Loan Agreement - MGM Mirage, MGM Grand Detroit LLC, Bank of America, Banc of America Securities LLC and JP Morgan Securities Inc.
EXECUTION
THIRD AMENDED AND RESTATED LOAN AGREEMENT
Dated as of November 24, 2003
among
MGM MIRAGE,
as Borrower
and
MGM GRAND DETROIT, LLC
as Co-Borrower
The Lenders, and Co-Documentation Agents and Co-Syndication Agents herein named
and
BANK OF AMERICA, N.A.
as Administrative Agent
---------------------------------------
BANC OF AMERICA SECURITIES LLC
and
J.P. MORGAN SECURITIES INC.
Joint Lead Arrangers and Joint Book Managers
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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............................................................................ 26
1.3 Accounting Terms - Fiscal Periods............................................................... 26
1.4 Rounding........................................................................................ 27
1.5 Exhibits and Schedules.......................................................................... 27
1.6 Miscellaneous Terms............................................................................. 27
1.7 Letter of Credit Amounts........................................................................ 27
ARTICLE 2 LOANS AND LETTERS OF CREDIT............................................................................. 28
2.1 Committed Loans-General......................................................................... 28
2.2 Base Rate Loans................................................................................. 29
2.3 LIBOR Loans..................................................................................... 30
2.4 Letters of Credit............................................................................... 30
2.5 Competitive Advances............................................................................ 36
2.6 Swing Line...................................................................................... 39
2.7 Co-Borrowers.................................................................................... 40
2.8 Mandatory Reductions of the Term Commitment..................................................... 41
2.9 Voluntary Reduction of the Commitments.......................................................... 41
2.10 Optional Termination of Commitments............................................................. 41
2.11 Administrative Agent's Right to Assume Funds Available for Advances............................. 41
2.12 Release and Reattachment of Collateral.......................................................... 42
2.13 Senior Indebtedness............................................................................. 43
2.14 Collateral...................................................................................... 43
ARTICLE 3 PAYMENTS AND FEES....................................................................................... 44
3.1 Principal and Interest.......................................................................... 44
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3.2 Joint Lead Arranger's Fees...................................................................... 45
3.3 Upfront Fees.................................................................................... 45
3.4 Unused Fees..................................................................................... 45
3.5 Letter of Credit Fees........................................................................... 45
3.6 Agency Fees..................................................................................... 46
3.7 Increased Commitment Costs...................................................................... 46
3.8 LIBOR Costs and Related Matters................................................................. 47
3.9 Late Payments................................................................................... 50
3.10 Computation of Interest and Fees................................................................ 50
3.11 Non-Business Days............................................................................... 50
3.12 Manner and Treatment of Payments................................................................ 50
3.13 Funding Sources................................................................................. 51
3.14 Failure to Charge Not Subsequent Waiver......................................................... 52
3.15 Administrative Agent's Right to Assume Payments Will be Made.................................... 52
3.16 Fee Determination Detail........................................................................ 52
3.17 Survivability................................................................................... 52
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.......................................................................... 54
4.1 Existence and Qualification; Power; Compliance With Laws........................................ 54
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.......... 54
4.3 No Governmental Approvals Required.............................................................. 55
4.4 Subsidiaries.................................................................................... 55
4.5 Financial Statements............................................................................ 55
4.6 No Other Liabilities; No Material Adverse Changes............................................... 56
4.7 Title to Property............................................................................... 56
4.8 Public Utility Holding Company Act.............................................................. 56
4.9 Litigation...................................................................................... 56
4.10 Binding Obligations............................................................................. 56
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4.11 No Default...................................................................................... 56
4.12 ERISA........................................................................................... 56
4.13 Regulations T, U and X; Investment Company Act.................................................. 57
4.14 Disclosure...................................................................................... 57
4.15 Tax Liability................................................................................... 57
4.16 Projections..................................................................................... 57
4.17 Hazardous Materials............................................................................. 57
4.18 Tax Shelter Regulations......................................................................... 57
ARTICLE 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)............................... 59
5.1 Preservation of Existence....................................................................... 59
5.2 Maintenance of Properties....................................................................... 59
5.3 Maintenance of Insurance........................................................................ 59
5.4 Compliance With Laws............................................................................ 59
5.5 Inspection Rights............................................................................... 59
5.6 Keeping of Records and Books of Account......................................................... 60
5.7 Use of Proceeds................................................................................. 60
5.8 New Restricted Subsidiaries..................................................................... 60
ARTICLE 6 NEGATIVE COVENANTS...................................................................................... 61
6.1 Payment of Subordinated Obligations............................................................. 61
6.2 Disposition of Property......................................................................... 61
6.3 Mergers......................................................................................... 61
6.4 Hostile Acquisitions............................................................................ 62
6.5 Change in Nature of Business.................................................................... 62
6.6 Liens and Negative Pledges...................................................................... 62
6.7 Leverage Ratio.................................................................................. 63
6.8 Interest Charge Coverage Ratio.................................................................. 63
6.9 Investments in Insurance Subsidiary............................................................. 63
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ARTICLE 7 INFORMATION AND REPORTING REQUIREMENTS.................................................................. 64
7.1 Financial and Business Information.............................................................. 64
7.2 Compliance Certificates......................................................................... 65
ARTICLE 8 CONDITIONS.............................................................................................. 67
8.1 Initial Advances on the Closing Date............................................................ 67
8.2 Any Increasing Advance.......................................................................... 68
8.3 Any Letter of Credit............................................................................ 69
ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT.................................................... 70
9.1 Events of Default............................................................................... 70
9.2 Remedies Upon Event of Default.................................................................. 72
ARTICLE 10 THE ADMINISTRATIVE AGENT............................................................................... 74
10.1 Appointment and Authorization of Administrative Agent........................................... 74
10.2 Delegation of Duties............................................................................ 74
10.3 Liability of Administrative Agent............................................................... 74
10.4 Reliance by Administrative Agent................................................................ 75
10.5 Notice of Default............................................................................... 75
10.6 Credit Decision; Disclosure of Information by Administrative Agent.............................. 75
10.7 Indemnification of Administrative Agent......................................................... 76
10.8 Administrative Agent in its Individual Capacity................................................. 76
10.9 Successor Administrative Agent.................................................................. 76
10.10 Administrative Agent May File Proofs of Claim................................................... 77
10.11 Other Agents; Arrangers and Managers............................................................ 78
10.12 Proportionate Interest in any Collateral........................................................ 78
10.13 Foreclosure on Collateral....................................................................... 78
10.14 Intercreditor Arrangements; Attornment Agreements............................................... 78
10.15 No Obligations of Borrower and the Co-Borrowers................................................. 79
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ARTICLE 11 MISCELLANEOUS.......................................................................................... 80
11.1 Cumulative Remedies; No Waiver.................................................................. 80
11.2 Amendments; Consents............................................................................ 80
11.3 Attorney Costs, Expenses and Taxes.............................................................. 81
11.4 Nature of Lenders' Obligations.................................................................. 82
11.5 Survival of Representations and Warranties...................................................... 82
11.6 Notices......................................................................................... 82
11.7 Execution of Loan Documents..................................................................... 84
11.8 Binding Effect; Assignment...................................................................... 84
11.9 Right of Setoff................................................................................. 87
11.10 Sharing of Setoffs.............................................................................. 87
11.11 Indemnification by Borrower and the Co-Borrowers................................................ 88
11.12 Nonliability of the Lenders..................................................................... 88
11.13 No Third Parties Benefited...................................................................... 89
11.14 Confidentiality................................................................................. 89
11.15 Further Assurances.............................................................................. 90
11.16 Integration..................................................................................... 90
11.17 Governing Law................................................................................... 90
11.18 Severability of Provisions...................................................................... 90
11.19 Headings........................................................................................ 90
11.20 Time of the Essence............................................................................. 90
11.21 Foreign Lenders and Participants................................................................ 90
11.22 Hazardous Material Indemnity.................................................................... 92
11.23 Gaming Boards................................................................................... 93
11.24 Lien Releases................................................................................... 93
11.25 Termination; Release of Liens................................................................... 93
11.26 Removal of a Lender............................................................................. 93
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11.27 Joint and Several............................................................................... 94
11.28 Non-Involvement of Tracinda..................................................................... 94
11.29 Pledged Stock in Gaming Companies............................................................... 94
11.30 Payments Set Aside.............................................................................. 95
11.31 Waiver of Right to Trial by Jury................................................................ 95
11.32 Purported Oral Amendments....................................................................... 95
Exhibits
A - Assignment Agreement
B - Assumption Agreement
C - Committed Revolving Note
D - Competitive Bid
E - Competitive Bid Request
F - Competitive Revolving Note
G - Compliance Certificate
H - Pricing Certificate
I - Request for Loan
J - Term Note
K - Joint Borrower Provisions
Schedules
1.1 Theme Park Property
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens and Negative Pledges
11.6 Notice Addresses
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THIRD AMENDED AND RESTATED LOAN AGREEMENT
Dated as of November 24, 2003
This Third Amended and Restated Loan Agreement ("Agreement") is entered
into by and among MGM MIRAGE, a Delaware corporation formerly known as MGM
Grand, Inc. ("Borrower") and MGM Grand Detroit, LLC, a Delaware limited
liability company ("Detroit"), as initial Co-Borrower, each Guarantor which may
hereafter be designated as an additional Co-Borrower pursuant to Section 2.7,
each lender whose name is set forth on the signature pages of this Agreement and
each lender which may hereafter become a party to this Agreement pursuant to
Section 11.8 (collectively, the "Lenders" and individually, a "Lender"),
Deutsche Bank Trust Company Americas and JPMorgan Chase Bank, as Co-Syndication
Agents, Citicorp USA, Inc. and Wells Fargo Bank, N.A., as Co-Documentation
Agents, and Bank of America, N.A., as Administrative Agent. Borrower, Detroit
and each Co-Borrower which hereafter becomes a Party hereto pursuant to Section
2.7, the Administrative Agent and the other Creditors, covenant and agree with
reference to the following facts:
A. Borrower, MGM Grand Atlantic City, Inc., a New Jersey
corporation ("Atlantic City") and Detroit have previously entered into the
Existing Multi-Year Agreement and the Existing Short Term Agreement described
herein.
B. Effective on the Closing Date, Borrower, Detroit (as a
Co-Borrower), the Administrative Agent and the Lenders desire to amend and
restate the Existing Multi-Year Agreement in its entirety by this Agreement, and
to provide, inter alia (and subject to the terms and conditions set forth
herein), for an increase in the amount of the credit facilities provided by the
Existing Multi-Year Agreement, an extension of the maturity thereof and
revisions to the covenants of Borrower set forth therein.
C. Atlantic City shall no longer be a Co-Borrower under this
Agreement, and by its execution of the Subsidiary Guaranty, consents to the
amendment and restatement of the Existing Multi-Year Agreement as set forth
herein without its being a Co-Borrower.
D. Effective on the Closing Date, the Existing Short Term
Agreement shall be terminated.
E. While not parties hereto, Banc of America Securities LLC and
J.P. Morgan Securities Inc. have served as Joint Lead Arrangers and Joint Book
Managers for the credit facilities described herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, Borrower, Detroit, each Co-Borrower
which hereafter becomes a Party hereto pursuant to Section 2.7, and each of the
Creditors, hereby amend and restate the Existing Multi-Year Agreement as of the
Closing Date, and 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:
"Absolute Rate Bid" means a Competitive Bid to provide
Competitive Advances on the basis of a fixed interest rate.
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"Acquisition" means any transaction, or any series of related
transactions, by which Borrower or its Restricted 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 majority
ownership interest in any partnership, joint venture, limited liability
company or any other Person.
"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 Schedule 11.6, or such other address as
the Administrative Agent hereafter may designate by written notice to
Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender
to Borrower or any Co-Borrower as provided in Article 2, and includes
each Base Rate Advance, LIBOR Advance, Committed Advance, Competitive
Advance and Swing Line 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.
"Agent-Related Persons" means the Administrative Agent,
together with its Affiliates (including, in the case of Bank of America
in its capacity as the Administrative Agent and as a Joint Lead
Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this Third Amended and Restated Loan
Agreement, either as originally executed, or as it may from time to
time be supplemented, modified, amended, restated or extended.
"Applicable Leverage Ratio" means, as of each date of
determination, the Leverage Ratio in effect as of the last day of the
Fiscal Quarter ending approximately 45 days prior to the first day of
the Pricing Period in which the date of determination occurs.
"Applicable Rates" means, as of any date of determination, the
following percentages per annum, based upon the Pricing Level on that
date:
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LIBOR BASE RATE UNUSED FEE STANDBY LETTER OF
PRICING LEVEL MARGIN MARGIN RATE CREDIT FEE
------------------------------------------------------------------------
I 1.000% 0.000% 0.200% 1.000%
II 1.250% 0.250% 0.250% 1.250%
III 1.500% 0.500% 0.250% 1.500%
IV 1.625% 0.625% 0.300% 1.625%
V 1.750% 0.750% 0.300% 1.750%
"Assignment and Assumption" means an Assignment Agreement
substantially in the form of Exhibit A.
"Assumption Agreement" means each Assumption Agreement
hereafter executed by a Co-Borrower pursuant to Section 2.7,
substantially in the form of Exhibit B either as originally executed or
as the same may from time to time be supplemented, modified, amended,
renewed, extended or supplanted.
"Atlantic City" means MGM Grand Atlantic City, Inc., a New
Jersey corporation, its successors and permitted assigns.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
expenses and disbursements of internal counsel.
"Average Quarterly Funded Debt" means, as of the last day of
each Fiscal Quarter, the average of the principal amount of Funded Debt
outstanding on the last day of each of the three calendar months
comprising such Fiscal Quarter, provided that if any Material
Transaction occurs during the relevant Fiscal Quarter, Average
Quarterly Funded Debt shall be adjusted on a pro forma basis (a) in the
case of any Material Transaction which is a Disposition, to exclude
Funded Debt in an amount equal to the consideration received by
Borrower and its Restricted Subsidiaries in the form of Cash and Cash
Equivalents in connection with such Disposition from each of the
constituent calendar months ending prior to the receipt of such
consideration, and (b) in the case of any Material Transaction which is
an Acquisition, to increase Funded Debt for each of the constituent
calendar months ending prior to the payment of such consideration by
the amount of the consideration paid by Borrower and its Restricted
Subsidiaries in Cash and Cash Equivalents in connection with such
Acquisition.
"Bank of America" means Bank of America, N.A., its successors
and assigns.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and
(b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate." The "prime
rate" 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 such 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.
"Base Rate Advance" means an Advance made hereunder and
specified to be a Base Rate Advance in accordance with Article 2.
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"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 the applicable per annum percentage
set forth in the definition of "Applicable Rates".
"Borrower" means MGM MIRAGE, a Delaware corporation, its
successors and permitted assigns.
"Borrower Group EBITDA" means, for any fiscal period, the
EBITDA of Borrower and its Restricted Subsidiaries for that fiscal
period.
"Business Day" and "Banking Day" mean any day other than a
Saturday, Sunday or other day on which commercial banks are authorized
to close under the Laws of, or are in fact closed in the State of New
York or the state where the Administrative Agent's Office is located
and, if such day relates to any LIBOR Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the
London interbank Eurodollar Market.
"Capital Expenditure" means any expenditure for or related to
fixed assets or purchased intangibles that is treated as a capital
expenditure under GAAP, 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 GAAP, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with GAAP, 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
Bank 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
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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;
(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.
"Cash Flow" means, for any period, and without duplication,
the sum of (a) Borrower Group EBITDA for that period, plus (b) Other
Available EBITDA for that period, plus (c) New Project Annualized
EBITDA, provided that if any Material Transaction occurs during that
period, Cash Flow shall be adjusted on a pro forma basis (i) in the
case of any Material Transaction which is a Disposition, to exclude for
the entire period the results of operation of any Person or assets
which are the subject of such Disposition, and (ii) in the case of any
Material Transaction which is an Acquisition, to include for the entire
period the results of operation of any Person or assets which are the
subject of such Acquisition.
"Cash Interest Charges" means, for any period, that portion of
Interest Charges of Borrower and its Restricted Subsidiaries which are
paid or currently payable in Cash during that period excluding
intercompany accounts, provided that if any Material Transaction occurs
during that period, Cash Interest Charges shall be adjusted on a pro
forma basis (a) in the case of any
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Material Transaction which is a Disposition, to exclude Interest
Charges associated with Funded Debt in an amount equal to the
consideration received by Borrower and its Restricted Subsidiaries in
the form of cash and Cash Equivalents in connection with such
Disposition, and (b) in the case of any Material Transaction which is
an Acquisition, to increase Interest Charges by the amount of Interest
Charges which would be associated with Funded Debt in an amount equal
to the consideration paid by Borrower and its Restricted Subsidiaries
in the form of cash and Cash Equivalents in connection with such
Acquisition (in each case, for that portion of the period occurring
prior to the receipt of such consideration, and at an interest rate
which is equal, as of the time of calculation, to the rate of interest
associated with LIBOR Loans under this Agreement).
"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 Borrower or (b) during any period of 24
consecutive months, individuals who at the beginning of such period
constituted the board of directors of Borrower (together with any new
or replacement directors 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,
provided, however, that no Change in Control shall exist 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
Borrower and no other Person is the owner of more of the common stock
of Borrower 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 Creditors of the
date that is the Closing Date.
"Co-Borrowers" means, collectively, Detroit and each other
Guarantor which is hereafter designated as a Co-Borrower pursuant to
Section 2.7.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Co-Documentation Agents" and "Co-Syndication Agents" means
the Persons identified in the preamble to this Agreement as such.
"Collateral Agent" means U.S. Bank, National Association, or
any successor Collateral Agent under the Intercreditor Agreement.
"Collateral Documents" means each mortgage, deed of trust,
ship mortgage, aircraft chattel mortgage, pledge agreement, security
agreement or other instrument, document or agreement now or hereafter
executed pursuant to the Intercreditor Agreement or otherwise to secure
the Obligations or any of the Qualified Obligations.
"Collateral Event" means any event or circumstance which
entitles the holders of any class of Senior Indebtedness of the
Borrower and its Restricted Subsidiaries to receive the benefit of
Liens on all or any part of the Property of the Borrower or its
Restricted Subsidiaries, which Liens would be prohibited hereunder but
for the provisions of Section 6.6(g).
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"Collateral Release" has the meaning set forth for that term
in Section 2.12.
"Commercial Letter of Credit" means each Letter of Credit
issued to support the purchase of goods by Borrower or any Co-Borrower
which is determined to be a commercial letter of credit by the Issuing
Lender.
"Commitments" means, collectively, the Revolving Commitment
and the Term Commitment.
"Committed Advances" means an Advance by a Lender as a ratable
part of a Committed Loan pursuant to such Lender's Pro Rata Share of
the applicable Commitment.
"Committed Loan" means a Loan consisting of ratable Advances
by the Lenders pursuant to their respective Pro Rata Shares of the
relevant Commitment.
"Committed Revolving Note" means each promissory note made by
Borrower and each Co-Borrower to a Lender evidencing the Advances made
by that Lender under its Pro Rata Share of the Revolving 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.
"Competitive Advance" means an Advance made to Borrower or any
Co-Borrower under the Revolving Commitment by any Lender not determined
by that Lender's Pro Rata Share of the Revolving Commitment pursuant to
Section 2.5.
"Competitive Bid" means (a) a written bid to provide a
Competitive Advance substantially in the form of Exhibit D, signed by a
Responsible Official of a Lender and properly completed to provide all
information required to be included therein or (b) at the election of
any Lender, a telephonic bid by that Lender to provide a Competitive
Advance which, if so made, shall be made by a Responsible Official of
that Lender and deemed to have been made incorporating the substance of
Exhibit D, and shall promptly be confirmed by a written Competitive
Bid.
"Competitive Bid Request" means (a) a written request
submitted by Borrower or any Co-Borrower to the Administrative Agent to
provide a Competitive Bid, substantially in the form of Exhibit E,
signed by a Responsible Official of Borrower and any relevant
Co-Borrower and properly completed to provide all information required
to be included therein or (b) at the election of Borrower, a telephonic
request by Borrower to the Administrative Agent to provide a
Competitive Bid which, if so made, shall be made by a Responsible
Official of Borrower and deemed to have been made incorporating the
substance of Exhibit E, and shall promptly be confirmed by a written
Competitive Bid Request.
"Competitive Revolving Note" means each promissory note made
by Borrower and each Co-Borrower to a Lender evidencing the Competitive
Advances made under the Revolving Commitment by that Lender,
substantially in the form of Exhibit F, either as originally executed
or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit G, properly completed and signed by a Senior
Officer of Borrower and each Co-Borrower.
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"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, the Swing Line Lender, each Lender and, where the
context requires, any one or more of them.
"Debt Rating" means, as of any date of determination, the
credit rating assigned to the credit facilities provided hereunder
whether senior secured or senior unsecured (or, if the facilities
hereunder are not rated, the corporate rating assigned to Borrower's
most senior indebtedness), by a nationally recognized credit reporting
agency selected by the Borrower, reasonably approved by the
Administrative Agent, and not objected to by the Requisite Lenders
within five Business Days following notice of such designation).
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"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.
"Defaulting Lender" means any Lender that (a) has failed to
fund any portion of the Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by
it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to
be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Deposit Account" means separate accounts located at Bank of
America as to Borrower and each Co-Borrower designated by Borrower or
such Co-Borrower with the reasonable approval of the Administrative
Agent.
"Designated Market" means, with respect to any LIBOR Loan, (a)
the London Eurodollar Market, (b) if prime banks in the London
Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that
the London Eurodollar Market does not represent at the relevant time
the effective pricing to the Lenders for deposits of Dollars in the
London Eurodollar Market, the Cayman Islands Eurodollar Market or (c)
if prime banks in the Cayman Islands Eurodollar Market are at the
relevant time not accepting deposits of Dollars or if the
Administrative Agent determines in good faith that the Cayman Islands
Eurodollar Market does not represent at the relevant time the effective
pricing to the Lenders for deposits of Dollars in the Cayman Islands
Eurodollar Market, such other Eurodollar Market as may from time to
time be selected by the Administrative Agent with the approval of
Borrower, the Co-Borrowers and the Requisite Lenders. The
Administrative Agent will endeavor to provide prompt notice to Borrower
and the Co-Borrowers of any change in the location of the Designated
Market.
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"Detroit" means MGM Grand Detroit, LLC, a Delaware limited
liability company, it successors and permitted assigns.
"Disposition" means the voluntary sale, transfer or other
disposition, in one transaction or any series of related transactions,
of any asset.
"Disqualification" means, with respect to any Creditor or any
holder of Subordinated Obligations:
(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 a Co-Borrower or
(ii) any required application or other papers in connection with
determination of the suitability of that Person as a lender to Borrower
or a Co-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 or a Co-Borrower, (ii) that such Person shall
be "disqualified" as a lender to Borrower or a Co-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 or any
Co-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 and, without duplication, any loss associated with the early
retirement of Indebtedness, 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) plus (f) depreciation, amortization and all
non-recurring and/or other non-cash expenses to the extent deducted in
arriving at Net Income for that period, plus (g) expenses classified as
"pre-opening and start-up expenses" on the applicable financial
statements of that Person for that fiscal period, plus (h) minority
interest, in each case as determined in accordance with GAAP.
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"Eligible Assignee" means (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender having combined capital and
surplus of $100,000,000 or more, (c) any commercial bank having a
combined capital and surplus of $100,000,000 or more, (d) any insurance
company engaged in the business of writing insurance which (i) has a
net worth of $200,000,000 or more, (ii) is engaged in the business of
lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement and (iii)
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 $100,000,000 or more which meets the
requirements set forth in subclauses (ii) and (iii) of clause (d)
above; provided that 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, (ii)
be exempt from withholding of tax on interest and deliver the documents
related thereto pursuant to Section 11.21, and (iii) to the extent
required under applicable Gaming Laws, each Eligible Assignee must not
be the subject of a Disqualification.
"Enhanced LIBOR Margin" means, for any period, the sum of (i)
the LIBOR Margin then in effect plus (ii) such interest rate margin as
the Requisite Lenders specify is necessary to adjust LIBOR to a rate
which represents the effective pricing to such Lenders for deposits of
Dollars in the Designated Market in the relevant amount for the
applicable Interest Period and which adequately and fairly reflects the
cost to such Lenders of making the applicable LIBOR 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.
"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.
"Event of Default" shall have the meaning provided in Section
9.1.
"Existing Letters of Credit" means the letters of credit
issued under the Existing Multi-Year Agreement and outstanding as of
the Closing Date.
"Existing Multi-Year Agreement" means the Second Amended and
Restated Loan Agreement dated as of April 10, 2000 among Borrower, the
lenders referred to therein, and the Administrative Agent, as amended,
to which Atlantic City and Detroit are parties as additional
Co-Borrowers, as heretofore amended.
"Existing Short Term Agreement" means the Third Amended and
Restated 364-Day Loan Agreement dated as of April 4, 2003 among
Borrower, the lenders referred to therein, and the Administrative
Agent, as amended, to which Atlantic City and Detroit are parties as
additional Co-Borrowers.
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"Existing Subordinated Obligations" means, collectively, (a)
the Borrower's $710,000,000 of 9 3/4 % senior subordinated notes due
2007, issued pursuant to the Indenture dated as of May 31, 2000 between
the Borrower and The Bank of New York, as Trustee, and (b) the
Borrower' $400,000,000 of 8 3/8% senior subordinated notes due 2011
issued pursuant to the Indenture dated as of January 23, 2001 between
the Borrower and United States Trust Company of New York, as Trustee.
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transactions as determined by the
Administrative Agent.
"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.
"Foreign Lender" has the meaning specified in Section
11.21(a)(1).
"Funded Debt" means, as of any date of determination, the sum
(without duplication) of (a) all principal Indebtedness of Borrower and
its Restricted Subsidiaries for borrowed money (including debt
securities issued by Borrower or any of its Restricted Subsidiaries) 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 Borrower and its Restricted Subsidiaries
on that date, plus (c) all Guaranty Obligations issued by Borrower and
its Restricted Subsidiaries, provided that the amount of any Guaranty
Obligation or letter of credit shall be deemed to be zero unless and
until (i) in the case of Guaranty Obligations in respect of letters of
credit, a drawing is made with respect thereto, and (ii) in the case of
any other Guaranty Obligations, demand for payment is made with respect
thereto.
"GAAP" 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
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.
"Gaming Board" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the New
Jersey Casino Control Commission, (d) the New Jersey Division of Gaming
Enforcement, (e) the Mississippi Gaming Commission, (f) the
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Michigan Gaming Control Board, and (g) any other Governmental Agency
(including Governmental Agencies associated with foreign governments)
that holds regulatory, licensing or permit authority over gambling,
gaming or casino activities conducted by Borrower, any Co-Borrower or
any Restricted Subsidiary within its jurisdiction.
"Gaming Laws" means all 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, in each case to the extent
applicable to Borrower and its Restricted Subsidiaries.
"Golden Nugget Properties" means, collectively (i) the shares
of the capital stock of GNLV, Corp., GNL, Corp. and the membership
interests in Golden Nugget Experience, LLC, (ii) the Golden Nugget
Hotel and Casino in Las Vegas, Nevada, the Golden Nugget Hotel and
Casino in Laughlin, Nevada, and the Nevada Club Inn in Bullhead City,
Arizona, and (iii) all Property used in connection with the operation
of the businesses associated therewith.
"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.
"Guarantors" means, collectively, each Restricted Subsidiary
of Borrower which exists as of the Closing Date, and each other
Restricted Subsidiary of Borrower which hereafter becomes a Guarantor
pursuant to Section 5.8, provided that any Guarantor which is sold or
otherwise transferred in a Disposition permitted by Section 6.2 may be
released from the Guaranty in accordance with Section 11.2(d)(iii).
"Guaranty" means each of the continuing guaranties of the
Obligations (or, in the case of Detroit, of the portion of the
Obligations which are actually borrowed or received by Detroit)
executed and delivered by the Guarantors on the Closing Date,
substantially in the form of the Subsidiary Guaranty executed in
connection with the Existing Multi-Year Agreement.
"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.
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"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.
"Indemnified Liabilities" has the meaning set forth in Section
11.11.
"Indemnitees" has the meaning set forth in Section 11.11.
"Insurance Subsidiary" means MGMM Insurance Company, a Vermont
corporation, which is a captive insurance company approved by the
Vermont Department of Banking, Insurance, Securities and Health Care
Administration engaging solely in the business of facilitating and
providing insurance coverage and claims services for Borrower,
Co-Borrowers or the Subsidiaries.
"Intercreditor Agreement" means the Collateral Agent and
Intercreditor Agreement dated as of February 13, 2002, among U.S. Bank,
National Association, as Collateral Agent; Borrower, Mirage; the
Restricted Subsidiaries referred to therein, and Bank of America, N.A.,
as Administrative Agent and each of the other Creditor Representatives
referred to therein, including any subsequent joinders thereto by which
additional Creditor Representatives or Restricted Subsidiaries become
party thereto, and as the same may be amended from time to time.
"Interest Charge Coverage Ratio" means, as of the last day of
each Fiscal Quarter, the ratio of (a) Cash Flow for the period of four
Fiscal Quarters ending on that date, to (b) Cash Interest Charges of
Borrower and its Restricted Subsidiaries for the same period.
"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 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 GAAP, 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.
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"Interest Differential" means, with respect to any prepayment
of a LIBOR Loan on a day other than the last day of the applicable
Interest Period and with respect to any failure to borrow a LIBOR Loan
on the date or in the amount specified in any Request for Loan, (a)
LIBOR payable (or, with respect to a failure to borrow, LIBOR which
would have been payable) with respect to the LIBOR Loan minus (b) LIBOR
on, or as near as practicable to, the date of the prepayment or failure
to borrow for a LIBOR Loan with an Interest Period commencing on such
date and ending on the last day of the Interest Period of the LIBOR
Loan so prepaid or which would have been borrowed on such date.
"Interest Period" means, as to each LIBOR Loan, a period of
one week, or of 1, 2, 3, 6 or 9 months (or, with the written consent of
all of the Lenders, any other period) as designated by Borrower;
provided that (a) the first day of each Interest Period must be a
Business Day, (b) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day, unless such Business Day falls in the next calendar
month, in which case the Interest Period shall end on the next
preceding Business Day, and (c) no Interest Period may extend beyond
the Maturity Date.
"Investment" means, when used in connection with any Person,
any investment by or of that Person, whether by means of purchase or
other acquisition of stock or other securities of any other Person or
by means of a loan, advance creating a debt, capital contribution,
guaranty or other debt or equity participation or interest in any other
Person, including any partnership and joint venture interests of such
Person. The amount of any Investment shall be the amount actually
invested (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.
"Investment Grade" means that the Debt Rating assigned is a
rating which, as reasonably determined by the Administrative Agent,
would be the lowest rating granted by the relevant credit rating agency
which is generally treated as "investment grade" in the ratings regime
of that credit rating agency.
"Issuing Lender" means Bank of America, N.A.
"Joint Lead Arrangers" means Banc of America Securities LLC
and J. P. Morgan Securities, Inc. in their capacities as joint lead
arrangers and joint book managers of the credit facilities described
herein.
"L/C Advance" means, with respect to each Lender, such
Lender's funding of its participation in any L/C Borrowing in
accordance with its Pro Rata Share of the Revolving Commitment.
"L/C Borrowing" means an extension of credit resulting from a
drawing under a Letter of Credit which has not been reimbursed on the
date when made or refinanced as a Loan.
"L/C Obligations" means, as at any date of determination, the
aggregate undrawn amount of all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
"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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"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 Related Swap Agreement, any Affiliate of a Lender).
Each reference to a "Bank" or "Banks" in any Loan Document or
Collateral Document shall be deemed to be a reference to the Lenders.
"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such in such Lender's
Administrative Questionnaire, or such other office or offices as a
Lender may from time to time notify Borrower and the Administrative
Agent.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit in the
form from time to time in use by the Issuing Lender.
"Letter of Credit Expiration Date" means the day that is seven
days prior to the Maturity Date then in effect (or, if such day is not
a Business Day, the next preceding Business Day).
"Letter of Credit Usage" means, as of any date of
determination, the aggregate undrawn face amount of outstanding Letters
of Credit plus the aggregate amount of all Unreimbursed Amounts,
including all L/C Borrowings.
"Letters of Credit" means any of the Standby Letters of Credit
or Commercial Letters of Credit issued by the Issuing Lender under the
Revolving Commitment pursuant to Section 2.4, including the Existing
Letters of Credit, either as originally issued or as the same may be
supplemented, modified, amended, renewed, extended or supplanted.
"Leverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) Average Quarterly Funded Debt as of that date
to (b) Cash Flow for the four Fiscal Quarter period then ended.
"LIBOR" means for any Interest Period with respect to any
LIBOR Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
LIBOR = LIBO Base Rate
-------------------------
1.00 - Reserve Percentage
Where, "LIBO Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that
appears on the page of the Telerate screen (or any
successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00
a.m. (London time) 2 Business Days prior to the first
day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a)
does not appear on such page or service or such page
or service shall not be available, the rate per annum
equal to the rate determined by the Administrative
Agent to be the offered rate on such other page or
other service that displays an average British
Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of
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such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00
a.m. (London time) 2 Business Days prior to the first
day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum
determined by the Administrative Agent as the rate of
interest at which deposits in Dollars for delivery on
the first day of such Interest Period in same day
funds in the approximate amount of the LIBOR Loan
being made, continued or converted by Bank of America
and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch
to major banks in the London interbank eurodollar
market at their request at approximately 4:00 p.m.
(London time) 2 Business Days prior to the first day
of such Interest Period.
"LIBOR Advance" means an Advance made hereunder and specified
to be a LIBOR Advance in accordance with Article 2.
"LIBOR Lending Office" means, as to each Lender, its office or
branch so designated by written notice to Borrower and the
Administrative Agent as its LIBOR Lending Office. If no LIBOR Lending
Office is designated by a Lender, its LIBOR Lending Office shall be its
office at its address for purposes of notices hereunder.
"LIBOR Loan" means a Loan made hereunder and specified to be a
LIBOR Loan in accordance with Article 2.
"LIBOR Margin" means the applicable per annum percentage set
forth in the definition of "Applicable Rates".
"LIBOR Margin Bid" means a Competitive Bid to provide a
Competitive Advance on the basis of a margin over the LIBOR.
"License Revocation" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, supervisor or similar
official with respect to, any casino, gambling or gaming license issued
by any Gaming Board covering any casino or gaming facility.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance
or lien 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 Swing Line Documents, the Guaranty, each Request for Loan,
each Competitive Bid Request, each Letter of Credit Application, each
Pricing Certificate, each Compliance Certificate, any Related Swap
Agreement and any other agreements of any type or nature hereafter
executed and delivered by
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Borrower or any of its Restricted Subsidiaries to the Administrative
Agent or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same
may from time to time be supplemented, modified, amended, restated,
extended or supplanted.
"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) is or could reasonably be expected to be
material and adverse to the condition or prospects (financial or
otherwise), assets, business or operations of Borrower and its
Restricted Subsidiaries, taken as a whole, or (c) materially impairs or
could reasonably be expected to materially impair the ability of
Borrower or Guarantors (taken as a whole) to perform the Obligations.
"Material Transaction" means (a) each Acquisition made by the
Borrower or any of its Restricted Subsidiaries following the Closing
Date pursuant to which the aggregate consideration paid by the Borrower
and its Restricted Subsidiaries (whether in Cash or other Property, or
by means of the assumption of any liabilities) is in excess of
$250,000,000, and (b) each Disposition made by the Borrower or any of
its Restricted Subsidiaries following the Closing Date pursuant to
which the aggregate consideration received by the Borrower and its
Restricted Subsidiaries (whether in Cash or other Property, or by means
of the assumption of any liabilities) is in excess of $250,000,000.
"Maturity Date" means November 24, 2008.
"Maximum Competitive Advance" means, with respect to any
Competitive Bid made by a Lender, the amount set forth therein as the
maximum Competitive Advance which that Lender is willing to make in
response to the related Competitive Bid Request.
"Maximum Competitive Outstandings Amount" means, as of each
date of determination, one half of the then effective amount of the
Revolving Commitment.
"MGM Grand Detroit II" means MGM Grand Detroit II, LLC, a
Delaware limited liability company, and its successors.
"Mirage" means Mirage Resorts, Incorporated, a Nevada
corporation.
"Moody's" means Moody's Investors Service, Inc., and any
successor thereto.
"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 Restricted 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 6.6 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.
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"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
GAAP, consistently applied.
"New Project" means each free-standing hotel, casino or other
development commenced by Borrower and its Restricted Subsidiaries
following the Closing Date having an aggregate construction budget in
excess of $250,000,000.
"New Project Annualized EBITDA" means, as of each date of
determination which occurs during the one year period following the
opening of any New Project for business, the EBITDA associated with
that New Project for the fiscal period following such opening,
annualized on the following basis:
(a) where the period from the opening is less than one full
Fiscal Quarter, such EBITDA times four; and
(b) where the period from the opening is one full Fiscal
Quarter or more, such EBITDA annualized on a straight-line basis.
"New York" means New York-New York Hotel & Casino LLC, a
Nevada limited liability company, its successors and permitted assigns.
"Notes" means, collectively, the Competitive Revolving Notes,
the Committed Revolving Notes and the Term Notes.
"Obligations" means all present and future obligations of
every kind or nature of Borrower, the Co-Borrowers or the Guarantors at
any time and from time to time owed to the Administrative Agent, the
Issuing Lender, the Swing Line 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.
"Opinions" means the favorable written legal opinions of (a)
Christensen, Miller, Fink, Jacobs, Glaser, Weil and Shapiro, LLP,
counsel to Borrower, (b) Lionel Sawyer & Collins, Nevada counsel to
Borrower, (c) Sterns & Weinroth, a professional corporation, New Jersey
counsel to Borrower, (d) Butler, Snow, et. al., Mississippi counsel to
Borrower, and (e) Dickinson Wright PLLC, Michigan counsel to Borrower,
together with copies of all factual certificates and legal opinions
upon which such counsel has relied.
"Other Available EBITDA" means, for any fiscal period, that
portion of the EBITDA of (a) any Unrestricted Subsidiaries for that
fiscal period, and (b) any other joint venture or other Person in which
Borrower or its Restricted Subsidiaries have any Investment for that
fiscal period, in each case to the extent that the same may be
distributed in Cash to Borrower and its Restricted Subsidiaries during
that fiscal period in accordance with applicable Law and subject to any
Contractual Obligations (including credit documents) which are binding
upon such Unrestricted Subsidiary or Person or their respective
Properties (whether or not so distributed).
"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
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aggregate principal amount of the outstanding Committed Loans, plus
(ii) the aggregate principal amount of the outstanding Competitive
Advances, plus (iii) the Swing Line Outstandings, plus (iv) the Letter
of Credit Usage.
"Party" means any Person other than the Creditors which now or
hereafter is a party to any of the Loan Documents.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, which is subject to Title IV of ERISA and is
maintained by Borrower or any of its Subsidiaries or to which Borrower
or any of its Subsidiaries contributes or has an obligation to
contribute.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction on
or maintenance of 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;
(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;
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(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 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 Restricted
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 Restricted 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 Restricted Subsidiary of Borrower is a party;
(r) Liens created by or resulting from any
litigation or legal proceeding involving Borrower or a Restricted
Subsidiary of Borrower in the ordinary course of its business which is
currently being contested in good faith by appropriate proceedings,
provided that adequate reserves have been set aside by Borrower or the
relevant Restricted Subsidiary 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
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together with all other Liens, materially impair the value or use of
the Property of Borrower and the Restricted Subsidiaries of Borrower,
taken as a whole.
"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.
"Pricing Certificate" means a certificate substantially in the
form of Exhibit H, properly completed and signed by a Senior Officer of
Borrower and each Co-Borrower.
"Pricing Level" means, as of each date of determination, the
pricing level set forth below opposite (a) the Applicable Leverage
Ratio, or (b) at such times when the Debt Rating is Investment Grade or
Superior Investment Grade, the Debt Rating, provided that if the
Applicable Leverage Ratio and the Debt Rating are at different Pricing
Levels, then the Pricing Level which yields the lowest LIBOR Margin
shall apply:
Pricing Level Pricing Criteria
------------- -------------------------------------------------------------------
Leverage Ratio Debt Rating
-------------- -----------
I Less than 3.50 to 1.00 Superior Investment
Grade
II Equal to or greater than 3.50 to 1.00 but Investment Grade
less than 4.00 to 1.00
III Equal to or greater than 4.00 to 1.00 but N/A
less than 4.50 to 1.00
IV Equal to or greater than 4.50 to 1.00 but N/A
less than 5.00 to 1.00
V Equal to or greater than 5.00 to 1.00 N/A
"Pricing Period" means (a) the period commencing on the date
hereof and ending on February 15, 2003, and (b) the subsequent
concurrent quarterly periods of approximately 90 days each commencing
on each May 16, August 16, November 16 and February 16.
"Principal Resort Casino Properties" means The MGM Grand Hotel
and Casino, the Bellagio Hotel and Casino, and the Mirage Hotel and
Casino.
"Pro Rata Share" means, with respect to each Lender, the
percentage of the relevant Commitment, the Loans (except for
Competitive Advances) thereunder (and in the case of the Revolving
Commitment, the Letters of Credit and the Swing Line Advances) held by
that Lender (or by a SPC for which that Lender is the Granting Lender).
As of the Closing Date, each Lender has been informed by the Lead
Arranger of the amount and percentage of its Pro Rata Share of each of
the Commitments. The percentage Pro Rata Shares of each Lender in the
Commitments is subject to adjustment pursuant to any Assignment
Agreement executed in accordance with Section 11.8.
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"Projections" means the financial projections for Borrower and
its Subsidiaries 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.
"Qualified Obligations" means (a) the Indebtedness of the
Borrower and its Restricted Subsidiaries which is now entitled to the
benefits of the collateral security contemplated by the Intercreditor
Agreement, including the Obligations under this Agreement and (b) each
additional class of Indebtedness of Borrower which hereafter is
properly treated as a Qualified Obligation pursuant to the terms of the
Intercreditor Agreement.
"Qualified Subordinated Obligations" means unsecured
Indebtedness of Borrower which (a) have no principal payments which are
due prior to the earlier of (i) the Maturity Date, or (ii) the
scheduled maturity date of any Subordinated Obligations which are,
directly or indirectly, repaid or otherwise retired using the proceeds
of such Indebtedness, (b) are subject to representations, covenants,
defaults and other provisions which are not, taken as a whole, more
burdensome upon Borrower and its Subsidiaries than those set forth in
the Existing Subordinated Obligations, and (c) are subject to
subordination to the Obligations in a manner which is at least as
favorable to the Lenders as the subordination provisions contained in
the Existing Subordinated Obligations.
"Quarterly Payment Date" means the last Business Day of each
December, March, June and September following the Closing Date.
"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 Restricted Subsidiaries.
"Regulations T, U and X" means Regulations T, U and X, as at
any time amended, of the Board of Governors of the Federal Reserve
System, or any other regulations in substance substituted therefor.
"Related Swap Agreement" means a Swap Agreement between
Borrower and a Lender or an Affiliate of a Lender. Each Related Swap
Agreement is a secured "Swap Agreement" as described and defined in the
Intercreditor Agreement and is entitled to the benefits of the Liens
provided in the Collateral Documents.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit I, signed by a Responsible
Official of Borrower or a Co-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 Commitments are then in effect, Lenders having Pro Rata Shares
of the Commitments which are, in the aggregate, a majority of the Pro
Rata Shares of the Commitments then in effect, and (b) as of any date
of determination if the Commitments have then been terminated and there
are then any Obligations
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<PAGE>
outstanding, Lenders or other creditors holding a majority of the
Outstanding Obligations; provided that the Pro Rata Shares of the
Commitments of, and the portion of the Outstanding Obligations held or
deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Requisite Lenders.
"Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable
to any Lender, under regulations issued from time to time by the Board
of Governors of the Federal Reserve System for determining the maximum
reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently
referred to as "eurocurrency liabilities"). LIBOR for each outstanding
LIBOR Loan shall be adjusted automatically as of the effective date of
any change in the Reserve Percentage.
"Responsible Official" means when used with reference to any
Person, 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. 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 Restricted Subsidiaries as having
been authorized by all necessary corporate, limited liability company,
partnership and/or other action on the part of Borrower or such
Restricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary of Borrower
other than:
(a) Subsidiaries formed under the Laws of foreign nations
whose only tangible assets are located in foreign nations, and pure
holding companies for such foreign Subsidiaries owning as their sole
asset the stock or other securities and obligations thereof;
(b) MGM Grand Detroit II and the Insurance Subsidiary; and
(c) any Subsidiary of Borrower formed or acquired after the
date of this Agreement that is designated in writing by Borrower to the
Administrative Agent, but only so long as such Subsidiary of Borrower
does not, and is not required to, guarantee or otherwise be liable for
any of the Senior Indebtedness.
"Revolving Commitment" means, subject to any decrease in the
amount thereof pursuant to Sections 2.9, 2.10 or 11.26, $1,500,000,000.
"Revolving Lender" means each Lender having a Pro Rata Share
of the Revolving Loans, the Letters of Credit, the Swing Line Loans and
the Revolving Commitment.
"Revolving Loans" means the aggregate of the Advances made at
any one time by the Revolving Lenders under the Revolving Commitment.
"S&P" means Standard & Poor's Ratings Services, a division of
McGraw Hill Companies, Inc., and any successor thereto.
"Senior Indebtedness" means, collectively (a) any present or
future Qualified Obligations, and (b) each other issue, item or class
of Indebtedness of the Borrower or any of its Restricted
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Subsidiaries which is in the principal amount of $50,000,000 or more
and which is not a Subordinated Obligation.
"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 Borrower or any
Co-Borrower.
"SPC" means, as to each Lender, one or more special purpose
funding vehicles maintained or established by that Lender.
"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 LIBOR 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
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 the applicable per annum
percentage set forth in the definition of "Applicable Rates".
"Subordinated Obligations" means, collectively, the Existing
Subordinated Obligations and any future class of Indebtedness of
Borrower or any of its Subsidiaries which, by its terms, at any time
purports to be subordinated in right of payment to the Obligations or
any other class of Indebtedness of the Borrower or any of its
Subsidiaries in any manner.
"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.
For the avoidance of doubt, and only by way of example, as of
the Closing Date, (a) Victoria Partners, a Nevada general partnership,
and (b) Marina District Development Holding Co., LLC, a New Jersey
limited liability company, the 100% owner of Marina District
Development Company, LLC, a New Jersey limited liability company doing
business as "The Borgata," are each only 50% owned by Borrower and
therefore are not Subsidiaries of Borrower.
"Superior Investment Grade" means that the Debt Rating
assigned is a rating which, as reasonably determined by the
Administrative Agent, would be a rating which is higher than the
minimum Investment Grade rating in the ratings regime of that credit
rating agency.
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<PAGE>
"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.
"Swing Line" means the revolving line of credit established by
the Swing Line Lender in favor of Borrower and the Co-Borrowers
pursuant to Section 2.6.
"Swing Line Documents" means the promissory note and any other
documents executed by Borrower and each Co-Borrower in favor of the
Swing Line Lender in connection with the Swing Line.
"Swing Line Lender" means Bank of America, acting through its
Las Vegas Commercial Banking Division.
"Swing Line Loans" and "Swing Line Advances" mean loans made
by the Swing Line Lender to Borrower or the Co-Borrowers pursuant to
Section 2.6.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower and the
Co-Borrowers on all Swing Line Loans then outstanding.
"Term Amortization Amount" means, as to each Quarterly Payment
Date, the amount set forth opposite that Quarterly Payment Date in the
matrix set forth below:
Quarterly Payment Dates Term Amortization Amount
----------------------- ------------------------
December 31, 2003 through September None
30, 2004
December 31, 2004 through September None
30, 2005
December 31, 2005 through September $ 5,000,000
30, 2006
December 31, 2006 through September $ 7,500,000
30, 2007
December 31, 2007 through September $37,500,000
30, 2008
"Term Commitment" means subject to any decrease in the amount
thereof pursuant to Sections 2.8, 2.9, 2.10 or 11.26, $1,000,000,000.
"Term Lender" means each Lender having a Pro Rata Share of the
Term Loans and the Term Commitment.
"Term Loans" means the aggregate of the Advances made at any
one time by the Term Lenders under the Term Commitment.
"Term Note" means each promissory note made by Borrower and
each Co-Borrower to a Lender evidencing the Advances made by that
Lender under its Pro Rata Share of the Term
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<PAGE>
Commitment, substantially in the form of Exhibit J, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"Theme Park Property" means the former site of the MGM Grand
Theme Park, consisting of the real property consisting of 18.49 acres
which is shown in crosshatch on Schedule 1.1 hereto, provided that the
Theme Park Property shall not include any portion of the casino or
hotel improvements associated with the MGM Grand Hotel and Casino.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that the
fact or situation described therein is known by the Person (or, in the
case of a Person other than a natural Person, known by a Responsible
Official of that Person) making the representation, warranty or other
statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known
by the Person (or, in the case of a Person other than a natural Person,
would have been known by a Responsible Official of that Person).
"type", when used with respect to any Loan or Advance, means
the designation of whether such Loan or Advance is a Base Rate Loan or
Advance, or a LIBOR Loan or Advance.
"Unreimbursed Amount" has the meaning set forth in Section
2.4(c)(1).
"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 Subsidiary" means each Subsidiary of Borrower
which is not a Restricted Subsidiary.
"Unused Fee" has the meaning set forth in Section 3.4.
"Unused Fee Rate" means the applicable per annum percentage
set forth in the definition of "Applicable Rates".
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, GAAP applied on a consistent
basis, except as otherwise specifically prescribed herein. In the event that
GAAP or Borrower's Fiscal Year or Fiscal Quarters change during the term of this
Agreement such that the covenants contained in Sections 6.7 and 6.8 would then
be calculated for different periods, in a different manner or with different
components, (a) Borrower, the Co-Borrowers 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 GAAP and (b) Borrower and the Co-Borrowers shall be deemed to be in
compliance with the covenants contained in the aforesaid Sections if and to the
extent that Borrower and the Co-Borrowers would have
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been in compliance therewith for the pre-existing fiscal periods and under GAAP
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 GAAP as in effect immediately
prior to such change.
1.4 Rounding. Any financial ratios required to be
maintained by Borrower and the Co-Borrowers 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. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
(b) The words "herein," "hereto," "hereof" and
"hereunder" and words of similar import when used in any Loan Document
shall refer to such Loan Document as a whole and not to any particular
provision thereof.
(c) Article, Section, Exhibit and Schedule
references are to the Loan Document in which such reference appears.
(d) The term "including" is by way of example
and not limitation.
(e) The term "or" is not exclusive.
(f) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in
physical or electronic form.
(g) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including;" the words "to" and "until" each mean "to but
excluding;" and the word "through" means "to and including."
1.7 Letter of Credit Amounts. Unless otherwise specified,
all references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.
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ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 Committed 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 Revolving Lender shall, pro rata according to that Revolving
Lender's Pro Rata Share of the then applicable Revolving Commitment,
make Committed Advances to Borrower or to any Co-Borrower under the
Revolving Commitment in Dollars in such amounts as Borrower or any
Co-Borrower may request that (i) do not result in the sum of the
Indebtedness evidenced by the Committed Revolving Notes and the
Competitive Revolving Notes plus the Letters of Credit Usage plus the
Swing Line Outstandings (after giving effect to any concurrent payment
thereof with the proceeds of such Advances) exceeding the then
effective Revolving Commitment, and (ii) in the case of Committed
Advances made to a Co-Borrower, are directly used to finance the
development, construction or operation of hotel/casino properties owned
by that Co-Borrower. Subject to the limitations set forth herein, the
Committed Advances by each Revolving Lender under its Pro Rata Share of
the Revolving Commitment may be prepaid without premium or penalty. The
Administrative Agent shall promptly provide Borrower or the relevant
Co-Borrower with a written report allocating the Obligations under the
Revolving Commitment if requested by Borrower or such Co-Borrower.
(b) Subject to the terms and conditions set
forth in this Agreement, on the Closing Date, each Term Lender shall
make an Advance to Borrower or to any Co-Borrower under the Term
Commitment in Dollars in the full amount of that Term Lender's Pro Rata
Share of the Term Commitment. Thereafter, through the Business Day
immediately prior to the Maturity Date, each Term Lender shall
refinance its outstanding Advances, pro rata according to that Term
Lender's Pro Rata Share of the then applicable Term Commitment, in such
amounts as Borrower or the relevant Co-Borrower may request that do not
result in the Indebtedness evidenced by the Term Notes being in excess
of the then effective Term Commitment. No Term Loan which is repaid
(rather than refinanced with the making of new Term Loans) may be
reborrowed. Subject to the limitations set forth herein, the Advances
by each Term Lender under its Pro Rata Share of the Term Commitment may
be prepaid without premium or penalty.
(c) Subject to the next sentence, each Loan
consisting of Committed Advances 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, (iv) in the case of a LIBOR
Loan, the Interest Period for such Loan, and (v) whether the Loan is
requested under the Term Commitment or the Revolving Commitment. Unless
the Administrative Agent, in its sole and absolute discretion, has
notified Borrower or the relevant Co-Borrower to the contrary, a Loan
consisting of Committed Advances may be requested by telephone by a
Responsible Official of Borrower or the relevant Co-Borrower, in which
case Borrower or the relevant Co-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 or the relevant Co-Borrower, and Borrower and the
Co-Borrowers hereby agree to indemnify each Creditor from any loss,
cost, expense or liability as a result of so acting.
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(d) Promptly following receipt of a Request for
Loan in respect of a Revolving Loan, the Administrative Agent shall
notify each Revolving Lender by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier) of the date and type of
the Revolving Loan, any applicable Interest Period, and that Revolving
Lender's Pro Rata Share of the Loan.
(e) Not later than 11:00 a.m., Los Angeles time,
on the date specified for any Committed Loan (which must be a Business
Day), each Lender having a Pro Rata Share of the relevant Commitment
shall make its Pro Rata Share of the Committed 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 Committed Advances
shall be credited on that date in immediately available funds to the
Deposit Account for Borrower or that Co-Borrower.
(f) Unless the Requisite Lenders otherwise
consent, each Committed Loan shall be in an integral multiple of
$1,000,000 which is not less than $5,000,000.
(g) The Committed Advances made by each
Revolving Lender under the Revolving Commitment shall be evidenced by
that Lender's Committed Revolving Note, and the Committed Advances made
by each Term Lender under the Term Commitment shall be evidenced by
that Lender's Term Note.
(h) A Request for Loan shall be irrevocable upon
the Administrative Agent's first notification thereof.
(i) If no Request for Loan (or telephonic
request for Loan referred to in the second sentence of Section 2.1(c),
if applicable) has been made within the requisite notice periods set
forth in Section 2.2 or 2.3 prior to the end of the Interest Period for
any LIBOR Loan, then on the last day of such Interest Period, such
LIBOR Loan shall be automatically converted into a Base Rate Loan in
the same amount.
(j) 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 or the
relevant Co-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 or any
Co-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(c), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:15 a.m. Los Angeles time, on the
date (which must be a
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Business Day) of the requested Base Rate Loan. All Committed Loans shall
constitute Base Rate Loans unless properly designated as a LIBOR Loan pursuant
to Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower or any Co-Borrower
for a LIBOR Loan (including any conversion or continuation thereof)
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(c),
if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 10:00 a.m., Los Angeles
time, at least three Business Days before the first day of the
applicable Interest Period.
(b) On the date which is two Business Days
before the first day of the applicable Interest Period, the
Administrative Agent shall confirm its determination of the applicable
LIBOR (which determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same to Borrower
and any relevant Co-Borrowers and the Lenders by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the
Requisite Lenders otherwise consent, no more than twenty-five LIBOR
Loans shall be outstanding at any one time.
(d) No LIBOR Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any
Lender to fund any LIBOR Advance in the Designated Market.
2.4 Letters of Credit.
(a) Letter of Credit Subfacility. Subject to the
terms and conditions of this Agreement (including Section 8.3),
Borrower or any Co-Borrower may request from time to time during the
period from the Closing Date through the day prior to the Letter of
Credit Expiration Date that the Issuing Lender, in reliance upon the
agreements of the other Lenders set forth in this Section 2.4, issue
Letters of Credit for the account of Borrower or the relevant
Co-Borrower, and the Issuing Lender agrees to issue for the account of
Borrower or the relevant Co-Borrower one or more Letters of Credit
denominated in Dollars and to amend Letters of Credit previously issued
by it in accordance with subsection (b) below, provided that (i)
Borrower or the relevant Co-Borrower shall not request that the Issuing
Lender issue any Letter of Credit if, after giving effect to such
issuance, the aggregate outstanding principal evidenced by the
Committed Revolving Notes and the Competitive Revolving Notes plus the
Letter of Credit Usage plus the Swing Line Outstandings exceeds the
Revolving Commitment, (ii) Borrower or the relevant Co-Borrower shall
not request that the Issuing Lender issue any Letter of Credit if
Borrower and the Co-Borrowers would not be in compliance with Sections
6.7 and 6.8, (iii) in no event shall the Issuing Lender issue any
Letter of Credit having an expiration date after the Maturity Date,
(iv) Borrower or the relevant Co-Borrower shall not request any Letter
of Credit if, after giving effect to such issuance, the Letter of
Credit Usage would exceed $200,000,000 or any limit established by Law
after the Closing Date on the Issuing Lender's ability to issue the
requested Letter of Credit at any time, and (v) prior to the issuance
of any Letter of Credit the Issuing Lender shall request confirmation
by telephone from the Administrative Agent that such Letter of Credit
may be issued. Notwithstanding the foregoing, the Issuing Lender shall
not be obligated to issue a Letter of Credit if, (A) on or prior to the
Business Day immediately preceding the issuance
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thereof any Revolving Lender has notified the Issuing Lender in writing
that the conditions set forth in Section 8.3 have not been satisfied
with respect to the issuance of such Letter of Credit, (B) any order,
judgment or decree of any Governmental Agency or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Lender from issuing
such Letter of Credit, or any Law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law) from
any Governmental Agency with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Lender with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the
Issuing Lender is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Lender in good faith deems material
to it, (C) the issuance of such Letter of Credit would violate one or
more policies of the Issuing Lender, or (D) the expiry date of such
requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all of the Lenders have approved such expiry
date.
(b) Procedures for Issuance and Amendment of
Letters of Credit.
(1) Each Letter of Credit shall be
issued or amended, as the case may be, upon the request of
Borrower or any Co-Borrower delivered to the Issuing Lender
(with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and
signed by a Responsible Official of Borrower or the relevant
Co-Borrower. Each Letter of Credit Application submitted by
the Borrower (or any Co-Borrower) shall be deemed to be a
representation and warranty that the conditions specified in
Section 8.3 have been satisfied on and as of the date of the
issuance of the Letter of Credit requested thereby. Such
Letter of Credit Application must be received by the Issuing
Lender and the Administrative Agent not later than 1:00 p.m.,
Los Angeles time, at least 3 Business Days (or such later date
and time as the Issuing Lender may agree in a particular
instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the Issuing Lender: (A) the
proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (G) such other matters as
the Issuing Lender may require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail
satisfactory to the Issuing Lender (W) the Letter of Credit to
be amended; (X) the proposed date of amendment thereof (which
shall be a Business Day); (Y) the nature of the proposed
amendment; and (Z) such other matters as the Issuing Lender
may require.
(2) Promptly after receipt of any
Letter of Credit Application, the Issuing Lender will confirm
with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of such
Letter of Credit Application from Borrower or the relevant
Co-Borrower and, if not, the Issuing Lender will provide the
Administrative Agent with a copy thereof. Upon receipt by the
Issuing Lender of confirmation from the Administrative Agent
that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms
and conditions hereof, the Issuing Lender shall, on the
requested date, issue a Letter of Credit for the
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account of Borrower or the relevant Co-Borrower or enter into
the applicable amendment, as the case may be, in each case in
accordance with the Issuing Lender's usual and customary
business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
Issuing Lender a risk participation in such Letter of Credit
in an amount equal to the product of such Lender's Pro Rata
Share of the Revolving Commitment times the amount of such
Letter of Credit.
(3) Promptly after its delivery of any
Letter of Credit or any amendment to a Letter of Credit to an
advising Lender with respect thereto or to the beneficiary
thereof, the Issuing Lender will also deliver to Borrower or
the relevant Co-Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of
Participations.
(1) Upon receipt from the beneficiary
of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the Issuing Lender shall notify Borrower or
the relevant Co-Borrower and the Administrative Agent thereof.
Not later than 11:00 a.m. Los Angeles time on the date of any
payment by the Issuing Lender under a Letter of Credit (each
such date, an "Honor Date"), Borrower or the relevant
Co-Borrower shall reimburse the Issuing Lender through the
Administrative Agent in an amount equal to the amount of such
drawing. If Borrower or the relevant Co-Borrower fails to so
reimburse the Issuing Lender by such time, the Administrative
Agent shall promptly notify each Revolving Lender of the Honor
Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Revolving
Lender's Pro Rata Share thereof. In such event, Borrower shall
be deemed to have requested a Base Rate Loan under the
Revolving Commitment to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.1(f) for the
principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Revolving Commitment and the
conditions set forth in Section 8.2 (other than the delivery
of a Request for Loan). Any notice given by the Issuing Lender
or the Administrative Agent pursuant to this Section 2.4(c)(1)
may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such
notice.
(2) Each Revolving Lender (including
the Lender acting as Issuing Lender) shall upon any notice
pursuant to Section 2.4(c)(1) make funds available to the
Administrative Agent for the account of the Issuing Lender at
the Administrative Agent's Office in an amount equal to its
Pro Rata Share of the Unreimbursed Amount not later than 1:00
p.m. Los Angeles time on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.4(c)(3), each Revolving Lender that so
makes funds available shall be deemed to have made a Committed
Advance to Borrower or the relevant Co-Borrower in such
amount. The Administrative Agent shall remit the funds so
received to the Issuing Lender.
(3) With respect to any Unreimbursed
Amount that is not fully refinanced by a Base Rate Loan
because the conditions set forth in Section 8.2 cannot be
satisfied or for any other reason, Borrower or the relevant
Co-Borrower shall be deemed to have incurred from the Issuing
Lender an L/C Borrowing in the amount of the
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Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such
event, each Lender's payment to the Administrative Agent for
the account of the Issuing Lender pursuant to Section
2.4(c)(2) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an
L/C Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 2.4.
(4) Until each Revolving Lender funds
its Committed Advance or L/C Advance pursuant to this Section
2.4(c) to reimburse the Issuing Lender for any amount drawn
under any Letter of Credit, interest in respect of such
Revolving Lender's Pro Rata Share of such amount shall be
solely for the account of the Issuing Lender.
(5) Each Revolving Lender's obligation
to make Committed Advances or L/C Advances to reimburse the
Issuing Lender for amounts drawn under Letters of Credit, as
contemplated by this Section 2.4(c), shall be absolute and
unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense
or other right which such Revolving Lender may have against
the Issuing Lender, Borrower, any Co-Borrower or any other
Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender's obligation to
make Committed Advances pursuant to this Section 2.4(c) is
subject to the conditions set forth in Section 8.2 (other than
delivery by Borrower or any Co-Borrower of a Request for
Loan). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of Borrower or the relevant
Co-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 provided herein.
(6) If any Revolving Lender fails to
make available to the Administrative Agent for the account of
the Issuing Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section
2.4(c) by the time specified in Section 2.4(c)(2), the Issuing
Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is
required to the date on which such payment is immediately
available to the Issuing Lender at a rate per annum equal to
the Federal Funds Rate from time to time in effect. A
certificate of the Issuing Lender submitted to any Revolving
Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (6) shall be conclusive absent
manifest error.
(d) Repayment of Participations.
(1) At any time after the Issuing
Lender has made a payment under any Letter of Credit and has
received from any Revolving Lender such Revolving Lender's L/C
Advance in respect of such payment in accordance with Section
2.4(c), if the Administrative Agent receives for the account
of the Issuing Lender any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from
Borrower, or the relevant Co-Borrower or otherwise, including
proceeds of cash collateral applied thereto by the
Administrative Agent), the Administrative Agent will
distribute to such Revolving Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving
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Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(2) If any payment received by the
Administrative Agent for the account of the Issuing Lender
pursuant to Section 2.4(c)(1) is required to be returned under
any of the circumstances described in Section 11.30 (including
pursuant to any settlement entered into by the Issuing Lender
in its discretion), each Revolving Lender shall pay to the
Administrative Agent for the account of the Issuing Lender its
Pro Rata Share thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date
such amount is returned by such Revolving Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in
effect.
(e) Obligations Absolute. The obligation of
Borrower and the Co-Borrowers to reimburse the Issuing Lender for each
drawing under each Letter of Credit and to repay each L/C Borrowing
shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(1) any lack of validity or
enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;
(2) the existence of any claim,
counterclaim, set-off, defense or other right that Borrower or
the relevant Co-Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee
may be acting), the Issuing Lender or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated
transaction;
(3) any draft, demand, certificate or
other document presented under such 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under such Letter of Credit;
(4) any payment by the Issuing Lender
under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of
such Letter of Credit; or any payment made by the Issuing
Lender under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for
the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Law; or
(5) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, Borrower
or the relevant Co-Borrower.
Borrower or the relevant Co-Borrower shall promptly examine a copy of
each Letter of Credit and each amendment thereto that is delivered to
it and, in the event of any claim of noncompliance with Borrower's or
the relevant Co-Borrower's instructions or other irregularity, Borrower
or the relevant Co-Borrower will immediately notify the Issuing Lender.
Borrower or
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the relevant Co-Borrower shall be conclusively deemed to have waived
any such claim against the Issuing Lender and its correspondents unless
such notice is given as aforesaid.
(f) Role of Issuing Lender. Each Lender,
Borrower and each of the Co-Borrowers agree that, in paying any drawing
under a Letter of Credit, the Issuing Lender shall not have any
responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any
such document. None of the Issuing Lender, any Agent-Related Person nor
any of the respective correspondents, participants or assignees of the
Issuing Lender shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval
of the Lenders or the Requisite Lenders, as applicable; (ii) any action
taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application. Borrower and the relevant
Co-Borrower hereby assume all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude Borrower's or the relevant Co-Borrower's pursuing
such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Issuing
Lender, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Lender, shall
be liable or responsible for any of the matters described in clauses
(1) through (5) of Section 2.4(e); provided, however, that anything in
such clauses to the contrary notwithstanding, Borrower or the relevant
Co-Borrower may have a claim against the Issuing Lender, and the
Issuing Lender may be liable to Borrower or the relevant Co-Borrower,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by Borrower or the
relevant Co-Borrower which such Borrower or such Co-Borrower proves
were caused by the Issuing Lender's willful misconduct or gross
negligence or the Issuing Lender's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the Issuing Lender may accept documents that appear
on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary,
and the Issuing Lender shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the
Administrative Agent, (i) if the Issuing Lender has honored any full or
partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, Borrower or the relevant
Co-Borrower shall immediately Cash Collateralize the then outstanding
amount of the Letter of Credit Usage (in an amount equal to such
outstanding amount determined as of the date of such L/C Borrowing or
the Letter of Credit Expiration Date, as the case may be). For purposes
hereof, "Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the Issuing
Lender and the Revolving Lenders, as collateral for the then
outstanding amount of the Letter of Credit Usage, cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the Issuing Lender (which
documents are hereby consented to by the Revolving Lenders), subject to
any limitations in the Intercreditor Agreement. Derivatives of such
term have corresponding meanings. Any Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
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(h) Applicability of ISP98 and UCP. Unless
otherwise expressly agreed by the Issuing Lender and Borrower or the
relevant Co-Borrower when a Letter of Credit is issued, (i) the rules
of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance) shall
apply to each Standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the "ICC") at the
time of issuance (including the ICC decision published by the
Commission on Banking Technique and Practice on April 6, 1998 regarding
the European single currency (euro)) shall apply to each Commercial
Letter of Credit.
(i) Conflict with Letter of Credit Application.
In the event of any conflict between the terms hereof and the terms of
any Letter of Credit Application, the terms hereof shall control.
(j) Fees for Modifications. 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.
2.5 Competitive Advances.
(a) Subject to the terms and conditions hereof,
at any time and from time to time from the Closing Date through and
including the Maturity Date, each Revolving Lender may in its sole and
absolute discretion make Competitive Advances to Borrower or to any
Co-Borrower in Dollars pursuant to Competitive Bids accepted by
Borrower or the relevant Co-Borrower in such principal amounts as
Borrower or the relevant Co-Borrower may request pursuant to a
Competitive Bid Request that do not result in the aggregate outstanding
principal Indebtedness evidenced by the Competitive Revolving Notes
being in excess of the Maximum Competitive Outstandings Amount,
provided that after giving effect to the making of each Competitive
Advance, the sum of the Indebtedness evidenced by the Committed
Revolving Notes and the Competitive Revolving Notes plus the Letters of
Credit Usage plus the Swing Line Outstandings shall not exceed the then
effective Revolving Commitment. Each Competitive Advance made to a
Co-Borrower shall be directly used to finance the development,
construction or operation of hotel/casino properties owned by that
Co-Borrower. No Competitive Advance made by any Revolving Lender shall
relieve that Revolving Lender of its Pro Rata Share of the undrawn
Revolving Commitment.
(b) Borrower or the relevant Co-Borrower shall
request Competitive Advances by submitting Competitive Bid Requests to
the Administrative Agent, which specify the relevant date, amount and
maturity of the proposed Competitive Advance and whether the
Competitive Bid requested is an Absolute Rate Bid or a LIBOR Margin
Bid, or both. Borrower and each Co-Borrower may submit telephonic
requests for Competitive Advances. Any Competitive Bid Request made by
telephone shall promptly be confirmed by the delivery to Administrative
Agent in person or by telecopier of a written Competitive Bid Request.
The Administrative Agent shall incur no liability whatsoever hereunder
in acting upon any telephonic Competitive Bid Request purportedly made
by a Responsible Official of Borrower or Co-Borrower, each of which
hereby agrees to indemnify the Administrative Agent from any loss,
cost, expense or liability as a result of so acting. The Competitive
Bid Request must be received by the Administrative Agent not later than
9:00 a.m., Los Angeles time, on a Business Day that is at least one
Business Day prior to the date of the proposed Competitive Advance if
an Absolute
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Rate Bid is requested; if a LIBOR Margin Bid is requested, it must be
received by the Administrative Agent five Business Days prior to the
date of the proposed Competitive Advance.
(c) Unless the Administrative Agent otherwise
agrees, in its sole and absolute discretion, no Competitive Bid Request
may be submitted within the five Business Day period following
submission of another Competitive Bid Request.
(d) Each Competitive Bid Request must be made
for a Competitive Advance of at least $10,000,000 and shall be in an
integral multiple of $1,000,000.
(e) No Competitive Bid Request shall be made for
a Competitive Advance with a maturity of less than 14 days or more than
180 days, or with a maturity date subsequent to the Maturity Date.
(f) The Administrative Agent shall, promptly
after receipt of a Competitive Bid Request, notify the Revolving
Lenders thereof by telephone and provide the Revolving Lenders a copy
thereof by telecopier. Any Revolving Lender may, by written notice to
the Administrative Agent (with a copy to Borrower and the
Co-Borrowers), advise the Administrative Agent that it elects not to be
so notified of Competitive Bid Requests, in which case the
Administrative Agent shall not notify such Revolving Lender of the
Competitive Bid Request.
(g) Each Revolving Lender receiving a
Competitive Bid Request may, in its sole and absolute discretion, make
or not make a Competitive Bid responsive to the Competitive Bid
Request. Each Competitive Bid shall be submitted to the Administrative
Agent not later than 7:30 a.m. (or, in the case of the Revolving Lender
which is also the Administrative Agent, not later than 7:15 a.m.) Los
Angeles time, in the case of a LIBOR Margin Bid, on the date which is
four Business Days prior to the requested Competitive Advance and, in
the case of an Absolute Rate Bid, on the date of the requested
Competitive Advance. Any Competitive Bid received by the Administrative
Agent after 7:30 a.m. (or 7:15 a.m. in the case of the Revolving Lender
which is also the Administrative Agent) on such date shall be
disregarded for purposes of this Agreement. Any Competitive Bid made by
telephone shall promptly be confirmed by the delivery to the
Administrative Agent in person or by telecopier of a written
Competitive Bid. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic Competitive Bid
purportedly made by a Responsible Official of a Revolving Lender, each
of which hereby agrees to indemnify the Administrative Agent from any
loss, cost, expense or liability as a result of so acting with respect
to that Revolving Lender.
(h) Each Competitive Bid shall specify the fixed
interest rate or the margin over LIBOR, as applicable, for the offered
Maximum Competitive Advance set forth in the Competitive Bid. The
Maximum Competitive Advance offered by a Revolving Lender in a
Competitive Bid may be less than the Competitive Advance requested by
Borrower or the relevant Co-Borrower in the Competitive Bid Request,
but, if so, shall be an integral multiple of $1,000,000. Any
Competitive Bid which offers an interest rate other than a fixed
interest rate or a margin over LIBOR, is in a form other than set forth
in Exhibit D or which otherwise contains any term, condition or
provision not contained in the Competitive Bid Request shall be
disregarded for purposes of this Agreement. A Competitive Bid once
submitted to the Administrative Agent shall be irrevocable until 8:30
a.m. Los Angeles time, in the case of a LIBOR Margin Bid, on the date
which is three Business Days prior to the requested Competitive Advance
and, in the case of an Absolute Rate Bid, on the date of the proposed
Competitive
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Advance set forth in the related Competitive Bid Request, and shall
expire by its terms at such time unless accepted by Borrower or the
relevant Co-Borrower prior thereto.
(i) Promptly after 7:30 a.m. Los Angeles time,
in the case of a LIBOR Margin Bid, on the date which is four Business
Days prior to the date of the proposed Competitive Advance and, in the
case of an Absolute Rate Bid, on the date of the proposed Competitive
Advance, the Administrative Agent shall notify Borrower or the relevant
Co-Borrower of the names of the Revolving Lenders providing Competitive
Bids to the Administrative Agent at or before 7:30 a.m. on that date
(or 7:15 a.m. in the case of the Revolving Lender which is also the
Administrative Agent) and the Maximum Competitive Advance and fixed
interest rate or margin over LIBOR set forth by each such Revolving
Lender in its Competitive Bid. The Administrative Agent shall promptly
confirm such notification in writing delivered in person or by
telecopier to Borrower or the relevant Co-Borrower.
(j) Borrower or the relevant Co-Borrower may, in
its sole and absolute discretion, reject any or all of the Competitive
Bids. If Borrower or the relevant Co-Borrower accepts any Competitive
Bid, the following shall apply: (a) Borrower or the relevant
Co-Borrower must accept all Absolute Rate Bids at all lower fixed
interest rates before accepting any portion of an Absolute Rate Bid at
a higher fixed interest rate, (b) Borrower or the relevant Co-Borrower
must accept all LIBOR Margin Bids at all lower margins over LIBOR
before accepting any portion of a LIBOR Margin Bid at a higher margin
over LIBOR, (c) if two or more Revolving Lenders have submitted a
Competitive Bid at the same fixed interest rate or margin, then
Borrower or the relevant Co-Borrower must accept either all of such
Competitive Bids or accept such Competitive Bids in the same proportion
as the Maximum Competitive Advance of each Revolving Lender bears to
the aggregate Maximum Competitive Advances of all such Revolving
Lenders, and (d) Borrower and the Co-Borrower may not accept
Competitive Bids for an aggregate amount in excess of the requested
Competitive Advance set forth in the Competitive Bid Request. Borrower
or the relevant Co-Borrower must accept (i) each LIBOR Margin Bid prior
to 8:30 a.m. on the date which is three Business Days prior to the
requested Competitive Advance and (iii) each Absolute Rate Bid prior to
8:30 a.m. on the date of the requested Competitive Advance or shall be
deemed to have rejected the offered Competitive Advances. Acceptance of
a Competitive Bid by Borrower or a Co-Borrower shall be irrevocable
upon communication thereof to the Administrative Agent. The
Administrative Agent shall promptly notify each of the Revolving
Lenders whose Competitive Bid has been accepted by Borrower or the
relevant Co-Borrower by telephone, which notification shall promptly be
confirmed in writing delivered in person or by telecopier to such
Revolving Lenders.
(k) In the case of LIBOR Margin Bids, the
Administrative Agent shall determine LIBOR on the date which is two
Business Days prior to the date of the proposed Competitive Advance,
and shall promptly thereafter notify Borrower or the relevant
Co-Borrower and the Revolving Lenders whose Competitive Bids were
accepted by Borrower or the relevant Co-Borrower of such LIBOR.
(l) A Revolving Lender whose Competitive Bid has
been accepted shall make the Competitive Advance in accordance with the
Competitive Bid Request and with its Competitive Bid, subject to the
applicable conditions set forth in this Agreement by making funds
immediately available to the Administrative Agent at the Administrative
Agent's Office in the amount of such Competitive Advance not later than
12:00 noon, Los Angeles time, on the date set forth in the Competitive
Bid Request. The Administrative Agent shall then promptly credit the
Competitive Advance in immediately available funds to the relevant
Deposit Account.
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(m) The Administrative Agent shall notify
Borrower and the Revolving Lenders promptly after any Competitive
Advance is made of the amounts and maturity of such Competitive
Advances and the identity of the Revolving Lenders making such
Competitive Advances.
(n) The Competitive Advances made by each
Revolving Lender shall be evidenced by that Revolving Lender's
Competitive Revolving Note.
2.6 Swing Line.
(a) Subject to the terms and conditions set
forth herein, from the Closing Date through the day prior to the
Maturity Date the Swing Line Lender shall make Swing Line Loans to
Borrower and each of the Co-Borrowers in such amounts as they may
request which do not result in the sum of the Indebtedness evidenced by
the Committed Revolving Notes and the Competitive Revolving Notes plus
the Letters of Credit Usage plus the Swing Line Outstandings exceeding
the then effective Revolving Commitment (as in effect on the date of
the making of the related Swing Line Loan), provided that (i) after
giving effect to each Swing Line Loan, the Swing Line Outstandings
shall not exceed $50,000,000, (ii) without the consent of all of the
Lenders, no Swing Line Loan may be made during the continuation of an
Event of Default and (iii) the Swing Line Lender has not given at least
twenty-four hours prior notice to Borrower and the Co-Borrowers that
availability under the Swing Line is suspended or terminated. Borrower
and the Co-Borrowers may borrow, repay and reborrow under this Section.
Unless notified to the contrary by the Swing Line Lender, borrowings
under the Swing Line may be made in amounts which are integral
multiples of $100,000 upon telephonic request by a Responsible Official
of Borrower or the relevant Co-Borrower made to the Administrative
Agent not later than 1:00 p.m., Los Angeles time, on the Business Day
of the requested borrowing (which telephonic request shall be promptly
confirmed in writing by telecopier), provided that if the requested
Swing Line Loan is to be credited to an account which is not with the
Swing Line Lender, the request must be submitted by 11:30 a.m., Los
Angeles time. Promptly after receipt of such a request for borrowing,
the Administrative Agent shall provide telephonic verification to the
Swing Line Lender that, after giving effect to such request, the sum of
the Indebtedness evidenced by the Committed Revolving Notes and the
Competitive Revolving Notes plus the Letters of Credit Usage plus the
Swing Line Outstandings will not exceed the then effective Revolving
Commitment (and such verification shall be promptly confirmed in
writing by telecopier). Unless notified to the contrary by the Swing
Line Lender, each repayment of a Swing Line Loan shall be in an amount
which is an integral multiple of $100,000. If Borrower or the relevant
Co-Borrower instructs the Swing Line Lender to debit its demand deposit
account at the Swing Line Lender in the amount of any payment with
respect to a Swing Line Loan, or the Swing Line Lender otherwise
receives repayment, after 3:00 p.m., Los Angeles time, on a Business
Day, such payment shall be deemed received on the next Business Day.
The Swing Line Lender shall promptly notify the Administrative Agent of
the Swing Line Outstandings each time there is a change therein or if
it suspends or terminates availability under the Swing Line.
(b) Swing Line Loans shall bear interest at a
fluctuating rate per annum equal to the Base Rate plus the Base Rate
Margin minus one percent per annum. Interest shall be payable on such
dates, not more frequent than monthly, as may be specified by the Swing
Line Lender and in any event on the Maturity Date. The Swing Line
Lender shall be responsible for invoicing Borrower or the relevant
Co-Borrower for such interest. Interest payable on Swing Line Loans is
solely for the account of the Swing Line Lender (subject to clause (d)
below).
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(c) The Swing Line Loans shall be payable within
five Business Days after demand made by the Swing Line Lender and in
any event on the Maturity Date or any earlier date when all other
Obligations are due.
(d) Upon the making of a Swing Line Loan in
accordance with Section 2.6(a), each Revolving Lender shall be deemed
to have purchased from the Swing Line Lender a participation therein in
an amount equal to that Lender's Pro Rata Share of the Revolving
Commitment times the amount of the Swing Line Loan. Upon demand made by
the Swing Line Lender through the Administrative Agent, each Revolving
Lender shall, according to its Pro Rata Share of the Revolving
Commitment, promptly provide to the Swing Line Lender its purchase
price therefor in an amount equal to its participation therein. The
obligation of each Revolving Lender to so provide its purchase price to
the Swing Line Lender shall be absolute and unconditional (subject only
to the making of a demand upon that Revolving Lender by the Swing Line
Lender) and shall not be affected by the occurrence of a Default or
Event of Default; provided that no Revolving Lender shall be obligated
to purchase its Pro Rata Share under the Revolving Commitment of (i)
Swing Line Loans to the extent that Swing Line Outstandings are in
excess of $50,000,000 or to the extent that the sum of the Indebtedness
evidenced by the Committed Revolving Notes and the Competitive
Revolving Notes plus the Letters of Credit Usage plus the Swing Line
Outstandings exceeds the Revolving Commitment (as in effect on the date
of the making of the related Swing Line Loan) and (ii) any Swing Line
Loan made (absent the consent of all of the Revolving Lenders) at any
time when the applicable conditions set forth in Section 8.2 have not
been satisfied. Each Revolving Lender that has provided to the Swing
Line Lender the purchase price due for its participation in Swing Line
Loans shall thereupon acquire a pro rata participation, to the extent
of such payment, in the claim of the Swing Line Lender against Borrower
and the Co-Borrowers for principal and interest and shall share, in
accordance with that pro rata participation, in any principal payment
made by Borrower or the Co-Borrowers with respect to such claim and in
any interest payment made by Borrower or the Co-Borrowers (but only
with respect to periods subsequent to the date such Revolving Lender
paid the Swing Line Lender its purchase price) with respect to such
claim.
(e) Upon any demand for payment of the Swing
Line Outstandings by the Swing Line Lender (unless Borrower or the
relevant Co-Borrower has made other arrangements acceptable to the
Swing Line Lender to reduce the Swing Line Outstandings to $0),
Borrower or the relevant Co-Borrower shall request a Committed Loan
pursuant to Section 2.1(a) sufficient to repay all Swing Line
Outstandings (and, for this purpose, Section 2.1(f) shall not apply).
In each case, the Administrative Agent shall automatically provide the
respective Committed Advances made by each Revolving Lender to the
Swing Line Lender (which the Swing Line Lender shall then apply to the
Swing Line Outstandings). In the event that Borrower and the
Co-Borrowers fail to request a Committed Loan within the time specified
by Section 2.2 on any such date, the Administrative Agent may, but is
not required to, without notice to or the consent of Borrower or the
Co-Borrowers, cause Committed Advances to be made by the Revolving
Lenders under the Revolving Commitment in amounts which are sufficient
to reduce the Swing Line Outstandings as required above. The conditions
precedent set forth in Article 8 shall not apply to Committed Advances
to be made by the Revolving Lenders pursuant to the three preceding
sentences but the Revolving Lenders shall not be obligated to make such
Committed Advances to the extent that the conditions set forth in
Section 2.6(a)(i), (ii) and (iii) were not satisfied as to any Swing
Line Loan which is part of such Swing Line Outstandings. The proceeds
of such Committed Advances shall be paid directly to the Swing Line
Lender for application to the Swing Line Outstandings.
2.7 Co-Borrowers. Detroit is hereby designated
as a direct Co-Borrower under this Agreement, with the right to request Loans
and Letters of Credit through the Administrative Agent
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directly from the Lenders and the Issuing Lender, subject to the terms and
conditions set forth herein, provided that (a) each Loan and Letter of Credit
made hereunder to Detroit or any other Co-Borrower shall be used solely and
directly to finance the development, construction or operation of hotel/casino
properties owned by that Co-Borrower, and (b) the liability of Detroit is
limited to that portion of the Obligations which are actually borrowed or
received by Detroit. From time to time following the Closing Date, Borrower may
designate one or more Guarantors which are United States domestic Persons to be
additional joint and several direct Co-Borrowers hereunder by written request to
the Administrative Agent accompanied by (a) an executed Assumption Agreement and
appropriate Notes executed by the designated Guarantor, (b) a certificate of
good standing of the designated Guarantor in the jurisdiction of its
incorporation, (c) a certified corporate authority resolution covering the
execution and delivery of the Assumption Agreement and such Notes, (d) a written
consent to the Assumption Agreement executed by each other Guarantor, and (e) an
appropriate written legal opinion similar to the Opinions with respect to the
Co-Borrower and the Assumption Agreement. The Administrative Agent shall
promptly notify the Lenders of such request, together with copies of such of the
foregoing as any Lender may request and the designated Guarantor shall become a
Co-Borrower hereunder.
2.8 Mandatory Reductions of the Term Commitment. Borrower
and the Co-Borrowers shall repay the Term Loans on each Quarterly Payment Date,
commencing with the Quarterly Payment Date occurring on December 31, 2005, in
the related Term Amortization Amount. Each prepayment of the Term Loan shall be
applied to installments of principal in respect of the Term Loans in the order
of their occurrence unless the Borrower otherwise specifies in writing at the
time of such prepayment in a writing making reference to this Section.
2.9 Voluntary Reduction of the Commitments. Borrower and
the Co-Borrowers 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 and the Co-Borrowers to the
Administrative Agent, voluntarily to reduce, permanently and irrevocably, in
aggregate principal amounts in an integral multiple of $1,000,000 (but in the
case of assignments of Pro Rata Shares of the Revolving Commitment, not less
than $5,000,000), or to terminate, all or a portion of the then undisbursed
portion of either of the Commitments; provided that (a) the Revolving Commitment
may not be so reduced below an amount equal to the sum of (i) the aggregate
principal amount outstanding under the Committed Revolving Notes and the
Competitive Revolving Notes, plus (ii) the Letters of Credit Usage plus (iii)
the Swing Line Outstandings, and (b) concurrently with each reduction of the
Term Commitment, the Term Loans shall be prepaid in the same amount (with each
such prepayment to be applied to Term Amortization Amounts in the inverse order
of their occurrence). The Administrative Agent shall promptly notify the Lenders
of any reduction or termination of the Commitments under this Section.
2.10 Optional Termination of Commitments. Following the
occurrence of a Change in Control, the Requisite Lenders may in their sole and
absolute discretion elect to terminate the Commitments during the sixty 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 and the Co-Borrowers, or (ii) if no such notice
has been received by the Administrative Agent, the date upon which the
Administrative Agent has actual knowledge thereof. In the event that the Lenders
elect to so terminate the Commitments, the Commitments shall be terminated
effective on the date which is sixty days subsequent to written notice from the
Administrative Agent to Borrower and the Co-Borrowers thereof.
2.11 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
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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 or the relevant Co-Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower or a Co-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 or that Co-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 or the Co-Borrowers 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 Commitments
or to prejudice any rights which the Administrative Agent, Borrower or any
Co-Borrower may have against any Lender as a result of any default by such
Lender hereunder.
2.12 Release and Reattachment of Collateral.
(a) If, following the Closing Date, Borrower and
its Restricted Subsidiaries are then entitled to the release of all of
the Liens described in the Intercreditor Agreement, both pursuant to
this Agreement, pursuant to the Intercreditor Agreement and pursuant to
the credit documents governing each of the then existing Qualified
Obligations, and provided that no Default or Event of Default has then
occurred and remains continuing, Borrower and the Co-Borrowers may in
their sole discretion request that the Administrative Agent release,
and that the Administrative Agent as a Creditor Representative under
the Intercreditor Agreement direct the Collateral Agent to release,
each of the Liens securing the Obligations and the other Qualified
Obligations. Borrower and the Co-Borrowers shall submit any request
under this Section in the form of a Certificate, in form and substance
acceptable to the Administrative Agent, signed by a Senior Officer of
Borrower and each Co-Borrower certifying that no Default or Event of
Default exists, together with a written consent to the release of
collateral executed by each Guarantor and such other supporting
information as the Administrative Agent may request, including evidence
reasonably satisfactory to the Administrative Agent that the Collateral
Agent and the holders of the other Qualified Obligations shall
previously or concurrently release all Liens held by such creditors.
Promptly upon receipt of such a Certificate, the Administrative Agent
shall (i) provide a copy thereof to the Lenders, (ii) direct the
Collateral Agent to return to the Persons legally entitled thereto, all
Collateral pledged in support of the Obligations and the other
Qualified Obligations, and (iii) release any Liens then held for the
Obligations by the Administrative Agent (other than any rights of set
off or other inchoate Liens), but subject to the requirement that the
Liens held by the Collateral Agent and the holders of the other
Qualified Obligations are previously or concurrently released, all at
the sole expense of Borrower and the Co-Borrowers (a "Collateral
Release"). No Collateral Release shall constitute or be construed as a
release (or to require the release) of the Guaranty.
(b) If, following any Collateral Release, a
Collateral Event occurs, then Borrower and the Co-Borrowers shall, and
shall cause each of the Restricted Subsidiaries to, promptly and in any
event within thirty days following the occurrence of such Collateral
Event and in any event not later than the granting of any Liens in such
collateral for the benefit of any Senior Indebtedness, grant perfected
Liens in the same collateral to secure the Obligations (including any
Related Swap Agreements) equally, ratably and on a pari passu basis
with such
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Senior Indebtedness, provided that Borrower and the Restricted
Subsidiaries shall not be obligated to provide Liens in any Property to
the extent that Gaming Laws prohibit the granting of Liens in such
Property to holders of the Obligations and the Senior Indebtedness
unless and until all required approvals of Gaming Boards thereto are
obtained. In such event, Borrower shall, and shall cause each
Restricted Subsidiary to, use its best efforts to obtain all necessary
consents from the applicable Gaming Boards to grant a perfected Lien on
such Property securing the Obligations and such Senior Indebtedness
and, upon receipt of all consents needed to grant such a perfected
Lien, shall promptly take all action (or cause the Restricted
Subsidiaries to take all action) reasonably necessary in order to grant
and perfect such a Lien. The Liens granted pursuant to this clause (b)
shall be (i) equal, ratable and pari passu with any Liens securing the
other Senior Indebtedness, (ii) granted concurrently therewith, and
(iii) granted pursuant to instruments, documents and agreements which
are similar to the Collateral Documents or otherwise reasonably
acceptable to the Administrative Agent. While each of the Liens
contemplated by this clause (b) shall be equal, ratable and pari passu
in the manner described above, it is acknowledged that the same may
subordinate to certain prior Liens in favor of creditors other than the
holders of Senior Indebtedness permitted pursuant to Section 6.6. In
connection with the granting of any such Liens, Borrower and its
Restricted Subsidiaries shall provide to the Administrative Agent (y)
policies of title insurance on customary terms and conditions, to the
extent that policies of title insurance on the corresponding Property
are provided to the holders of other classes of Senior Indebtedness
(and in an insured amount that is proportionately equal to the policies
provided to the holders of the other classes of Senior Indebtedness),
and (z) legal opinions and other assurances as the Administrative Agent
may reasonably request.
2.13 Senior Indebtedness. The Obligations shall be and
hereby are designated as "Senior Indebtedness" and "Senior Obligations" of the
Borrower and its Restricted Subsidiaries with respect to all Subordinated
Obligations, and all payments with respect to any Subordinated Obligations shall
be subject to Section 6.1.
2.14 Collateral. As of the Closing Date and each
subsequent date, unless a Collateral Release has occurred and no re-attachment
has thereafter occurred, the Obligations under the Loan Documents, including
each Related Swap Agreement, are secured by the Collateral contemplated by the
Intercreditor Agreement and the Collateral Documents on an equal, ratable and
pari passu basis with the other Qualified Obligations, as provided for in the
Intercreditor Agreement and in the manner set forth therein.
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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 principal and interest at the Default Rate to the
fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on
each Quarterly Payment Date 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 LIBOR Loan which is
for a term of three months or less shall be due and payable on the last
day of the related Interest Period. Interest accrued on each other
LIBOR Loan shall be due and payable on the date which is three months
after the date such LIBOR Loan was made (and, every three months
thereafter through the last day of the Interest Period) and on the last
day of the related Interest Period. Except as otherwise provided in
Section 3.9, the unpaid principal amount of any LIBOR Loan shall bear
interest at a rate per annum equal to LIBOR for that LIBOR Loan plus
the applicable LIBOR Margin.
(d) Interest accrued on each Competitive Advance
shall be due and payable on the maturity date of the Competitive
Advance. Except as otherwise provided in Section 3.9, the unpaid
principal amount of each Competitive Advance shall bear interest at the
fixed interest rate or the margin over LIBOR specified in the related
Competitive Bid.
(e) If not sooner paid, the principal
Indebtedness evidenced by the Notes shall be payable as follows:
(i) the amount, if any, by which the
Obligations outstanding (including, without limitation,
obligations evidenced by the Competitive Revolving Notes)
under the Revolving Commitment at any time exceed the then
applicable Revolving Commitment, shall be payable immediately;
(ii) the Term Loans shall be payable on
each Quarterly Payment Date in the related Term Amortization
Amount;
(iii) the principal amount of each
Competitive Advance shall be payable on the maturity date
specified in the related Competitive Bid; and
(iv) the principal Indebtedness
evidenced by the Notes shall in any event be payable on the
Maturity Date.
(f) 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
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prepayment under this Section 3.1(f), (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., Los
Angeles 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 LIBOR 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 LIBOR Loan shall be accompanied by payment of interest
accrued to the date of payment on the amount of principal paid, (iv)
any payment or prepayment of all or any part of any LIBOR Loan on a day
other than the last day of the applicable Interest Period shall be
subject to Section 3.8(e) and (v) each prepayment of the Term Loans
shall be applied to Term Amortization Amounts in the inverse order of
their maturity. 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.
(g) No Competitive Revolving Note may be prepaid
without the prior written consent of the Lender making such Competitive
Advance.
3.2 Joint Lead Arranger's Fees. On the date hereof,
Borrower shall pay to the Joint Lead Arrangers fees in the amounts heretofore
agreed upon by letter agreement between Borrower and the Joint Lead Arrangers.
These fees are for the services of the Joint Lead Arrangers in arranging the
credit facilities under this Agreement and are fully earned when paid and are
nonrefundable.
3.3 Upfront Fees. On the date hereof, Borrower shall pay
to the Administrative Agent, for the account of each Lender, upfront fees in an
amount equal to (a) that Lender's allocated Pro Rata Share of the relevant
Commitments times (b) 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 written confirmation delivered to that Lender by the Lead 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 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 Unused Fees. From the Closing Date, Borrower and the
Co-Borrowers shall pay to the Administrative Agent, for the ratable accounts of
the Revolving Lenders pro rata according to their Pro Rata Shares of the
Revolving Commitment, an unused fee equal to the Unused Fee Rate in effect from
time to time times the difference between (a) the principal amount of the
Revolving Commitment, and (b) the aggregate principal amount of the Obligations
outstanding from time to time under the Revolving Commitment (including the
Letters of Credit), other than the Swing Line Outstandings and other than the
aggregate principal amount outstanding under the Competitive Revolving Notes
(the "Unused Fee"). The Unused Fees 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 Revolving Commitment pursuant to Sections 2.9,
2.10 or 11.26.
3.5 Letter of Credit Fees. With respect to each Letter of
Credit, Borrower and the Co-Borrowers 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;
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(b) concurrently with the issuance of each
Standby Letter of Credit, to the Administrative Agent for the ratable
account of the Revolving Lenders in accordance with their Pro Rata
Shares of the Revolving Commitment, 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 and the Co-Borrowers shall pay to the Administrative Agent
an agency fee in such amounts as heretofore agreed upon by letter agreement
between Borrower and Bank of America and the Lead 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 LIBOR 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 and the Co-Borrowers 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 and the Co-Borrowers 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 and the
Co-Borrowers, 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 and the Co-Borrowers become 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 and
the Co-Borrowers shall have paid such amount to that Lender and that Borrower
and the Co-Borrowers, 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.
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3.8 LIBOR 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
liabilities or assets consisting of or including Eurocurrency funds or
deposits (currently known as "eurocurrency liabilities") of that
Lender, Borrower or the relevant Co-Borrower shall pay that Lender
within five Business Days after demand all amounts necessary to
compensate such Lender (determined as though such Lender's LIBOR
Lending Office had funded 100% of its LIBOR Advance in the Designated
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
LIBOR Lending Office to any tax, duty or other charge or cost
with respect to any LIBOR Advance, any of its Notes evidencing
LIBOR Advances or its obligation to make LIBOR Advances, or
shall change the basis of taxation of payments to any Lender
attributable to the principal of or interest on any LIBOR
Advance or any other amounts due under this Agreement in
respect of any LIBOR Advance, any of its Notes evidencing
LIBOR Advances or its obligation to make LIBOR 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 LIBOR 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 or the relevant Co-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 LIBOR Lending Office); or
(3) shall impose on any Lender or its
LIBOR Lending Office or the Designated Market any other
condition affecting any LIBOR Advance, any of its Notes
evidencing LIBOR Advances, its obligation to make LIBOR
Advances or this Agreement, or shall otherwise affect any of
the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its LIBOR Lending
Office of making or maintaining any LIBOR Advance or in respect of any
LIBOR Advance, any of its Notes evidencing LIBOR Advances or its
obligation to make LIBOR Advances or reduces the amount of any sum
received or receivable by such Lender or its LIBOR Lending Office with
respect to any LIBOR Advance, any of its Notes evidencing LIBOR
Advances or its obligation to make LIBOR Advances (assuming such
Lender's LIBOR Lending Office had funded 100% of its LIBOR Advance in
the Designated Market), then, within five Business Days after demand by
such Lender (with a copy to the Administrative Agent), Borrower and the
Co-Borrowers shall pay to such Lender such additional
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amount or amounts as will compensate such Lender for such increased
cost or reduction (determined as though such Lender's LIBOR Lending
Office had funded 100% of its LIBOR Advance in the Designated 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 LIBOR Lending Office to make, maintain or fund its
portion of any LIBOR Advance or materially restrict the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Market, or to determine or charge interest rates based upon
LIBOR, and such Lender shall so notify the Administrative Agent, then
such Lender's obligation to make LIBOR Advances shall be suspended for
the duration of such illegality or impossibility and the Administrative
Agent forthwith shall give notice thereof to the other Lenders,
Borrower and the Co-Borrowers. Upon receipt of such notice, the
outstanding principal amount of such Lender's LIBOR Advances, together
with accrued interest thereon, automatically shall be converted to Base
Rate Advances on either (1) the last day of the Interest Period(s)
applicable to such LIBOR Advances if such Lender may lawfully continue
to maintain and fund such LIBOR Advances to such day(s) or (2)
immediately if such Lender may not lawfully continue to fund and
maintain such LIBOR Advances to such day(s), provided that in such
event the conversion shall not be subject to payment of a prepayment
fee under clause (e) of this Section. Each Lender agrees to endeavor
promptly to notify Borrower and the Co-Borrowers of any event occurring
after the Closing Date of which it has actual knowledge, which will
cause that Lender to notify the Administrative Agent under this
Section, and agrees to designate a different LIBOR Lending Office if
such designation will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. In the event that any Lender is unable,
for the reasons set forth above, to make, maintain or fund its portion
of any LIBOR Loan 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 LIBOR 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 LIBOR Loan:
(1) the Administrative Agent reasonably
determines that, by reason of circumstances affecting the
Designated 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
Market for the applicable Interest Period; or
(2) the Requisite Lenders advise the
Administrative Agent that LIBOR as determined by the
Administrative Agent (i) does not represent the effective
pricing to such Lenders for deposits in Dollars in the
Designated Market in the relevant amount for the applicable
Interest Period, or (ii) will not adequately and fairly
reflect the cost to such Lenders of making the applicable
LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower or the relevant Co-Borrower and the Lenders, whereupon until
the Administrative Agent notifies Borrower or the relevant Co-Borrower
that the circumstances giving rise to such suspension no longer exist,
the obligation of the Lenders to make any future LIBOR Advances shall
be suspended unless (but
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only if clause (2) above is the basis for such suspension) Borrower and
each Co-Borrower notify the Administrative Agent in writing that they
elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans
made during such period.
(e) Upon payment or prepayment of any LIBOR
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
Interest Period (whether voluntarily, involuntarily, by reason of
acceleration, or otherwise), or upon the failure of Borrower or any
Co-Borrower (for a reason other than the failure of a Lender to make an
Advance) to borrow on the date or in the amount specified for a LIBOR
Advance in any Request for Loan or Competitive Bid Request, or upon the
failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or
Advance on the date specified in a notice of prepayment delivered to
the Administrative Agent pursuant to Section 3.1(f), Borrower and the
Co-Borrowers shall pay to the appropriate Lender within 10 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 LIBOR Advance had been funded in the Designated Market), equal
to the sum of:
(1) the principal amount of the LIBOR
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 Interest Period
divided by 360) times the applicable Interest Differential
(provided that the product of the foregoing formula must be a
positive number); plus
(2) all 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 and the Co-Borrowers 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 LIBOR 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 and the Co-Borrowers, 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 LIBOR Loans or Advances under this
Section:
(i) Borrower and the Co-Borrowers may
at any time, upon at least four 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 LIBOR Advances of such
Lender or request that such LIBOR Advances be converted to
Base Rate Advances; and
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(ii) In the case where Borrower and the
Co-Borrowers become 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 and the Co-Borrowers shall have paid such amount to
that Lender and that Borrower and the Co-Borrowers, 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.
3.9 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 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
rate otherwise payable with respect thereto plus 2% per annum (or, in the case
of any Obligations which do not bear stated interest, at the rate then otherwise
applicable to Base Rate Loans plus 2% per annum), 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 LIBOR Loans, Competitive Advances 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 and the Co-Borrowers acknowledge 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, any of the Co-Borrowers 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.
(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 to the Administrative
Agent, at the Administrative Agent's Office, for the account of each of
the Lenders or the Administrative Agent, as the case may be, in
immediately available funds not later than 12:00 noon (other than
payments with respect to Swing Line Loans, which must be paid directly
to the Swing Line Lender and received by 3:00 p.m.), Los Angeles 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 12:00 noon, Los Angeles 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.
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(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 such record shall, as against
Borrower and the Co-Borrowers, 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 and the
Co-Borrowers' joint and several 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 LIBOR
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 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 and the Co-Borrowers, 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.
(e) All payments to be made by Borrower or any
Co-Borrower shall be made without conditions or deduction for any
counterclaim, defense, recoupment or setoff.
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 which is not a bank under
the laws of the United States or any state thereof 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.
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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. Unless Borrower, any Co-Borrower or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that Borrower, such Co-Borrower or such
Lender, as the case may be, will not make such payment, the Administrative Agent
may assume that Borrower, such Co-Borrower or such Lender, as the case may be,
has timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(a) if Borrower or any Co-Borrower failed to
make such payment, each Lender shall forthwith on demand repay to the
Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, 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 in
immediately available funds at the Federal Funds Rate from time to time
in effect; and
(b) if any Lender failed to make such payment,
such Lender shall forthwith on demand pay to the Administrative Agent
the amount thereof in immediately available funds, together with
interest thereon for the period from the date such amount was made
available by the Administrative Agent to Borrower or any Co-Borrower to
the date such amount is recovered by the Administrative Agent (the
"Compensation Period") at a rate per annum equal to the Federal Funds
Rate from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such
Lender's Advance included in the applicable Loan. If such Lender does
not pay such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon
Borrower or the Co-Borrowers, if applicable, and Borrower or the
Co-Borrowers, if applicable, shall pay such amount to the
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Advance. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Pro Rata Share of
the Commitments or to prejudice any rights which the Administrative
Agent, Borrower or any Co-Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender, any Co-Borrower or Borrower
with respect to any amount owing under this Section 3.15 shall be conclusive,
absent manifest error.
3.16 Fee Determination Detail. The Administrative Agent
and any Lender shall provide reasonable detail to Borrower and the Co-Borrowers
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 and the
Co-Borrowers' obligations under Sections 3.7 and 3.8 shall survive for ninety
days following the date on which the Commitments are
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terminated, all Obligations hereunder are fully paid and all Letters of Credit
have expired.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower and each Co-Borrower represents and warrants to the
Lenders on the date hereof and as of the Closing Date that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation duly formed, validly existing and in good
standing under the Laws of Delaware. Each of the Guarantors is a corporation
duly formed, validly existing and in good standing under the Laws of its state
of formation. Borrower and each of the Guarantors 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 each Guarantor have all
requisite 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, each Co-Borrower and each Guarantor 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 charter, articles of incorporation, operating agreement or
bylaws, as applicable;
(c) Result in or require the creation or
imposition of any Lien upon or with respect to any Property of Borrower
and its Restricted Subsidiaries;
(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; and
(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;
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and neither Borrower, the Co-Borrowers nor any Guarantor 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 Restricted 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.
(a) Schedule 4.4 hereto correctly sets forth the
names, form of legal entity, ownership and jurisdictions of
organization of all Subsidiaries of Borrower. Except as described in
Schedule 4.4, 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. Unless otherwise indicated in
Schedule 4.4, all of the outstanding shares of capital stock, or all of
the units of equity interest, as the case may be, of each Subsidiary
are owned of record and beneficially by Borrower, there are no
outstanding options, warrants or other rights to purchase capital stock
of any such Subsidiary, and all such shares or equity interests so
owned are duly authorized, validly issued, fully paid and
non-assessable, and were issued in compliance with all applicable state
and federal securities and other Laws, and are free and clear of all
Liens, except for Permitted Encumbrances.
(b) Each Restricted Subsidiary of Borrower is a
business entity duly formed, validly existing and in good standing
under the Laws of its jurisdiction of organization, is duly qualified
to do business as a foreign organization and is in good standing as
such in each jurisdiction in which the conduct of its business or the
ownership or leasing of its Properties makes such qualification
necessary (except where the failure to be so duly qualified and in good
standing does not constitute a Material Adverse Effect), and has all
requisite power and authority to conduct its business and to own and
lease its Properties.
(c) Each Restricted Subsidiary of Borrower is in
compliance with all Requirements of Law applicable to its business and
has obtained all authorizations, consents, approvals, orders, licenses,
and permits from, and each such Restricted Subsidiary has accomplished
all filings, registrations, and qualifications with, or obtained
exemptions from any of the foregoing from, any Governmental Agency that
are necessary for the transaction of its business, except where the
failure to be in such compliance, obtain such authorizations, consents,
approvals, orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower and the Co-Borrowers
have furnished to the Administrative Agent for distribution to the Lenders (a)
the audited consolidated financial statements of Borrower and its Subsidiaries
for the Fiscal Year ended December 31, 2002, and (b) unaudited financial
statements of Borrower and its Subsidiaries as of the Fiscal Quarter ended June
30, 2003. The financial statements described above fairly present in all
material respects the financial condition, results of operations and changes in
financial position of Borrower and its Subsidiaries as of such dates and for
such periods in conformity with GAAP, consistently applied (except, in the case
of the financial statements
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described in (b), for the absence of certain footnotes and other informational
disclosures customarily omitted from interim financial statements).
4.6 No Other Liabilities; No Material Adverse Changes.
Borrower and its Subsidiaries do not have any material liability or material
contingent liability required under GAAP to be reflected or disclosed and not
reflected or disclosed in the financial statements described in Section 4.5(a),
other than liabilities and contingent liabilities arising in the ordinary course
of business since the date of such financial statements. As of the Closing Date,
no circumstance or event has occurred that constitutes a Material Adverse Effect
since December 31, 2002.
4.7 Title to Property. As of December 31, 2002, Borrower
and its Subsidiaries had valid title to the Property reflected in the financial
statements described in Section 4.5(a), other than immaterial items of Property,
free and clear of all Liens, other than Permitted Encumbrances, and Liens
described in Schedule 4.7 or permitted by Section 6.6. As of the Closing Date,
Borrower and its Subsidiaries shall have valid title to all material Property
reflected in the financial statements described in Section 4.5(b), other than
Property subsequently sold or disposed of by Borrower and its Subsidiaries in
the ordinary course of business, free and clear of all Liens, other than
Permitted Encumbrances, and Liens described in Schedule 4.7 or permitted by
Section 6.6.
4.8 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.
4.9 Litigation. There are no actions, suits, proceedings
or investigations pending as to which Borrower or any of its Subsidiaries have
been served or have received notice or, to the best knowledge of Borrower and
the Co-Borrowers, threatened against or affecting Borrower or any of its
Subsidiaries or any Property of any of them before any Governmental Agency in
which there is any reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated financial position or
results of operations of Borrower and its Restricted Subsidiaries, taken as a
whole, or which in any manner draw into question the validity or enforceability
of the Loan Documents, the Intercreditor Agreement or the Collateral Documents.
4.10 Binding Obligations. Each of the Loan Documents to
which Borrower or any of its Restricted 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.
4.11 No Default. No event has occurred and is continuing
that is a Default or Event of Default.
4.12 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;
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(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.
4.13 Regulations T, U and X; Investment Company Act. No
part of the proceeds of any Loan hereunder will be used to purchase or carry, or
to extend credit to others for the purpose of purchasing or carrying, any Margin
Stock in violation of Regulations T, U and X. Neither Borrower nor any of its
Subsidiaries is or is required to be registered as an "investment company" under
the Investment Company Act of 1940.
4.14 Disclosure. No written statement made by a Senior
Officer of Borrower, any Co-Borrower or any Guarantor 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.
4.15 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.
4.16 Projections. As of the Closing Date, to the best
knowledge of Borrower and the Co-Borrowers, 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.
4.17 Hazardous Materials. To the best knowledge of
Borrower and the Co-Borrowers, 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.
4.18 Tax Shelter Regulations. Borrower and each of the
Co-Borrowers do not intend to treat the Loans or Letters of Credit as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event Borrower or any Co-Borrower determines to take any
action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof. Accordingly, if
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Borrower or any Co-Borrower so notifies the Administrative Agent, Borrower
acknowledges that one or more of the Lenders may treat its Loans or its interest
in Swing Line Loans or Letters of Credit as part of a transaction that is
subject to Treasury Regulation Section 301.6112-1, and such Lender or Lenders,
as applicable, will maintain the lists and other records required by such
Treasury Regulation.
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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
either Commitment remains in force, Borrower shall, and shall cause each of its
Restricted Subsidiaries to, and each Co-Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
5.1 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 Restricted
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.
5.2 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 Restricted Subsidiaries,
taken as a whole, shall not constitute a violation of this covenant.
5.3 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 Restricted
Subsidiaries operate and in any event such insurance as may be required by the
Collateral Documents.
5.4 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 (including Hazardous
Materials Laws, ERISA and Gaming Laws) noncompliance with which constitutes a
Material Adverse Effect, except that Borrower and its Restricted Subsidiaries
need not comply with a Requirement of Law then being contested by any of them in
good faith by appropriate proceedings.
5.5 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
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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.
5.6 Keeping of Records and Books of Account. Keep
adequate records and books of account reflecting all financial transactions in
conformity with GAAP, consistently applied, and in material conformity with all
applicable requirements of any Governmental Agency having regulatory
jurisdiction over Borrower or any of its Subsidiaries.
5.7 Use of Proceeds. Use the proceeds of Loans (a) on the
Closing Date, to refinance the outstanding Loans under the Existing Multi-Year
Agreement and any outstanding obligations under the Short Term Loan Agreement,
(b) to finance expenses associated with the transactions contemplated herein,
(c) to finance design, development and construction expenses associated with
Capital Expenditures, Acquisitions and Investments permitted under Article 6
hereof, and (d) for other general corporate purposes including the Acquisitions
and Investments described herein.
5.8 New Restricted Subsidiaries. Cause any Person which
hereafter becomes a Restricted Subsidiary of Borrower to promptly execute and
deliver to the Administrative Agent a Guaranty (and, if no Collateral Release
has then occurred, or to the extent required by Section 2.12, security documents
encumbering its Property to the extent required by Section 6.6).
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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
either Commitment remains in force, Borrower shall not, and shall not permit any
of its Restricted Subsidiaries to, and each Co-Borrower shall not 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:
(a) Borrower may make scheduled payments of
principal and interest on any Subordinated Obligation in accordance
with the subordination terms thereof;
(b) Provided that no Default or Event of Default
then exists, Borrower may prepay any Subordinated Obligations to the
extent using the proceeds of Qualified Subordinated Obligations; and
(c) Borrower may redeem Subordinated Obligations
held by Persons which are subject to a Disqualification, provided that
(i) no Default or Event of Default then exists or would result
therefrom, and (ii) after giving effect to such redemption, Borrower is
in pro forma compliance with the covenants set forth in Sections 6.7
and 6.8.
6.2 Disposition of Property. Make any Disposition of any
Principal Resort Casino Properties, other than Dispositions of (i) any Release
Parcel (as defined in and permitted by the relevant deeds of trust) consisting
of any gores or strips of land required to be disposed of in the ordinary course
of business to facilitate construction, improvement, public use dedication or
similar purposes, and not material to the overall conduct of the business of the
related Property, and (ii) all or any part of the Theme Park Property, in each
case when no Default or Event of Default exists, provided that leases and
subleases of portions of a Principal Resort Casino Property in the ordinary
course of business and not involving their gaming or lodging operations shall
not be considered a Disposition thereof. Borrower is hereby authorized to
subdivide the Theme Park Property in any manner (whether concurrently with or
prior to the Disposition thereof) and the Administrative Agent is hereby
authorized to empower the Collateral Agent to make any amendments to the deed of
trust covering the Theme Park Property and/or subordinate the lien of such deed
of trust to any maps subdividing the Theme Park Property, so as to give effect
thereto. The Administrative Agent is hereby authorized to send notice to the
Collateral Agent and the Creditor Representatives requesting the release of any
Theme Park Property concurrently with the sale or other Disposition thereof.
6.3 Mergers. Merge or consolidate with or into any
Person, except (a) mergers and consolidations of a Restricted Subsidiary of
Borrower into Borrower or another Restricted Subsidiary of Borrower, (b) mergers
and consolidations with a Person to effect a mere change in the State or form of
organization of Borrower, (c) mergers with any Person which if acquired by
Borrower or its other Restricted Subsidiaries pursuant to Investments permitted
hereby, would be Restricted Subsidiaries,
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provided that the financial condition of Borrower and its Subsidiaries are not
adversely affected thereby and Borrower and its Subsidiaries execute such
amendments to the Loan Documents as may be requested by the Administrative Agent
to reflect such change, and (d) mergers entered into in compliance with Section
6.3 with persons engaged primarily in the same or a similar line of business as
one or more lines of business engaged in by Borrower and its Subsidiaries,
provided that giving pro forma effect to such mergers as of the last day of the
then most recently ended Fiscal Quarter, Borrower is in compliance with Sections
6.7 and 6.8.
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 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 Change in Nature of Business. Make any material
change in the nature of the business of Borrower and its Subsidiaries, taken as
a whole.
6.6 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
date hereof and disclosed in Schedule 4.7 and any renewals/extensions
or amendments thereof, provided that the obligations secured or
benefited thereby are not increased;
(d) Liens on Property acquired by Borrower or
any of its Restricted 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) purchase money Liens securing Indebtedness
and Capital Lease Obligations in an aggregate principal amount not to
exceed $100,000,000 (including any refinancings thereof);
(f) any Lien or Negative Pledge created by an
agreement or instrument entered into by Borrower or a Restricted
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) Equal, ratable and pari passu Liens securing
the Qualified Obligations pursuant to the Intercreditor Agreement (or,
in the event that the Intercreditor Agreement is hereafter terminated
in accordance with its terms, and any Collateral Event thereafter
occurs, Liens securing Senior Indebtedness of the Borrower and its
Subsidiaries on an equal, ratable and pari passu basis with the
Obligations pursuant to an intercreditor agreement which is
substantively similar to the Intercreditor Agreement (the
Administrative Agent being hereby authorized by the other Creditors to
enter into any such replacement intercreditor agreement), provided that
as of the date of the incurrence of such Liens, no Default or Event of
Default has occurred and remains continuing);
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(h) Liens granted on the stock, partnership or
other equity interests in a Person which is not a Restricted Subsidiary
owned by Borrower or any if its Restricted Subsidiaries, which are
granted solely to secure Indebtedness of that Person;
provided that this Section shall not be effective to prohibit the Liens or
Negative Pledges with respect to securities issued by any gaming licensee to the
extent that appropriate approvals of this covenant have not been obtained under
applicable Gaming Laws.
6.7 Leverage Ratio. Permit the Leverage Ratio,
as of any Fiscal Quarter described below to be greater than the ratio set forth
below opposite that Fiscal Quarter:
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
December 31, 2003 through December 31, 2004 5.50:1.00
March 31, 2005 through and including
September 30, 2005 5.25:1.00
December 31, 2005 through and including
December 31, 2007 5.00:1.00
Thereafter 4.75:1.00
6.8 Interest Charge Coverage Ratio. Permit the Interest
Charge Coverage Ratio as of the last day of any Fiscal Quarter, to be less than
2.75:1.00.
6.9 Investments in Insurance Subsidiary. Make Investments
in the Insurance Subsidiary in an amount exceeding $25,000,000 in the aggregate.
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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 either Commitment remains in force,
Borrower and each Co-Borrower shall, unless the Administrative Agent (with the
written approval of the Requisite Lenders) otherwise consents, at Borrower's and
the Co-Borrowers' sole expense, deliver to the Administrative Agent for
distribution by it to the Lenders:
(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 balance
sheet of Borrower and its Subsidiaries as at the end of such Fiscal
Quarter and the consolidated 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;
(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 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
Borrower for such Fiscal Quarter, and as soon as practicable
thereafter, in the event of any material variance in the actual
calculation of the Leverage Ratio from such preliminary calculation, a
revised Pricing Certificate setting forth the actual calculation
thereof;
(c) As soon as practicable, and in any event
within 105 days after the end of each Fiscal Year, (i) the consolidated
balance sheet of Borrower and its Subsidiaries as at the end of such
Fiscal Year and the consolidated 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 GAAP, consistently
applied, and such consolidated balance sheet and consolidated
statements shall be accompanied by a report of one of the four 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 6.7 and 6.8,
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 90 days after the commencement of each Fiscal Year, a budget and
projection by Fiscal Quarter for that Fiscal
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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 the same are available,
copies of each annual report, proxy or financial statement or other
report or communication sent to the stockholders of Borrower, and
copies of all annual, regular, periodic and special reports and
registration statements which Borrower may file or be required to file
with the Securities and Exchange Commission under Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, and not otherwise
required to be delivered to the Lenders pursuant to other provisions of
this Section;
(f) Promptly after request by the Administrative
Agent or any Lender, copies of the Nevada "Regulation 6.090 Report" and
"6A Report";
(g) 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 Tracinda Corporation or
individuals associated with Tracinda Corporation, Borrower and its
Subsidiaries and their confidential business or financial information);
(h) As soon as practicable, and in any event
within three Business Days after a Senior Officer of Borrower or any
Co-Borrower 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 three 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 Borrower
or any Co-Borrower becoming aware of any litigation, governmental
investigation or proceeding (including any litigation, governmental
investigation or proceeding by or subject to decision by any Gaming
Board) that is pending (i) against Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect,
(ii) in respect of any material Indebtedness of Borrower or any of its
Subsidiaries, or (iii) with respect to the Loan Documents, the
Intercreditor Agreement, or the Collateral Documents, notice of the
same;
(j) Promptly following any Senior Officer of
Borrower or any Co-Borrower becoming aware of any change in the Debt
Rating assigned hereto written notice of such change and, if the same
will result in a revision to the Applicable Debt Rating, a revised
Pricing Certificate setting forth the revised Applicable Debt Rating;
and
(k) 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 other
Obligation remains unpaid or unperformed, or any portion of either Commitment
remains outstanding, Borrower and the Co-Borrowers shall, at their sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial
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statements required pursuant to Sections 7.1(a) and 7.1(c), Compliance
Certificates signed by a Senior Officer of Borrower and each Co-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 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, Borrower
and Detroit;
(2) Committed Revolving Notes executed
by Borrower and Detroit in favor of each Revolving Lender,
each in a principal amount equal to that Revolving Lender's
Pro Rata Share of the Revolving Commitment;
(3) Term Notes executed by Borrower and
Detroit in favor of each Term Lender, each in a principal
amount equal to that Term Lender's Pro Rata Share of the Term
Commitment;
(4) Competitive Revolving Notes
executed by Borrower and Detroit in favor of each Lender
(except for any Lender who has requested to not be notified of
Competitive Bid Requests pursuant to Section 2.5(f)), each in
a principal amount equal to $750,000,000;
(5) with respect to Borrower, Detroit
and each Guarantor, such documentation as the Administrative
Agent may require to establish the due organization, valid
existence and good standing of Borrower, Detroit, and each of
the Guarantors, its qualification to engage in business in
each material jurisdiction in which it is engaged in business
or required to be so qualified, its authority to execute,
deliver and perform 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;
(6) the Swing Line Documents;
(7) the Guaranty executed by each
Guarantor which is a Restricted Subsidiary;
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(8) a certificate of insurance issued
by Borrower's insurance carrier or agent;
(9) the Opinions;
(10) a Request for Loan and a Letter of
Credit Application in compliance with Article 2;
(11) a completed Pricing Certificate;
(12) the letter agreement described in
Sections 3.2, 3.3, 3.5 and 3.6;
(13) such assurances as the
Administrative Agent 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;
(14) a Certificate signed by a Senior
Officer of Borrower and Detroit certifying that the conditions
specified in Section 8.1 (d) and (e) have been satisfied; and
(15) such other assurances,
certificates, documents, consents or opinions as the
Administrative Agent reasonably may require.
(b) The fees payable on the Closing Date
pursuant to Article 3 shall have been paid.
(c) 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.
(d) The representations and warranties of
Borrower and the Co-Borrowers contained in Article 4 shall be true and
correct.
(e) Borrower, each Co-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.
(f) All legal matters relating to the Loan
Documents shall be satisfactory to Sheppard, Mullin, Richter & Hampton
LLP, special counsel to the Administrative Agent.
It is acknowledged that effective upon the Closing Date, the lending commitments
of the lenders under the Existing Multi-Year Agreement shall be amended and
restated hereby and that the lending commitments of the lenders under the
Existing Short Term Agreement shall be and hereby is terminated.
8.2 Any Increasing Advance. The obligation of each Lender
to make any Advance, and the obligation of the Issuing Lender to issue a Letter
of Credit, which would result in an increase in the outstanding principal amount
of the Outstanding Obligations, is subject to the following conditions precedent
(unless the Requisite Lenders, in their sole and absolute discretion, shall
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 the Co-Borrowers
and approved in writing
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by the Requisite Lenders, the representations and warranties contained
in Article 4 (other than Sections 4.4(a), 4.6 and 4.16 (but only if
Borrower and its Restricted 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) the Administrative Agent shall have timely
received a Request for Loan or Competitive Bid Request in compliance
with Article 2 (or telephonic or other request for Loan referred to in
the second sentence of Section 2.1(c), if applicable) or the Issuing
Lender shall have received a Letter of Credit Application, as the case
may be, in compliance with Article 2; and
(c) 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.
8.3 Any Letter of Credit. The obligation of the Issuing
Lender to issue any Letter of Credit, and the obligation of the other Lenders to
participate therein, are subject to the conditions precedent that (a) the
conditions set forth in Section 8.2 have been satisfied and (b) Borrower shall
have certified that, giving effect to the issuance of the requested Letter of
Credit, the Letter of Credit Usage shall not exceed any limitations set forth in
this Agreement.
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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 or the Co-Borrowers fail to pay any
principal on any of the Notes, or any L/C Borrowing or any portion
thereof, on the date when due; or
(b) Borrower or the Co-Borrowers fail 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 or the Co-Borrowers fail to comply
with any of the covenants contained in Article 6, other than the
covenant contained in Section 6.5; or
(d) Borrower or the Co-Borrowers fail 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 Restricted 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 and the Co-Borrowers diligently pursue 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 Restricted Subsidiaries or any other Party made in any
Loan Document, or in any certificate or other writing delivered by
Borrower or such Restricted 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) Borrower or any of its Subsidiaries (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
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the right to require 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 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
(i) 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
(j) Any default of the Borrower or its
Restricted Subsidiaries occurs under the Intercreditor Agreement or the
Collateral Documents which entitles the Collateral Agent or the
Creditor Representatives thereunder to exercise upon any of the
collateral provided pursuant to the Collateral Documents; or
(k) the Intercreditor Agreement or any of the
Collateral Documents are terminated (other than in accordance with
their express terms);
(l) A final judgment against Borrower or any of
its Subsidiaries is entered for the payment of money in excess of
$25,000,000 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
(m) 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 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 ninety 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 ninety calendar days; or
(n) 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
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(o) Any Pension Plan maintained by Borrower or
any of its Restricted 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
(p) The occurrence of a License Revocation that
continues for seven consecutive calendar days with respect to gaming
operations at any gaming facility accounting for ten percent or more of
the consolidated total assets or consolidated gross revenues of
Borrower and its Subsidiaries.
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(m):
(1) the Commitments to make Advances,
the obligation of the Issuing Lender to issue Letters of
Credit, the obligation of the Swing Line Lender to make Swing
Line Loans and all other obligations of the Creditors and all
rights of Borrower, the Co-Borrowers and any other Parties
under the Loan Documents shall be suspended without notice to
or demand upon Borrower or any Co-Borrower, which are
expressly waived by Borrower and the Co-Borrowers, except that
all of the Lenders or the Requisite Lenders (as the case may
be, in accordance with Section 11.2) may waive an Event of
Default or, without waiving, determine, upon terms and
conditions satisfactory to the Lenders or Requisite Lenders,
as the case may be, to reinstate the Commitments 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 and
the Co-Borrowers 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 for the Letters of Credit; and
(3) the Requisite Lenders may request
the Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitments 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 and each Co-Borrower.
(b) Upon the occurrence, and during the
continuance, of any Event of Default described in Section 9.1(m):
(1) the Commitments to make Advances,
the obligation of the Issuing Lender to issue Letters of
Credit, the obligation of the Swing Line Lender to make Swing
Line Loans and all other obligations of the Creditors and all
rights of Borrower, the Co-Borrowers and any other Parties
under the Loan Documents shall terminate without notice to or
demand upon Borrower or any Co-Borrower, which are
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expressly waived by Borrower and the Co-Borrowers, 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 Commitments 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 or any Co-Borrower, which
are expressly waived by Borrower and the Co-Borrowers, to be
held by the Issuing Lender in an interest-bearing account as
collateral for the Letters of Credit; 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 and the Co-Borrowers.
(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 or any Co-Borrower, which are
expressly waived by Borrower and the Co-Borrowers (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, the Co-Borrowers and any other Party and such other rights
and remedies as are provided by Law or equity.
(d) 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 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 Related 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 of Administrative
Agent.
(a) Each Lender hereby irrevocably appoints,
designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or any
other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative
Agent have or be deemed to have any fiduciary relationship with any
Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other
Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Lender shall act on behalf of
the Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the Issuing Lender shall have all
of the benefits and immunities (i) provided to the Administrative Agent
in this Article 10 with respect to any acts taken or omissions suffered
by the Issuing Lender in connection with Letters of Credit issued by it
or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if
the term "Administrative Agent" as used in this Article 10 and in the
definition of "Agent-Related Person" included the Issuing Lender with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
10.3 Liability of Administrative Agent. No Agent-Related
Person shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Party or any other party to any Loan Document to perform its obligations
hereunder or
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thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Party
or any Affiliate thereof.
10.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Party),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under any Loan Document
unless it shall first receive such advice or concurrence of the
Requisite Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Requisite Lenders (or such
greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with
the conditions specified in Section 8.1, each Lender that has signed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have
received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent for the account of the Lenders, unless
the Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Requisite
Lenders in accordance with Article 9; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
10.6 Credit Decision; Disclosure of Information by
Administrative Agent. Each Lender acknowledges that no Agent-Related Person has
made any representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any consent to and acceptance of any assignment
or review of the affairs of any Party or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own
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appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Parties and
their respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to Borrower and the other Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower and the
other Parties. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.
10.7 Indemnification of Administrative Agent. Whether or
not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of any Party and without limiting the obligation of any Party to do
so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Requisite Lenders (or, if required by Section 11.2, all of the Lenders) shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
10.8 Administrative Agent in its Individual Capacity. Bank
of America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Parties and their respective Affiliates as though Bank
of America were not the Administrative Agent or the Issuing Lender hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Party or its Affiliates (including information that
may be subject to confidentiality obligations in favor of such Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
Administrative Agent or the Issuing Lender, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
10.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 30 days' notice to the Lenders;
provided that any such resignation by Bank of America shall also constitute its
resignation as Issuing Lender and Swing Line Lender. The
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Administrative Agent shall, in connection with any such resignation, make
appropriate arrangements to ensure that, to the extent that it then holds any
capital stock or other equity securities of any Person which is a gaming
licensee as collateral for the Obligations, that any transfer of possession of
such pledged securities to any successor is in full compliance with the
requirements of all relevant Gaming Boards. If the Administrative Agent resigns
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 consented to by Borrower at all times other than during the
existence of an Event of Default (which consent of Borrower shall not be
unreasonably withheld or delayed). 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 Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, Issuing Lender
and Swing Line Lender and the respective terms "Administrative Agent," "L/C
Issuer" and "Swing Line Lender" shall mean such successor administrative agent,
Letter of Credit issuer and Swing Line Lender, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated and the retiring Issuing Lender's and Swing Line Lender's rights,
powers and duties as such shall be terminated, without any other or further act
or deed on the part of such retiring Issuing Lender or Swing Line Lender or any
other Lender, other than the obligation of the successor Issuing Lender to issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or to make other arrangements satisfactory to the
retiring Issuing Lender to effectively assume the obligations of the retiring
Issuing Lender with respect to such Letters of Credit. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article 10 and Sections 11.3 and 11.11 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 no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole
amount of the principal and interest owing and unpaid in respect of the
Loans, L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under
Article 3 and Section 11.3) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative
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Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under Article 3 and Section 11.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 Other Agents; Arrangers and Managers. None of the
Lenders or other Persons identified on the facing page or signature pages of
this Agreement as a "syndication agent," "documentation agent," "co-agent,"
"book manager," "lead manager," "arranger," "lead arranger" or "co-arranger"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
10.12 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(d), 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 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 Related Swap Agreement shall be secured
on an equal, ratable and pari passu basis with all other Obligations in an
amount equal to (i) the marked to market exposure under the ISDA Master
Agreement covering the Related Swap Agreement, or (ii) if not governed by an
ISDA Master Agreement, an amount equal the Administrative Agent's then customary
credit risk factor for Swap Agreements times the notional amount of Indebtedness
covered by such Related Swap Agreement and, in each case shall be secured on a
subordinate basis as to amounts in excess of such amount.
10.13 Foreclosure on Collateral. In the event of
foreclosure or enforcement of the Lien created by any of the Loan Documents,
title to any collateral encumbered thereby shall be taken and held (a) by the
Collateral Agent pursuant to the Intercreditor Agreement or (b) by
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.
10.14 Intercreditor Arrangements; Attornment Agreements.
Each of the Creditors and the other Parties acknowledges that the Collateral for
the Obligations, and the rights of the Administrative Agent to take action with
respect thereto, are subject to the terms of the Intercreditor Agreement.
Provided that no Default or Event of Default has then occurred, the
Administrative Agent is hereby irrevocably authorized by the other Creditors to:
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(a) take any discretionary action, or exercise
any prerogatives, provided to a Creditor Representative pursuant to the
Intercreditor Agreement;
(b) 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
Restricted Subsidiaries permitted hereby;
(c) provided that no Default or Event of Default
has occurred and remains continuing, enter into or approve, as Creditor
Representative, such amendments to the Collateral Documents as are
required to secure additional Qualified Obligations designated by the
Borrower in accordance with the terms of the Intercreditor Agreement;
and
(d) provided that no Default or Event of Default
has occurred and remains continuing, enter into such instruments,
documents or agreements as are reasonably required to release or
partially release, or authorize the Collateral Agent to release or
partially release, the Liens of the Collateral Documents under the
circumstances described in, and subject to the conditions set forth in,
Section 2.12(a) or Section 11.2, as applicable.
10.15 No Obligations of Borrower and the Co-Borrowers.
Nothing contained in this Article 10 shall be deemed to impose upon Borrower or
any Co-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 and the Co-Borrowers 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 or the Co-Borrower to the Administrative Agent for the
account of the Lenders, Borrower's and the Co-Borrowers' 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 Borrower, the Co-Borrowers 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 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) Without the consent of each affected Lender,
(i) to reduce the principal of, or the amount of principal, principal
prepayments or the rate of interest payable on, any Note, or (ii) to
increase the amount of the Commitments or the Pro Rata Share of any
Lender or (iii) to reduce the amount of any Unused Fee payable to any
Revolving Lender, or any other fee or amount payable to any Lender
under the Loan Documents or (iv) to waive an Event of Default
consisting of the failure of Borrower or the Co-Borrowers to pay when
due principal, interest or any Unused Fee or other fee;
(b) To postpone any date fixed for any payment
of principal of, prepayment of principal of or any installment of
interest on, any Note or any installment of any Unused Fee, or to
extend the term of either of the Commitments;
(c) To permit the term of any Letter of Credit
to exceed one year (provided that this shall not be construed to
prohibit the provision of automatic renewal clauses in Letters of
Credit issued hereunder) or extend beyond the Maturity Date;
(d) To release the Guaranty, the Collateral
Documents or any other material portion of any collateral for the
Obligations, or to permit the Collateral Agent to take any such action
(except in accordance with the provisions of the Intercreditor
Agreement), 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 Borrower or its Subsidiaries and granted
a Lien in accordance with Section
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6.6(e), (ii) release its Lien in any collateral as otherwise may be
expressly provided for in any Loan Document, (iii) release its Lien in
the equity securities of, and all Guaranty Obligations executed by, any
Subsidiary which is the subject of a Disposition not prohibited by
Section 6.2, (iv) subordinate its Lien with respect to any Property
which is the subject of a Disposition not prohibited by Section 6.2,
(v) release its Lien in any Property which is the subject of a
Distribution not prohibited by this Agreement, and (vi) release all of
the Liens under the Loan Documents in a Collateral Release under
Section 2.12, or shall, in each case to the extent such Lien or
Guaranty Obligations are held by the Collateral Agent, shall to the
extent permitted by the Intercreditor Agreement direct the Collateral
Agent to take such actions.
(e) To amend the provisions of the definitions
of "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 of the
Creditors. Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Pro Rata Share of the Commitments of such Lender may
not be increased or extended without the consent of such Lender.
11.3 Attorney Costs, Expenses and Taxes.
(a) Borrower and the Co-Borrowers agree (a) to
pay or reimburse the Administrative Agent for all costs and expenses
incurred in connection with the development, preparation, negotiation
and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated hereby
or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all
Attorney Costs, and (b) to pay or reimburse the Administrative Agent
and each Lender for all costs and expenses incurred in connection with
the enforcement, attempted enforcement, or preservation of any rights
or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by
the Administrative Agent or any Lender. All amounts due under this
Section 11.3 shall be payable within five Business Days after demand
therefor. The agreements in this Section shall survive the termination
of the Commitments and repayment of all other Obligations.
(b) Borrower and the Co-Borrowers shall pay any
and all documentary and other taxes, excluding (1) 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 LIBOR Lending Office or
(B) any jurisdiction (or political subdivision thereof) in which it is
"doing business", (2) any withholding taxes or other taxes based on
gross income imposed by
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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 (3) 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 to make Loans and to fund participations in Letters of
Credit and Swing Line Loans are several and not joint. The failure of any Lender
to make any Loan or to fund any such participation on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan or purchase its participation. 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 Borrower, the Co-Borrowers 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 default may,
if it desires, assume in such proportion as the non-Defaulting 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 and the Co-Borrowers, to
replace such a Lender in default.
11.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Letter of Credit, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.6 Notices.
(a) General. Unless otherwise expressly provided
herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission). All such
written notices shall be mailed, faxed or delivered to the applicable
address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all
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notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as
follows:
(1) if to Borrower, the Administrative
Agent, the Issuing Lender or the Swing Line Lender, to the
address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 11.6 or
to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such
party in a notice to the other parties; and
(2) if to any other Lender, to the
address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire
or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such
party in a notice to Borrower, the Administrative Agent, the
Issuing Lender and the Swing Line Lender.
All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant
party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, four Business Days after deposit in the mails,
postage prepaid; (C) if delivered by facsimile, when sent and receipt
has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection
(c) below), when delivered; provided, however, that notices and other
communications to the Administrative Agent, the Issuing Lender and the
Swing Line Lender pursuant to Article 2 shall not be effective until
actually received by such Person. In no event shall a voicemail message
be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and
Signatures. Loan Documents may be transmitted or signed by facsimile.
The effectiveness of any such documents and signatures shall, subject
to applicable Law, have the same force and effect as manually-signed
originals and shall be binding on all Parties, the Administrative Agent
and the Lenders. The Administrative Agent may also require that any
such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile
document or signature.
(c) Limited Use of Electronic Mail. Electronic
mail and Internet and intranet websites may be used only to distribute
routine communications, such as financial statements and other
information as provided in Section 7.1, and to distribute Loan
Documents for execution by the parties thereto, and may not be used for
any other purpose.
(d) Reliance by Administrative Agent and
Lenders. The Administrative Agent and the Lenders shall be entitled to
rely and act upon any notices (including telephonic requests for Loans
and Swing Line Loans) that, in the reasonable judgment of the
Administrative Agent and the Lenders, are purportedly given by or on
behalf of Borrower or any Co-Borrower even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded
or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any
confirmation thereof. Borrower and the Co-Borrowers shall jointly and
severally indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice that, in the reasonable judgment of such
Agent-Related Person, is purportedly given by or on behalf of Borrower
or any Co-Borrower. All telephonic notices to and other communications
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with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such
recording.
(e) Notice to Borrower is Notice to
Co-Borrowers. Borrower and the Co-Borrower expressly agree that the
credit facilities provided hereunder are being provided for the joint
convenience of Borrower and its Restricted Subsidiaries, including the
Co-Borrowers, and that (despite the joint and several nature of the
Obligations), it is expected that Borrower shall administer the
Advances and Letters of Credit on behalf of itself and the
Co-Borrowers. Accordingly, Borrower and the Co-Borrowers agree that any
notice provided to Borrower hereunder shall be deemed to constitute the
same notice to the Co-Borrowers, without the requirement that separate
notices be provided to the Co-Borrowers.
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.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents
to which Borrower and the Co-Borrowers are a Party will be binding upon
and inure to the exclusive benefit of Borrower, the Co-Borrowers, the
Creditors, and their respective successors and assigns, except that
Borrower and the Co-Borrowers may not assign their 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 Notes 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 its Notes must be within the
control of such Lender). Any Lender may at any time pledge its Notes 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
of either or both of the Commitments, 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 and the Co-Borrowers (none of which
approvals shall be unreasonably withheld or delayed), (ii) in the case
of assignments of a Pro Rata Share of the Revolving Commitment, such
Eligible Assignee, if not then a Revolving 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 and the
Co-Borrowers (none of which approvals shall be unreasonably withheld or
delayed), (iii) such assignment shall be evidenced by an Assignment
Agreement, a copy of which shall be furnished to the Administrative
Agent as hereinbelow provided, (iv) except in the case of an assignment
to an Affiliate of the assigning Lender, to another Lender or of the
entire remaining Pro Rata Share of the relevant Commitment by the
assigning Lender, the assignment shall not
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assign a Pro Rata Share that is less than $1,000,000, (v) 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, (vi) such assignment shall be of a constant and non-varying
percentage of the Pro Rata Share of the assigning Lender, and (vii) the
assignor Lender shall have paid a $3500 assignment fee to the
Administrative Agent. 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 and the Co-Borrowers agree that they shall execute and deliver
(against delivery by the assigning Lender to Borrower of appropriate
Notes) to such assignee Lender, a Committed Advance Note evidencing
that assignee Lender's Pro Rata Share of the appropriate Commitment and
a Competitive Revolving Note, and to the assigning Lender, a Committed
Advance Note evidencing the remaining balance Pro Rata Share of the
appropriate Commitment retained by the assigning Lender.
(c) By executing and delivering a 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,
the Co-Borrowers or any Lender upon reasonable prior notice to the
Administrative Agent. Borrower, the Co-Borrowers 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 a 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 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.
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(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 (or in
Competitive Advances made by that Lender); 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 and the Co-Borrowers
does not exceed the cost which Borrower and the Co-Borrowers would have
incurred in respect of such Lender absent the participation, (iv)
Borrower, the Co-Borrowers, 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 Commitments, 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 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 (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 Commitments 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.
(g) Notwithstanding anything to the contrary
contained herein, any Lender (a "Granting Lender") may grant to one or
more SPC's established or maintained by that Granting Lender 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, 2.3 or 2.6, provided that (i) nothing herein shall constitute a
commitment to make any Loan by any SPC, (ii) if a 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, the
Co-Borrowers 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 a SPC hereunder
shall utilize the Commitments of the Granting Lender (and, if such Loan
is a Competitive Advance, shall be deemed to utilize the Revolving
Commitments of the Lenders) 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,
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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, Borrower, the Co-Borrowers 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 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, the Co-Borrowers 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, any Co-Borrower, or otherwise, receives payment
of the Obligations held by it that is ratably more than any other Lender,
through any means, receives in payment of the Obligations held by that Lender,
then, subject to applicable Laws: (a) the Lender exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from the other
Lender a participation in the Obligations held by the other Lender and shall pay
to the other Lender a purchase price in an amount so that the share of the
Obligations held by each Lender after the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of the Lenders share any payment obtained in
respect of the Obligations ratably in accordance with each Lender's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrower, any
Co-Borrower or any Person claiming through or succeeding to the rights of
Borrower or a Co-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 and each Co-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 counterclaim with respect to the
participation as fully as if the Lender were the original owner of the
Obligation purchased.
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11.11 Indemnification by Borrower and the Co-Borrowers.
Whether or not the transactions contemplated hereby are consummated, Borrower
and each Co-Borrower jointly and severally shall indemnify and hold harmless
each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Lender to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit) or (c) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect, consequential, special or punitive damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All
amounts due under this Section 11.11 shall be payable within 10 Business Days
after demand therefor. The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
11.12 Nonliability of the Lenders. Borrower and each
Co-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
Co-Borrowers 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
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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 of the
Creditors and neither Borrower, the Co-Borrowers 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 and the Co-Borrowers hereby indemnify and hold
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, the Co-Borrowers and the Creditors in connection with the
Loans, and is made for the sole benefit of Borrower, the Co-Borrowers, the
Creditors, and the Creditors' successors and assigns. Except as provided in
Sections 11.8, 11.11, and 11.28 no other Person shall have any rights of any
nature hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from Borrower and the Co-Borrowers
pursuant to this Agreement in confidence, except for disclosure: (a) to other
Creditors (or, subject to appropriate confidentiality restrictions, Affiliates
of any Creditor); (b) to legal counsel and accountants for Borrower and the
Co-Borrowers or any Lender; (c) to other professional advisors to Borrower and
the Co-Borrowers 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 and the Co-Borrowers 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 Notes, 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.
Notwithstanding anything herein to the contrary, "confidential information"
shall not include, and the Administrative Agent and each Lender may disclose
without limitation of any kind, any information with respect to the "tax
treatment" and "tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated
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hereby. 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.
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, the other Loan Documents
and the letter agreements referred to in Sections 3.2, 3.3, 3.5 and 3.6,
comprise the complete and integrated agreements 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.
(a) Tax Forms.
(1) Each Lender that is not a "United
States person" within the meaning of Section 7701(a)(30) of
the Code (a "Foreign Lender") shall deliver to the
Administrative Agent, prior to receipt of any payment subject
to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to
such Foreign Lender by Borrower pursuant to this Agreement) or
IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Foreign Lender by Borrower
pursuant to this Agreement) or such other evidence
satisfactory to Borrower and the Administrative Agent that
such Foreign Lender is entitled to an exemption from, or
reduction of, U.S. withholding tax, including any
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exemption pursuant to Section 881(c) of the Code. Thereafter
and from time to time, each such Foreign Lender shall (A)
promptly submit 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 or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign
Lender by Borrower pursuant to this Agreement, (B) promptly
notify the Administrative Agent of any change in circumstances
which would modify or render invalid any claimed exemption or
reduction, and (C) 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 Lending Office) to avoid any requirement
of applicable Laws that Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign
Lender.
(2) Each Foreign Lender, to the extent
it does not act or ceases to act for its own account with
respect to any portion of any sums paid or payable to such
Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver
to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the
Administrative Agent (in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms
or statements required to be provided by such Lender as set
forth above, to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B)
two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender
chooses to transmit with such form, and any other certificate
or statement of exemption required under the Code, to
establish that such Lender is not acting for its own account
with respect to a portion of any such sums payable to such
Lender.
(3) Borrower shall not be required to
pay any additional amount to any Foreign Lender under Section
3.12(d) (A) with respect to any taxes required to be deducted
or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form
W-8IMY pursuant to this Section 11.21(a) or (B) if such Lender
shall have failed to satisfy the foregoing provisions of this
Section 11.21(a); provided that if such Lender shall have
satisfied the requirement of this Section 11.21(a) on the date
such Lender became a Lender or ceased to act for its own
account with respect to any payment under any of the Loan
Documents, nothing in this Section 11.21(a) shall relieve
Borrower of its obligation to pay any amounts pursuant to
Section 3.12(d) in the event that, as a result of any change
in any applicable law, treaty or governmental rule, regulation
or order, or any change in the interpretation, administration
or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or
other Person for the account of which such Lender receives any
sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate.
(4) The Administrative Agent may,
without reduction, withhold any Taxes required to be deducted
and withheld from any payment under any of the Loan
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Documents with respect to which Borrower is not required to
pay additional amounts under this Section 11.21(a).
(b) Form W-9. Upon the request of the
Administrative Agent, each Lender that is a "United States person"
within the meaning of Section 7701(a)(30) of the Code shall deliver to
the Administrative Agent two duly signed completed copies of IRS Form
W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable back-up withholding tax
imposed by the Code, without reduction.
(c) Withholding. If any Governmental Agency
asserts that the Administrative Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties
and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and
expenses (including Attorney Costs) of the Administrative Agent. The
obligation of the Lenders under this Section shall survive the
termination of the Commitments, repayment of all other Obligations
hereunder and the resignation of the Administrative Agent.
11.22 Hazardous Material Indemnity. Borrower and each
Co-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 and the Co-Borrowers), 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, 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; provided that, anything to the
contrary herein notwithstanding (including Exhibit K), the liability of Detroit
shall be limited to that portion of the Obligations which are actually borrowed
or received by Detroit. 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 and each Co-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 and the Co-Borrowers
under this Section (and under Sections 4.17 and 5.4, with respect to compliance
with Hazardous Materials Laws) shall be unlimited corporate obligations of
Borrower and the Co-Borrowers and shall not be secured by any deed of trust or
mortgage on any Real Property. Any obligation or liability of Borrower and the
Co-Borrowers to any Indemnitee under this Section shall survive the expiration
or termination of this Agreement, the repayment of all
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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 for
the Obligations (and shall consent to the release by the Collateral Agent of any
Liens held by the Collateral Agent) which is (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 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, (v) for the
avoidance of doubt, of the Golden Nugget Properties (and the stock of entities
owning the Golden Nugget Properties) upon any permitted sale, transfer or other
disposition of the Golden Nugget Properties, or (vi) as otherwise expressly
required by the Loan Documents, provided in each case that any Liens securing
the other Senior Indebtedness are concurrently released. If the collateral so
released consists of capital stock of a Subsidiary which is sold, transferred or
otherwise disposed of in connection with any transaction not prohibited by the
Loan Documents, then the Administrative Agent shall concurrently also release
such Subsidiary from its obligations under the Guaranty. Each of the Creditors
hereby consent to the arrangements set forth in this Section and, 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
(or to consent to such release by the Collateral Agent) upon any one or more
items of collateral under this Section.
11.25 Termination; Release of Liens. In addition to any
Collateral Release as contemplated in Section 2.12, upon (a) the expiration or
termination of the Commitments, (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 and the
Co-Borrowers, execute and deliver to Borrower and the Co-Borrowers discharges
from further compliance with the covenants contained in Articles 5, 6, and 7 and
releases of the Liens created by the Loan 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 and the Co-Borrowers
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
2.11, 3.7, 3.8(g) and 3.12(d) and (b) if such Lender is the subject of a
Disqualification. If Borrower and the Co-Borrowers are entitled to remove a
Lender pursuant to this Section either:
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(x) Upon notice from Borrower and the Co-Borrowers, the
Lender being removed shall execute and deliver a Assignment
Agreement covering that Lender's Pro Rata Share in favor of
one or more Eligible Assignees designated by Borrower and the
Co-Borrowers (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 and the Swing Line Lender of
such Lender's obligations under Sections 2.4(c) and 2.6(d) 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 any Swing Line Outstandings; or
(y) Except in the case of the removal of a Lender
pursuant to Section 2.11, Borrower and the Co-Borrowers may
reduce the Commitments pursuant to Section 2.9 (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.
11.27 Joint and Several. Borrower and each of the
Co-Borrowers shall be obligated for all of the Obligations on a joint and
several basis, notwithstanding which of them may have directly received the
proceeds of any particular Loan or Advance or the benefit of a particular Letter
of Credit, provided that, anything to the contrary herein notwithstanding
(including Exhibit K), the liability of Detroit shall be limited to that portion
of the Obligations which are actually borrowed or received by Detroit. Borrower
and each of the Co-Borrowers acknowledge and agree that, for purposes of the
Loan Documents, Borrower, the Co-Borrowers and the Guarantors constitute a
single integrated financial enterprise and that each receives a benefit from the
availability of credit under this Agreement. Borrower and the Co-Borrowers each
waive all defenses arising under the Laws of suretyship, to the extent such Laws
are applicable, in connection with their joint and several obligations under
this Agreement. Without limiting the foregoing, Borrower and each of the
Co-Borrowers agree to the Joint Borrower Provisions set forth in Exhibit K,
incorporated by this reference.
11.28 Non-Involvement of Tracinda. The parties hereto
acknowledge that neither Kirk Kerkorian nor Tracinda Corporation, individually
or collectively, is a party to this Agreement or any of the other Loan Documents
executed on the Closing Date. Accordingly, the parties hereto hereby agree that
in the event (i) there is any alleged breach or default by any Party under this
Agreement or any such Loan Document, or (ii) any party hereto has any claim
arising from or relating to any such Loan Document, no party hereto, nor any
party claiming through it (to the extent permitted by applicable Law), shall
commence any proceedings or otherwise seek to impose any liability whatsoever
against Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach,
default or claim.
11.29 Pledged Stock in Gaming Companies. If and to the
extent that the capital stock or other equity securities of any Person which
holds a gaming license are at any time pledged to the Creditors, the Creditors
shall, to the extent required by applicable Gaming Laws (a) in the case of any
such Person holding a Nevada gaming license, retain possession of such pledged
capital stock or other equity securities within the State of Nevada at a
location designated to the Nevada State Gaming Control Board, and (b) in the
case of any Person holding a gaming license from another jurisdiction, shall
retain possession of such pledged stock or other equity securities at a location
in that jurisdiction designated to the Gaming Board of that jurisdiction, if so
required by the Gaming Board of that jurisdiction.
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11.30 Payments Set Aside. To the extent that any payment by
or on behalf of Borrower or any Co-Borrower is made to the Administrative Agent
or any Lender, or the Administrative Agent or any Lender exercises its right of
set-off, and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
11.31 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED 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.
11.32 Purported Oral Amendments. BORROWER AND EACH
CO-BORROWER EXPRESSLY ACKNOWLEDGE 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 AND EACH CO-BORROWER AGREE THAT THEY WILL NOT RELY ON ANY COURSE
OF DEALING, COURSE OF PERFORMANCE, OR 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
MGM MIRAGE,
a Delaware corporation
By: /s/ BRYAN L. WRIGHT
--------------------------------------
Bryan Wright, Vice President-Assistant
General Counsel and Assistant Secretary
MGM GRAND DETROIT, LLC
By: MGM Grand Detroit, Inc., managing member
By: /s/ BRYAN L. WRIGHT
--------------------------------------
Bryan Wright, Assistant Secretary
Signature Page
Loan Agreement
<PAGE>
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ JANICE HAMMOND
--------------------------------------
Janice Hammond, Vice President
Signature Page
Loan Agreement
<PAGE>
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ SCOTT L. FABER
--------------------------------------
Scott L. Faber, Managing Director
Signature Page
Loan Agreement
<PAGE>
JPMORGAN CHASE BANK,
as a Lender
By: /s/ DONALD S. SHOKRIAN
--------------------------------------
Name: Donald S. Shokrian
Title: Managing Director
Signature Page
Loan Agreement
<PAGE>
CITICORP USA, INC.,
as a Lender
By: /s/ ROBERT F. PARR
--------------------------------------
Name: Robert F. Parr
Title: Managing Director
Signature Page
Loan Agreement
<PAGE>
WELLS FARGO BANK, N.A.,
as a Lender
By: /s/ CATHRYN SANTORO
--------------------------------------
Name: Cathryn Santoro
Title: AVP, Relationship Manager
Signature Page
Loan Agreement
<PAGE>
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as a Lender
By: /s/ GEORGE R. REYNOLDS
--------------------------------------
Name: George R. Reynolds
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ MARIA AMARAL-LEBLANC
--------------------------------------
Name: Maria Amaral-LeBlanc
Title: Senior Vice President
Signature Page
Loan Agreement
<PAGE>
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES,
as a Lender
By: /s/ CHRISTIAN JAGENBERG
--------------------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By: /s/ WERNER SCHMIDBAUER
--------------------------------------
Name: Werner Schmidbauer
Title: SVP
Signature Page
Loan Agreement
<PAGE>
BANK OF SCOTLAND,
as a Lender
By: /s/ JOSEPH FRATUS
--------------------------------------
Name: Joseph Fratus
Title: First Vice President
Signature Page
Loan Agreement
<PAGE>
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ MICHAEL A. MITCHELL
--------------------------------------
Name: Michael A. Mitchell
Title: Director
Signature Page
Loan Agreement
<PAGE>
SCOTIABANC, INC.,
as a Lender
By: /s/ WILLIAM E. ZARRETT
--------------------------------------
Name: William E. Zarrett
Title: Managing Director
Signature Page
Loan Agreement
<PAGE>
SOCIETE GENERALE,
as a Lender
By: /s/ THOMAS K. DAY
--------------------------------------
Name: Thomas K. Day
Title: Managing Director
Signature Page
Loan Agreement
<PAGE>
BARCLAYS BANK PLC,
as a Lender
By: /s/ L. PETER YETMAN
--------------------------------------
Name: L. Peter Yetman
Title: Director
Signature Page
Loan Agreement
<PAGE>
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ DANIEL L. EVANS
--------------------------------------
Name: Daniel L. Evans
Title: Managing Director
Signature Page
Loan Agreement
<PAGE>
FLEET NATIONAL BANK,
as a Lender
By: /s/ THOMAS BROWER
--------------------------------------
Name: Thomas Brower
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
BANK ONE, N.A.,
as a Lender
By: /s/ KANDIS A. JAFFREY
--------------------------------------
Name: Kandis A. Jaffrey
Title: Director
Signature Page
Loan Agreement
<PAGE>
THE BANK OF NEW YORK,
as a Lender
By: /s/ MEHRASA RAYGANI
--------------------------------------
Name: Mehrasa Raygani
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ MICHAEL J. VEGH
--------------------------------------
Name: Michael J. Vegh
Title: Portfolio Manager
Signature Page
Loan Agreement
<PAGE>
CIBC INC.,
as a Lender
By: /s/ PAUL J. CHAKMAK
--------------------------------------
Name: Paul J. Chakmak
Title: Managing Director
CIBC World Markets Corp.,
AS AGENT
Signature Page
Loan Agreement
<PAGE>
BNP PARIBAS,
as a Lender
By: /s/ JANICE S. H. HO
--------------------------------------
Name: Janice S. H. Ho
Title: Director
By: /s/ MITCHELL M. OZAWA
--------------------------------------
Name: Mitchell M. Ozawa
Title: Managing Director
Signature Page
Loan Agreement
<PAGE>
MIZUHO CORPORATE BANK, LIMITED,
as a Lender
By: /s/ MARK GRONICH
--------------------------------------
Name: Mark Gronich
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
COMERICA BANK,
as a Lender
By: /s/ EOIN P. COLLINS
--------------------------------------
Name: Eoin P. Collins
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ AL GALLUZZO
--------------------------------------
Name: Al Galluzzo
Title: Senior Vice President
Signature Page
Loan Agreement
<PAGE>
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
as a Lender
By: /s/ TOM HAYES /s/ DAVID WALSH
--------------------- --------------------
Name: Tom Hayes David Walsh
Title: Authorised Signatory Authorised Signatory
Signature Page
Loan Agreement
<PAGE>
PB CAPITAL CORPORATION,
as a Lender
By: /s/ MARIA C. LEVY
--------------------------------------
Name: Maria C. Levy
Title: Vice President
By: /s/ STEVEN ALEXANDER
--------------------------------------
Name: Steven Alexander
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
UFJ BANK LIMITED,
as a Lender
By: /s/ TOSHIKO BOYD
--------------------------------------
Name: Toshiko Boyd
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
STANDARD FEDERAL BANK,
as a Lender
By: /s/ ANNETTE GORDON
--------------------------------------
Name: Annette Gordon
Title: First Vice President
Signature Page
Loan Agreement
<PAGE>
ALLIED IRISH BANK,
as a Lender
By: /s/ MARGARET BRENNAN
--------------------------------------
Name: Margaret Brennan
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
HSH NORDBANK AG, NEW YORK BRANCH,
as a Lender
By: /s/ DREW VON GLAHN
--------------------------------------
Name: Drew von Glahn
Title: Senior Vice President
Head of Corporate Banking
HSH Nordbank, New York Branch
By: /s/ AMY CHEN LU
--------------------------------------
Name: Amy Chen Lu
Title: Corporate Banking
HSH Nordbank AG, New York Branch
Signature Page
Loan Agreement
<PAGE>
ERSTE BANK NEW YORK BRANCH,
as a Lender
By: /s/ ROBERT J. WAGMAN
--------------------------------------
Name: Robert J. Wagman
Title: Vice President
Erste Bank New York Branch
By: /s/ BRYAN J. LYNCH
--------------------------------------
Name: Bryan J. Lynch
Title: First Vice President
Signature Page
Loan Agreement
<PAGE>
OAK BROOK BANK,
as a Lender
By: /s/ GLENN KRIETSCH
--------------------------------------
Name: Glenn Krietsch
Title: Executive Vice President
Signature Page
Loan Agreement
<PAGE>
BANK OF HAWAII,
as a Lender
By: /s/ SCOTT NAHME
--------------------------------------
Name: Scott Nahme
Title: Vice President
Signature Page
Loan Agreement
<PAGE>
BANK OF CHINA, LOS ANGELES BRANCH,
as a Lender
By: /s/ KARL K. Y. PAN
--------------------------------------
Name: Karl K. Y. Pan
Title: FVP and Senior Relationship Manager
Signature Page
Loan Agreement
<PAGE>
THE PEOPLES BANK, BILOXI, MISSISSIPPI,
as a Lender
By: /s/ CHEVIS C. SWETMAN
--------------------------------------
Name: Chevis C. Swetman
Title: President
Signature Page
Loan Agreement
<PAGE>
TRUSTMARK NATIONAL BANK,
as a Lender
By: /s/ SARAH B. ADAMS
--------------------------------------
Name: Sarah B. Adams
Title: Assistant Vice President
Signature Page
Loan Agreement
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ KARL KIEFFER
--------------------------------------
Name: Karl Kieffer
Title: Duly Authorized Signatory
Signature Page
Loan Agreement