capacity.
10.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America (and each
successor Administrative Agent) has the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
the Administrative Agent, and the term "Lender" or "Lenders" includes Bank of
America in its individual capacity. Bank of America (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Borrower or any of its Subsidiaries as if it were not the Administrative Agent
and without any duty to account therefor to the other Creditors. Bank of America
(and each successor Administrative Agent) need not account to any other Creditor
for any monies received by it for reimbursement of its costs and expenses as
Administrative Agent hereunder, or for any monies received by it in its capacity
as a Lender hereunder. The Administrative Agent shall not be deemed to hold a
fiduciary trust or other special relationship or any other special relationship
with any other Creditor and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent.
10.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The Administrative Agent,
on behalf of all the Creditors, shall hold in accordance with the Loan Documents
all items of any collateral or interests therein received or held by the
Administrative Agent. Subject to the Administrative Agent's right to
reimbursement for its costs and expenses hereunder (INCLUDING reasonable
attorneys' fees and disbursements and other professional services and the
reasonably allocated costs of attorneys employed by the Administrative Agent)
and subject to the application of payments in accordance with Section 9.2(d),
each Lender shall have an interest in the Collateral or interests therein in the
same proportions that the aggregate Obligations owed such Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders.
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10.4 LENDERS' CREDIT DECISIONS. Each Creditor agrees that it has,
independently and without reliance on any other Creditor or the directors,
officers, agents, employees or attorneys thereof, and instead in reliance upon
information supplied to it by or on behalf of the Obligors and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender agrees that it
shall, independently and without reliance upon any other Creditor or the
directors, officers, agents, employees or attorneys thereof, continue to make
its own independent credit analyses and decisions in acting or not acting under
the Loan Documents.
10.5 ACTION BY ADMINISTRATIVE AGENT.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default or Event of Default, the Administrative Agent may assume
that no Default or Event of Default has occurred and is continuing, unless the
Administrative Agent has received notice from the Obligors stating the nature of
the Default or has received notice from a Lender stating the nature of the
Default and that such Lender considers the Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those obligations under the
Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, PROVIDED that (i)
the Administrative Agent shall be required to act or not act upon the
instructions of the Requisite Lenders (or of all the Lenders, to the extent
required by Section 11.2) and those instructions shall be binding upon the
Administrative Agent and all of the other Creditors, and (ii) the Administrative
Agent shall not be required to act or not act if to do so would be contrary to
any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice specified in
clause (a), the Administrative Agent shall immediately give notice thereof to
the Lenders and shall act or not act upon the instructions of the Requisite
Lenders (or of all the Lenders, to the extent required by Section 11.2),
PROVIDED that (i) the Administrative Agent shall not be required to act or not
act if to do so would be contrary to any Loan Document or to applicable Law or
would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and (ii) if the
Requisite Lenders (or all the Lenders, if required under Section 11.2) fail, for
five Business Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection of the
interests of the Lenders.
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(e) The Administrative Agent shall have no liability to any Creditor
for acting, or not acting, as instructed by the Requisite Lenders (or all the
Lenders, if required under Section 11.2), notwithstanding any other provision
hereof.
10.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the Administrative Agent
nor any of its directors, officers, agents, employees or attorneys shall be
liable for any action taken or not taken by them under or in connection with the
Loan Documents, EXCEPT for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof, in
form satisfactory to the Administrative Agent, signed by the payee, and may
treat each Lender as the owner of that Lender's interest in the Obligations for
all purposes of this Agreement until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by that Lender.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for Borrower or its Subsidiaries or the Lenders, and
shall not be liable for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or other
professionals or experts.
(c) Shall not be responsible to any Creditor for any statement,
warranty or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents.
(d) EXCEPT to the extent expressly set forth in the Loan Documents,
shall have no duty to ask or inquire as to the performance or observance by any
Obligor of any of the terms, conditions or covenants of any of the Loan
Documents or to inspect any Collateral or the Property, books or records of
Borrower or any of its Subsidiaries.
(e) Will not be responsible to any Creditor for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any Collateral.
(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties.
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(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by any Obligor or paid or payable to or
received or receivable from any Lender under any Loan Document, INCLUDING,
without limitation, principal, interest, commitment fees, Advances and other
amounts.
10.7 INDEMNIFICATION. Each Lender shall, ratably in accordance with its
Pro Rata Share, indemnify and hold the Administrative Agent, and each of its
directors, officers, agents, employees and attorneys harmless against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(INCLUDING, without limitation, attorneys' fees and disbursements and reasonably
allocated costs of attorneys employed by the Administrative Agent) that may be
imposed on, incurred by or asserted against it or them in any way relating to or
arising out of the Loan Documents or any action taken or not taken by such
indemnitee thereunder, EXCEPT such as result from its own gross negligence or
willful misconduct. Without limitation on the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for that Lender's Pro Rata Share
of any out-of-pocket cost or expense incurred by the Administrative Agent in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (INCLUDING a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
any Obligor is required by Section 11.3 to pay that cost or expense but fails to
do so upon demand.
10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and at
the request of the Requisite Lenders shall, resign as Administrative Agent upon
thirty days' notice to the Lenders and Borrower. If the Administrative Agent
resigns as Administrative Agent under this Agreement, the Requisite Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders. If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint a successor administrative agent from among the
Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article 10, and
Sections 11.3, 11.11 and 11.22, shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is thirty (30) days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Administrative Agent hereunder until such time, if any, as
the Requisite Lenders appoint a successor administrative agent as provided for
above.
10.9 FORECLOSURE ON COLLATERAL. It is understood and agreed that the
Liens of the Collateral Documents are subject to applicable Law, including
without limitation the
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provisions of West Virginia Code Section 29-22a-1 ET SEQ. Without the Consent of
the West Virginia State Lottery Commission, only if such consent is required by
the Racetrack Video Lottery Act, ▇.▇▇. Code ss.29-22a-1, ET SEQ., the
Administrative Agent shall not assign, bail, sublease, hypothecate, transfer or
dispose of the video lottery terminals subject to the Collateral Documents and
associated equipment or any interest therein. In the event of foreclosure or
enforcement of the Lien created by any of the Collateral Documents, title to the
Collateral covered thereby shall be taken and held by the Administrative Agent
(or any designee thereof) pro rata for the benefit of the Lenders in accordance
with their Pro Rata Shares and shall be administered in accordance with the
standard form of collateral holding participation agreement used by the
Administrative Agent in comparable syndicated credit facilities.
10.10 NO OBLIGATIONS OF BORROWER. Nothing contained in this Article 10
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
10.11 PERMITTED RELEASE OF COLLATERAL. The Administrative Agent is hereby
authorized to release its Lien on any Collateral which is the subject of a
disposition permitted hereunder, and each Lender shall confirm upon request the
authority of the Administrative Agent to make any such release of Collateral.
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Article 11
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges and
remedies of the Creditors provided herein, in the Notes and in the other Loan
Documents are cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the part of any
Creditor in exercising any right, power, privilege or remedy may be, or may be
deemed to be, a waiver thereof; nor may any single or partial exercise of any
right, power, privilege or remedy preclude any other or further exercise of the
same or any other right, power, privilege or remedy. The terms and conditions of
Article 8 are inserted for the sole benefit of the Creditors; the same may be
waived in whole or in part, with or without terms or conditions, in respect of
any Loan or Letter of Credit without prejudicing the Creditors' rights to assert
them in whole or in part in respect of any other Loan or Letter of Credit.
11.2 AMENDMENTS; CONSENTS. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Obligor therefrom, may in any event be effective unless in
writing signed or approved in writing by the Requisite Lenders or by the
Administrative Agent with the consent of the Requisite Lenders (and, in the case
of any amendment, modification or supplement to (i) Article 10, signed by the
Administrative Agent, and (ii) to any Loan Document, signed by the Obligors
party thereto), and then only in the specific instance and for the specific
purpose given; and, without the approval in writing of all the Lenders affected
thereby, no amendment, modification, supplement, termination, waiver or consent
may be effective:
(a) To amend or modify the principal of, or the amount of principal
or principal prepayments on any Note, to increase the amount of the Commitment
or the Pro Rata Share of any Lender without the consent of that Lender,
(b) Without the consent of the affected Lenders, to decrease the
rate of interest or amount of any fee payable to any Lender, or to decrease the
amount of any unused commitment fee payable to any Lender, or to decrease any
other fee or amount payable to any Lender under the Loan Documents;
(c) To postpone any date (including the Maturity Date) fixed for any
payment of principal of, prepayment of principal of or any installment of
interest on, any Note or any installment of any unused commitment fee, or to
extend the term of the Commitment, or to release the Subsidiary Guaranty;
(d) To release any portion of the Collateral having an aggregate
value in excess of $100,000 (EXCEPT in connection with the permitted sale or
other disposition thereof or as expressly provided in any Loan Document);
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(e) To amend the provisions of the definition of "REQUISITE
LENDERS", Section 8.2 or this Section 11.2; or
(f) To amend any provision of this Agreement that expressly requires
the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all of
the Creditors.
11.3 COSTS, EXPENSES AND TAXES. Borrower shall pay promptly after demand,
accompanied by an invoice therefor, the reasonable out-of-pocket costs and
expenses (including without limitation, the allocated fees and expenses of an
in-house counsel), of the Administrative Agent in connection with the
negotiation, preparation, syndication, administration, execution and delivery of
the Loan Documents. Borrower shall pay promptly after demand, accompanied by an
invoice therefor, the reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with any amendment to the Loan Documents or
any waiver of the terms thereof, and the reasonable costs and expenses of the
Administrative Agent and, after a Default, the Lenders in connection with the
refinancing, restructuring, reorganization (INCLUDING a bankruptcy
reorganization) and enforcement or attempted enforcement of the Loan Documents,
and any matter related thereto. The foregoing costs and expenses shall include
the actual environmental review fees, filing fees, recording fees, title
insurance premiums and fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (INCLUDING reasonably allocated costs of legal counsel employed by
the Administrative Agent), independent public accountants and other outside
experts retained by the Administrative Agent, whether or not such costs and
expenses are incurred or suffered by the Administrative Agent in connection with
or during the course of any bankruptcy or insolvency proceedings of any Obligor.
Such costs and expenses shall also include, in the case of any amendment or
waiver of any Loan Document, the administrative costs of the Administrative
Agent reasonably attributable thereto. Borrower shall pay any and all
documentary, recording, stamp and other taxes, and all costs, expenses, fees and
charges payable or determined to be payable in connection with the filing or
recording of this Agreement, any other Loan Document or any other instrument or
writing to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto. Any amount payable to the Administrative
Agent or any Lender under this Section 11.3 shall bear interest from the date of
formal written demand for payment after delinquency at the Default Rate.
11.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by any Creditor
pursuant hereto or thereto may, or may be deemed to, make any of the Creditors a
partnership, an association, a joint venture or other entity, either among
themselves or with Borrower or any of its Subsidiaries. Each Lender's
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obligation to make any Advance pursuant hereto is several and not joint or joint
and several, and in the case of the initial Advance only, is conditioned upon
the performance by all other Lenders of their obligations to make initial
Advances. A default by any Lender will not increase the Pro Rata Share of the
Commitment attributable to any other Lender. Any Lender not in default may, if
it desires, assume in such proportion as the nondefaulting Lenders agree the
obligations of any Lender in default, but is not obligated to do so.
11.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or in any other Loan Document, or in any certificate
or other writing delivered by or on behalf of any one or more of the Obligors,
will survive the making of the Loans hereunder and the execution and delivery of
the Notes, and have been or will be relied upon by each Creditor,
notwithstanding any investigation made by the Creditors or on their behalf.
11.6 NOTICES. EXCEPT as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telecopied, dispatched by commercial courier or delivered to the
appropriate party at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party to any Loan
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section.
EXCEPT as otherwise expressly provided in any Loan Document, if any notice,
request, demand, direction or other communication required or permitted by any
Loan Document is given by mail it will be effective on the earlier of receipt or
the third calendar day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telecopier, when sent; if dispatched by
commercial courier, on the scheduled delivery date; or if given by personal
delivery, when delivered.
11.7 EXECUTION OF LOAN DOCUMENTS. This Agreement and any other Loan
Document may be executed in any number of counterparts and any party hereto or
thereto may execute any counterpart, each of which when executed and delivered
will be deemed to be an original and all of which counterparts of this Agreement
or any other Loan Document, as the case may be, when taken together will be
deemed to be but one and the same instrument. The execution of this Agreement or
any other Loan Document by any party hereto or thereto will not become effective
until counterparts hereof or thereof, as the case may be, have been executed by
all the parties hereto or thereto.
11.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which any Obligor
is a party will be binding upon and inure to the benefit of the relevant Obligor
and the Creditors, and their respective successors and assigns, EXCEPT that the
Obligors may not assign their rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the Lenders.
Notwithstanding the preceding sentence, Borrower may when no
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Default or Event of Default has occurred and remains continuing, assign the
Commitments to a limited liability company which (i) is wholly-owned, directly
or indirectly by Delaware North, (ii) concurrently assumes the Obligations and
the Obligations under the Senior Unsecured Notes pursuant to a transaction and
documents which are acceptable to the Administrative Agent, and (iii) succeeds
to substantially all of the assets, rights and privileges of the Borrower
(including without limitation the Collateral and all gaming licenses held by
Borrower). Each Lender represents that it is not acquiring its Note with a view
to the distribution thereof within the meaning of the Securities Act of 1933, as
amended (subject to any requirement that disposition of such Note must be within
the control of such Lender). Any Lender may at any time pledge its Note or any
other instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Effective Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share; PROVIDED that (i) such Eligible Assignee, if not then a Lender or an
Affiliate of the assigning Lender, shall be approved by the Administrative Agent
and Borrower (neither of which approvals shall be unreasonably withheld or
delayed), PROVIDED that the consent of Borrower to assignments shall not be
required when any Default or Event of Default has occurred and remains
continuing, (ii) such assignment shall be evidenced by an Assignment Agreement,
a copy of which shall be furnished to the Administrative Agent as provided
below, (iii) EXCEPT in the case of an assignment to an Affiliate of the
assigning Lender, to another Lender or of the entire remaining Commitment of the
assigning Lender, the assignment shall not assign a Pro Rata Share of the
Commitment equivalent to less than $1,500,000, (iv) the effective date of any
such assignment shall be as specified in the Assignment Agreement, but not
earlier than the date which is five Business Days after the date the
Administrative Agent has received the Assignment Agreement, and (v) no Lender
shall make any assignment to an Assignee which has been found by the West
Virginia State Lottery Commission or the West Virginia State Racing Commission,
acting under applicable Law, to be unsuitable as a Lender. Upon the effective
date of such Assignment Agreement, the Eligible Assignee named therein shall be
a Lender for all purposes of this Agreement, with the Pro Rata Share therein set
forth and, to the extent of such Pro Rata Share, the assigning Lender shall be
released from its further obligations under the Loan Documents. Borrower agrees
that it shall execute and deliver (against delivery by the assigning Lender to
Borrower of its Note) to such assignee Lender, a Note evidencing that assignee
Lender's Pro Rata Share, and to the assigning Lender, a Note evidencing the
remaining balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other than the
representation and warranty that it is the legal and beneficial owner of the Pro
Rata Share being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
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validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to the financial condition
of Borrower or the performance by Borrower of the Obligations; (iii) it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment Agreement; (iv) it will, independently
and without reliance upon the Administrative Agent or any Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) it appoints and authorizes the Administrative Agent to take
such action and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by this Agreement; and
(vi) it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Assignment Agreement delivered to it. After
receipt of a completed Assignment Agreement executed by any Lender and an
Eligible Assignee, and receipt of an assignment fee of $3,500 from such Eligible
Assignee, the Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and the Lenders a revised list of the Pro Rata
Shares of the Lenders giving effect thereto.
(e) Each Lender may from time to time grant participations to one or
more banks or other financial institutions (INCLUDING another Lender) in all or
a portion of its Pro Rata Share; PROVIDED, HOWEVER, that (i) Borrower shall have
provided its written approval to such participation (such approval shall not be
unreasonably withheld or delayed), (ii) such Lender's obligations under this
Agreement shall remain unchanged, (iii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iv) the participating banks or other financial institutions shall not be a
Lender hereunder for any purpose EXCEPT, if the participation Agreement so
provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.22 but only to the
extent that the cost of such benefits to Borrower does not exceed the cost which
Borrower would have incurred in respect of such Lender absent the participation,
(v) Borrower, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (vi) the participation interest
shall be expressed as a percentage of the granting Lender's Pro Rata Share as it
then exists and shall not restrict an increase in the Commitment, or in the
granting Lender's Pro Rata Share, so long as the amount of the participation
interest is not affected thereby and (vii) the consent of the holder of such
participation interest shall not be required for amendments or waivers of
provisions of the Loan Documents OTHER THAN those which (A) extend the Maturity
Date or any other date upon which any payment of money is due to the Lenders,
(B) reduce the rate of interest payable with respect to the participation, any
fee or any other monetary amount payable to the participant, (C) reduce the
amount of any installment of principal due under the Notes in a
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manner which affects the participant, or (D) release any material portion of the
Collateral, (E) increase the Commitment, only if the participant's Commitment is
increased.
(f) Notwithstanding anything in this Section 11.8 to the contrary,
the rights of the Lenders to make assignments of, and grant participations in,
their Pro Rata Shares of the Commitment shall be subject to the approval of any
Regulatory Board (including the approval of the identity of any proposed
assignee or participant), to the extent required by Applicable Regulations.
11.9 RIGHT OF SETOFF. If an Event of Default has occurred and is
continuing, each Creditor may (but only with the consent of the Requisite
Lenders) exercise its rights under Article 9 of the Uniform Commercial Code and
other applicable Laws and, to the extent permitted by applicable Laws, apply any
funds in any deposit account maintained with it by Borrower or any Property of
Borrower in its possession against the Obligations.
11.10 SHARING OF SETOFFS. Each Lender severally agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against any
Obligor, or otherwise, receives payment of the Obligations held by it that is
ratably more than any other Lender, through any means, receives in payment of
the Obligations held by that Lender, then, subject to applicable Laws, (a) the
Lender exercising the right of setoff, banker's lien or counterclaim or
otherwise receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Lenders
share any payment obtained in respect of the Obligations ratably in accordance
with each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; PROVIDED that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by any Obligor or any Person claiming through or
succeeding to the rights of any Obligor, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Lender that purchases a participation
in the Obligations pursuant to this Section 11.10 shall from and after the
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Each Obligor expressly consents
to the foregoing arrangements and agrees that any Lender holding a participation
in an Obligation so purchased may exercise any and all rights of setoff,
banker's lien or counterclaim with respect to the participation as fully as if
the Lender were the original owner of the Obligation purchased.
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11.11 INDEMNITY BY BORROWER. Borrower agrees to indemnify, save and hold
harmless the Creditors and their respective members, directors, officers,
agents, attorneys and employees (collectively the "INDEMNITEES") from and
against: (a) any and all claims, demands, actions or causes of action, if the
claim, demand, action or cause of action arises out of or relates to the
Commitment, the use or contemplated use of proceeds of any Loan, or the
relationship between any such Person and the Creditors under this Agreement; (b)
any administrative or investigative proceeding by any Governmental Agency
arising out of or related to a claim, demand, action or cause of action
described in clause (a) above; and (c) any and all liabilities, losses, costs or
expenses (INCLUDING reasonable attorneys' fees and the reasonably allocated
costs of attorneys employed by any Indemnitee and disbursements of such
attorneys and other professional services) that any Indemnitee suffers or incurs
as a result of the assertion of any foregoing claim, demand, action or cause of
action; PROVIDED that no Indemnitee shall be entitled to indemnification for any
loss caused by its own gross negligence or willful misconduct or as to any claim
asserted by that Indemnitee against Borrower to the extent that Borrower
prevails on that claim in a final and non-appealable determination by a court of
competent jurisdiction or an arbitrator appointed in accordance herewith. If any
claim, demand, action or cause of action is asserted against any Indemnitee,
such Indemnitee shall promptly notify Borrower, but the failure to so promptly
notify Borrower shall not affect Borrower's obligations under this Section
unless such failure materially prejudices Borrower's, as applicable, right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Each Indemnitee may contest the validity, applicability
and amount of such claim, demand, action or cause of action with counsel of its
own choosing and shall permit Borrower to participate in such contest. Any
Indemnitee that proposes to settle or compromise any claim or proceeding for
which Borrower may be liable for payment of indemnity hereunder shall give
Borrower written notice of the terms of such proposed settlement or compromise
reasonably in advance of settling or compromising such claim or proceeding. In
connection with any claim, demand, action or cause of action covered by this
Section 11.11 against more than one Indemnitee, all such Indemnitees shall be
represented by the same legal counsel (which may be a law firm engaged by the
Indemnitees or attorneys employed by an Indemnitee or a combination of the
foregoing) selected by the Indemnitees and reasonably acceptable to Borrower;
PROVIDED, that if such legal counsel determines in good faith that representing
all such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and FURTHER PROVIDED that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel. Any obligation or liability of
Borrower to any Indemnitee under this Section 11.11 shall survive the expiration
or termination of this Agreement, the repayment of all Loans, and the payment
and performance of all other Obligations owed to the Lenders.
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11.12 NONLIABILITY OF THE LENDERS. Borrower acknowledges and agrees that:
(a) Any inspections of any Property of Borrower made by or through
the Creditors are for purposes of administration of the Loans only and Borrower
is not entitled to rely upon the same;
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Creditors pursuant to the Loan Documents,
no Creditor shall be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any term, provision
or condition thereof, and such acceptance or approval thereof shall not
constitute a warranty or representation to anyone with respect thereto by any
Creditor;
(c) The relationship between each Obligor and Creditors is, and
shall at all times remain, solely that of borrower and lenders; no Creditor
shall under any circumstance be construed to be a partner or joint venturer with
the Obligors; no creditor shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary or other special relationship
with the Obligors, or to owe any fiduciary duty or other special duty to the
Obligors; no Creditor undertakes or assumes any responsibility or duty to
Borrower or its Affiliates to select, review, inspect, supervise, pass judgment
upon or inform the Obligors of any matter in connection with their Property or
the operations of the Obligors; the Obligors shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by the
Creditors in connection with such matters is solely for the protection of the
Creditors and neither the Obligors nor any other Person is entitled to rely
thereon; and
(d) The Creditors shall not be responsible or liable to any Person
for any loss, damage, liability or claim of any kind relating to injury or death
to Persons or damage to Property caused by the actions, inaction or negligence
of the Obligors and Borrower hereby indemnifies and holds each Creditor harmless
from any such loss, damage, liability or claim.
11.13 NO THIRD PARTIES BENEFITTED. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights and duties of Borrower
and the Creditors in connection with the Loans and is made for the sole benefit
of Borrower, the Creditors and the Creditors' successors and assigns. EXCEPT as
provided in Sections 11.8, 11.11 and 11.14, no other Person shall have any
rights of any nature hereunder or by reason hereof.
11.14 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information that it may receive from Borrower and its Subsidiaries pursuant to
this Agreement in confidence, EXCEPT for disclosure: (i) to other Lenders; (ii)
to legal counsel and accountants for Borrower and its Subsidiaries or any
Lender; (iii) to other professional advisors to Borrower and its Subsidiaries or
any Lender, provided that the recipient has accepted such information subject to
a confidentiality Agreement substantially similar to this Section 11.14; (iv) to
regulatory officials having jurisdiction over that Lender; (v) to any Regulatory
Board having regulatory
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jurisdiction over Borrower or its Subsidiaries; (vi) as required by Law or legal
process or in connection with any legal proceeding to which that Lender and
Borrower or any of its Subsidiaries are adverse parties; and (vii) to another
financial institution in connection with a disposition or proposed disposition
to that financial institution of all or part of that Lender's interests
hereunder or a participation interest in its Note, provided that the Borrower
has provided its prior written approval and the recipient has accepted such
information subject to a written confidentiality Agreement. For purposes of the
foregoing, "confidential information" shall mean any information respecting
Borrower or any of its Subsidiaries reasonably considered by them to be
confidential, OTHER THAN (i) information previously filed with any Governmental
Agency and available to the public, (ii) information previously published in any
public medium from a source other than, directly or indirectly, that Lender, and
(iii) information previously disclosed by Borrower or any of its Subsidiaries to
any Person not associated with themselves without a confidentiality Agreement or
obligation substantially similar to this Section 11.14. Nothing in this Section
shall be construed to create or give rise to any fiduciary duty or other special
duty on the part of any Creditor to Borrower or any of its Subsidiaries.
11.15 FURTHER ASSURANCES. Each Obligor shall, at their expense and without
expense to the Creditors, do, execute and deliver such further acts and
documents as any Creditor from time to time reasonably requires for the assuring
and confirming unto the Creditors of the rights hereby created or intended now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 PRINCIPLES OF RESTATEMENT. This Agreement amends, restates and
supercedes the Existing Loan Agreement in its entirety and, together with the
other Loan Documents, comprises the complete and integrated Agreement of the
parties on the subject matter hereof and supersedes all prior agreements,
written or oral, on the subject matter hereof. The Creditors shall be entitled
to the continuing benefit of each Loan Document heretofore executed by Borrower
and each other Obligor which is not expressly terminated hereby, except to the
extent expressly amended in writing pursuant to Article 8 or otherwise,
including without limitation the Subsidiary Guaranty and each of the Collateral
Documents. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control and govern; PROVIDED that the inclusion of supplemental rights or
remedies in favor of the Creditors in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
11.17 GOVERNING LAW. EXCEPT to the extent otherwise provided therein, each
Loan Document shall be governed by, and construed and enforced in accordance
with, the local Laws of
New York, without reference to the choice of law or
conflicts of laws provisions thereof.
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11.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 HEADINGS. Article and Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
11.20 TIME OF THE ESSENCE. Time is of the essence of the Loan Documents.
11.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender, and each holder of a
participation interest herein, that is incorporated or otherwise organized under
the Laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia shall deliver to Borrower (with a copy to
the Administrative Agent) on the Effective Date (or after accepting an
assignment or receiving a participation interest herein pursuant to Section
11.8, if applicable) either Form W8-ECI or other Internal Revenue Service forms
satisfactory to Borrower and the Administrative Agent that no withholding under
the federal income tax laws is required with respect to such Person. Thereafter
and from time to time, each such Person shall (a) promptly submit to Borrower
(with a copy to the Administrative Agent) such additional duly completed and
signed copies of one of such forms as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to Borrower and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Person by
Borrower pursuant to this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its LIBOR
Office, if any) to avoid any requirement of applicable Laws that Borrower make
any deduction or withholding for taxes from amounts payable to such Person.
11.22 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
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EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
11.23 PURPORTED ORAL AMENDMENTS. EACH OBLIGOR EXPRESSLY ACKNOWLEDGES THAT
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR
THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN
WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT WILL NOT RELY
ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS
BY ANY CREDITOR OR ITS REPRESENTATIVES THAT DOES NOT COMPLY WITH SECTION 11.2 TO
EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
"Borrower"
WHEELING ISLAND GAMING, INC., a West Virginia
corporation
By: ____________________________________
Title: ____________________________________
Address for notices:
Wheeling Island Gaming, Inc.
▇/▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President Finance
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Sportsystems Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(Also copy General Counsel)
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BANK OF AMERICA, N.A., as Administrative
Agent and Issuing Lender
By: ____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Administrative Agent
Address for Notices:
Bank of America, N.A.
Entertainment/Media Group
Agency Management
Corporate & Investment Banking
CA9-706-11-03
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A., as a Lender
By: __________________________________
▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Address:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Pro Rata Share $20,000,000
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▇▇▇▇▇ FARGO BANK, N.A., as a Lender
By: __________________________________
Title:________________________________
Address:
______________________________________
______________________________________
______________________________________
Attention:
Telecopier:
Telephone:
Pro Rata Share $15,000,000
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WESBANCO BANK, INC.
By:___________________________________
▇▇▇▇▇ ▇▇▇▇, Senior Vice President
Address: WesBanco Bank, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Pro Rata Share $5,000,000
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