Loan Agreement - MGM Grand Detroit II LLC, Bank of America and Nationsbanc Montgomery Securities LLC
LOAN AGREEMENT
Dated as of March 31, 1999
among
MGM GRAND DETROIT II, LLC,
as Borrower
The Lenders, Syndication Agent and Documentation Agent herein named
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Administrative Agent
NATIONSBANC MONTGOMERY SECURITIES, LLC,
Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
Article 1 DEFINITIONS AND ACCOUNTING TERMS....................................................................1
1.1 Defined Terms...................................................................................1
1.2 Use of Defined Terms...........................................................................29
1.3 Accounting Terms - Fiscal Periods..............................................................29
1.4 Rounding.......................................................................................30
1.5 Exhibits and Schedules.........................................................................30
1.6 Miscellaneous Terms............................................................................30
Article 2 LOANS AND LETTERS OF CREDIT........................................................................31
2.1 Loans-General..................................................................................31
2.2 Base Rate Loans................................................................................32
2.3 Eurodollar Rate Loans..........................................................................32
2.4 Letters of Credit..............................................................................33
2.5 Voluntary Reduction of Commitment..............................................................37
2.6 Scheduled Reductions of Commitment.......................................................... ..37
2.7 Optional Increases to the Commitment......................................................... .37
2.8 Optional Termination of Commitment.............................................................39
2.9 Administrative Agent's Right to Assume Funds Available for Advances............................39
2.10 Collateral and Guaranty...................................................................... .40
Article 3 PAYMENTS AND FEES..................................................................................41
3.1 Principal and Interest.........................................................................41
3.2 Arranger's Fees................................................................................42
3.3 Upfront Fees...................................................................................42
3.4 Commitment Fees................................................................................42
3.5 Letter of Credit Fees..........................................................................43
3.6 Agency Fees....................................................................................43
3.7 Increased Commitment Costs.....................................................................43
3.8 Eurodollar Costs and Related Matters...........................................................44
3.9 Late Payments..................................................................................48
3.10 Computation of Interest and Fees...............................................................49
3.11 Non-Business Days..............................................................................49
3.12 Manner and Treatment of Payments...............................................................49
3.13 Funding Sources................................................................................50
3.14 Failure to Charge Not Subsequent Waiver........................................................51
3.15 Administrative Agent's Right to Assume Payments Will be Made by Borrower ......................51
3.16 Fee Determination Detail.......................................................................51
3.17 Survivability..................................................................................51
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Article 4 REPRESENTATIONS AND WARRANTIES.....................................................................52
4.1 Existence and Qualification; Power; Compliance With Laws.......................................52
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.........52
4.3 No Governmental Approvals Required.............................................................53
4.4 Subsidiaries...................................................................................53
4.5 Company Financials; Borrower's Opening Balance Sheet...........................................53
4.6 No Other Liabilities...........................................................................53
4.7 Title to Property..............................................................................53
4.8 Intangible Assets..............................................................................54
4.9 Public Utility Holding Company Act.............................................................54
4.10 Litigation.....................................................................................54
4.11 Binding Obligations............................................................................54
4.12 No Default.....................................................................................55
4.13 ERISA..........................................................................................55
4.14 Regulations T, U and X; Investment Company Act.................................................55
4.15 Disclosure.....................................................................................55
4.16 Tax Liability..................................................................................56
4.17 Projections....................................................................................56
4.18 Hazardous Materials............................................................................56
4.19 Security Interests.............................................................................56
4.20 Year 2000......................................................................................57
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)..........................58
5.1 Payment of Taxes and Other Potential Liens.....................................................58
5.2 Preservation of Existence......................................................................58
5.3 Maintenance of Properties......................................................................58
5.4 Maintenance of Insurance.......................................................................59
5.5 Compliance With Laws...........................................................................59
5.6 Inspection Rights..............................................................................59
5.7 Keeping of Records and Books of Account........................................................59
5.8 Compliance With Agreements.....................................................................59
5.9 Use of Proceeds................................................................................59
5.10 Hazardous Materials Laws.......................................................................60
5.11 Change of Name.................................................................................60
5.12 Additional Collateral; the Temporary Project...................................................60
5.13 Completion Certificates........................................................................62
5.14 New Subsidiaries...............................................................................62
5.15 Year 2000......................................................................................62
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Article 6 NEGATIVE COVENANTS.................................................................................63
6.1 Payment of Subordinated Obligations............................................................63
6.2 Disposition of Property........................................................................63
6.3 Mergers........................................................................................63
6.4 Hostile Acquisitions...........................................................................63
6.5 Distributions..................................................................................63
6.6 ERISA..........................................................................................64
6.7 Change in Nature of Business...................................................................64
6.8 Liens and Negative Pledges.....................................................................64
6.9 Indebtedness and Guaranty Obligations..........................................................65
6.10 Transactions with Affiliates...................................................................66
6.11 Fixed Charge Coverage Ratio....................................................................66
6.12 Capital Expenditures...........................................................................66
6.13 Investments and Acquisitions...................................................................67
6.14 Subsidiary Indebtedness and Guaranty Obligations...............................................67
6.15 The Lease and Sublease.........................................................................67
Article 7 INFORMATION AND REPORTING REQUIREMENTS.............................................................68
7.1 Financial and Business Information.............................................................68
7.2 Compliance Certificates........................................................................71
Article 8 CONDITIONS.........................................................................................72
8.1 Initial Advances on the Closing Date...........................................................72
8.2 Any Advance....................................................................................74
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT...............................................76
9.1 Events of Default..............................................................................76
9.2 Remedies Upon Event of Default.................................................................79
Article 10 THE ADMINISTRATIVE AGENT..........................................................................83
10.1 Appointment and Authorization.................................................................83
10.2 Administrative Agent and Affiliates...........................................................83
10.3 Proportionate Interest in any Collateral......................................................83
10.4 Lenders' Credit Decisions.....................................................................84
10.5 Action by Administrative Agent................................................................84
10.6 Liability of Administrative Agent.............................................................85
10.7 Indemnification...............................................................................86
10.8 Successor Administrative Agent................................................................87
10.9 Foreclosure on Collateral.....................................................................87
10.10 Attornment Agreements.........................................................................88
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10.11 No Obligations of Borrower....................................................................88
Article 11 MISCELLANEOUS.....................................................................................89
11.1 Cumulative Remedies; No Waiver................................................................89
11.2 Amendments; Consents..........................................................................89
11.3 Costs, Expenses and Taxes.....................................................................90
11.4 Nature of Lenders' Obligations................................................................91
11.5 Survival of Representations and Warranties....................................................92
11.6 Notices.......................................................................................92
11.7 Execution of Loan Documents...................................................................92
11.8 Binding Effect; Assignment....................................................................92
11.9 Right of Setoff...............................................................................96
11.10 Sharing of Setoffs............................................................................96
11.11 Indemnity by Borrower.........................................................................97
11.12 Nonliability of the Lenders...................................................................98
11.13 No Third Parties Benefited....................................................................99
11.14 Confidentiality...............................................................................99
11.15 Further Assurances...........................................................................100
11.16 Integration..................................................................................100
11.17 Governing Law................................................................................100
11.18 Severability of Provisions...................................................................100
11.19 Headings.....................................................................................100
11.20 Time of the Essence..........................................................................101
11.21 Foreign Lenders and Participants.............................................................101
11.22 Hazardous Material Indemnity.................................................................101
11.23 Gaming Boards................................................................................102
11.24 Lien Releases................................................................................102
11.25 Termination; Release of Liens................................................................103
11.26 Removal of a Lender..........................................................................103
11.27 No Liability of Tracinda.....................................................................104
11.28 WAIVER OF RIGHT TO TRIAL BY JURY.............................................................104
11.29 PURPORTED ORAL AMENDMENTS....................................................................104
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EXHIBITS
A - Assignment Agreement
B - Compliance Certificate
C - Note
D - Pricing Certificate
E - Request for Letter of Credit
F - Request for Loan
G - Trademark Security Interest Assignment
H - Fee Property
SCHEDULES
1.1 Lender Commitments
1.2 Permanent Casino Site
4.3 Governmental Approvals
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.17 Projections
4.18 Environmental Matters
6.9 Existing Indebtedness and Guaranty Obligations
6.15 Existing Investments
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LOAN AGREEMENT
Dated as of March 31, 1999
This Loan Agreement ("Agreement") is entered into by and among MGM Grand
Detroit II, LLC, a Delaware limited liability company ("Borrower"), each Lender
(as defined below), Comerica Bank, as Documentation Agent, The First National
Bank of Chicago, as Syndication Agent, and Bank of America National Trust and
Savings Association, as Administrative Agent.
In consideration of the mutual covenants and agreements herein contained,
Borrower, the Administrative Agent, the Documentation Agent, the Syndication
Agent and the Lenders, 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 or its Subsidiaries directly or indirectly
(i) acquire any going business or all or substantially all of the assets of
any Person, or any division thereof, whether through purchase of assets,
merger or otherwise, or (ii) acquire (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) acquire
control of a 50% or more ownership interest in any partnership, joint
venture, limited liability company or any other Person; PROVIDED, HOWEVER,
that the transfer by the Licensee to Borrower of Property held by the
Licensee on the Closing Date and used or to be used in connection with the
Temporary Project shall not constitute an "Acquisition" as defined herein.
"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.
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"ADVANCE" means any advance made or to be made by any Lender to
Borrower as provided in Article 2 as a ratable part of a Loan pursuant to
such Lender's Pro Rata Share of the Commitment, and INCLUDES each Base Rate
Advance and Eurodollar Rate Advance.
"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, 10% 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 10% 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 presumed (subject to
rebuttal by a preponderance of the evidence) 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).
"ARRANGER" means NationsBanc Montgomery Securities, LLC.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement substantially in
the form of Exhibit A.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and
Assumption Agreement dated as of March 31, 1999 among Borrower, the
Licensee and the Landlord.
"AUSTRALIA COMPANIES" means, collectively, (a) MGM Grand Diamond,
Inc., a Nevada corporation, (b) its wholly owned Subsidiary, MGM Grand
Australia Pty., Ltd., a corporation organized under the laws of the
Northern Territory of Australia, and (c) each Subsidiary of MGM Grand
Australia Pty., Ltd., their successors and permitted assigns which is not
incorporated under the Laws of the United States or its
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subdivisions and which does not own material Property in the United States.
"BANK OF AMERICA" means Bank of America National Trust and Savings
Association, 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 Reference Rate in effect on such date and (b) the Federal
Funds Rate in effect on such date plus 1/2 of 1% (50 basis points).
"BASE RATE ADVANCE" means an Advance made hereunder and specified to
be a Base Rate Advance in accordance with Article 2.
"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, as of each date of determination, the
applicable percentage set forth opposite the effective Company Rating in
the Pricing Matrix.
"BORROWER" means MGM Grand Detroit II, LLC, a Delaware limited
liability company, its successors and permitted assigns.
"BORROWER EBITDAM" means, for any fiscal period, EBITDA of Borrower
and its Subsidiaries PLUS Management Fee and Guarantee Fees paid during
that period in each case as determined in accordance with Generally
Accepted Accounting Principles.
"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 Michigan, California, Nevada or New York.
"CAPITAL EXPENDITURE" means any expenditure for or related to fixed
assets or purchased intangibles that is treated as 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
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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 Moody's or
AA by S&P 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 by
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, or total assets of at least $5,000,000,000, 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 $500,000,000, or total
assets of at least $15,000,000,000, in each case due within one year
after the date of the making of the Investment;
(e) repurchase agreements covering Government Securities executed
by a broker or dealer registered under Section 15(b) of the Securities
Exchange Act of 1934, as amended, having on the date of the Investment
capital of at least $50,000,000, due within 90 days after the date of
the making of the Investment; PROVIDED that the maker of the
Investment receives written confirmation of the transfer to it of
record ownership of the Government Securities on the books of a
"primary dealer" in such Government Securities or on the books of such
registered broker or dealer, as soon as practicable after the making
of the Investment;
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(f) readily marketable commercial paper or other debt securities
issued by 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-1 by Moody's or A-1 by S&P, in each case due within one
year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any
State thereof (i) given on the date of such Investment a credit rating
of at least Aa by Moody's Investors Service, Inc. and AA by S&P, in
each case having an investment period not exceeding 50 days or (ii) to
the extent that investors therein have the benefit of a standby letter
of credit issued by a Lender or a bank described in clauses (c) or (d)
above;
(h) a readily redeemable "money market mutual fund" sponsored by
a bank described in clause (c) or (d) hereof, or a registered broker
or dealer described in clause (e) hereof, that has and maintains an
investment policy limiting its investments primarily to instruments of
the types described in clauses (a) through (g) hereof and given on the
date of such Investment a credit rating of at least Aa by Moody's and
AA by S&P ; and
(i) corporate notes or bonds having an original term to maturity
of not more than one year issued by a corporation incorporated under
the Laws of the United States of America or any State thereof, or a
participation interest therein; PROVIDED that any commercial paper
issued by such corporation is given on the date of such Investment a
credit rating of at least Aa by Moody's and AA by S&P.
"CERTIFICATE OF RESPONSIBLE OFFICIAL" means a certificate signed by a
Responsible Official of the Person providing the certificate.
"CHANGE IN CONTROL" means (a) any transaction or series of related
transactions in which any Unrelated Person or two or more Unrelated Persons
acting in concert acquire beneficial ownership (within the meaning of Rule
13d-3(a)(1) under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of 25% or more of the outstanding common stock of
the Company or (b) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the board of directors of
the Company (together with any new or replacement directors
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whose election by the board of directors, or whose nomination for election,
was approved by a vote of at least a majority of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for reelection was previously so approved)
cease for any reason to constitute a majority of the directors then in
office, or (c) the Company fails for any reason to own, directly or
indirectly, at least 75% of the outstanding voting power of the Licensee,
or (d) the Licensee fails for any reason to own, directly or indirectly,
100% of the outstanding membership interests in Borrower, PROVIDED,
however, that no Change in Control shall exist under either subsection (a)
or (b) of this definition for so long as Tracinda Corporation, a Nevada
corporation, and its Affiliates continue to be the beneficial owner of 25%
or more of the common stock of the Company and no other Person is the owner
of more of the common stock of the Company than Tracinda Corporation and
its Affiliates.
"CLOSING DATE" means the time and Business Day on which the conditions
set forth in Section 8.1 are satisfied or waived. The Administrative Agent
shall notify Borrower and the Lenders of the date that is the Closing Date.
"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.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement,
the Mortgage and any other security agreement, pledge agreement, deed of
trust, mortgage or other collateral security agreement (including without
limitation any Trademark Security Interest Assignment) hereafter executed
and delivered by Borrower or any of its Subsidiaries to secure the
Obligations.
"COMMERCIAL LETTER OF CREDIT" means each Letter of Credit issued to
support the purchase of goods by Borrower which is determined to be a
commercial letter of credit by the Issuing Lender.
"COMMITMENT" means, subject to any increase or decrease in the amount
thereof pursuant to Sections 2.5, 2.6, 2.7 and 2.8, $230,000,000. As of the
Closing Date, the respective Pro Rata Shares of the Lenders with respect to
the Commitment are set forth in Schedule 1.1.
"COMMITMENT FEE RATE" means, as of each date of determination in any
Pricing Period, the applicable percentage set forth opposite the effective
Company Rating in the Pricing Matrix.
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"COMPANY" means MGM Grand, Inc., a Delaware corporation, its
successors and permitted assigns.
"COMPANY ANNUALIZED CASH FLOW" means, as of the last day of any Fiscal
Quarter, and without duplication, (a) EBITDA of the Company and its
Restricted Subsidiaries for the four Fiscal Quarters ended on that date
(exclusive of the Unrestricted Subsidiaries), PLUS (b) Pre-Opening Expenses
for the same period, PLUS (c) EBITDA of the Australia Companies for the
same period (to the extent that the same are then directly or indirectly
owned by the Company), PLUS (d) New York Available EBITDA for the same
period (in each case, as defined in the Company Loan Agreement, or, if the
Company Loan Agreement is terminated, as in effect on the date of this
Agreement), in each case, determined in accordance with Generally Accepted
Accounting Principles.
"COMPANY AVERAGE QUARTERLY FUNDED DEBT" means, as of the last day of
each Fiscal Quarter, the average of the principal amount of Company Funded
Debt outstanding on the last day of each of the three calendar months
comprising such Fiscal Quarter.
"COMPANY FUNDED DEBT" means, as of any date of determination, the SUM
(without duplication) of (a) all principal Indebtedness of the Company and
its Restricted Subsidiaries for borrowed money (INCLUDING debt securities
issued by the Company or any of its Subsidiaries) outstanding on that date
(OTHER THAN any such Indebtedness to the extent it has been legally or
contractually defeased or is the subject of a deposit in Cash or Cash
Equivalents for the purpose of defeasing the same in accordance with its
terms), PLUS (b) the aggregate amount of all Capital Lease Obligations of
the Company and its Restricted Subsidiaries on that date, PLUS (c)
obligations in respect of letters of credit or other similar instruments
which support Indebtedness of the type described in clause (a) and Capital
Lease Obligations, to the extent of the amount drawable under such letters
of credit or similar instruments (in each case excluding the Unrestricted
Subsidiaries), PROVIDED that no Guaranty Obligation by the Company or its
Restricted Subsidiaries of the Indebtedness of another Person shall be
deemed to be Company Funded Debt except to the extent that Generally
Accepted Accounting Principles require that Guaranty Obligation to be set
forth on the Company's consolidated balance sheet (and not merely as a
footnote) as the exposure of the Company and its Subsidiaries with respect
thereto.
"COMPANY LOAN AGREEMENT" means that certain Amended and Restated Loan
Agreement dated as of July 17, 1997 among the Company, as borrower, MGM
Grand Atlantic City, Inc., a New Jersey corporation, as a Co-Borrower, MGM
Grand Detroit,
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LLC, a Delaware limited liability company, as a Co-Borrower, the Banks,
Managing Agents and Co-Agent named therein, and Bank of America, as
Administrative Agent, as amended and as the same may from time to time be
further supplemented, modified, amended, renewed, extended, supplanted or
replaced.
"COMPANY LEVERAGE RATIO" means, as of the last day of each Fiscal
Quarter, the RATIO OF (a) Company Total Debt as of that date TO (b) Company
Annualized Cash Flow as of that date.
"COMPANY RATING" means, as of each date of determination, (i) the
higher of the credit ratings assigned by Moody's or S&P to the credit
facilities provided under the Company Loan Agreement whether senior secured
or senior unsecured or (ii) in the event that the Company Loan Agreement
has been terminated, the higher of the credit ratings assigned by Moody's
or S&P to Company's senior unsecured debt, PROVIDED HOWEVER in the case of
both (i) and (ii) above, that (a) each change in either such credit rating
shall be deemed to be effective five days following the announcement by
Moody's or S&P of the change, and (b) in the event of a double split rating
(or more) the highest intermediate rating shall apply.
"COMPANY TOTAL DEBT" means, as of each date of determination, the SUM
without duplication, as of such date, of (a) Company Average Quarterly
Funded Debt as of that date PLUS (b) Quantified New York Exposure as of
that date.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit B, properly completed and signed by a Senior Officer of the
Licensee on behalf of Borrower.
"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 Issuing
Lender, each Lender and, where the context requires, any one or more of
them.
"CSG" means a construction services consultant designated by the
Administrative Agent and reasonably acceptable to Borrower.
"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,
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reorganization, or similar debtor relief Laws from time to time in effect
affecting the rights of creditors generally.
"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 3.9.
"DEPOSIT ACCOUNT" means account no. 6856286361 ABA Number 072000805
maintained by Borrower with Michigan National Bank at 625 Shelby, Detroit
Michigan 48226.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any Eurodollar
Rate 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. The Administrative
Agent will endeavor to provide prompt notice to Borrower of any change in
the location of the Designated Eurodollar Market.
"DISPOSITION" means the voluntary sale, transfer or other disposition
of any asset of Borrower or any of its Subsidiaries OTHER THAN the
voluntary sale, transfer or other disposition of (a) Cash, Cash
Equivalents, Investments, inventory or other assets sold, leased or
otherwise disposed of in the ordinary course of business of Borrower or any
of its Subsidiaries, (b) equipment 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 any of
its Subsidiaries, or where Borrower or the Subsidiary of Borrower
determines in good faith that the failure to replace such equipment will
not be detrimental in any material respect to the business of Borrower or
any of its Subsidiaries, or (c) Property to Borrower or any of its
Subsidiaries.
"DISQUALIFICATION" means, with respect to any Lender or any holder of
Subordinated Obligations:
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(a) the failure of that Person timely to file pursuant to
applicable Gaming Laws (i) any application requested of that Person by
any Gaming Board in connection with any licensing required of that
Person as a lender to Borrower or (ii) any required application or
other papers in connection with determination of the suitability of
that Person as a lender to Borrower;
(b) the withdrawal by that Person (EXCEPT where requested or
permitted by the Gaming Board) of any such application or other
required papers; or
(c) any final determination by a Gaming Board pursuant to
applicable Gaming Laws (i) that such Person is "unsuitable" as a
lender to Borrower, (ii) that such Person shall be "disqualified" as a
lender to Borrower or (iii) denying the issuance to that Person of any
license required under applicable Gaming Laws to be held by all
lenders to Borrower.
"DISTRIBUTION" means, with respect to any shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement, redemption, purchase or
other acquisition for Cash or for Property (other than capital stock, or
any warrants or options to purchase an equity security or other security of
such Person) by such Person of any such security, (b) the declaration or
(without duplication) payment by such Person of any dividend in Cash or in
Property (other than capital stock, or any warrants or options to purchase
an equity security or other security of such Person) on or with respect to
any such security, (c) 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 (d) any other
payment in Cash or Property (other than capital stock, or any warrants or
options to purchase an equity security or other security of such Person) by
such Person constituting a distribution under applicable Laws with respect
to such security.
"DOLLARS" or "$" means United States dollars.
"EBITDA" means, with respect to any fiscal period and with respect to
any Person, the SUM OF (a) Net Income of such Person for that period, PLUS
(b) any extraordinary loss reflected in such Net Income, MINUS (c) any
extraordinary gain reflected in such Net Income, PLUS (d) Interest Charges
of such Person for that period, PLUS (e) the aggregate amount of federal,
state and local taxes on or measured by income of such Person for that
period (whether or not payable during that period) to the extent deducted
in arriving at that Person's Net Income, PLUS (f) depreciation,
amortization and all other non-cash expenses for that period, PLUS (g)
expenses
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classified as "pre-opening expenses" on the applicable financial statements
of that Person for that fiscal period, in each case as determined in
accordance with Generally Accepted Accounting Principles.
"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 (or, in the case of
any such institution headquartered within the State of Michigan,
$25,000,000), (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 substantially 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 and
(II) to the extent required under applicable Gaming Laws, each Eligible
Assignee must not be the subject of a Disqualification.
"ENHANCED EURODOLLAR MARGIN" means, for any period, the SUM of (i) the
Eurodollar Margin then in effect PLUS (ii) such interest rate margin as the
Requisite Lenders specify is necessary to adjust the Eurodollar Rate to a
rate which represents the effective pricing to such Lenders for deposits of
Dollars in the Designated Eurodollar Market in the relevant amount for the
applicable Eurodollar Period and which adequately and fairly reflects the
cost to such Lenders of making the applicable Eurodollar Rate Advances.
"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.
"ERISA AFFILIATE" means, with respect to any Person, any other Person
(or any trade or business, whether or not incorporated) that is under
common control with that Person within the meaning of Section 414 of the
Code.
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"EURODOLLAR BUSINESS DAY" means any Business Day on which dealings in
Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its office or
branch so designated by written notice to Borrower and the Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is
designated by a Lender, its Eurodollar Lending Office shall be its office
at its address for purposes of notices hereunder.
"EURODOLLAR MARGIN" means as of each date of determination, the
applicable percentage set forth opposite the effective Company Rating in
the Pricing Matrix.
"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 OBLIGATIONS" means eurocurrency liabilities, as defined in
Regulation D or any comparable regulation of any Governmental Agency having
jurisdiction over any Lender.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date specified by Borrower pursuant to Section 2.1(b) and
ending 1, 2, 3 or 6 months (or, with the written consent of all of the
Lenders, any other period) thereafter, as specified by Borrower in the
applicable Request for Loan; PROVIDED that:
(a) The first day of any Eurodollar Period shall be a Eurodollar
Business Day;
(b) Any Eurodollar Period that would otherwise end on a day that
is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day
falls in another calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Business Day;
(c) Borrower may not specify a Eurodollar Period that extends
beyond any Reduction Date unless the SUM of (i) the aggregate
principal amount of the Eurodollar Loans having a Eurodollar 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
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scheduled to be made on such Reduction Date pursuant to Section 2.6);
and
(d) No Eurodollar Period shall extend beyond the Maturity Date.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate Loan, the
interest rate per annum (rounded upward, if necessary, to the next 1/100 of
1%) at which deposits in Dollars are offered by Bank of America to prime
banks in the Designated Eurodollar Market at or about 11:00 a.m. local time
in the Designated Eurodollar Market, two (2) Eurodollar Business Days
before the first day of the applicable Eurodollar Period in an aggregate
amount approximately equal to the amount of the Advance made by Bank of
America with respect to such Eurodollar Rate Loan and for a period of time
comparable to the number of days in the applicable Eurodollar Period.
"EURODOLLAR RATE ADVANCE" means an Advance made hereunder and
specified to be a Eurodollar Rate Advance in accordance with Article 2.
"EURODOLLAR RATE LOAN" means a Loan made hereunder and specified to be
a Eurodollar Rate Loan in accordance with Article 2.
"EVENT OF DEFAULT" shall have the meaning provided in Section 9.1.
"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. Quotation") for such date under the
caption "Federal Funds Effective Rate". If on any relevant date the
appropriate rate for such date is not yet published in either H.15(519) or
the Composite 3:30 p.m. Quotations, the rate for such date will be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York City time) on that date by each
of three leading brokers of Federal funds transactions in New York City
selected by the 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.
"FEE PROPERTY" means the real property described as Parcel 2 on
Exhibit G
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attached hereto.
"FISCAL QUARTER" means the fiscal quarter of Borrower consisting,
subject to Section 1.3, of the three calendar month periods ending on each
March 31, June 30, September 30 and December 31.
"FISCAL YEAR" means the fiscal year of Borrower consisting, subject to
Section 1.3, of the twelve month period ending on each December 31.
"FIXED CHARGE COVERAGE RATIO" means, as of the last day of each Fiscal
Quarter, the ratio of (a) Borrower EBITDAM for the four Fiscal Quarter
period ending on such date to (b) Fixed Charges for the same period.
"FIXED CHARGES" means, for any fiscal period, the SUM OF (a) all
Interest Charges of Borrower and its Subsidiaries during that fiscal
period, PLUS (b) all required payments of principal paid or payable
(without duplication) for that fiscal period by Borrower and its
Subsidiaries to lenders in connection with borrowed money, PLUS (c) all
Maintenance Capital Expenditures incurred by Borrower and its Subsidiaries
during that fiscal period with respect to the Temporary Project, PLUS (d)
all Management Fees and Guarantee Fees paid during that fiscal period by
Borrower and its Subsidiaries, PLUS (e) all Tax Distributions made during
that fiscal period, PLUS (f) all Distributions made pursuant to Section
6.5(c) during that fiscal period.
"GAMING BOARD" means, collectively, the Michigan Gaming Control Board
and any other Governmental Agency that holds regulatory, licensing or
permit authority over gambling, gaming or casino activities conducted by
the Licensee or over the Temporary Project, Borrower or any Subsidiary of
Borrower within its jurisdiction.
"GAMING LAWS" means the Michigan Gaming Control and Revenue Act, the
administrative rules promulgated thereunder, and all other Laws pursuant to
which any Gaming Board possesses regulatory, licensing or permit authority
over gambling, gaming or casino activities conducted by Borrower and its
Subsidiaries within its jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any date of
determination, accounting principles (a) set forth as generally accepted in
then currently effective Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) set forth as
generally accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then 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
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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 and
(b) obligations of an agency or instrumentality of, or corporation owned,
controlled or sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of the
United States of America.
"GOVERNMENTAL 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, department, instrumentality or public body or (c) any
court or administrative tribunal of competent jurisdiction.
"GUARANTEE FEE" means, for any Fiscal Quarter, fees payable by
Borrower to the Company on the last day of such Fiscal Quarter in an amount
which is equal to 1% per annum of the principal amount of the Obligations
as of such date pursuant to that certain Guarantee Fee Agreement between
the Company and Borrower dated as of March 31, 1999.
"GUARANTY" means the continuing guaranty of the Obligations of the
Borrower to be executed and delivered by the Company, as the same may from
time to time be supplemented, modified, amended, extended or supplanted.
"GUARANTY OBLIGATION" means, as to any Person (without duplication),
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 financial condition of, such other Person, whether
direct, indirect or contingent, INCLUDING any purchase or repurchase
agreement covering such obligation 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 or income statement item of such other Person or
any "keep-well" or 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 Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation in respect of Indebtedness shall be deemed to be an
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amount equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty 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. The amount of
any other Guaranty Obligation shall be deemed to be zero unless and until
the amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes thereto) of
Borrower and its Subsidiaries.
"HAZARDOUS MATERIALS" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or as "friable asbestos" pursuant to the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., in each
case as such Laws are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all Laws governing the treatment,
transportation or disposal 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 ordinary trade terms),
INCLUDING any Guaranty Obligation for 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 (f) any net obligations of such Person under Swap
Agreements.
"INTANGIBLE ASSETS" means assets that are considered intangible assets
under Generally Accepted Accounting Principles, INCLUDING customer lists,
goodwill, computer software, copyrights, trade names, trademarks and
patents.
"INTEREST CHARGES" means, for any Person, as of the last day of 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
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with borrowed money (INCLUDING any obligations for fees, charges and
related expenses payable to the issuer of any letter of credit) 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 DIFFERENTIAL" means, with respect to any prepayment of a
Eurodollar Rate Loan on a day other than the last day of the applicable
Eurodollar Period and with respect to any failure to borrow a Eurodollar
Rate Loan on the date or in the amount specified in any Request for Loan,
(a) the Eurodollar Rate payable (or, with respect to a failure to borrow,
the Eurodollar Rate which would have been payable) with respect to the
Eurodollar Rate Loan MINUS (b) the Eurodollar Rate on, or as near as
practicable to, the date of the prepayment or failure to borrow for a
Eurodollar Rate Loan with an Eurodollar Period commencing on such date and
ending on the last day of the Eurodollar Period of the Eurodollar Rate Loan
so prepaid or which would have been borrowed on such 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 (MINUS any return of
capital with respect to such Investment which has actually been received in
Cash or Cash Equivalents or has been converted into Cash or Cash
Equivalents), without adjustment for subsequent increases or decreases in
the value of such Investment.
"ISSUING LENDER" means Bank of America National Trust and Savings
Association.
"LANDLORD" means Lodge/Abbott Associates L.L.C., a Michigan limited
liability company, and its successors and assigns.
"LANDLORD CONSENT" means the Landlord Consent executed by the Landlord
in favor of the Administrative Agent with respect to the Lease.
"LAWS" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
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"LEASE" means the Lease and Building Lease dated as of May 1, 1998
between the Licensee and the Landlord, which Lease has been assigned to
Borrower pursuant to the Assignment and Assumption Agreement, as amended as
of the Closing Date.
"LENDER" means each lender whose name is set forth in the signature
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 11.8 (and to the extent a party to a
Secured Swap Agreement, any Affiliate of a Lender).
"LETTERS OF CREDIT" means any of the Standby Letters of Credit or
Commercial 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.
"LICENSE REVOCATION" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, conservator, supervisor or
similar official with respect to, any casino, gambling or gaming license
issued by any Gaming Board to the Licensee, Borrower or any other Person
with respect to the Temporary Project.
"LICENSEE" means MGM Grand Detroit, LLC, a Delaware limited liability
company, its successors and permitted assigns.
"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) 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.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Collateral Documents, the Guaranty, each Request for Loan, each Request for
Letter of Credit, each Pricing Certificate, each Compliance Certificate,
any Secured Swap Agreement and any other agreements of any type or nature
hereafter executed and delivered by Borrower or any of its Subsidiaries to
the Administrative Agent or to any Lender in any way relating to or in
furtherance of this Agreement, in each case either
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as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"MAINTENANCE CAPITAL EXPENDITURE" means a Capital Expenditure for the
maintenance, repair, restoration or refurbishment of tangible Property of
Borrower or its Subsidiaries, but EXCLUDING any Capital Expenditure which
adds to or further improves any such Property.
"MANAGEMENT FEES" means, for any Fiscal Quarter, fees payable to the
Company by Borrower in an amount which is equal to 4% per annum of Borrower
EBITDAM for the immediately preceding Fiscal Quarter pursuant to that
certain Management Fee Agreement between the Company and Borrower dated as
of March 31, 1999.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan Document,
(b) where the phrase modifies Borrower and its Subsidiaries, is or could
reasonably be expected to be material and adverse to the business or
condition (financial or otherwise) of Borrower and its Subsidiaries, taken
as a whole and with a view to the totality of circumstances then existing,
(c) where the phrase modifies the Company and its Subsidiaries, is or could
reasonably be expected to be material and adverse to the business or
condition (financial or otherwise) of Company and its Subsidiaries, taken
as a whole and with a view to the totality of circumstances then existing,
or (d) materially impairs or could reasonably be expected to materially
impair the ability of Borrower and its Subsidiaries or the Company and its
Subsidiaries (in each case taken as a whole) to perform their respective
Obligations, PROVIDED that it is understood that clauses (b) and (c) shall
not be deemed to expand the obligations of the Company, Borrower or any
other Party under any express covenants set forth herein, but is rather
understood to describe a set of circumstances or events which, although not
the subject of a specific covenant, are material and adverse in the manner
described above.
"MATERIAL DOCUMENTS" means the Lease, the Assignment and Assumption
Agreement, the Sublease and the Landlord Consent, the Management Fee
Agreement referred to in the definition of Management Fees and the
Guarantee Fee Agreement referred to in the definition of Guarantee Fees.
"MATURITY DATE" means the earliest to occur of (i) June 30, 2004, (ii)
forty-five months after the Opening Date, and (iii) the date upon which the
Permanent Project is
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first open for gaming customers.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means the Mortgage executed by Borrower in favor of the
Administrative Agent with respect to its interest as owner of the Fee
Property and as tenant under the Lease and as sublessor under the Sublease.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contribute or are obligated to contribute.
"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 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 or any indebtedness which is used, directly or
indirectly, to refinance the Obligations.
"NET INCOME" means, with respect to any fiscal period and with respect
to any Person, the consolidated net income of that Person from continuing
operations for that period, determined in accordance with Generally
Accepted Accounting Principles, consistently applied.
"NOTE" means each promissory note made by Borrower to a Lender
evidencing the Advances made by that Lender under its 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 the Company 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 Affiliate of Borrower, whether or not allowed as a claim in
such proceeding.
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"OPENING DATE" means the first date upon which the Temporary Project
is open for business to gaming patrons.
"OPINIONS" means the favorable written legal opinions of (a)
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, (b) Lionel,
Sawyer & Collins, special Nevada counsel to Borrower, and (c) Dickinson
Wright PLLC, Special Michigan counsel to Borrower, 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 SUM of (i) the aggregate principal amount of the outstanding
Loans, PLUS (ii) the Aggregate Effective Amount of all Letters of Credit.
"PARTY" means any Person other than the Creditors and the Arranger
which is now or hereafter is a party to any of the Loan Documents.
"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.
"PERMANENT PROJECT" means a permanent hotel and casino project the
majority of which is owned, directly or indirectly by the Company, the
Licensee or the Borrower, and located in the Detroit, Michigan area on the
site described on Schedule 1.2.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction on or maintenance of
Property; or Liens incident to construction on or maintenance of
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 Property is subject
to a material risk of loss or forfeiture;
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(b) Liens for taxes and assessments on Property which are not yet
past due; or Liens for taxes and assessments on 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 Property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair market value
or use of the Property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements for
the purpose of pipelines, conduits, cables, 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 Property, facilities, or equipment which in the aggregate do
not materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be
expected to be held;
(e) easements, exceptions, reservations, or other agreements for
the purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or impair the fair
market value or use of such Property for the purposes for which it is
or may reasonably be expected to be held;
(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, the use of any Property;
(g) 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, license,
or permit;
(h) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) 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, PROVIDED that, if
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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;
(j) covenants, conditions, and restrictions affecting the use of
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is
or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements covering
Property entered into in the ordinary course of business of the Person
owning such Property;
(l) 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;
(m) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary
course of business to which Borrower or a Subsidiary of Borrower is a
party as lessee, PROVIDED the aggregate value of all such pledges and
deposits in connection with any such lease does not at any time exceed
20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure bids made
with respect to, or performance of, contracts (OTHER THAN contracts
creating or evidencing an extension of credit to the depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure statutory
obligations of Borrower or a Subsidiary of Borrower;
(q) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds in proceedings to which
Borrower or a Subsidiary of Borrower is a party;
(r) Liens created by or resulting from any litigation or legal
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proceeding involving Borrower or a Subsidiary of Borrower in the
ordinary course of its business which is currently being contested in
good faith by appropriate proceedings, PROVIDED that such Lien is
junior to the Lien of the Collateral Documents and, in any event,
adequate reserves have been set aside and no material Property is
subject to a material risk of loss or forfeiture; and
(s) 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 the Borrower and
the Subsidiaries of Borrower, taken as a whole.
"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) the subordination
of a lease or sublease in favor of a financing entity, (d) a lease, rental
or similar agreement covering Property entered into in the ordinary course
of business and (e) a license, or similar right, of or to Intangible Assets
granted in the ordinary course of business.
"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 AND BUDGET" means the plans, specifications, construction
budget, construction plan and timetable prepared by or for Borrower, as the
same may be amended or supplemented from time to time, all of which plans
and specifications describe the construction of the Temporary Project.
"PRE-OPENING EXPENSES" means, with respect to any fiscal period, the
amount of expenses (OTHER THAN Interest Charges) classified as "pre-opening
expenses" on the applicable financial statements of the Borrower and the
Company and its Restricted Subsidiaries for such period, prepared in
accordance with Generally Accepted Accounting Principles consistently
applied.
"PRICING CERTIFICATE" means a certificate substantially in the form of
Exhibit D, properly completed and signed by a Senior Officer of the
Licensee on behalf of
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Borrower.
"PRICING MATRIX" means the following matrix, upon which interest rates
and certain fees hereunder shall be determined on the basis of the Company
Rating (expressed below in basis points):
COMPANY EURODOLLAR BASE RATE COMMITMENT LETTER OF
RATING SPREAD SPREAD FEE CREDIT FEES
------- ---------- --------- ---------- -----------
BBB+/Baa1 67.50 0.0 15.0 67.50
BBB/Baa2 87.50 0.0 17.50 87.50
BBB-/Baa3 100.0 0.0 20.0 100.00
BB+/Ba1 125.0 0.0 22.5 125.00
BB/Ba2 or lower 162.5 37.50 25.0 162.50;
PROVIDED HOWEVER that during each Pricing Period for which the Company
Leverage Ratio (determined as of the last day of the Fiscal Quarter ending
approximately 45 days prior to the commencement of such Pricing Period) (a)
is below 1.00, 10.0 basis points shall be deducted from the Eurodollar
Spreads and Letter of Credit Fees set forth above, and (b) exceeds 3.50,
10.0 basis points will be added to the Eurodollar Spreads and Letter of
Credit Fees set forth above.
"PRICING PERIOD" means (a) the period commencing on the Closing Date
and ending on May 15, 1999, and (b) the subsequent concurrent quarterly
periods of approximately 90 days each commencing on each November 16,
February 16, May 16 and August 16.
"PROJECTIONS" means the financial projections for Borrower and its
Subsidiaries attached hereto as Schedule 4.17 prepared on behalf of
Borrower and heretofore distributed to the Lenders.
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Lender, the percentage of
the Commitment, the Loans and the Letters of Credit held by that Lender (or
by an SPC (as defined in Section 11.8(g)) for which that Lender is the
Granting Lender). As of the Closing Date, the Pro Rata Share of each Lender
is set forth opposite the name of that Lender on Schedule 1.1. The
percentage Pro Rata Share of each Lender (but without the consent of that
Lender not the dollar amount thereof) is subject to adjustment as set forth
in Section 2.7 or pursuant to any Assignment Agreement executed in
accordance with Section 11.8.
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"QUANTIFIED NEW YORK EXPOSURE" means, as of each date of
determination, the amount required by Generally Accepted Accounting
Principles to be set forth on the Company's consolidated balance sheet (and
not merely as a footnote) as the exposure of the Company and its
Subsidiaries with respect to the "New York Keep Well" or any other then
effective "New York Contingent Obligation" (as such terms are defined in
the Company Loan Agreement as of the date of this Agreement).
"QUARTERLY PAYMENT DATE" means each September 30, December 31, March
31 and June 30.
"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, as to each Reduction Date, and subject to
Section 2.5(b), an amount equal to the GREATER of (a) $19,200,000, or (b) 8
1/3% of the sum of (i) principal amount of the Commitment in effect on the
Closing Date PLUS (ii) the amount of any increases in the Commitment which
have occurred as of that Reduction Date pursuant to Section 2.7.
"REDUCTION DATE" means (a) the earlier of (i) March 31, 2001, and (ii)
the last day of the first calendar quarter ending one year or more after
the Opening Date, and (b) each Quarterly Payment Date thereafter.
"REFERENCE RATE" means the rate of interest publicly announced from
time to time by Bank of America in San Francisco, California, as its
"reference 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 Reference 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.
"REGULATIONS D, T, U AND X" means Regulations D, 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.
"REQUEST FOR LETTER OF CREDIT" means a written request for a Letter of
Credit substantially in the form of Exhibit E, signed by a Responsible
Official of Borrower, on its behalf, 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
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form of Exhibit F, signed by a Responsible Official of Borrower, on its
behalf, and properly completed to provide all information required to be
included therein.
"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 (a) as of any date of determination if the
Commitment is then in effect, Lenders having Pro Rata Shares which are, in
the aggregate, 51% or more of the Pro Rata Shares of the Commitment then in
effect and (b) as of any date of determination if the Commitment has then
been terminated and there are then any Obligations outstanding, Lenders or
other creditors holding 51% or more of the Outstanding Obligations.
"RESPONSIBLE OFFICIAL" means (a) when used with reference to the
Borrower, the Sole Member, (b) when used with reference to a Person other
than Borrower and other than an individual, any officer or manager of such
Person, general partner of such Person, officer of a corporate or limited
liability company general partner of such Person, officer of a corporate or
limited liability company 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 (c) when used with reference to a Person
who is an individual, such Person. The Lenders shall be entitled to
conclusively rely upon any document or certificate that is signed or
executed by a Responsible Official of Borrower or any of its Subsidiaries
as having been authorized by all necessary corporate, limited liability
company, partnership and/or other action on the part of Borrower or such
Subsidiary of Borrower.
"RESTRICTED SUBSIDIARIES" has the meaning set forth in the Company
Loan Agreement from time to time.
"RIGHT OF OTHERS" means, as to any Property in which a Person has an
interest, any legal or equitable right, title or 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 interest in
that Property, INCLUDING any option or right to acquire a Lien; PROVIDED,
however, that (a) any covenant restricting the use or disposition of
Property of such Person contained in any Contractual Obligation of such
Person and (b) any provision contained in a contract creating a right of
payment or performance in favor of a Person that conditions, limits,
restricts, diminishes, transfers or terminates such right, shall not be
deemed to constitute a Right of Others.
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"SECURED SWAP AGREEMENT" means a Swap Agreement between Borrower and a
Lender or an Affiliate of a Lender (but, in the case of any such Affiliate,
only to the extent that the same expressly relates to the Obligations).
"SECURITY AGREEMENT" means the Security Agreement executed by Borrower
as of the Closing Date, as the same may from time to time be supplemented,
modified, amended, renewed, extended, supplanted or replaced.
"SENIOR OFFICER" means the (a) chief executive officer or manager, (b)
president, (c) executive vice president, (d) senior vice president, (e)
chief financial officer, (f) treasurer, (g) assistant treasurer, (h)
secretary, or (i) assistant secretary of the Licensee.
"SOLE MEMBER" means the Licensee, the only member of Borrower as of
the Closing Date.
"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or adoption
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change 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 Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental Agency,
central bank or comparable authority, or the existence or occurrence of
circumstances affecting the Designated Eurodollar Market generally that are
beyond the reasonable control of the Lenders.
"STANDBY LETTER OF CREDIT" means each Letter of Credit that is not a
Commercial Letter of Credit.
"STANDBY LETTER OF CREDIT FEE" means, as of each date of
determination, the applicable percentage set forth opposite the effective
Company Rating in the Pricing Matrix.
"SUBLEASE" means the Temporary Casino Sublease dated as of March 31,
1999 between Borrower, as sublandlord, and the Licensee, as subtenant with
respect to the Temporary Project Site.
"SUBORDINATED OBLIGATIONS" means unsecured Indebtedness of Borrower
(but not Indebtedness of any Subsidiary of Borrower), which:
(a) does not require amortization prior to the Maturity Date;
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(b) is governed by agreements which contain no representations,
warranties, covenants, defaults and other provisions which are more
restrictive upon, or onerous to, Borrower and its Subsidiaries than
the provisions of the Loan Documents; and
(c) is subordinated in right of payment to the Obligations
pursuant to subordination provisions which are acceptable to the
Requisite Lenders in the exercise of their sole discretion.
"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 ownership interests are at the time beneficially owned
by such Person and/or one or more of its Subsidiaries.
"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.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw
Hill, Inc.).
"TAX DISTRIBUTIONS" means, during any fiscal period, Distributions
made by Borrower to the Licensee or the Company in an amount which is equal
to the actual cash tax liability of such Persons (without duplication)
arising by reason of the tax attributes of the Borrower.
"TEMPORARY PROJECT" means the proposed design, development and
construction by Borrower and its Subsidiaries of a temporary casino on the
Fee Property and the premises subject to the Lease, together with all
facilities incidental thereto.
"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, (i) in the case of Borrower,
a Responsible Official of the Licensee, and (ii) in the case of any other
Person other than a natural Person and other than Borrower, known by a
Responsible Official of that Person) making the representation,
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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, (i) in the case of Borrower, would have been
known by a Responsible Official of the Licensee, and (ii) in the case of a
Person other than a natural Person and other than Borrower, would have been
known by a Responsible Official of that Person).
"TOTAL ASSETS" means, as of any date of determination, the
consolidated total assets of Borrower and its Subsidiaries on that date,
determined in accordance with Generally Accepted Accounting Principles.
"TRADEMARK SECURITY INTEREST ASSIGNMENT" means the Trademark Security
Interest Assignment executed and delivered by Borrower substantially in the
form of Exhibit G pursuant to Section 5.12, either as originally executed
or as it may from time to time be supplemented, modified, amended, extended
or supplanted.
"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 Eurodollar Rate Loan or Advance.
"UNRELATED PERSON" means any Person OTHER THAN (i) an employee stock
ownership plan or other employee benefit plan covering the employees of
Borrower and its Subsidiaries or (ii) an Affiliate of any Person or group
of related Persons which as of the date of this Agreement is the beneficial
owner of 25% or more (in the aggregate) of the outstanding common stock of
Borrower.
"UNRESTRICTED SUBSIDIARIES" has the meaning set forth for that term in
the Company Loan Agreement from time to time.
"YEAR 2000 ISSUE" means failure of computer software, hardware and
firmware systems, and equipment containing embedded computer chips, to
properly receive, transmit, process, manipulate, store, retrieve,
re-transmit or in any other way utilize data and information due to the
occurrence of the year 2000 or the inclusion of dates on or after January
1, 2000.
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 - FISCAL PERIODS. 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
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Accepted Accounting Principles applied on a consistent basis, EXCEPT as
otherwise specifically prescribed herein. In the event that Generally Accepted
Accounting Principles or Borrower's Fiscal Year or Fiscal Quarters change during
the term of this Agreement such that the covenants contained in Sections 6.11
and 6.12 would then be calculated for different periods, in a different manner
or with different components, (a) Borrower and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the same
criteria as were effective prior to such change in Fiscal Year, Fiscal Quarters
or in Generally Accepted Accounting Principles and (b) Borrower shall be deemed
to be in compliance with the covenants contained in the aforesaid Sections if
and to the extent that Borrower would have been in compliance therewith for the
pre-existing fiscal periods and under Generally Accepted Accounting Principles
as in effect immediately prior to such change, but shall have the obligation to
deliver each of the materials described in Article 7 to the Creditors, on the
dates therein specified, with financial data presented for its pre-existing
fiscal periods and in a manner which conforms with Generally Accepted Accounting
Principles as in effect immediately prior to such change.
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 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 any Schedule shall be deemed disclosed on all Schedules.
1.6 MISCELLANEOUS TERMS. In the Loan Documents, 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 Closing 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.
(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 Eurodollar Rate Loan, the Eurodollar Period for
such Loan. Unless the Administrative Agent, in its sole and absolute
discretion, has notified Borrower to the contrary, a Loan 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 Eurodollar 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 or
waiver of the applicable conditions set forth in Article 8, all
Advances shall be transferred by wire transfer of immediately
available funds to the Deposit Account.
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(d) Unless the Requisite Lenders otherwise consent, each Loan
shall be in an integral multiple of $1,000,000 which is not less than
$5,000,000.
(e) The Advances made by each Lender shall be evidenced by that
Lender's Note.
(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 Eurodollar Period for any
Eurodollar Rate Loan, then on the last day of such Eurodollar Period,
such Eurodollar Rate 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:
(i) 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; and
(ii) in the case where the same Party is the primary
borrower of both such Loans, Borrower shall make available to the
Administrative Agent (or the Administrative Agent shall make
available to such Party) 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 Eurodollar Rate Loan pursuant to
Section 2.3.
2.3 EURODOLLAR RATE LOANS.
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(a) Each request by Borrower for a Eurodollar 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, at least three Eurodollar Business Days before the first
day of the applicable Eurodollar Period.
(b) On the date which is two Eurodollar Business Days before the
first day of the applicable Eurodollar 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 seven Eurodollar Rate Loans shall be
outstanding at any one time.
(d) No Eurodollar Rate 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
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at any time and
from time to time from the Closing 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 $20,000,000.
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 five
Business Days
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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 within one
Business Day after written demand made by the Issuing Lender therefor,
together with interest on such amount from the date of any payment
made by the Issuing Lender at the rate applicable to Base Rate Loans
for three Business Days and thereafter 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 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 (but only with respect to periods subsequent to the date such
Lender paid the participation purchase price to the Issuing
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Lender) 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,
except that the Issuing Lender's issuance fees shall be payable as set
forth in the letter agreement referred to in Section 3.5.
(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, with the consent of Borrower;
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(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 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
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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;
(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 banking 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.
(a) 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 a Responsible Official of Borrower to the
Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral multiple of
$1,000,000 but not less than $5,000,000, or to terminate, all or a
portion of the then undisbursed portion of the Commitment; PROVIDED
that the Commitment may not be so reduced below an amount equal to the
SUM OF (i) the aggregate principal amount outstanding under the Notes,
PLUS (ii) the Aggregate Effective Amount of all outstanding Letters of
Credit. The Administrative Agent shall promptly notify the Lenders of
any reduction or termination of the Commitment under this Section.
(b) Any voluntary reduction of the Commitment under this Section
shall be applied to reduce the Reduction Amount on such Reduction
Dates as may be specified by Borrower or, if no such specification is
made, to reduce the Reduction Amount for the most remote Reduction
Date (to the extent of such reduction) and
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thereafter to earlier Reduction Dates (to the extent not previously
applied) in the inverse order of their occurrence.
2.6 SCHEDULED REDUCTIONS OF COMMITMENT. Subject to Section 2.5, on
each Reduction Date, the Commitment shall automatically be permanently reduced
by the then applicable Reduction Amount.
2.7 OPTIONAL INCREASES TO THE COMMITMENT.
(a) PROVIDED that no Default or Event of Default then exists,
Borrower may at any time subsequent to the Closing Date and prior to
the first anniversary of the Closing Date request in writing that the
then effective Commitment be increased to an amount which is not
greater than $250,000,000 MINUS the amount of any reductions to the
Commitment which have then occurred pursuant to Sections 2.5 or 2.6,
in accordance with the provisions of this Section. Any request under
this Section shall be submitted by Borrower to the Lenders through 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 the Licensee on behalf 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 and
(ii) a written consent to the increase in the amount of the Commitment
executed by the Company. Borrower may also specify any fees offered to
those Lenders which agree to an increase in the amount of their Pro
Rata Share of the Commitment (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 of the increased Commitment). 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. No Lender which rejects a request for an increase in the
Commitment shall be subject to removal as a Lender.
(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
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of the Commitment before such increase) in any resulting increase in
the Commitment, subject to the right 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 $1,000,000.
(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 a Commitment Assignment and Acceptance.
(f) Subject to the foregoing, any increase to the Commitment
requested under this Section shall be effective as of the date
proposed by Borrower and 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
shall issue replacement Notes to each affected Lender and new Notes to
each New Lender, and the percentage Pro Rata Shares of each Lender
will be adjusted to give effect to the increase in the Commitment and
set forth in a new Schedule 1.1 issued by the Administrative Agent.
2.8 OPTIONAL TERMINATION OF COMMITMENT. Following the occurrence of a
Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the thirty day period immediately subsequent to the
LATER OF (a) such occurrence or (b) the EARLIER of (i) receipt of written notice
to the Administrative Agent of the Change in Control from Borrower, or (ii) if
no such notice has been received by the Administrative Agent, the date upon
which the Administrative Agent has actual knowledge thereof, to terminate the
Commitment, in which case the Commitment shall be terminated effective on
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the date which is thirty days subsequent to written notice from the
Administrative Agent to Borrower thereof.
2.9 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Business Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such 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 who shall pay such corresponding amount to
the Administrative Agent. The Administrative Agent also shall be entitled to
recover from such 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 the daily
Federal Funds Rate. 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.
2.10 COLLATERAL AND GUARANTY. The Obligations of the Borrower under
this Agreement and under the other Loan Documents shall be guaranteed by the
Company and secured by the Collateral pursuant to the Collateral Documents.
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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 the first Business
Day of each calendar month shall be due and payable on that day.
EXCEPT as otherwise provided in Section 3.9, the unpaid principal
amount of any Base Rate Loan shall bear interest at a fluctuating rate
per annum equal to the Base Rate PLUS the applicable 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 Eurodollar Rate Loan which is for a
term of three months or less shall be due and payable on the last day
of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is
three months after the date such Eurodollar Rate Loan was made (and,
in the event that all of the Lenders have approved a Eurodollar Period
of longer than six months, every three months thereafter through the
last day of the Eurodollar Period) and on the last day of the related
Eurodollar Period. EXCEPT as otherwise provided in Section 3.9, the
unpaid principal amount of any Eurodollar Rate Loan shall bear
interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan PLUS the applicable Eurodollar Margin.
(d) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the amount, if any, by which the Outstanding Obligations
at any time exceed the then applicable Commitment (as the same
may reduced on any Reduction Date), shall be payable immediately;
and
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(ii) the principal Indebtedness evidenced by the Notes shall
in any event be payable on the Maturity Date.
(e) 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 $5,000,000,
or in integral multiples of $1,000,000 which are in excess of
$5,000,000, (ii) the Administrative Agent shall have received written
notice of any prepayment by 9:00 a.m., California local time, on the
Business Day prior to the date of prepayment (which must be a Business
Day) in the case of a Base Rate Loan, and, in the case of a Eurodollar
Rate Loan, three Business Days before the date of prepayment, which
notice shall identify the date and amount of the prepayment and the
Loan(s) being prepaid, (iii) each prepayment of principal on any
Eurodollar Rate Loan 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 Eurodollar
Rate Loan on a day other than the last day of the applicable
Eurodollar Period shall be subject to Section 3.8(e). Promptly
following receipt of a notice of prepayment under clause (ii) above,
the Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and amount thereof.
(f) Each payment of principal by Borrower hereunder shall be
applied ratably to the Advances made to Borrower which are then due
and payable, PROVIDED that if the Obligations are then accelerated or
have been deemed to have been accelerated, each payment of principal
hereunder shall be applied ratably to the outstanding Advances.
3.2 ARRANGER'S FEES. On the Closing Date, Borrower shall pay to
Arranger through the Administrative Agent underwriting fees in the amount
heretofore agreed upon by letter agreement between Borrower and the Arranger.
These fees are for the services of the Arranger in arranging the credit
facilities under this Agreement and are fully earned when paid and are
nonrefundable.
3.3 UPFRONT FEES. On the Closing Date, Borrower shall pay to the
Administrative Agent, for the account of each Lender, upfront fees in an amount
equal to that Lender's allocated Pro Rata Share of the Commitment TIMES a fee
percentage based upon the amount of the offered commitment of that Lender to the
credit facilities described herein, as set forth in a writing delivered to that
Lender by the Arranger, PROVIDED that the fee percentage for Bank of America
shall be as set forth in a letter agreement with Bank of America. Such upfront
fees are for the credit facilities committed by each Lender under this
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Agreement and are fully earned when paid. The upfront fees paid to each
Lender are solely for its own account and are nonrefundable.
3.4 COMMITMENT FEES. From the Closing Date, Borrower shall pay to the
Administrative Agent, for the ratable accounts of the Lenders pro rata according
to their Pro Rata Share, a commitment fee equal to the Commitment Fee Rate in
effect from time to time TIMES the average daily amount by which the Commitment
exceeds the SUM OF (a) the aggregate principal amount outstanding under the
Notes PLUS (b) the Aggregate Effective Amount under all outstanding Standby
Letters of Credit. The commitment fee shall be payable quarterly in arrears on
each Quarterly Payment Date, on the Maturity Date, upon the date of any partial
reduction or termination of the Commitment pursuant to Sections 2.5, 2.6 or 2.8
and upon any increase to the Commitment pursuant to Section 2.7.
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 Standby 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;
(b) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent for the ratable account of the
Lenders in accordance with their Pro Rata Share, a standby letter of
credit fee in an amount equal to the applicable Standby Letter of
Credit Fee per annum as of the date of such issuance TIMES the face
amount of such Standby Letter of Credit through the termination or
expiration of such Standby Letter of Credit, which the Administrative
Agent shall promptly pay to the Lenders; and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Commercial 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 published scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this Section is
earned when due and is nonrefundable.
3.6 AGENCY FEES. On the Closing Date and annually thereafter,
Borrower shall pay to the Administrative Agent an agency fee in such amounts as
heretofore agreed upon by
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letter agreement between Borrower and Bank of America and the Arranger. The
agency fee is for the services to be performed by the Administrative Agent in
acting as Administrative Agent and is fully earned on the date paid. The agency
fee paid to the Administrative Agent is solely for its own account and is
nonrefundable.
3.7 INCREASED COMMITMENT COSTS. If any Lender shall determine in good
faith that the introduction after the Closing 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 Eurodollar Lending 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, within ten Business
Days after 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, PROVIDED that
Borrower shall not be obligated to pay any such amount which arose prior to the
date which is ninety days preceding the date of such demand or is attributable
to periods prior to the date which is ninety days preceding the date of such
demand. Each Lender's determination of such amounts shall be conclusive in the
absence of manifest error. Any request for compensation by a Lender under this
Section shall set forth the basis upon which it has been determined that such an
amount is due from Borrower, a calculation of the amount due, and a
certification that the corresponding costs or diminished rate of return on
capital have been incurred or sustained by the Lender. If Borrower becomes
obligated to pay a material amount under this Section to any Lender, that Lender
will be subject to removal in accordance with Section 11.26; PROVIDED that
Borrower shall have paid such amount to that Lender and that Borrower, within
the thirty day period following the date of such payment, shall have notified
that Lender in writing of their intent to so remove the Lender.
3.8 EURODOLLAR COSTS AND RELATED MATTERS.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (INCLUDING any emergency,
supplemental or other reserve) with respect to the Eurodollar
Obligations of that
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Lender, Borrower shall pay that Lender within five Business Days
after demand all amounts necessary to compensate such Lender
(determined as though such Lender's Eurodollar Lending Office had
funded 100% of its Eurodollar Rate Advance in the Designated
Eurodollar Market) in respect of the imposition of such reserve
requirements. The Lender's determination of such amount shall be
conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Advances or its obligation to make Eurodollar
Rate Advances, or shall change the basis of taxation of payments
to any Lender attributable to the principal of or interest on any
Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Advances or its obligation to
make Eurodollar Rate Advances, EXCLUDING (i) taxes imposed on or
measured in whole or in part by its overall net income, gross
income or gross receipts, (ii) franchise taxes imposed by (A) any
jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof)
in which it is "doing business," and (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 available under
applicable Laws;
(2) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (INCLUDING any
reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against
assets of, deposits with or for the account of, or credit
extended by, any Lender or its Eurodollar Lending Office); or
(3) shall impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Advances, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
affect any of the same;
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and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar
Lending Office of making or maintaining any Eurodollar Rate Advance or
in respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Advances or its obligation to make Eurodollar Rate
Advances or reduces the amount of any sum received or receivable by
such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Advances or its obligation to make Eurodollar Rate Advances (assuming
such Lender's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar 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
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market). 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.
(c) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Advance or materially restrict the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates
based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar
Rate 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 Eurodollar
Rate Advances, together with accrued interest thereon, automatically
shall be converted to Base Rate Advances on either (1) the last day of
the Eurodollar Period(s) applicable to such Eurodollar Rate Advances
if such Lender may lawfully continue to maintain and fund such
Eurodollar Rate Advances to such day(s) or (2) immediately if such
Lender may not lawfully continue to fund and maintain such Eurodollar
Rate Advances to such day(s), PROVIDED that in such event the
conversion shall not be subject to payment of a prepayment fee under
clause (e) of this Section. Each Lender agrees to endeavor promptly to
notify Borrower of any event of which it has actual knowledge,
occurring after the Closing Date, which will cause that Lender to
notify the Administrative Agent under this Section, and agrees to
designate a different Eurodollar Lending
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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 Eurodollar Rate Loan or Advance, 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 Eurodollar Rate
Advances has been suspended under this Section shall promptly notify
the Administrative Agent and Borrower of the cessation of the Special
Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar
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 Eurodollar Market
for the applicable Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate as determined by the Administrative
Agent (i) does not represent the effective pricing to such
Lenders for deposits in Dollars in the Designated Eurodollar
Market in the relevant amount for the applicable Eurodollar
Period, or (ii) will not adequately and fairly reflect the cost
to such Lenders of making the applicable Eurodollar Rate
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 Eurodollar Rate Advances shall be suspended UNLESS (but only if
clause (2) above is the basis for such suspension) Borrower notifies
the Administrative Agent in writing that Borrower elects to pay the
Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans
made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance
(OTHER THAN as the result of a conversion required under clause (c) of
this Section) on a day other than the last day in the applicable
Eurodollar 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 Eurodollar Rate
Advance in any Request for Loan or Request for Competitive Bids, or
upon the failure of Borrower to prepay a
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Eurodollar Rate Loan or Advance on the date specified in a notice of
prepayment delivered to the Administrative Agent pursuant to Section
3.1(d), Borrower shall pay to the appropriate Lender within ten
Business Days after demand a prepayment fee, failure to borrow fee or
failure to prepay fee, as the case may be (determined as though 100%
of that Lender's Eurodollar Rate Advance had been funded in the
Designated Eurodollar Market), equal to the SUM OF:
(1) the principal amount of the Eurodollar Rate Advance
prepaid or not borrowed or prepaid, as the case may be, TIMES
[the number of days from and including the date of prepayment or
failure to borrow or prepay, as applicable, to but excluding the
last day in the applicable Eurodollar 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 out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow. Each Lender's determination of the amount of any
prepayment fee, failure to borrow fee or failure to prepay fee
payable under this Section shall be conclusive in the absence of
manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of
any event of which it has actual knowledge, occurring after the
Closing Date, which will entitle such Lender to compensation pursuant
to clause (a) or clause (b) of this Section, and agrees to designate a
different Eurodollar Lending 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. Any request for compensation by a
Lender under this Section shall set forth the basis upon which it has
been determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making
or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower may at any time, upon at least four (4)
Eurodollar Business 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 (subject to clause (c) of this Section)
required by clause (e) of this Section, pay in full the affected
Eurodollar Rate Advances of such Lender or request that such
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Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower becomes obligated to pay a
material amount under this Section to any Lender, that Lender
will be subject to removal in accordance with Section 11.26;
PROVIDED that Borrower shall have paid such amount to that Lender
and that Borrower, within the thirty day period following the
date of such payment, shall have notified that Lender in writing
of Borrower's intent to so remove the Lender.
3.9 LATE PAYMENTS. If any installment of principal or interest or any
fee or cost or other amount payable under any Loan Document to the
Administrative Agent, the Issuing Bank or any Lender is not paid when due, it
shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the SUM of the then applicable interest rate as to such amount
(including the Base Rate Margin or Eurodollar Spread, as applicable) PLUS 3%, to
the fullest extent permitted by applicable Laws. Accrued and unpaid interest on
past due amounts (INCLUDING 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.
3.10 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans 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
Eurodollar Rate Loans and all fees under this Agreement 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. Notwithstanding anything in this Agreement to
the contrary, interest in excess of the maximum amount permitted by applicable
Laws shall not accrue or be payable hereunder or under the Notes, and any amount
paid as interest hereunder or under the Notes which would otherwise be in excess
of such maximum permitted amount shall instead be treated as a payment of
principal.
3.11 NON-BUSINESS DAYS. If any payment to be made by Borrower or any
other Party 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.
3.12 MANNER AND TREATMENT OF PAYMENTS.
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(a) Each payment hereunder (EXCEPT payments pursuant to Sections
3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under any other
Loan Document shall be made without setoff, counterclaim or deduction
of any kind 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 11:00 a.m., California local time, on the day of payment (which
must be a Business Day). All payments received after such time, 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
11:00 a.m., California local time, 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.
(c) Each Lender shall use its best efforts to keep a record
(which may be in tangible or electronic or other intangible form) 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, the failure by any Lender to
keep such a record shall not affect Borrower's obligations to pay the
Obligations.
(d) Each payment of any amount payable by Borrower or any other
Party 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 (i) taxes imposed on
or measured in whole or in part by overall net income, gross income or
gross receipts, (ii) franchise taxes imposed on any Lender by (A) any
jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business", (iii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
that are not attributable to any change in any Law or the
interpretation or administration of any Law by any Governmental Agency
and (iv) any withholding tax or other taxes based
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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 available under applicable Laws (all such
non-excluded taxes, assessments or other charges being hereinafter
referred to as "Taxes"). To the extent that Borrower or any other
Party 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, they 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 or the relevant Party. If Borrower or any such Party
becomes obligated to pay a material amount under this Section to any
Lender, that Lender will be subject to removal in accordance with
Section 11.26; PROVIDED that Borrower or the relevant Party shall have
paid such amount to that Lender and that Borrower, within the thirty
day period following the date of such payment, shall have notified
that Lender in writing of Borrower's intent to so remove the Lender.
3.13 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, PROVIDED that each Lender severally represents and
warrants that it has obtained the funds for its Advances in compliance with
applicable Laws and that the making of its Advances will not constitute
"prohibited transactions" as such term is defined in ERISA.
3.14 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest at the Default Rate), 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 at the Default Rate), 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.
3.15 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
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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.
3.16 FEE DETERMINATION DETAIL. The Administrative Agent and any Lender
shall provide reasonable detail to Borrower regarding the manner in which the
amount of any payment to the Creditors, or that Lender, under Article 3 has been
determined, concurrently with demand for such payment.
3.17 SURVIVABILITY. All of Borrower's obligations under Sections 3.7
and 3.8 shall survive for ninety days following the date on which the Commitment
is terminated, all Obligations hereunder are fully paid and all Letters of
Credit have expired.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Borrower
is a limited liability company duly formed, validly existing and in good
standing under the Laws of Delaware. The Company is a corporation duly formed,
validly existing and in good standing under the Laws of Delaware. Borrower and
the Company are duly qualified or registered to transact business and are in
good standing in each other jurisdiction in which the conduct of their business
or the ownership or leasing of their Properties makes such qualification or
registration necessary, EXCEPT where the failure so to qualify or register and
to be in good standing would not constitute a Material Adverse Effect. Borrower
and the Company have all requisite company, corporate or other organizational
power and authority to conduct their business, to own and lease their Properties
and to execute and deliver each Loan Document to which each is a Party and to
perform the Obligations. All outstanding shares of the capital stock of Borrower
are duly authorized, 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 is in compliance with all
Requirements of Law applicable to its business as at present conducted, 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 as at present conducted,
EXCEPT where the failure so to comply, file, register, qualify or obtain
exemptions does not constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS AND
GOVERNMENT REGULATIONS. The execution, delivery and performance by Borrower and
the Company of the Loan Documents to which it is a Party have been duly
authorized by all necessary corporate or other organizational action, and do not
and will not:
(a) Require any consent or approval not heretofore obtained of
any member, partner, director, stockholder, security holder or
creditor of such Party;
(b) Violate or conflict with any provision of such Party's
operating agreement, charter, articles of incorporation, operating
agreement or bylaws, as applicable;
(c) Result in or require the creation or imposition of any Lien
or
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Right of Others upon or with respect to any Property now owned or
leased or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in Schedule 4.3;
(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 to
which such Party is a party or by which such Party or any of its
Property is bound or affected;
and neither Borrower nor the Company 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 constitutes a
Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as set forth in
Schedule 4.3 or previously obtained or made, no authorization, consent,
approval, order, license or permit from, or 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 and its Subsidiaries of the Loan Documents to which it is a Party.
EXCEPT as set forth in Schedule 4.3, all authorizations from, or filings with,
any Governmental Agency described in Schedule 4.3 will be accomplished as of the
Closing Date.
4.4 SUBSIDIARIES. 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, other than Subsidiaries of Borrower as
to which Borrower has complied with Section 5.14.
4.5 COMPANY FINANCIALS; BORROWER'S OPENING BALANCE SHEET. As of the
Closing Date, no Material Adverse Effect has occurred with respect to the
Company since December 31, 1998. Borrower has furnished to the Lenders its pro
forma opening balance sheet, which fairly presents in all material respects the
financial condition, results of operations and changes in financial position of
Borrower as of the date of this Agreement.
4.6 NO OTHER LIABILITIES. Borrower does not have any material
liability or material contingent liability required under Generally Accepted
Accounting Principles to be reflected or disclosed and not reflected or
disclosed in the pro forma opening balance sheet described in Section 4.5.
4.7 TITLE TO PROPERTY. Borrower and its Subsidiaries have valid title
to the
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Property reflected in the opening balance sheet 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 4.7 or permitted by Section 6.8.
4.8 INTANGIBLE ASSETS. Borrower and its Subsidiaries own, or possess
the right to use to the extent necessary in their businesses, all material
trademarks, trade names, copyrights, patents, patent rights, computer software,
licenses and other Intangible Assets that are used in the conduct of their
businesses, 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
constitutes a Material Adverse Effect. Schedule 4.8 sets forth all material
patents, trademarks, tradenames, trade styles and copyrights owned by Borrower
and its Subsidiaries. Neither Borrower nor any of its Subsidiaries owns any
trademarks, trade names or trade styles, other than trademarks, trade names and
trade styles as to which Borrower and its Subsidiaries have complied with
Section 5.12.
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. EXCEPT for (a) any matter fully covered as to subject
matter and amount (subject to applicable deductibles and retentions) by
insurance as to which the insurance carrier has been notified and has not
asserted lack of subject matter coverage or reserved its right to do so, (b) any
matter, or series of related matters, involving a claim against Borrower or any
of its Subsidiaries of less than $1,000,000, (c) matters of an administrative
nature not involving a claim or charge against Borrower or any of its
Subsidiaries and (d) matters set forth in Schedule 4.10, 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 before any Governmental Agency.
4.11 BINDING OBLIGATIONS. The Lease, the Sublease and the Landlord
Consent constitute the legal, valid and binding obligation of each party
thereto, enforceable against such party in accordance with its terms, EXCEPT as
enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion. Each of the Loan
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Documents to which Borrower or any of its Subsidiaries is a Party will, when
executed and delivered by such Party, constitute the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms, EXCEPT as enforcement may be limited by Debtor Relief Laws, Gaming Laws
or equitable principles relating to the granting of specific performance and
other equitable remedies as a matter of judicial discretion.
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 could 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
could reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that could 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 could 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 could reasonably be expected to have a Material Adverse Effect.
4.14 REGULATIONS T, U AND X; INVESTMENT COMPANY ACT. The sum of (a)
the fair market value of the portion of the Collateral which is not Margin Stock
PLUS (b) one-half of the value of the Collateral which does consist of Margin
Stock is and at all times following the Closing Date shall be in excess of the
Outstanding Obligations. No part of the proceeds of any Loan hereunder will be
used to purchase or carry, or to extend credit to others for the
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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 written statement made by a Senior Officer of the
Licensee on behalf of Borrower or the Company 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
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
Property of Borrower or any of its Subsidiaries is in jeopardy of being seized,
levied upon or forfeited.
4.17 PROJECTIONS. As of the Closing 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 its
Subsidiaries, 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. The Creditors acknowledge that the
Projections are forward-looking statements and that actual financial results for
Borrower and its Subsidiaries could differ materially from those set forth in
the Projections.
4.18 HAZARDOUS MATERIALS. Except as described in Schedule 4.18, (a)
neither Borrower nor any of its Subsidiaries at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under the Real Property in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b)
to the best knowledge of Borrower, no condition exists that violates any
Hazardous Material Law affecting any Real Property except for such violations
that would not individually or in the aggregate have a Material Adverse Effect,
(c) no Real Property or 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 such Real Property by Borrower or any of its
Subsidiaries, such use, generation, storage and transportation are in compliance
in all material respects with all Hazardous Materials Laws.
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4.19 SECURITY INTERESTS. The Security Agreement creates valid and
perfected first priority security interests in the Collateral described therein
securing the Obligations (subject only to Permitted Encumbrances, Permitted
Rights of Others, purchase money liens permitted under Section 6.8(e) and to
such qualifications and exceptions as are contained in the Uniform Commercial
Code with respect to the priority of security interests perfected by means other
than the filing of a financing statement or with respect to the creation of
security interests in Property to which Article 9 of the Uniform Commercial Code
does not apply) and all actions necessary to perfect the security interest so
created have been taken and completed. The Trademark Security Interest
Assignment (if then in effect) creates a valid first priority collateral
assignment of the Collateral described therein securing the Obligations and all
action necessary to perfect the collateral assignment so created, other than the
filing thereof with the United States Patent and Trademark Office will have been
taken and completed. The Mortgage creates a valid Lien in the Collateral
described therein securing the Obligations, OTHER THAN those arising under
Sections 4.18, 5.10 and 11.22, (and is of first priority subject only to
Permitted Encumbrances, Permitted Rights of Others), and all action necessary to
perfect the Lien so created, OTHER THAN recordation or filing thereof with the
appropriate Governmental Agencies, has been taken and completed.
4.20 YEAR 2000. Borrower and its Subsidiaries have reviewed the effect
of the Year 2000 Issue on the computer software, hardware and firmware systems
and equipment containing embedded microchips owned or operated by or for
Borrower and its Subsidiaries. The costs to Borrower and its Subsidiaries of any
reprogramming required as a result of the Year 2000 Issue to permit the proper
functioning of such systems and equipment and the proper processing of data, and
the testing of such reprogramming, and of required systems changes are not
reasonably expected to result in a Default or to have a material adverse effect
on the business, financial position, results of operations or prospects of
Borrower and its Subsidiaries, considered as a whole.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
----------------------
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower shall, and shall cause each of its
Subsidiaries 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 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 (a) where the
failure to so preserve and maintain the existence of any Subsidiary of Borrower
and such authorizations, rights, franchises, privileges, consents, approvals,
orders, licenses, permits, or registrations would not constitute a Material
Adverse Effect and (b) that a merger permitted by Section 6.3 shall not
constitute a violation of this covenant; 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 Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, EXCEPT that the failure to maintain, preserve and protect
a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrower and its Subsidiaries, taken as a
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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 businesses and owning similar assets in
the general areas in which Borrower and its Subsidiaries operate and, in any
event, such insurance as is required under the Mortgage.
5.5 COMPLIANCE WITH LAWS. Comply, within the time period, if any,
given for such compliance by the relevant Governmental Agency 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 by any of them in good
faith by appropriate proceedings.
5.6 INSPECTION RIGHTS. Upon reasonable notice, 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)
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, managers, key
employees or accountants and, upon request, furnish promptly to the
Administrative Agent or any Lender true copies of all financial information made
available to the board of directors or audit committee of the board of directors
of Borrower.
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 Loans (a) on the Closing
Date, to
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refinance funds invested prior to the Closing Date by the Company and
the Licensee in the Temporary Project, (b) to finance expenses associated with
the transactions contemplated herein, (c) to finance design, development and
construction expenses associated with the Temporary Project, including without
limitation obligations incurred by the Licensee prior to the date hereof and
assumed by the Borrower, (d) to finance other Capital Expenditures, Acquisitions
and Investments permitted under Article 6 hereof, (e) for other general
corporate purposes associated with the Temporary Project, and (f) in the event
that the Company elects to construct the Permanent Project through the Borrower,
for the initial development and construction costs for the Permanent Project in
an amount not to exceed $50,000,000.
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, (b) any and all material claims made
or threatened in writing by any Person against Borrower or its Subsidiaries
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials and (c) discovery by any Senior Officer
of the Licensee of any material occurrence or condition on Property adjoining or
in the vicinity of such Real Property that could 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 CHANGE OF NAME. Notify the Administrative Agent in writing of any
change of the name of Borrower or any of its Subsidiaries within five Business
Days of such change, and promptly (and in any event within ten Business Days of
request) execute such amendments to any of the Collateral Documents and take
such other actions as may be requested by the Administrative Agent to reflect
such change of its name.
5.12 ADDITIONAL COLLATERAL; THE TEMPORARY PROJECT.
(a) Concurrently with the acquisition by Borrower or any
Subsidiary of Borrower of any fee or leasehold interest in Real
Property, Borrower or the relevant Subsidiary shall execute and
deliver to the Administrative Agent, a first mortgage with respect
thereto (in a form reasonably acceptable to the Administrative Agent
and in any event providing substantive remedies no less favorable to
the Creditors than the Mortgage), together with the following, in each
case at Borrower's sole expense:
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(i) at Borrower's option, either (A) any endorsements to
the ALTA policy of lenders title insurance referred to in Section
8.1 as may be reasonably requested by the Administrative Agent,
or (B) a new ALTA policy of lenders title insurance concerning
such interest in Real Property;
(ii) a "Phase I" environmental report with respect to the
underlying Real Property prepared by a qualified independent
environmental expert reasonably acceptable to the Administrative
Agent and having results reasonably satisfactory to the
Administrative Agent and the Requisite Lenders; and
(iii) such other assurances, insurance certificates,
opinions and the like as the Administrative Agent may reasonably
request;
(b) Concurrently with the acquisition by Borrower or any
Subsidiary of Borrower of any trademark, trade name or trade style,
Borrower or the relevant Subsidiary shall execute and deliver to the
Administrative Agent the Trademark Security Interest Assignment or a
joinder thereto, as applicable.
(c) Until the Opening Date Borrower and its Subsidiaries shall:
(i) comply in all material respects with all existing Laws
and requirements of all Governmental Agencies having jurisdiction
over the Company, the Licensee, Borrower, its Subsidiaries and
the Temporary Project, and Borrower and its Subsidiaries shall
comply, as of the date when compliance is required, with all
future Laws and requirements that become applicable to the
Temporary Project;
(ii) Permit CSG to monitor the construction of the Temporary
Project and, subject to Section 11.14, provide CSG with such
information and access to the Temporary Project and individuals
employed by Borrower and its relevant Subsidiaries, and the
architect and contractor for the Temporary Project as CSG or the
Administrative Agent it may reasonably request for that purpose;
(iii) Permit the Administrative Agent, or any Lender, at any
reasonable time to enter and visit the Temporary Project for the
purposes of performing an appraisal, observing the work of
construction and examining all materials, plans, specifications,
working drawings and other matters relating to the construction
and\or redevelopment thereof, and maintain at Borrower's sole
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cost all insurance required by the Landlord to permit such entry,
visitation and other work; and
(iv) Promptly pay when due (subject to applicable
retentions) or otherwise discharge all claims and Liens for labor
done and materials and services furnished in connection with the
Temporary Project's construction or redevelopment, EXCEPT for
claims contested in good faith by appropriate proceedings to the
extent that the same constitute Permitted Encumbrances, 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.
5.13 COMPLETION CERTIFICATES. As promptly as practicable following the
Opening Date for the Temporary Project, promptly provide the Administrative
Agent with:
(a) a written certificate executed by the primary architect,
engineer and contractor and reasonably acceptable to the
Administrative Agent certifying that the Temporary Project has been
completed in all material respects in accordance with the plans
therefor and complies in all material respects with all applicable
zoning, building and land use Laws and that the Temporary Project is
ready to be opened for business; and
(b) Any endorsements to the title insurance policy referred to
in Section 8.1(a) as are requested by the Administrative Agent, at the
sole expense of Borrower.
5.14 NEW SUBSIDIARIES. Concurrently with the formation or acquisition
of any Subsidiary, cause such Subsidiary to execute and deliver to the
Administrative Agent a guarantee of the Obligations of Borrower hereunder and
under the other Loan Documents and Collateral Documents granting a first
priority perfected Lien in the Property of such Subsidiary (subject only to
Permitted Encumbrances), in each case which are in form and substance reasonably
acceptable to the Administrative Agent.
5.15 YEAR 2000. Borrower shall make, and shall cause each of its
Subsidiaries to make, all required systems changes by December 31, 1999, in
computer software, hardware and firmware systems and equipment containing
embedded microchips owned or operated by or for Borrower and its Subsidiaries
required as a result of the Year 2000 Issue to permit the proper functioning of
such computer systems and other equipment, except to the extent that the failure
to take any such action could not reasonably be expected to result in a Default
or to have a material adverse effect on the business, financial position,
results of operations or prospects of Borrower and its Subsidiaries, considered
as a whole. At the request of any
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Lender, Borrower shall provide, and shall cause each of its Subsidiaries to
provide, to such Lender reasonable assurance of its compliance with the
preceding sentence.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower shall not, and shall not permit any of its
Subsidiaries 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 PAYMENT OF SUBORDINATED OBLIGATIONS. Pay any principal (INCLUDING
sinking fund payments) or any other amount (OTHER THAN scheduled interest
payments) with respect to any Subordinated Obligation, or purchase or redeem (or
offer to purchase or redeem) any Subordinated Obligation, or deposit any monies,
securities or other Property with any trustee or other Person to provide
assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation PROVIDED THAT so long as no Default or Event of
Default then exists or would result therefrom, (a) Borrower may make payments of
scheduled interest on any Subordinated Obligation, and (b) Borrower may redeem
Subordinated Obligations held by Persons which are subject to a Disqualification
in an aggregate amount which does not exceed $5,000,000 during the term of this
Agreement.
6.2 DISPOSITION OF PROPERTY. Make any Disposition of its Property,
whether now owned or hereafter acquired, OTHER THAN (i) pursuant to the
Sublease, (ii) other Dispositions of Property not necessary to the conduct of
the business of the Temporary Facility in an aggregate amount not to exceed
$10,000,000 during the term of this Agreement, and (iii) provided that all
Obligations of Borrower under this Agreement are concurrently paid in full,
Dispositions of temporary casino facilities associated with the Temporary
Project after their use has terminated.
6.3 MERGERS. Merge or consolidate with or into any Person, EXCEPT
mergers and consolidations of a Subsidiary of Borrower into Borrower or another
Subsidiary of Borrower.
6.4 HOSTILE ACQUISITIONS. Directly or indirectly use the proceeds of
any Loan in connection with the acquisition of part or all of a voting interest
of five percent (5%) or more in any corporation or other business entity if such
acquisition is opposed by the board of directors or management of such
corporation or business entity.
6.5 DISTRIBUTIONS. Make any Distribution, whether from capital,
income or
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otherwise, and whether in Cash or other Property, EXCEPT:
(a) Distributions by a Subsidiary of Borrower to Borrower or to
a Subsidiary of Borrower;
(b) Tax Distributions made when no Default or Event of Default
exists; and
(c) other Distributions of Cash, Cash Equivalents or other
securities paid to members of Borrower after the Opening Date in an
aggregate amount which does not exceed, during any Fiscal Quarter,
EBITDAM for the immediately preceding Fiscal Quarter, PROVIDED THAT
(i) no Default or Event of Default then exists or would result
therefrom, and (ii) after giving effect to the making of such
Distribution as of the last day of such immediately preceding Fiscal
Quarter, Borrower was in pro forma compliance with the covenant set
forth in Section 6.11;
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, could reasonably be expected to result in a Material Adverse
Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could 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.
6.8 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or suffer to
exist any Lien or Negative Pledge of any nature upon or with respect to any of
its Properties, or engage in any sale and leaseback transaction with respect to
any of its Properties, whether now owned or hereafter acquired, EXCEPT:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in Schedule 4.7 and any renewals/extensions or amendments
thereof, PROVIDED that the obligations secured or benefited thereby
are not increased;
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(d) Liens on Property acquired by Borrower or any of its
Subsidiaries after the Closing Date that are in existence at the time
of such acquisition and are not created in contemplation of such
acquisition;
(e) Liens securing Indebtedness permitted by Section 6.9(d) on
and limited to the capital assets acquired, constructed or financed
with the proceeds of such Indebtedness or with the proceeds of any
Indebtedness directly or indirectly refinanced by such Indebtedness,
PROVIDED that the obligations secured or benefitted thereby are not
increased;
(f) any Lien or Negative Pledge created by an agreement or
instrument entered into by Borrower or a Subsidiary of Borrower in the
ordinary course of its business which consists of a restriction on the
assignability, transfer or hypothecation of such agreement or
instrument; and
(g) to the extent that the same may be construed to be a Lien or
Negative Pledge, the Sublease.
6.9 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur or assume
any Indebtedness or Guaranty Obligation EXCEPT, subject to Section 6.14:
(a) Indebtedness and Guaranty Obligations existing on the
Closing Date and disclosed in Schedule 6.9 (and other Indebtedness and
Guaranty Obligations existing on the Closing Date but unintentionally
omitted from that Schedule, but only to the extent that the aggregate
amount of such Indebtedness and the amount so guaranteed does not
exceed $500,000), and refinancings, renewals, extensions or amendments
thereto by the same obligors that do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness and Guaranty Obligations owed to Borrower or a
Subsidiary by Borrower or a Subsidiary of Borrower;
(d) Indebtedness consisting of Capital Lease Obligations, or
otherwise incurred to finance the purchase or construction of capital
assets (which shall be deemed to exist if the Indebtedness is incurred
at or within 90 days before or after the purchase or construction of
the capital asset), or to refinance any such Indebtedness, PROVIDED
that the aggregate principal amount of such Indebtedness outstanding
at any time does not exceed $25,000,000;
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(e) Indebtedness consisting of one or more Swap Agreements;
PROVIDED, that the aggregate notional amount of Indebtedness covered
by all Secured Swap Agreements shall not exceed the amount of the
Commitment;
(f) Subordinated Obligations incurred when no Default or Event
of Default exists;
(g) Guaranty Obligations in support of contracts reasonably
related to the business of Borrower and its Subsidiaries issued to
creditors of contractors, vendors and tenants of Borrower and its
Subsidiaries, to the extent issued in the ordinary course of business;
and
(h) Guaranty Obligations in support of the obligations of a
Subsidiary of Borrower.
6.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of Borrower OTHER THAN (a) salary, bonus, employee stock
option and other compensation arrangements with directors, officers or managers
in the ordinary course of business, (b) transactions that are fully disclosed to
the member(s) and manager(s) of Borrower and expressly authorized by a
resolution of the member(s) (if Borrower is managed by its members) or
manager(s) (if Borrower is managed by its managers) of Borrower which is
approved by a majority of the member(s) or manager(s), if and as applicable, not
having an interest in the transaction, (c) transactions between or among
Borrower and its Subsidiaries, (d) Acquisition(s) of assets of the Licensee, to
the extent that such Acquisition(s) occur on the Closing Date, (e) the Sublease,
(f) refinancing of investments made by the Company and described in Section
5.9(a), to the extent that such refinancing occurs on the Closing Date, (g)
transactions entered into when no Default or Event of Default has occurred and
remains continuing and which are disclosed to the Administrative Agent in
writing and in advance in an aggregate amount not to exceed $1,000,000 in any
Fiscal Year, and (h) transactions on overall terms at least as favorable to
Borrower or its Subsidiaries as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
6.11 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio (a) as of the last day of the first Fiscal Quarter ending following the
Opening Date, to be less than 1.10 to 1.00, and (b) as of the last day of each
subsequent Fiscal Quarter, to be less than 1.25 to 1.00.
6.12 CAPITAL EXPENDITURES. Make, or become legally obligated to make,
any Capital Expenditure except for Capital Expenditures (including Maintenance
Capital
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Expenditures) for (i) development and construction of the Temporary Project in a
manner which is consistent with the Plans and Budget, construction, maintenance,
repair, restoration or refurbishment of the Temporary Project, and (ii) provided
that no Default or Event of Default has occurred and is continuing, in the event
that the Company elects to pursue development of the Permanent Project through
the Borrower, then, following the opening of the Temporary Project, development
and construction of the Permanent Project in an aggregate amount not to exceed
$50,000,000.
6.13 INVESTMENTS AND ACQUISITIONS. Make any Acquisition or enter into
any agreement to make any Acquisition, or suffer to exist any Investment, OTHER
THAN:
(a) Investments in existence on the Closing Date and disclosed
on Schedule 6.15;
(b) Investments consisting of Cash Equivalents;
(c) Investments consisting of advances to officers, managers,
directors and employees of Borrower and its Subsidiaries for travel,
entertainment, relocation and analogous ordinary business purposes;
(d) Investments in Subsidiaries of Borrower;
(e) Investments consisting of or evidencing the extension of
credit to customers or suppliers of Borrower and its Subsidiaries in
the ordinary course of business and any Investments received in
satisfaction or partial satisfaction thereof;
(f) Investments received in connection with the settlement of a
bona fide dispute with another Person;
(g) Investments representing all or a portion of the sales price
of Property sold or services provided to another Person in the
ordinary course of business;
(h) Investments consisting of Guaranty Obligations permitted by
Section 6.9, and to the extent that no Default or Event of Default has
occurred and remains continuing, payments thereunder; and
(i) Acquisitions permitted pursuant to Section 6.10(d).
6.14 SUBSIDIARY INDEBTEDNESS AND GUARANTY OBLIGATIONS. Permit any
Subsidiary of Borrower to create, incur, assume or suffer to exist any
Indebtedness or
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Guaranty Obligation (even if Borrower would be permitted to incur the same under
Section 6.9), EXCEPT Indebtedness owed to Borrower or another Subsidiary of
Borrower;
6.15 THE LEASE AND SUBLEASE. (a) Amend or modify the terms of the
Lease or the Sublease in any manner (i) which increases the amount of rent
payable by Borrower under the Lease or otherwise materially alters the terms of
the Lease, (ii) which reduces the amount of rent payable to Borrower under the
Sublease or otherwise materially alters the terms of the Sublease, or (iii)
without prior written notice to the Administrative Agent, or (b) waive or fail
to enforce any material provision of the Lease or the Sublease.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, or any Letter of Credit remains outstanding or any other
Obligation remains unpaid, 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 Borrower's sole expense, deliver
to the Administrative Agent for distribution by it to the Lenders, a sufficient
number of copies for all of the Lenders of the following:
(a) As soon as practicable, and in any event within 60 days
after the end of each Fiscal Quarter (OTHER THAN the fourth Fiscal
Quarter in any Fiscal Year), the consolidated and consolidating
balance sheet of Borrower and its Subsidiaries as at the end of such
Fiscal Quarter and the consolidated and consolidating statement of
operations for such Fiscal Quarter, and its statement of cash flows
for the portion of the Fiscal Year ended with such Fiscal Quarter, all
in reasonable detail. Such financial statements shall be certified by
a Senior Officer of the Licensee on behalf of Borrower as fairly
presenting the financial condition, results of operations and cash
flows of Borrower and its Subsidiaries in accordance with Generally
Accepted Accounting Principles (OTHER THAN footnote disclosures),
consistently applied, as at such date and for such periods, subject
only to normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, a Pricing Certificate setting
forth a preliminary calculation of the Company Leverage Ratio as of
the last day of such Fiscal Quarter, and providing reasonable detail
as to the calculation thereof, which calculations shall be based on
the preliminary unaudited financial statements of the Company for such
Fiscal Quarter, and as soon as practicable thereafter, in the event of
any material variance in the actual calculation of the Company
Leverage Ratio from such preliminary calculation, a revised Pricing
Certificate setting forth the actual calculation thereof;
(c) As soon as practicable, and in any event within 105 days
after the end of each Fiscal Year, (i) the consolidated and
consolidating balance sheet of Borrower and its Subsidiaries as at the
end of such Fiscal Year and the consolidated and consolidating
statements of operations, shareholders' equity and cash flows, in each
case of Borrower and its Subsidiaries for such Fiscal Year, in each
case as at the end of and for the Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
Generally Accepted Accounting Principles, consist-
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ently applied, and such consolidated balance sheet and consolidated
statements shall be accompanied by a report of one of the six largest
public accounting firms in the United States of America or other
independent public accountants of recognized standing selected by
Borrower and reasonably satisfactory to the Requisite Lenders, which
report shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders
in their good faith business judgment to be adverse to the interests
of the Lenders. Such accountants' report shall be accompanied by a
certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification
of such financial statements and such report, such accountants have
obtained no knowledge of any Default or, if, in the opinion of such
accountants, any such Default shall exist, stating the nature and
status of such Default, and stating that such accountants have
reviewed Borrower's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections
6.11 and 6.12, have read such Sections (including the definitions of
all defined terms used therein) and that nothing has come to the
attention of such accountants in the course of such examination that
would cause them to believe that the same were not calculated by
Borrower in the manner prescribed by this Agreement;
(d) As soon as practicable, and in any event within 45 days
after the commencement of each Fiscal Year, a budget and projection by
Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next
two succeeding Fiscal Years, INCLUDING for the first such Fiscal Year,
projected consolidated balance sheets, statements of operations and
statements of cash flow and, for the second and third such Fiscal
Years, projected consolidated condensed balance sheets and statements
of operations and cash flows, of Borrower and its Subsidiaries, all in
reasonable detail;
(e) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports or documents sent to the
Company or the Licensee by Borrower or any of its Subsidiaries in
connection with the accounts or books of Borrower or any of its
Subsidiaries, or any audit of any of them;
(f) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrower or any of its Subsidiaries with any Governmental Agency
(OTHER THAN any report regarding Borrower and its Subsidiaries and
their confidential business or financial information);
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(g) As soon as practicable, and in any event within ten Business
Days after a Senior Officer of the Licensee becomes aware of the
occurrence, with respect to Borrower, 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;
(h) As soon as practicable, and in any event within two (2)
Business Days after a Senior Officer of the Licensee becomes aware of
the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period
of existence thereof, and, no more than two (2) Business Days after
such telephonic notice, written notice again specifying the nature and
period of existence thereof and specifying what action Borrower or its
Subsidiaries are taking or propose to take with respect thereto;
(i) Promptly upon a Senior Officer of the Licensee becoming
aware that (i) any Person has commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsidiaries that is
$5,000,000 or more in excess of the amount thereof that is fully
covered by insurance, (ii) any creditor or lessor under a written
credit agreement or material lease has asserted a default thereunder
on the part of Borrower or any of its Subsidiaries, (iii) any Person
has commenced a legal proceeding with respect to a claim against
Borrower or any of its Subsidiaries under a contract that is not a
credit agreement or material lease in excess of $5,000,000 or which
otherwise may reasonably be expected to result in a Material Adverse
Effect, (iv) any labor union has notified Borrower of its intent to
strike Borrower or any of its Subsidiaries on a date certain and such
strike would involve more than 100 employees of Borrower or its
Subsidiaries, or (v) any Gaming Board has indicated its intent to
consider or act upon a License Revocation or a fine or penalty of
$1,000,000 or more with respect to Borrower or any of its
Subsidiaries, a written notice describing the pertinent facts relating
thereto and what action Borrower or its Subsidiaries are taking or
propose to take with respect thereto;
(j) Not later than the twentieth day of each calendar month, a
construction progress report with respect to the Temporary Project as
of the last day of the preceding calendar month in a form reasonably
acceptable to the Administrative Agent, which report shall compare the
status of construction and amounts expended to
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the construction timetable and budget;
(k) As soon as practicable, and in any event by the thirtieth
day in the next following month, an operating revenue report for the
preceding calendar month with respect to each operating casino
property of Borrower and its Subsidiaries, segmented for each such
casino property and otherwise in a form reasonably acceptable to the
Administrative Agent, together with a written narrative statement
discussing any significant trends reflected therein signed by a Senior
Officer of the Licensee on behalf of Borrower;
(l) Promptly following receipt thereof, copies of all material
changes to the construction plans, budget, timetable and the related
architectural, construction and engineering contracts for the
Temporary Project, and with an advance draft copy of any proposed such
change that involves more than $10,000,000;
(m) Promptly following any Senior Officer of the Licensee
becoming aware of any change in the credit ratings assigned by Moody's
or S&P to the Company Loan Agreement (whether senior secured or senior
unsecured) written notice of such change and, if the same will result
in a revision to the Company Rating, a revised Pricing Certificate
setting forth the revised Company Rating;
(n) Promptly and in any event within two Business Days following
the receipt of Borrower any notices under the Lease or the Sublease,
and concurrently with the delivery by Borrower of any notices to the
counterparties under the Lease or the Sublease, copies of such
notices;
(o) Concurrently with their delivery to the Administrative Agent
and the Banks under the Company Loan Agreement, copies of all
financial statements of the Company delivered in connection with the
Company Loan Agreement;
(p) As soon as practicable, and in any event not less than 10
days (or, if acceptable to the Administrative Agent, a shorter period)
prior to the proposed effective date thereof, written notice of any
proposed material amendment, material modification or material waiver
of the material terms and provisions of any of the Material Documents
or the Plans and Budget; and
(q) 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.
7.2 COMPLIANCE CERTIFICATES. So long as any Advance remains unpaid,
or any Letter of Credit remains outstanding or any
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other Obligation remains unpaid or unperformed, or any portion of the Commitment
remains outstanding, Borrower shall, at Borrower's sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders concurrently with the
financial statements required pursuant to Sections 7.1(a) and 7.1(c), Compliance
Certificates signed by a Senior Officer of the Licensee on behalf of Borrower.
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Article 8
CONDITIONS
8.1 INITIAL ADVANCES ON THE CLOSING DATE. The obligation of each
Lender to make the initial Advance to be made by it on the Closing Date, is
subject to the following conditions precedent, each of which shall be satisfied
prior to the making of the initial Advances (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 Closing 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) at least one (1) executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative
Agent for additional executed counterparts, sufficient in number
for distribution to the Lenders and Borrower;
(2) Notes executed by Borrower in favor of each Lender, each
in a principal amount equal to that Lender's Pro Rata Share of
$230,000,000;
(3) with respect to Borrower, the Licensee and the Company,
such documentation as the Administrative Agent may require to
establish the due organization, valid existence and good standing
of Borrower, the Licensee and the Company, their 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 any Loan Documents to which it is
a Party, the identity, authority and capacity of each Responsible
Official thereof authorized to act on its behalf, INCLUDING (if
applicable) certified copies of articles of incorporation or
organization and amendments thereto, bylaws or operating
agreements and amendments thereto, certificates of good standing
and/or qualification to engage in business, tax clearance
certificates, certificates of corporate or other organizational
resolutions, incumbency certificates, Certificates of Responsible
Officials, and the like;
(4) a Certificate of a Senior Officer of the Licensee on
behalf of Borrower attaching true, correct and complete copies of
each of the Material Documents.
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(5) the Mortgage executed by Borrower, together with
appropriate commitments from First American Title Insurance
Company for the issuance of an ALTA title insurance policy in the
amount of the Commitment insuring the Mortgage as a first
priority Lien on the Temporary Project, subject only to Permitted
Encumbrances, Permitted Rights of Others and other matters
acceptable to the Administrative Agent, and with such
endorsements to coverage and reinsurance as the Administrative
Agent may reasonably require;
(6) the Landlord Consent executed by the Landlord;
(7) the Security Agreement executed by Borrower;
(8) such financing statements on Form UCC-1 executed by
Borrower with respect to the Security Agreement as the
Administrative Agent may request;
(9) the Guaranty executed by the Company;
(10) a certificate of insurance issued by Borrower's
insurance carrier or agent with respect to the insurance required
to be maintained pursuant to the Mortgage, together with lenders'
loss payable endorsements thereof on Form 438BFU or other form
acceptable to the Administrative Agent;
(11) the Opinions;
(12) a Request for Loan in compliance with Article 2;
(13) a completed Pricing Certificate;
(14) the fee letter described in Sections 3.2, 3.3, 3.5 and
3.6;
(15) such assurances as the Administrative Agent reasonably
deems appropriate that the relevant Gaming Boards have approved
the transactions contemplated by the Loan Documents to the extent
that such approval is required by applicable Gaming Laws;
(16) such assurances as the Administrative Agent reasonably
deems appropriate that, except as set forth in Schedule 4.3,
Licensee and Borrower have obtained all licenses, permits, and
necessary approvals of all relevant Gaming Boards and
Governmental Agencies necessary with respect to the Temporary
Project, and that all of such licenses, permits and other
approvals
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are in full force and effect;
(17) a Certificate signed by a Senior Officer of the
Licensee on behalf of Borrower certifying that the conditions
specified in Sections 8.1(e), 8.1(f) and 8.1(g) have been
satisfied;
(18) a Certificate signed by a Senior Officer of the
Licensee on behalf of Borrower attaching the Plans and Budget;
and
(19) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) The upfront fees payable on the Closing Date pursuant to
Section 3.3 shall have been paid.
(c) The agency fees payable on the Closing Date pursuant to
Section 3.6 shall have been paid.
(d) The reasonable costs and expenses of the Administrative Agent
in connection with the preparation of the Loan Documents payable
pursuant to Section 11.3, and invoiced to Borrower prior to the
Closing Date, shall have been paid.
(e) The representations and warranties of Borrower contained in
Article 4 shall be true and correct.
(f) Borrower and any other Parties shall be in compliance with
all the terms and provisions of the Loan Documents, and giving effect
to the initial Advance, no Default or Event of Default shall have
occurred and be continuing.
(g) No Material Adverse Effect (as defined in the Company Loan
Agreement) shall have occurred with respect to the Company, and no set
of circumstances or events which is or could reasonably be expected to
be material and adverse to the business, operations or prospects of
Borrower shall have occurred with respect to the Borrower since
December 31, 1998.
(h) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton, LLP, special
counsel to the Administrative Agent.
8.2 ANY ADVANCE. The obligation of each Lender to make any Advance,
and the obligation of the Issuing Lender to issue a Letter of Credit, is subject
to the following conditions precedent (unless the Requisite Lenders, in their
sole and absolute discretion, shall
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agree otherwise):
(a) EXCEPT (i) for representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a
result of a change which is permitted by this Agreement or (ii) as
disclosed by Borrower and approved in writing by the Requisite
Lenders, the representations and warranties contained in Article 4
(OTHER THAN Sections 4.4, 4.6, 4.10, 4.17 and 4.18 (but only if
Borrower and its Subsidiaries are diligently engaged in measures that
will result in compliance with all Hazardous Materials Laws)) shall be
true and correct on and as of the date of the Advance as though made
on that date;
(b) other than matters described in Schedule 4.10 or not required
as of the Closing Date to be therein described, there shall not be
then pending or threatened any action, suit, proceeding or
investigation against or affecting Borrower or any of its Subsidiaries
or any Property of any of them before any Governmental Agency that
constitutes a Material Adverse Effect;
(c) 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 the Issuing Lender shall have received a Request for
Letter of Credit, as the case may be, in compliance with Article 2;
and
(d) 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 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 so long as such
event is continuous and has not been waived in accordance with Section 11.2:
(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 Sections 3.4, 3.5 or 3.6, or any portion thereof,
within five Business Days after the date when due; or fails to pay any
other fee or amount payable to the Lenders under any Loan Document, or
any portion thereof, within five Business Days after demand therefor;
or
(c) Borrower fails to comply with any of the covenants contained
in Article 6, OTHER THAN the covenants contained in Sections 6.6, 6.7,
or 6.10; or
(d) Borrower fails to comply with Section 7.1(h) in any respect
that is materially adverse to the interests of the Lenders; or
(e) Borrower, any of its Subsidiaries or any other Party fails to
perform or observe any other covenant or agreement (not specified in
clause (a), (b), (c), or (d) above) contained in any Loan Document on
its part to be performed or observed within (i) ten Business Days
after the giving of notice by the Administrative Agent on behalf of
the Requisite Lenders of such Default or (ii) if the nature of the
covenant or agreement is such that the violation can be cured, thirty
Business Days after the giving of such notice so long as Borrower
diligently pursues in good faith the cure or correction of such
violation continuously during such period; or
(f) Any representation or warranty of Borrower or any of its
Subsidiaries or any other Party made in any Loan Document, or in any
certificate or other writing delivered by Borrower or such Subsidiary
or Party pursuant to any Loan Document, proves to have been incorrect
when made or reaffirmed in any respect that is materially adverse to
the interests of the Lenders; or
(g) The Licensee, Borrower or any of its Subsidiaries (i) fails
to pay
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the principal, or any principal installment, of any present or future
Indebtedness of $5,000,000 or more, or any guaranty of present or
future Indebtedness 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 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 of default to occur, in connection with any present or future
Indebtedness of $5,000,000 or more, or of any guaranty of present or
future Indebtedness 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 the right to require the Licensee, Borrower or any of its
Subsidiaries to redeem or purchase, or offer to redeem or purchase,
all or any portion of such Indebtedness; or
(h) Any Default or Event of Default occurs under the Company Loan
Agreement (as such terms are defined therein from time to time);
(i) In the event that the Company Loan Agreement has been
refinanced or otherwise terminated, the Company (with respect to any
obligation or indebtedness other than the Loan Agreement) (i) fails to
pay the principal, or any principal installment, of any present or
future Indebtedness of $100,000,000 or more, or any guaranty of
present or future Indebtedness of $100,000,000 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
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 of default to occur, in connection with any present
or future Indebtedness of $100,000,000 or more, or of any guaranty of
present or future Indebtedness of $100,000,000 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 the right to require the Company or any of its Subsidiaries to
redeem or purchase, or offer to redeem or purchase, all or any portion
of such Indebtedness; or
(j) 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 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
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(k) Any Loan Document, at any time after its execution and
delivery and for any reason OTHER THAN the agreement or action (or
omission to act) of the Administrative Agent or any 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 Party
thereto denies in writing that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate
or rescind same; or
(l) Borrower (i) fails to pay any present or future installment
of rent under the Lease when due (or within any stated grace period),
or (ii) fails to perform or observe any other term, covenant or
agreement on its part to be performed or observed under the Lease, or
suffers any event of default to occur under the Lease, if as a result
of such failure or sufferance the Landlord has the right to terminate
the Lease before its scheduled termination, or (iii) the Lease is
otherwise terminated prior to the repayment of the Obligations and the
termination of the Commitment (unless Borrower shall have exercised
its option thereunder to purchase the fee interest underlying the
Lease from the Landlord); or
(m) Borrower receives any notice from the Licensee that it has
failed to perform or observe any term, covenant or agreement on its
part to be performed or observed under the Sublease and that as a
result of such failure the Licensee has the right to terminate the
Sublease before its scheduled termination, or the Sublease is
otherwise terminated prior to the repayment of the Obligations and the
termination of the Commitment; or
(n) A final judgment against the Company, the Licensee, the
Borrower or any of its Subsidiaries is entered for the payment of
money in excess of $1,000,000 and, absent procurement of a stay of
execution, such judgment remains unsatisfied for thirty 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 material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty
calendar days after its issue or levy; or
(o) The Company, the Licensee, 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
material 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
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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 material
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
(p) 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
(q) A final unstayed judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(r) Any Pension Plan maintained by Borrower or any of its
Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA and the
result is a Material Adverse Effect or Borrower or any its ERISA
Affiliates incurs any withdrawal liability in respect of any
Multiemployer Plan which is in an amount in excess of $5,000,000 which
withdrawal liability is not paid or otherwise satisfied within thirty
days; or
(s) The occurrence of a License Revocation that continues for
seven consecutive calendar days.
9.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other rights
or remedies of the Creditors provided for elsewhere in this Agreement, or 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(o):
(1) the Commitment to make Advances, the obligation of the
Issuing Lender to issue Letters of Credit and all other
obligations of the Creditors and all rights of Borrower and any
other Parties 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
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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 such
other obligations and rights and make further Advances, and cause
the Issuing Lender to issue further Letters of Credit which
waiver or determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, 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 in an interest-bearing cash collateral account as
collateral hereunder; and
(3) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate
the Commitment and/or declare all or any part of the unpaid
principal of all 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.
(b) Upon the occurrence, and during the continuance, of any
Event of Default described in Section 9.1(o):
(1) the Commitment to make Advances, the obligation of the
Issuing Lender to issue Letters of Credit and all other
obligations of the Creditors and all rights of Borrower and any
other Parties under the Loan Documents shall terminate without
notice to or demand upon Borrower, which are expressly waived by
Borrower, EXCEPT that all of 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
such other obligations and rights and make further Advances and
to cause the Issuing Lender to issue further Letters of Credit,
which determination shall apply equally to, and shall be binding
upon, all the Lenders;
(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, which are expressly waived by Borrower, to be held by
the Issuing Lender in an interest-bearing cash
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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 Creditors, 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 Party and such other rights and remedies as are
provided by Law or equity.
(d) In addition to any other rights and remedies, if an Event of
Default occurs prior to the Opening Date for the Temporary Project,
the Creditors shall have the right to take possession of the Temporary
Project, whether in person or through a designee or receiver, and take
such steps as the Creditors reasonably deem necessary or appropriate
to complete construction of the Temporary Project, INCLUDING making
any changes to the construction plans, budget or timetable and/or
terminating or amending any of the architects contracts, engineering
contracts, construction contracts or any other contract or arrangement
related to the Temporary Project; PROVIDED, however, that the
Administrative Agent shall be responsible for any breach of contract
resulting from any such change, termination or amendment. Any such
action shall not be construed as an assumption of responsibility by
the Creditors to complete the Temporary Project, and such steps may be
discontinued at any time. Any such action shall not be construed to
make any of the Creditors a partner or joint venturer with Borrower or
any of Borrower's Affiliates. All amounts expended by the Creditors
for the completion of the Temporary Project shall be deemed additional
Advances and shall be secured by the Collateral Documents.
(e) The order and manner in which the Creditors' rights and
remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Creditors, 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 any of the
Creditors) of the Creditors, and thereafter paid pro rata to the
Lenders in the same proportions that
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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 the Obligations
hereunder and under the Notes, payments shall be applied FIRST, to the
costs and expenses of the Creditors, 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
Creditors under the Loan Documents. Amounts due to a Lender under a
Secured Swap Agreement shall be considered a principal amount for
purposes of the preceding sentence. 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
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as 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 trustee 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, any Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary
thereof, as if it were not the Administrative Agent and without any duty to
account therefor to the Lenders. Bank of America (and each successor
Administrative Agent) need not account to any other Lender 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 or
other special relationship with any Lender 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 Lenders, 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 and the Lenders'
rights to reimbursement for their 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
or a Lender) and subject to the application of payments in accordance with
Section 9.2(e), each Lender shall have an interest in the Lenders' interest in
the Collateral or interests therein in the same proportions that the aggregate
Obligations owed such Lender under the
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Loan Documents bear to the aggregate Obligations owed under the Loan Documents
to all the Lenders, without priority or preference among the Lenders, EXCEPT
that Obligations owed to any Lender under a Secured Swap Agreement shall be
secured on a PARI PASSU basis with all other Obligations up to an amount equal
to the Administrative Agent's then customary credit risk factor for Swap
Agreements times the notional amount of Indebtedness covered by such Secured
Swap Agreement and shall be secured on a subordinate basis as to amounts in
excess of such amount.
10.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, 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 Borrower
and its Subsidiaries 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 also agrees that it shall, independently and without
reliance upon the Administrative Agent, 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, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative
Agent has received notice from Borrower 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, EXCEPT that 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
the Lenders, PROVIDED that 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 could result, in the judgment of the
Administrative Agent, in a material risk of liability to the
Administrative Agent.
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(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 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 could result, in the
judgment of the Administrative Agent, in a material risk of liability
to the Administrative Agent, and EXCEPT that 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.
(e) The Administrative Agent shall have no liability to any
Lender 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 or employees 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 and employees:
(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 and/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 Lender for any statement,
warranty or representation made in any of the Loan Documents or in any
notice,
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certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents;
(d) Shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries 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 its
Subsidiaries;
(e) Will not be responsible to any Lender 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 in good
faith by it to be genuine and signed or sent by the proper party or
parties; and
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrower or any Subsidiary
or Affiliate thereof or paid or payable to or received or receivable
from any Lender under any Loan Document, INCLUDING, principal,
interest, commitment fees, Advances and other amounts; PROVIDED that,
promptly upon discovery of such an error in computation, the
Administrative Agent, the Lenders and (to the extent applicable)
Borrower and/or its Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error
not occurred.
10.7 INDEMNIFICATION. Each Lender shall, ratably in accordance with
its Pro Rata Share (if the Commitment is then in effect) or in accordance with
its proportion of the aggregate Indebtedness then evidenced by the Notes (if the
Commitment has then been terminated), indemnify and hold the Administrative
Agent and 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, reasonable attorneys' fees and
disbursements and allocated costs of attorneys employed by the Administrative
Agent) that may be imposed on, incurred by or asserted against it or them in
such capacity in any way relating to or arising out of the Loan Documents (other
than losses incurred by reason of the failure of Borrower to pay the
Indebtedness represented by the Notes) or any action taken or not taken by it as
Administrative Agent thereunder, EXCEPT such as result from its own gross
negligence or willful misconduct. Without limitation on the foregoing, each
Lender shall reimburse the
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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
Borrower or any other Party is required by Section 11.3 to pay that cost or
expense but fails to do so upon demand. Nothing in this Section shall entitle
the Administrative Agent to recover any amount from the Lenders if and to the
extent that such amount has theretofore been recovered from Borrower or any
other Party. To the extent that the Administrative Agent is later reimbursed
such cost or expense by Borrower or any other Party, it shall return the amounts
paid to it by the Lenders in respect of such cost or expense.
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 shall resign as Administrative Agent under this Agreement, the Requisite
Lenders shall appoint from among the Lenders a successor Administrative Agent
for the Lenders, which successor Administrative Agent shall be approved by
Borrower (and such approval shall not be unreasonably withheld or delayed),
PROVIDED that, to the extent required by applicable Gaming Laws, the incumbent
Administrative Agent shall remain the collateral agent for the Creditors with
respect to any Collateral for which a lienholder must be qualified under such
Gaming Laws until the new Administrative Agent can be so qualified (but the
incumbent Administrative Agent shall be entitled to the indemnities and other
protections provided to the Administrative Agent hereunder in such capacity). If
no successor Administrative Agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
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 under this Agreement. If (a)
the Administrative Agent has not been paid its agency fees under Section 3.6 or
has not been reimbursed for any expense reimbursable to it under Section 11.3,
in either case for a period of at least one (1) year and (b) no successor
Administrative Agent has accepted appointment as Administrative Agent by the
date which is thirty 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
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time, if any, as the Requisite Lenders appoint a successor Administrative Agent
as provided for above.
10.9 FORECLOSURE ON COLLATERAL. 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 an Affiliate or designee thereof) pro rata for the benefit of the Lenders in
accordance with the Obligations outstanding to each of them 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 ATTORNMENT AGREEMENTS. Provided that no Default or Event of
Default has then occurred, the Administrative Agent is hereby irrevocably
authorized by the other Creditors to enter into attornment, non-disturbance and
estoppel agreements acceptable to the Administrative Agent with lessees of
interests in leases of real property from Borrower and its Subsidiaries
permitted hereby, PROVIDED in each case that not less than 10 Business Days
prior to entering into any such arrangement or agreement, the Administrative
Agent shall circulate drafts thereof to the Lenders, and the Requisite Lenders
shall not have objected to the form thereof.
10.11 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 Creditors under this Agreement. Without limiting the
generality of the foregoing, where any provision of this Agreement relating to
the payment of any amounts due and owing under the Loan Documents provides that
such payments shall be made by Borrower to the Administrative Agent for the
account of the Lenders, Borrower's obligations to the Lenders in respect of such
payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement.
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Article 11
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges
and remedies of the Creditors provided herein or in any Note or other Loan
Document 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 the
Administrative Agent or any Lender 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 hereof 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 Administrative Agent's or the Lenders' rights to assert them in whole or in
part in respect of any other Loan.
11.2 AMENDMENTS; CONSENTS. Each amendment, modification, supplement,
extension, termination, waiver, approval and consent under this Agreement and
the other Loan Documents shall be subject to the terms of all applicable Laws,
including Gaming Laws. 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
the Borrower or any other Party therefrom, may in any event be effective unless
in writing signed by the Administrative Agent with the approval of Requisite
Lenders (and, in the case of any amendment, modification or supplement of or to
any Loan Document to which any of the Borrower or any of its Subsidiaries is a
Party, signed by each such Party, and, in the case of any amendment,
modification or supplement to Article 10, signed by the Administrative Agent),
and then only in the specific instance and for the specific purpose given; and,
without the approval in writing of all the Lenders, no amendment, modification,
supplement, termination, waiver or consent may be effective:
(a) To (i) amend or modify the principal of, or the amount of
principal, principal prepayments on, any Note, or (ii) amend (except
as provided in Section 2.7) the amount of the Commitment or the Pro
Rata Share of any Lender or (iii) decrease the rate of interest
payable to any Lender, the amount of any commitment fee payable to any
Lender, or any other fee or amount payable to any Lender under the
Loan Documents or (iv) waive an Event of Default consisting of the
failure of Borrower to pay when due principal, interest or any
commitment fee
(b) To postpone any Reduction Date or any other date fixed for
any payment of principal of, prepayment of principal of or any
installment of interest on,
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any Note or any installment of any commitment fee, or to extend the
term of the Commitment;
(c) To permit the term of any Letter of Credit to exceed one
year or extend beyond the Maturity Date;
(d) To release the Guaranty or any material portion of the
Collateral, PROVIDED that if no Default or Event of Default exists,
the Administrative Agent may without the consent of any Lender (and
shall at the request of Borrower), (i) release its Lien in any
personal property financed or leased by the Borrower or its
Subsidiaries in accordance with Section 6.9(d), (ii) release its Lien
in any other Collateral as otherwise may be expressly provided for in
any Loan Document, (iii) release its Lien in the equity securities of
any Subsidiary of Borrower which is the subject of a Disposition
permitted hereunder or which has Property having a value of less than
$50,000 as of the date of such release, (iv) subordinate its Lien with
respect to any Property which is the subject of a Disposition
permitted hereunder, and (v) release its Lien in any Property which is
the subject of a Distribution permitted under Section 6.5(c).
(e) To amend the definitions of "REDUCTION AMOUNT", "REDUCTION
DATE", REQUISITE LENDERS" or "MATURITY DATE";
(f) To amend or waive Article 8, Section 6.4 or this Section; or
(g) 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 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
11.3 COSTS, EXPENSES AND TAXES. Borrower shall pay within five
Business Days after demand, accompanied by an invoice therefor, the reasonable
costs and expenses of the Administrative Agent and the Arranger in connection
with the negotiation, preparation, syndication, execution and delivery of the
Loan Documents, and the reasonable costs and expenses of the Administrative
Agent in connection with any amendment thereto or waiver thereof. Borrower shall
also pay on demand, accompanied by an invoice therefor, the reasonable costs and
expenses of the Creditors and the Arranger 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 filing fees,
recording fees, title insurance fees,
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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 or any
Lender), independent public accountants and other outside experts retained by
the Administrative Agent or any Lender, whether or not such costs and expenses
are incurred or suffered by the Administrative Agent or any Lender in connection
with or during the course of any bankruptcy or insolvency proceedings of
Borrower or any Subsidiary thereof. Such costs and expenses shall also include,
in the case of any amendment or waiver of any Loan Document requested by
Borrower, the administrative costs of the Administrative Agent reasonably
attributable thereto. Borrower shall pay any and all documentary and other
taxes, EXCLUDING (i) taxes imposed on or measured in whole or in part by overall
net income, gross income or gross receipts and franchise taxes imposed on any
Lender by (A) any jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending Office or (B)
any jurisdiction (or political subdivision thereof) in which it is "doing
business", (ii) any withholding taxes or other taxes based on gross income
imposed by the United States of America that are not attributable to any change
in any Law or the interpretation or administration of any Law by any
Governmental Agency and (iii) any withholding tax 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, 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,
and shall reimburse, hold harmless and indemnify on the terms set forth in
Section 11.11 the Creditors from and against any and all loss, liability or
legal or other expense with respect to or resulting from any delay in paying or
failure to pay any such tax, cost, expense, fee or charge or that any of them
may suffer or incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any Lender under
this Section shall bear interest from the second Business Day following the date
of demand for payment 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 the Creditors
or any of them pursuant hereto or thereto may, or may be deemed to, make the
Lenders a partnership, an association, a joint venture or other entity, either
among themselves or with the Borrower or any Affiliate of Borrower. Each
Lender's 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 any
other Lender. Any Lender not in
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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. The Administrative Agent agrees that it will use its best efforts either
to induce the other Lenders to assume the obligations of a Lender in default or
to obtain another Lender, reasonably satisfactory to Borrower, to replace such a
Lender in default.
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
Parties to any Loan Document, 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
the Administrative Agent and each Lender, notwithstanding any investigation made
by the Administrative Agent or any Lender 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, telegraphed, 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 fourth Business Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges 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. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) 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 and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party followed by prompt transmission of an original
signature. 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.
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11.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which Borrower
is a Party will be binding upon and inure to the benefit of Borrower,
the Administrative Agent, the Issuing Lender, each of the Lenders, and
their respective successors and assigns, EXCEPT that Borrower may not
assign its respective rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the
Lenders. 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, 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 each of the
Administrative Agent and (if no Event of Default then exists) Borrower
(none of which approvals shall be unreasonably withheld or delayed),
(ii) such assignment shall be evidenced by an Assignment Agreement, a
copy of which shall be furnished to the Administrative Agent as
hereinbelow provided, (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 that is less than $10,000,000, (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) shall be of a constant and non-varying
percentage of the Pro Rata Share of the assigning 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 set forth therein and, to the extent of such
Pro Rata Share, the assigning Lender shall be released from its
further obligations under this Agreement. Borrower agrees that
Borrower 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.
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(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, 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 its Subsidiaries or the
performance by Borrower and its Subsidiaries 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 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 and
a register (the "Register") of the names and address of each of the
Lenders and the Pro Rata Share held by each Lender, giving effect to
each Assignment Agreement. The Register shall be available during
normal business hours for inspection by Borrower or any Lender upon
reasonable prior notice to the Administrative Agent. 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 Lender or Eligible Assignee, the Administrative Agent shall,
promptly following the effective date thereof, provide to Borrower and
the Lenders a revised Schedule 1.1 giving effect thereto. Borrower and
the Creditors shall deem and treat the Persons listed as Lenders in
the Register as the holders and owners of the Pro Rata Share listed
therein for all purposes hereof, and no assignment or transfer of any
such Pro Rata Share shall be effective, in each case unless and until
an Assignment Agreement effecting the assignment or transfer thereof
shall have been accepted by the Administrative Agent and recorded in
the Register as provided above. Prior to such recordation, all amounts
owed with respect to the applicable Pro Rata Share shall be owed to
the Lender listed in the Register as the
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owner thereof, and any request, authority or consent of any Person
who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of the
corresponding Pro Rata Share.
(e) Each Lender may from time to time grant participations to one
or more banks or other financial institutions (INCLUDING another
Lender) in a portion of its Pro Rata Share; PROVIDED, HOWEVER, that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii)
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 3.7, 3.8, 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, (iv) 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, (v) 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
(vi) 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 any Reduction Date, the
Maturity Date or any other date upon which any payment of money is due
to the Lenders, (B) reduce the rate of interest on the Notes, any fee
or any other monetary amount payable to the Lenders, (C) reduce the
amount of any installment of principal due under the Notes, (D)
release the Guaranty or collateral for the Obligations (except to the
extent permitted under Section 11.2(d), or (E) change the definition
of "Requisite Lenders."
(f) Notwithstanding anything in this Section 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 Gaming Board, to the extent required by applicable
Gaming Laws, and to compliance with applicable securities laws, if
any.
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(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Lender, identified as such
in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower the option to provide all or any
part of any Loan or Advance that such Granting Lender would otherwise
be obligated to make pursuant to Sections 2.1, 2.2 or 2.3, provided
that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms
hereof, and (iii) the rights of any such SPC shall be derivative of
the rights of the Granting Lender, and each SPC shall be subject to
all of the restrictions upon the Granting Lender herein contained.
Each SPC shall be conclusively presumed to have made arrangements with
its Granting Lender for the exercise of voting and other rights
hereunder in a manner which is acceptable to the SPC, and the
Administrative Agent, the other Creditors, Borrower and each other
Party shall be entitled to rely upon and deal solely with the Granting
Lender with respect to Loans and Advances made by or through its SPC.
The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the
related Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding senior indebtedness of
any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof,
PROVIDED THAT the Granting Lender for each SPC hereby agrees to
indemnify, save, and hold harmless each other party hereto for any
loss, cost, damage and expense arising out of their inability to
institute any such proceeding against its SPC. In addition,
notwithstanding anything to the contrary contained in this Section
11.8, any SPC may (i) with notice to, but without the prior written
consent of, the Borrower or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Lender or to any financial
institutions providing liquidity and/or credit facilities to or for
the account of such SPC to fund the Loans made by such SPC or to
support the securities (if any) issued by such SPC to fund such Loans
(but nothing contained herein shall be construed in derogation of the
obligation of the Granting Lender to make Loans hereunder), PROVIDED
THAT neither the consent of the SPC or of any such assignee shall be
required for amendments or waivers of provisions of the Loan Documents
except for those
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amendments or waivers for which the consent of participants is
required under Section 11.8(e)(vi), and (ii) disclose on a
confidential basis (in the same manner described in Section 11.14) any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit
or liquidity enhancement to such SPC.
11.9 RIGHT OF SETOFF. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may 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 and/or any of their Property 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 Borrower or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender (except by means of removal of that
Lender in accordance with Section 11.26), 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 Borrower or any Person claiming through or succeeding
to the rights of Borrower, 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 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. Borrower 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
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counterclaim with respect to the participation as fully as if the Lender were
the original owner of the Obligation purchased.
11.11 INDEMNITY BY BORROWER. Borrower agrees to indemnify, save and
hold harmless the Administrative Agent and each Lender and their directors,
officers, agents, attorneys and employees (collectively the "INDEMNITEES") from
and against: (a) any and all claims, demands, actions or causes of action
(EXCEPT a claim, demand, action, or cause of action for any amount excluded from
the definition of "Taxes" in Section 3.12(d)) if the claim, demand, action or
cause of action arises out of or relates to any act or omission (or alleged act
or omission) of Borrower, its Subsidiaries or any of their officers, directors
or stockholders relating to the Commitment, the use or contemplated use of
proceeds of any Loan, or the relationship of Borrower and the Lenders 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 under this Section for any loss caused by its own
gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. 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 right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
in writing (and at Borrower's sole expense)) contest the validity, applicability
and amount of such claim, demand, action or cause of action 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 and shall obtain Borrower's prior consent
(which shall not be unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this Section 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
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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 (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrower to any Indemnitee under this Section shall
survive the expiration or termination of this Agreement, the repayment of all
Loans, the expiration or termination of all Letters of Credit and the payment
and performance of all other Obligations owed to the Lenders.
11.12 NONLIABILITY OF THE LENDERS. Borrower acknowledges and agrees
that:
(a) Any inspections of any Property of Borrower and its
Subsidiaries made by or through the Creditors are for purposes of
administration of the Loans and Letters of Credit only and Borrower
and its Affiliates are not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower or its
Subsidiaries);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Creditors pursuant to the Loan
Documents, neither the Administrative Agent nor the Lenders 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 the Creditors;
(c) The relationship between Borrower and the Creditors is, and
shall at all times remain, solely that of borrowers and lenders;
neither the Administrative Agent nor the Lenders shall under any
circumstance be construed to be partners or joint venturers of
Borrower or its Affiliates; neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship
of confidence or trust or a fiduciary or other "special" relationship
with Borrower or its Affiliates, or to owe any fiduciary duty to
Borrower or its Affiliates; neither the Administrative Agent nor the
Lenders undertake or assume any responsibility or duty to Borrower or
its Affiliates to select, review, inspect, supervise, pass judgment
upon or inform Borrower or its Affiliates of any matter in connection
with their Property or the operations of Borrower or its Affiliates;
Borrower and its Affiliates 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
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of the Creditors and neither Borrower 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 Borrower and/or its Affiliates and
Borrower hereby indemnifies and holds the Creditors harmless on the
terms set forth in Section 11.11 from any such loss, damage, liability
or claim.
11.13 NO THIRD PARTIES BENEFITED. 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 and 11.11, 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 pursuant to this Agreement in
confidence, EXCEPT for disclosure: (a) to other Lenders; (b) to legal counsel
and accountants for Borrower or any Lender; (c) to other professional advisors
to Borrower or any Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially similar to this
Section; (d) to regulatory officials having jurisdiction over that Lender; (e)
to any Gaming Board having regulatory jurisdiction over Borrower or its
Subsidiaries, provided that each Lender agrees to use its best efforts to notify
Borrower of any such disclosure unless prohibited by applicable Laws; (f) 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 (g) 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 recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section. For purposes of the foregoing,
"confidential information" shall mean any information respecting Borrower or its
Subsidiaries reasonably considered by Borrower 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 its Subsidiaries to any Person not
associated with Borrower without a confidentiality agreement or obligation
substantially similar to this Section. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the
Creditors to Borrower or any other Party.
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11.15 FURTHER ASSURANCES. Borrower and its Subsidiaries shall, at
their expense and without expense to the Lenders or the Administrative Agent,
do, execute and deliver such further acts and documents as the Requisite Lenders
or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent 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 INTEGRATION. This Agreement, together with the other Loan
Documents and the letter agreements referred to in Sections 3.2, 3.3, 3.5 and
3.6, 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. 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 Nevada.
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 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), within
twenty (20) days after the Closing Date (or after accepting an assignment or
receiving a participation interest herein pursuant to Section 11.8, if
applicable)
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two duly completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by Borrower pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such Lender
by Borrower pursuant to this Agreement) of the United States Internal Revenue
Service or such other evidence (INCLUDING, if reasonably necessary, Form W-9)
satisfactory to Borrower and the Administrative Agent that no withholding under
the federal income tax laws is required with respect to such Lender. Thereafter
and from time to time, each such Lender shall upon request by Borrower (a)
promptly submit to Borrower (with a copy to the Administrative Agent), such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) 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 Lender 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 Eurodollar
Lending Office, if any) to avoid any requirement of applicable Laws that
Borrower make any deduction or withholding for taxes from amounts payable to
such Lender. In the event that Borrower or the Administrative Agent become aware
that a participation has been granted pursuant to Section 11.8(e) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrower or the Administrative
Agent to the Lender which granted such participation, such Lender shall cause
such participant financial institution to deliver the same documents and
information to Borrower and the Administrative Agent as would be required under
this Section if such financial institution were a Lender.
11.22 HAZARDOUS MATERIAL INDEMNITY. Borrower hereby agrees to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders (and any
successor to a Lender) and their respective directors, officers, employees and
agents from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith (INCLUDING reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Lender, and expenses to the extent that the defense
of any such action has not been assumed by Borrower), arising directly or
indirectly out of (i) the presence on, in, under or about any Real Property of
any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by Borrower, its Subsidiaries or any
of their predecessors in title,
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whether prior to or during the term of this Agreement, and whether by Borrower,
its Subsidiaries or any predecessor in title or any employees, agents,
contractors or subcontractors of Borrower, its Subsidiaries or any predecessor
in title, or any third persons at any time occupying or present on any Real
Property (OTHER THAN a Lender or a representative of a Lender), in connection
with the handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials at any time located or present
on, in, under or about any Real Property. The foregoing indemnity shall further
apply to any residual contamination on, in, under or about any Real Property, or
affecting any natural resources, and to any contamination of any Property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Materials, and irrespective
of whether any of such activities were or will be undertaken in accordance with
applicable Laws, but the foregoing indemnity shall not apply to Hazardous
Materials on any Real Property, the presence of which is caused by the
Creditors. Borrower hereby acknowledges and agrees that, notwithstanding any
other provision of this Agreement or any of the other Loan Documents to the
contrary, the obligations of Borrower under this Section (and under Sections
4.18 and 5.10) shall be unlimited corporate obligations of Borrower and shall
NOT be secured by any deed of trust or mortgage on any Real Property. Any
obligation or liability of Borrower to any Indemnitee under this Section shall
survive the expiration or termination of this Agreement, the repayment of all
Loans, the expiration or termination of all Letters of Credit and the payment
and performance of all other Obligations owed to the Lenders.
11.23 GAMING BOARDS. The Administrative Agent and each of the Lenders
agree to cooperate with all Gaming Boards in connection with the administration
of their regulatory jurisdiction over Borrower and its Subsidiaries, INCLUDING
the provision of such documents or other information as may be requested by any
such Gaming Board relating to Borrower or any of its Subsidiaries or to the Loan
Documents.
11.24 LIEN RELEASES. The Administrative Agent shall release any Lien
granted to or held by the Administrative Agent on any Collateral (i) sold,
transferred or otherwise disposed of in connection with any transaction not
prohibited by the Loan Documents, (ii) constituting Property leased to Borrower
or its Subsidiaries under a lease which has expired or been terminated in a
transaction not prohibited by the Loan Documents or which will concurrently
expire and which has not been, and is not intended by Borrower or the relevant
Subsidiary of Borrower to be, renewed or extended, (iii) consisting of an
instrument, if the Indebtedness evidenced by such instrument has been finally
repaid in full, (iv) if approved or consented to by those of the Lenders
required by Section 11.2, or (v) as otherwise expressly required by the Loan
Documents. Upon the request of the Administrative Agent, each Lender shall
promptly provide written confirmation of the authority of the Administrative
Agent to release such Liens upon any one or more items of Collateral under
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this Section.
11.25 TERMINATION; RELEASE OF LIENS. Upon (a) the expiration or
termination of the Commitment, (b) the full and final payment in Cash of the
Loans, all interest and fees with respect thereto, (c) the reimbursement of all
draws under Letters of Credit and the payment of all fees with respect thereto,
(d) the expiration of all Letters of Credit or the deposit of Cash collateral
with the Issuing Lender in the effective face amount thereof, (e) the payment of
all amounts then demanded by any Lender or indemnitee under Sections 3.7, 3.8,
11.11 and 11.22 and (f) the payment of all other amounts then due under the Loan
Documents, the Administrative Agent is hereby authorized by the Lenders to, and
the Administrative Agent shall, upon the request of Borrower, execute and
deliver to Borrower discharges from further compliance with the covenants
contained in Articles 5, 6, and 7 and releases of the Liens created by the
Collateral Documents, and shall return any Property pledged to the
Administrative Agent as Collateral for the Obligations, notwithstanding the
survival of any provisions of this Agreement herein provided for.
11.26 REMOVAL OF A LENDER. Borrower shall have the right to remove a
Lender as a party to this Agreement in accordance with this Section (a) under
the circumstances set forth in Sections 3.7, 3.8(g) and 3.12(d) and (b) if such
Lender is the subject of a Disqualification. If Borrower is entitled to remove a
Lender pursuant to this Section EITHER:
(x) Upon notice from Borrower, the Lender being removed shall
execute and deliver an Assignment Agreement (but shall not be
obligated to pay any assignment fee) covering that Lender's Pro Rata
Share in favor of one or more Eligible Assignees designated by
Borrower (and acceptable to the Administrative Agent, which acceptance
shall not be unreasonably delayed or withheld), subject to (i) payment
of a purchase price by such Eligible Assignee equal to all principal
and accrued interest, fees and other amounts payable to such Lender
under this Agreement through the date of assignment and (ii) the
written release of the Issuing Lender of such Lender's obligations
under Section 2.4(c) or delivery by such Eligible Assignee of such
appropriate assurances and indemnities (which may include letters of
credit) as such Lender may reasonably require with respect to its
participation interest in any Letters of Credit then outstanding; or
(y) Borrower may reduce the Commitment pursuant to Section 2.5
(and, for this purpose, the numerical requirements of such Section
shall not apply) by an amount equal to that Lender's Pro Rata Share,
pay and provide to such Lender the amounts, assurances and indemnities
described in subclauses (i) and (ii) of clause (x) above and release
such Lender from its Pro Rata Share. In the
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event that the Commitment is reduced pursuant to this clause (y),
subsequent Reduction Amounts shall be reduced by a proportional
amount.
11.27 NO LIABILITY OF TRACINDA. In the event that (i) there is a
default or alleged default by the Company or any of its Subsidiaries under any
Loan Document, or (ii) any Lender has or may have any claim arising from or
relating to the terms of any Loan Documents, no Lender shall commence any
lawsuit or otherwise seek to impose any liability upon Tracinda Corporation or
the shareholders thereof (collectively, "Tracinda"). Tracinda shall have no
liability whatsoever with respect to the Loan Documents or matters arising
therefrom. No Lender shall have any right to assert or permit any party claiming
through it to assert a claim or impose any liability against Tracinda as to any
matter or thing arising out of or relating to the Loan Documents or any alleged
breach or default under the Loan Documents, In addition, Tracinda is not a party
to this Agreement or any Loan Document and is not liable for any alleged breach
or default thereof by any party thereto.
11.28 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 PARTY 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 EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.29 PURPORTED ORAL AMENDMENTS. BORROWER 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 BORROWER WILL NOT
RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
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ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR
ANY LENDER THAT DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT,
MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
MGM GRAND DETROIT II, LLC,
a Delaware limited liability company
By: MGM Grand Detroit, LLC, a Delaware limited
liability company, managing member
By: SCOTT LANGSNER
---------------------------------------
Scott Langsner, Secretary
---------------------------------------
[Name and title]
Address for Borrower:
65 Cadillac Square, Suite 3000
Detroit, Michigan 48226
Attn: Lyn Baxter
Telecopier: (313) 393-0601
Telephone: (313) 393-8887
With copies to:
Jim Murren, Chief Financial Officer
MGM Grand, Inc.
3799 Las Vegas Boulevard South
Las Vegas, Nevada 89109-4319
Telephone: 702/891-1111
Telecopier 702/891-1114 FAX
and to:
Gary N. Jacobs, Esq.
Christensen, Miller, et al
2121 Avenue of the Stars, 18th Floor
Los Angeles, California 90067
Telecopier: (310) 556-2920
Telephone: (310) 282-6268
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
By: JANICE HAMMOND
-------------------------------------------------------
Janice Hammond, Vice President
Address:
Bank of America National Trust and Savings Association
Agency Management Services
555 South Flower Street, 11th Floor
Los Angeles, California 90017
Attn: Janice Hammond, Vice President
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: WILLIAM S. NEWBY
------------------------------------------------------
William S. Newby, Managing Director
By: JON VARNELL
-------------------------------------------------------
Jon Varnell, Managing Director
Address:
Bank of America National Trust and Savings Association
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Jon Varnell, Managing Director
Telecopier: (213) 228-2641
Telephone: (213) 228-6181
With a copy to:
Bank of America National Trust and Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William S. Newby, Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: BETTY FRANCES-SAMILTON
-------------------------------------------------------
Title: Customer Service Officer
-----------------------------------------------------
Address for notices:
The First National Bank of Chicago
One First National Plaza, 11th Floor
Chicago, Illinois 60670
Attn.: Robert Simon
Facsimile: (312) 732-4840
Telephone: (312) 732-8543
<PAGE>
COMERICA BANK
By: EOIN P. COLLINS
-------------------------------------------------------
Eoin P. Collins
Account Officer
Address for notices:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
Attn.: Marinda D. Little, Legal Officer
Corporate Legal - 3391
Facsimile: (313) 222-3977
Telephone: (313) 222-3843
<PAGE>
MICHIGAN NATIONAL BANK
By: ANNETTE GORDON
-------------------------------------------------------
Title: Relationship Manager
----------------------------------------------------
Address for notices:
Michigan National Bank
27777 Inkster Road, 10-36
Farmington Hills, Michigan 48334
Attn.: Annette Gordon, Relationship Manager
Facsimile: (248) 473-4345
Telephone: (248) 473-4337
<PAGE>
OLD KENT BANK
By: GEORGE B. BAILEY
-------------------------------------------------------
Title: Vice President & Manager
----------------------------------------------------
Address for domestic notices:
Old Kent Bank
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
Attn.: George B. Bailey, Vice President & Manager
Facsimile: (616) 771-1500
Telephone: (616) 771-5476
Address for eurodollar notices:
Old Kent Bank
1830 East Paris
Grand Rapids, Michigan 49512
Attn.: Lee Neas, International Assistant
Facsimile: (616) 771-4647
Telephone: (616) 771-1087
<PAGE>
NATIONAL CITY BANK
By: KENNETH R. EHRHARDT
-------------------------------------------------------
Title: Vice President
----------------------------------------------------
Address for notices:
National City Bank
1900 East Ninth Street, LC 01-2077
Cleveland, Ohio 44114
Attn.: Sue Ann Lewalski
Facsimile: (216) 488-7110
Telephone: (216) 488-7080
<PAGE>
BANK OF SCOTLAND
By: ANNIE CHIN TAT
-------------------------------------------------------
Title: Senior Vice President
----------------------------------------------------
Address for notices:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn.: Karen Workman, Banking Associate
Facsimile: (212) 687-4412
Telephone: (212) 450-0877
<PAGE>
THE BANK OF NOVA SCOTIA
By: ALLAN PENDERGAST
-------------------------------------------------------
Title: Relationship Manager
----------------------------------------------------
Address for notices:
The Bank of Nova Scotia
San Francisco Agency
580 California Street, Suite 2100
San Francisco, California 94104
Attn.: Allan Pendergast, Senior Relationship Manager
Facsimile: (415) 397-0791
Telephone: (415) 986-1100
<PAGE>
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By: ALEXANDER KAROW
-------------------------------------------------------
Title: Associate
----------------------------------------------------
By: STEPHAN A. WIEDEMANN
-------------------------------------------------------
Title: Director
----------------------------------------------------
Address for domestic notices:
Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Attn.: Carmen Melendez
Attn.: _________________________
Facsimile: (212) 469-4138
Telephone: (212) 469-4008
Address for eurodollar notices:
Deutsche Bank AG Cayman Islands Branch
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Attn.: Carmen Melendez
Facsimile: (212) 469-4138
Telephone: (212) 469-4008
<PAGE>
SOCIETE GENERALE
By: DONALD L. SCHUBERT
-------------------------------------------------------
Title: Managing Director
-------------------------------------------------------
Address for notices:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn.: Donald Schubert, Managing Director
Facsimile: (310) 551-1537
Telephone: (310) 788-7104
<PAGE>
FIRST INDEPENDENCE NATIONAL BANK OF DETROIT
By: BARBARA W. WORDEN
-------------------------------------------------------
Title: Senior Vice President
-------------------------------------------------------
Address for notices:
First Independence National Bank of Detroit
44 Michigan Avenue
Detroit, Michigan 48226
Attn.: Barbara W. Worden, Senior Vice President
Facsimile: (313) 256-8444
Telephone: (313) 256-8420
<PAGE>
COMMERZBANK AG, LOS ANGELES BRANCH
By: CHRISTIAN JAGENBERG
-------------------------------------------------------
Title: SVP and Manager
----------------------------------------------------
By: WERNER SCHMIDBAUER
-------------------------------------------------------
Title: Vice President
----------------------------------------------------
Address for notices:
Commerzbank AG - Los Angeles Branch
633 West Fifth Street, Suite 6600
Los Angeles, California 90071
Attn.: Werner Schmidbauer
Facsimile: (213) 623-0039
Telephone: (213) 623-8223
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By: DENISE D. KILLEN
-------------------------------------------------------
Title: Vice President
----------------------------------------------------
Address for notices:
PNC Bank, National Association
Two Tower Center Boulevard
East Brunswick, New Jersey 08816
Attn.: Denise D. Killen, Vice President
Facsimile: (732) 220-3270
Telephone: (732) 220-3262
<PAGE>
SHOREBANK, DETROIT
By: THOMAS W. RADCLIFFE
-------------------------------------------------------
Title: Senior Vice President
----------------------------------------------------
Address for notices:
ShoreBank, Detroit
14533 Mack Avenue
Detroit, Michigan 48215
Attn.: Andrea Hill, Senior Credit Analyst
Facsimile: (313) 642-5209
Telephone: (313) 642-5200