EXECUTED VERSION
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of July 17, 1997
among
MGM GRAND, INC.,
as Borrower
MGM GRAND ATLANTIC CITY, INC.
as Co-Borrower
The Banks, Managing Agents and Co-Agent herein named
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Administrative Agent
TABLE OF CONTENTS
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Page
Article 1 DEFINITIONS AND ACCOUNTING TERMS............................... 2
1.1 Defined Terms.................................................. 2
1.2 Use of Defined Terms........................................... 41
1.3 Accounting Terms - Fiscal Periods.............................. 41
1.4 Rounding....................................................... 42
1.5 Exhibits and Schedules......................................... 42
1.6 Miscellaneous Terms............................................ 42
Article 2 LOANS AND LETTERS OF CREDIT.................................... 43
2.1 Committed Loans-General........................................ 43
2.2 Base Rate Loans................................................ 45
2.3 Eurodollar Rate Loans.......................................... 45
2.4 Letters of Credit.............................................. 46
2.5 Competitive Advances........................................... 50
2.6 Swing Line..................................................... 54
2.7 Co-Borrowers................................................... 57
2.8 Voluntary Reduction of Commitment.............................. 57
2.9 Scheduled Reductions of Commitment............................. 58
2.10 Optional Increases to the Commitment........................... 58
2.11 Optional Termination of Commitment............................. 60
2.12 Extension of Reduction Dates and Maturity Date................. 60
2.13 Administrative Agent's Right to Assume Funds Available for
Advances................................................... 61
2.14 Release of Collateral.......................................... 62
2.15 Collateral and Guarantees...................................... 63
2.16 Senior Indebtedness............................................ 63
Article 3 PAYMENTS AND FEES............................................... 64
3.1 Principal and Interest.......................................... 64
3.2 Arranger's Fees................................................. 66
3.3 Upfront Fees.................................................... 66
3.4 Commitment Fees................................................. 66
3.5 Letter of Credit Fees........................................... 66
3.6 Agency Fees..................................................... 67
3.7 Increased Commitment Costs...................................... 67
3.8 Eurodollar Costs and Related Matters............................ 68
3.9 Late Payments................................................... 73
3.10 Computation of Interest and Fees................................ 73
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3.11 Non-Banking Days............................................... 74
3.12 Manner and Treatment of Payments............................... 74
3.13 Funding Sources................................................ 76
3.14 Failure to Charge Not Subsequent Waiver........................ 76
3.15 Administrative Agent's Right to Assume Payments Will be Made by
Borrower and the Co-Borrowers.............................. 76
3.16 Fee Determination Detail....................................... 76
3.17 Survivability.................................................. 77
Article 4 REPRESENTATIONS AND WARRANTIES................................. 78
4.1 Existence and Qualification; Power; Compliance With Laws....... 78
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations.................................... 78
4.3 No Governmental Approvals Required............................. 79
4.4 Subsidiaries................................................... 79
4.5 Financial Statements........................................... 80
4.6 No Other Liabilities; No Material Adverse Changes.............. 81
4.7 Title to Property.............................................. 81
4.8 Intangible Assets.............................................. 81
4.9 Public Utility Holding Company Act............................. 81
4.10 Litigation..................................................... 82
4.11 Binding Obligations............................................ 82
4.12 No Default..................................................... 82
4.13 ERISA.......................................................... 82
4.14 Regulations G, T, U and X; Investment Company Act.............. 83
4.15 Disclosure..................................................... 83
4.16 Tax Liability.................................................. 83
4.17 Projections.................................................... 84
4.18 Hazardous Materials............................................ 84
4.19 Security Interests............................................. 84
4.20 No Default Under Existing Loan Agreement....................... 85
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)........................................ 86
5.1 Payment of Taxes and Other Potential Liens..................... 86
5.2 Preservation of Existence...................................... 86
5.3 Maintenance of Properties...................................... 86
5.4 Maintenance of Insurance....................................... 87
5.5 Compliance With Laws........................................... 87
5.6 Inspection Rights.............................................. 87
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5.7 Keeping of Records and Books of Account....................... 87
5.8 Compliance With Agreements.................................... 88
5.9 Use of Proceeds............................................... 88
5.10 New Restricted Subsidiaries................................... 88
5.11 Hazardous Materials Laws...................................... 88
5.12 Change of Name................................................ 89
5.13 Material Projects............................................. 89
5.14 Completion Certificates....................................... 91
Article 6 NEGATIVE COVENANTS............................................ 92
6.1 Payment of Subordinated Obligations........................... 92
6.2 Disposition of Property....................................... 92
6.3 Mergers....................................................... 94
6.4 Hostile Acquisitions.......................................... 94
6.5 Distributions................................................. 94
6.6 ERISA......................................................... 95
6.7 Change in Nature of Business.................................. 95
6.8 Liens and Negative Pledges.................................... 95
6.9 Indebtedness and Guaranty Obligations......................... 96
6.10 Transactions with Affiliates.................................. 98
6.11 Adjusted Leverage Ratio....................................... 98
6.12 Interest Charge Coverage Ratio................................ 99
6.13 Capital Expenditures.......................................... 99
6.14 Tangible Net Worth............................................ 99
6.15 Investments and Acquisitions.................................. 100
6.16 Restricted Subsidiary Indebtedness and Guaranty Obligations... 101
6.17 Qualified Investments......................................... 101
6.18 Minimum Title Insurance....................................... 102
Article 7 INFORMATION AND REPORTING REQUIREMENTS........................ 103
7.1 Financial and Business Information............................ 103
7.2 Compliance Certificates....................................... 107
Article 8 CONDITIONS.................................................... 108
8.1 Initial Advances on the Closing Date.......................... 108
8.2 Any Advance................................................... 111
8.3 Any Advance................................................... 112
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT.......... 114
9.1 Events of Default............................................. 114
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9.2 Remedies Upon Event of Default................................ 117
Article 10 THE ADMINISTRATIVE AGENT...................................... 121
10.1 Appointment and Authorization................................. 121
10.2 Administrative Agent and Affiliates........................... 121
10.3 Proportionate Interest in any Collateral...................... 121
10.4 Banks' Credit Decisions....................................... 122
10.5 Action by Administrative Agent................................ 122
10.6 Liability of Administrative Agent............................. 123
10.7 Indemnification............................................... 125
10.8 Successor Administrative Agent................................ 125
10.9 Foreclosure on Collateral..................................... 126
10.10 Intercreditor Arrangements; Attornment Agreements............. 126
10.11 No Obligations of Borrower and the Co-Borrowers............... 127
Article 11 MISCELLANEOUS................................................. 128
11.1 Cumulative Remedies; No Waiver................................ 128
11.2 Amendments; Consents.......................................... 128
11.3 Costs, Expenses and Taxes..................................... 130
11.4 Nature of Banks' Obligations.................................. 131
11.5 Survival of Representations and Warranties.................... 131
11.6 Notices....................................................... 131
11.7 Execution of Loan Documents................................... 132
11.8 Binding Effect; Assignment.................................... 132
11.9 Right of Setoff............................................... 137
11.10 Sharing of Setoffs............................................ 137
11.11 Indemnity by Borrower and the Co-Borrowers.................... 138
11.12 Nonliability of the Banks..................................... 139
11.13 No Third Parties Benefited.................................... 140
11.14 Confidentiality............................................... 141
11.15 Further Assurances............................................ 141
11.16 Integration................................................... 141
11.17 Governing Law................................................. 142
11.18 Severability of Provisions.................................... 142
11.19 Headings...................................................... 142
11.20 Time of the Essence........................................... 142
11.21 Foreign Banks and Participants................................ 142
11.22 Hazardous Material Indemnity.................................. 143
11.23 Gaming Boards................................................. 144
11.24 Lien Releases................................................. 144
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11.25 Termination; Release of Liens................................ 145
11.26 Nevada Gaming Collateral..................................... 145
11.27 Removal of a Bank............................................ 145
11.28 Joint and Several............................................ 146
11.29 Waiver of Right to Trial by Jury............................. 147
11.30 Purported Oral Amendments.................................... 147
Exhibits
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A - Assignment Agreement
B - Assumption Agreement
C - Committed Advance Note
D - Competitive Advance Note
E - Competitive Bid
F - Competitive Bid Request
G - Compliance Certificate
H - Pricing Certificate
I - Request for Letter of Credit
J - Request for Loan
K - Joint Borrower Provisions
L - Subordination Provisions
Schedules
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1.1 Bank Commitments
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.17 Projections
4.18 Environmental Matters
6.9 Existing Indebtedness and Guaranty Obligations
6.13 Proposed Master Plan Capital Expenditures
6.15 Existing Investments
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AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
Dated as of July 17, 1997
This Amended and Restated Loan Agreement ("Agreement") is entered into
by and among MGM Grand, Inc., a Delaware corporation ("Borrower"), MGM Grand
Atlantic City, Inc., a New Jersey corporation ("Atlantic City"), 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 "Banks" and
individually, a "Bank"), Societe Generale, The Bank of Nova Scotia, Bank of
Scotland, Bankers Trust Company, CIBC Inc., Commerzbank AG, Los Angeles Branch,
The Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency, PNC Bank, National
Association, and ▇▇▇▇▇ Fargo Bank, N.A., as Managing Agents, Fleet Bank, N.A.,
as Co-Agent, and Bank of America National Trust and Savings Association, as
Administrative Agent, with reference to the following facts:
A. Borrower has previously entered into a Loan Agreement dated as of July
1, 1996 among Borrower, the Banks and Co-Agents named therein, and Bank of
America National Trust and Savings Association, as Administrative Agent,
pursuant to which the Banks have provided a revolving credit facility in
the aggregate principal amount of $600,000,000 (as amended, the "Existing
Loan Agreement").
B. Borrower, the Administrative Agent and the Banks desire to amend and
restate the Existing Loan 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 Loan Agreement, an extension of the maturity thereof and
revisions to the covenants of Borrower set forth therein.
C. Immediately prior to the effectiveness hereof, certain of the banks
party to the Existing Loan Agreement which are not parties hereto (the
"Exiting Banks") have entered into the Exit Agreement (as defined below)
which terminates their status as lenders under the Existing Loan Agreement.
D. By executing this Agreement, MGM Grand Atlantic City, Inc. shall
become a direct, joint and several Co-Borrower from the Banks as set forth
herein.
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, Borrower, Atlantic City, each Co-
Borrower which hereafter becomes a Party hereto pursuant to Section 2.7, the
Administrative Agent, the Managing Agents, the Co-Agents and the Banks, 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.
"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 50% or more ownership interest in any
partnership, joint venture, limited liability company or any other Person.
"Adjusted Leverage Ratio" means, as of each date of determination
-----------------------
thereof, the Leverage Ratio as of that date after deducting from the
numerator thereof the lesser of (a) the purchase price of all Qualified
------
Investments purchased pursuant to Section 6.15(l) and then owned by
Borrower and its Restricted Subsidiaries, and (b) the market price of such
Qualified Investments (determined as of that date on the basis of the
average of the five most recent closing quotations as of that date and the
five closing quotations following that date on the New York Stock Exchange,
the NASDAQ National Markets, the American Stock Exchange or any other major
national or international stock exchange reasonably approved by the
Administrative Agent and not objected to by the Requisite Banks within 5
Banking Days following notice thereof from the Administrative Agent).
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"Administrative Agent" means Bank of America, when acting in its
--------------------
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
-----------------------------
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Banks.
"Advance" means any advance made or to be made by any Bank to Borrower
-------
or any Co-Borrower as provided in Article 2, and includes each Base Rate
--------
Advance, Eurodollar Rate Advance, Committed Advance, Swing Line Advance and
Competitive Advance.
"Affiliate" means, as to any Person, any other Person which directly
---------
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns, directly or
--------
indirectly, 10% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation that has
more than 100 record holders of such securities, or 10% or more of the
partnership or other ownership interests of any other Person that has more
than 100 record holders of such interests, will be presumed (subject to
rebuttal by a preponderance of the evidence) to control such corporation,
partnership or other Person.
"Aggregate Effective Amount" means, as of any date of determination
--------------------------
and with respect to all Letters of Credit then outstanding, the sum of (a)
---
the aggregate effective face amounts of all such Letters of Credit not then
paid by the Issuing Bank plus (b) the aggregate amounts paid by the Issuing
----
Bank under such Letters of Credit not then reimbursed to the Issuing Bank
by Borrower and the Co-Borrowers pursuant to Section 2.4(d) and not the
subject of Advances made pursuant to Section 2.4(e).
"Agreement" means the Existing Loan Agreement, as amended and restated
---------
hereby and as it may from time to time be further supplemented, modified,
amended, restated or extended.
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"Annualized Cash Flow" means, as of the last day of any Fiscal
--------------------
Quarter, and without duplication, (a) Borrower Group EBITDA for the four
Fiscal Quarters ended on that date, plus (b) Pre-Opening Expenses for the
----
same period, plus (c) EBITDA of the Australia Companies for the same period
----
(to the extent that the same are then directly or indirectly owned by
Borrower), plus (d) New York Available EBITDA for the same period, in each
----
case, determined in accordance with Generally Accepted Accounting
Principles.
"Arranger" means BancAmerica Securities, Inc.
--------
"Assignment Agreement" 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 which will be the owner of the proposed MGM Grand - Atlantic
City, its successors and permitted assigns.
"Australia Companies" means, collectively, (a) MGM Grand Diamond,
-------------------
Inc., a Nevada corporation, (b) its wholly owned Subsidiary, MGM Grand
Australia Pty., Ltd., a corporation organized under the laws of the
Northern Territory of Australia, and (c) each Subsidiary of MGM Grand
Australia Pty., Ltd., their successors and permitted assigns.
"Australia Option Agreement" means that certain Option Deed dated June
--------------------------
30, 1995, as amended, among Borrower, certain of the Australia Companies,
and the other parties named therein, as in effect on the Prior Closing
Date, a copy of which has been delivered to the Administrative Agent and
the Banks.
"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.
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"Bank" means each bank whose name is set forth in the signature pages
----
of this Agreement and each lender which may hereafter become a party to
this Agreement pursuant to Section 11.8 (and to the extent a party to a
Secured Swap Agreement, any Affiliate of a Bank).
"Bank of America" means Bank of America National Trust and Savings
---------------
Association, its successors and assigns.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
-----------
Friday, other than a day on which banks are authorized or required to be
----------
closed in California, Nevada or New York.
"Base Rate" means, as of any date of determination, the rate per annum
---------
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
higher of (a) the Reference Rate in effect on such date and (b) the Federal
---------
Funds Rate in effect on such date plus 1/2 of 1% (50 basis points).
"Base Rate Advance" means an Advance made hereunder and specified to
-----------------
be a Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be a
--------------
Base Rate Loan in accordance with Article 2.
"Base Rate Margin" means, as of each date of determination, the lesser
---------------- ------
percentage of (a) the applicable percentage set forth in the Leverage
Matrix opposite the Leverage Ratio (determined, during each Pricing Period,
as of the last day of the Fiscal Quarter ending approximately 45 days prior
to the commencement of such Pricing Period), and (b) to the extent the
Facility Ratings Matrix is then applicable, the applicable percentage set
forth opposite the effective Facility Rating in the Facility Ratings
Matrix.
"Basket Amount" means $750,000,000 plus, as of each date of
------------- ----
determination, an amount equal to the Cash proceeds received by Borrower
from issuance by Borrower of its equity securities following December 31,
1996, after deduction of any associated transactional expenses.
"Borrower" means MGM Grand, Inc., a Delaware corporation, its
--------
successors and permitted assigns.
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"Borrower Group EBITDA" means, for any fiscal period, the EBITDA of
---------------------
Borrower and its Restricted Subsidiaries for that fiscal period.
"Borrower Guaranty" means a continuing guaranty of the Obligations of
-----------------
the Co-Borrowers executed and delivered by Borrower as the same may from
time to time be supplemented, modified, amended, extended or supplanted.
"Borrower Security Agreement" means the Borrower Security Agreement
---------------------------
executed by Borrower as of October 2, 1996 and amended and restated
concurrently herewith, as the same may from time to time be further
supplemented, modified, amended, renewed, extended or supplanted.
"Capital Expenditure" means any expenditure for or related to fixed
-------------------
assets or purchased intangibles that is treated as a capital expenditure
under Generally Accepted Accounting Principles, including any amount which
---------
is required to be treated as an asset subject to a Capital Lease
Obligation.
"Capital Lease Obligations" means all monetary obligations of a Person
-------------------------
under any leasing or similar arrangement which, in accordance with
Generally Accepted Accounting Principles, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all monetary
----
and non-monetary items owned by that Person that are treated as cash in
accordance with Generally Accepted Accounting Principles, consistently
applied.
"Cash Equivalents" means, when used in connection with any Person,
----------------
that Person's Investments in:
(a) Government Securities due within one year after the date
of the making of the Investment;
(b) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such
State or any public agency or instrumentality thereof given on the
date of such Investment a credit rating of at least Aa by Moody's or
AA by S&P in each case due within one year from the making of the
Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
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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 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 1 934, 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 ▇▇▇▇▇ nment 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 ▇▇▇▇▇'▇ Investors Service, Inc. and AA by S&P, in
each case
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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 Bank 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 Unite d 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 Interest Charges" means, for any Person and for any period, that
---------------------
portion of Interest Charges of that Person which are paid or currently
payable in Cash during that period excluding intercompany accounts.
"Certificate of a Responsible Official" means a certificate signed by
-------------------------------------
a Responsible Official of the Person providing the certificate.
"Change in Control" means (a) any transaction or series of related
-----------------
transactions in which any Unrelated Person or two or more Unrelated Persons
acting in concert acquire beneficial ownership (within the meaning of Rule
13d-3(a)(1) under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of 25% or more of the outstanding common stock of
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
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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 Banking Day on which the conditions
------------
set forth in Section 8.1 are satisfied or waived. The Administrative Agent
shall notify Borrower, Atlantic City and the Banks of the date that is the
Closing Date.
"Co-Agent" means Fleet Bank, N.A. The capacity of the Co-Agent is
--------
titular in nature only and the Co-Agent shall have no rights, duties or
responsibilities under the Loan Documents beyond those of a Bank.
"Co-Borrowers" means, collectively, Atlantic City 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.
"Collateral" means all of the collateral covered by the Collateral
----------
Documents.
"Collateral Documents" means, collectively, the Borrower Security
--------------------
Agreement, the Pledge Agreement, the Confirmation of Pledge Agreement, each
Subsidiary Pledge Agreement, the Trademark Security Interest Assignment,
the Subsidiary Security Agreements, the Deeds of Trust and any other
security agreement, pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and delivered by Borrower
or any of its Restricted Subsidiaries to secure the Obligations.
"Collateral Release" means a release by the Administrative Agent of
------------------
its liens under the Collateral Documents pursuant to Section 2.14.
"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 Bank.
"Commitment" means, subject to any increase or decrease in the amount
----------
thereof pursuant to Sections 2.8, 2.9, 2.10 and 2.11, $1,250,000,000. As
of the
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Closing Date, the respective Pro Rata Shares of the Banks with respect to
the Commitment are set forth in Schedule 1.1.
"Commitment Fee Rate" means, as of each date of determination in any
-------------------
Pricing Period, the lesser percentage of (a) the applicable percentage set
------
forth in the Leverage Matrix opposite the Leverage Ratio (determined,
during such Pricing Period, as of the last day of the Fiscal Quarter ending
approximately 45 days prior to the commencement of such Pricing Period),
and (b) to the extent the Facility Ratings Matrix is then applicable, the
applicable percentage set forth opposite the effective Facility Rating in
the Facility Ratings Matrix.
"Committed Advances" means an Advance by a Bank as a ratable part of a
------------------
Committed Loan pursuant to such Bank's Pro Rata Share of the Commitment.
"Committed Advance Note" means each promissory note made by Borrower
----------------------
and each Co-Borrower to a Bank evidencing the Committed Advances made by
that Bank under its Pro Rata Share of the Commitment, substantially in the
form of Exhibit C, either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Committed Loan" means a Loan consisting of ratable Advances by the
--------------
Banks pursuant to their respective Pro Rata Shares.
"Competitive Advance" means an Advance made to Borrower or any Co-
-------------------
Borrower by any Bank not determined by that Bank's Pro Rata Share pursuant
to Section 2.5.
"Competitive Advance Note" means each promissory note made by Borrower
------------------------
and each Co-Borrower to a Bank evidencing the Competitive Advances made by
that Bank, substantially in the form of Exhibit D, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted
"Competitive Bid" means (a) a written bid to provide a Competitive
---------------
Advance substantially in the form of Exhibit E, signed by a Responsible
Official of a Bank and properly completed to provide all information
required to be included therein or (b), at the election of any Bank, a
telephonic bid by that
-10-
Bank to provide a Competitive Advance which, if so made, shall be made by a
Responsible Official of that Bank and deemed to have been made
incorporating the substance of Exhibit E, 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 F, 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 F, and shall promptly be confirmed
by a written Competitive Bid Request.
"Completion Date" means as to any Material Project the date upon which
---------------
that Material Project is licensed to conduct gaming and open for business
to the general public with (a) at least 95% of the hotel rooms provided for
in the construction plans ready for occupancy, (b) at least 95% of the
square footage of casino space provided for in the construction plans ready
for gaming and (c) substantially all other planned amenities substantially
complete.
"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.
"Confidential Information Memorandum" means the Confidential
-----------------------------------
Information Memorandum dated June, 1997 distributed to the Banks with
respect to the credit facilities described herein, and all accompanying
informational materials.
"Confirmation of Pledge Agreement" means a written confirmation by
--------------------------------
Borrower as of the Closing Date, in form and substance reasonably
acceptable to the Administrative Agent and the Banks, that the Pledge
Agreement remains in full force and effect and operates to secure the
Obligations with all of the issued and outstanding capital stock of Las
Vegas.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
outstanding security issued by that Person or of any material agreement,
-11-
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
---------
Bank, the Swing Line Bank, each Bank and, where the context requires, any
one or more of them.
"CSG" means Bank of America Construction Services Group.
---
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
------------------
America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Deeds of Trust" means the Nevada Deed of Trust, the New Jersey
--------------
Mortgage, and each other mortgage or deed of trust hereafter delivered
pursuant to Section 5.13.
"Default" means any event that, with the giving of any applicable
-------
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Default Rate" means the interest rate prescribed in Section 3.9.
------------
"Deposit Account" means (a) as to Borrower, account no. 12333-15169
---------------
with Bank of America, (b) as to Atlantic City, account no. ▇▇▇▇▇-▇▇▇▇▇ with
Bank of America, and (c) as to each other Co-Borrower, a deposit account to
be maintained by that Co-Borrower with Bank of America designated by such
Co-Borrower with the reasonable approval of the Administrative Agent.
"Designated Eurodollar Market" means, with respect to any Eurodollar
----------------------------
Rate Loan, (a) the London Eurodollar Market, (b) if prime banks in the
London Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that the
London Eurodollar Market does not represent at the relevant time the
effective pricing to the Banks 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ does not represent at the relevant time the effective
pricing to the Banks 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 Banks. The Administrative Agent will endeavor
to provide prompt notice to Borrower and the Co-Borrowers of any change in
the location of the Designated Eurodollar Market.
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
-------
company which is the proposed owner of the Detroit Project, its successors
and permitted assigns.
"Detroit Operating Agreement" means the draft of the Operating
---------------------------
Agreement of MGM Grand Detroit, LLC dated as of July 7, 1997 between MGM
Grand Detroit, Inc., a Delaware corporation which is a wholly-owned
Subsidiary of Borrower, and Partners Detroit, L.L.C., a Michigan limited
liability company, as in effect on the date of this Agreement.
"Detroit Project" means the proposed, design, development and
---------------
construction, by Borrower and its Restricted Subsidiaries (whether
individually, through Detroit, or in concert with one or more partners or
joint venturers) of a hotel, casino and entertainment complex (including
the temporary casino facilities described in the Detroit Operating
Agreement) in Detroit, Michigan or its environs.
"Disposition" means the voluntary sale, transfer or other disposition
-----------
of any asset of Borrower or any of its Restricted Subsidiaries other than
----- ----
the voluntary sale, transfer or other disposition of (a) Cash, Cash
Equivalents, Investments (other than Investments in a Restricted
----- ----
Subsidiary, New York, Monorail or the Australia Companies), inventory or
other assets sold, leased or otherwise disposed of in the ordinary course
of business of Borrower or any of its Restricted Subsidiaries, (b)
equipment sold or otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been acquired, or
thereafter within 90 days is acquired, by Borrower or any of its Restricted
Subsidiaries, or where Borrower or the Restricted Subsidiary determine in
good faith that the failure to replace such equipment will not be
detrimental in any material respect to the business of Borrower or any of
its Restricted Subsidiaries, or (c) Property to Borrower or any of its
Restricted Subsidiaries.
-13-
"Disqualification" means, with respect to any Bank 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.
------- -
-14-
"EBITDA" means, with respect to any fiscal period and with respect to
------
any Person, the sum of (a) Net Income of such Person for that period, plus
--- -- ----
(b) any extraordinary loss reflected in such Net Income, minus (c) any
-----
extraordinary gain reflected in such Net Income, plus (d) Interest Charges
----
of such Person for that period, plus (e) the aggregate amount of federal,
----
state and local taxes on or measured by income of such Person for that
period (whether or not payable during that period) plus (f) depreciation,
----
amortization and all other non-cash expenses for that period, plus (g)
----
expenses classified as "pre-opening expenses" on the applicable financial
statements of that Person for that fiscal period, in each case as
determined in accordance with Generally Accepted Accounting Principles.
"Eligible Assignee" means (a) another Bank, (b) with respect to any
-----------------
Bank, any Affiliate of that Bank 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 Bank hereunder to the same degree as a commercial bank and
(e) any other financial institution (including a mutual fund or other fund)
---------
having total assets of $250,000,000 or more which meets the requirements
set forth in subclauses (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 Eurodollar Margin" means, for any period, the sum of (i) the
-------------------------- ---
Eurodollar Margin then in effect plus (ii) such interest rate margin as the
----
Requisite Banks specify is necessary to adjust the Eurodollar Rate to a
rate which represents the effective pricing to such Banks for deposits of
Dollars in the Designated Eurodollar Market in the relevant amount for the
applicable
-15-
Eurodollar Period and which adequately and fairly reflects the cost to such
Banks of making the applicable Eurodollar Rate Advances.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
-----
any regulations issued pursuant thereto, as amended or replaced and as in
effect from time to time.
"ERISA Affiliate" means, with respect to any Person, any other Person
---------------
(or any trade or business, whether or not incorporated) that is under
common control with that Person within the meaning of Section 414 of the
Code.
"Eurodollar Banking Day" means any Banking Day on which dealings in
----------------------
Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Bank, its office or
-------------------------
branch so designated by written notice to Borrower and the Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is
designated by a Bank, its Eurodollar Lending Office shall be its office at
its address for purposes of notices hereunder.
"Eurodollar Margin" means as of each date of determination, the lesser
----------------- ------
percentage of (a) the applicable percentage set forth in the Leverage
Matrix opposite the Leverage Ratio (determined, during each Pricing Period,
as of the last day of the Fiscal Quarter ending approximately 45 days prior
to the commencement of such Pricing Period), and (b) to the extent the
Facility Ratings Matrix is then applicable, the applicable percentage set
forth opposite the effective Facility Rating in the Facility Ratings
Matrix.
"Eurodollar Margin Bid" means a Competitive Bid to provide a
---------------------
Competitive Advance on the basis of a margin over the Eurodollar Rate.
"Eurodollar Market" means a regular established market located outside
-----------------
the United States of America by and among banks for the solicitation, offer
and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as defined in
----------------------
Regulation D or any comparable regulation of any Governmental Agency having
jurisdiction over any Bank.
-16-
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the period
-----------------
commencing on the date specified by Borrower or a Co-Borrower pursuant to
Section 2.1(b) and ending 1, 2, 3 or 6 months (or, with the written consent
of all of the Banks, any other period) thereafter, as specified by Borrower
or a Co-Borrower in the applicable Request for Loan; provided that:
--------
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the next
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day
falls in another calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking Day;
(c) Borrower and the Co-Borrowers may not specify a Eurodollar
Period that extends beyond any Reduction Date unless the sum of (i)
---
the aggregate principal amount of the Eurodollar Loans having a
Eurodollar Period ending after such Reduction Date plus (ii) the
----
aggregate maximum amount available for drawing under Letters of Credit
for which the expiry date is after such Reduction Date, does not
exceed the Commitment (after giving effect to any reduction thereto
scheduled to be made on such Reduction Date pursuant to Section 2.9);
and
(d) No Eurodollar Period shall extend beyond the Maturity
Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate Loan and
---------------
any Competitive Rate Advance based upon a margin over the Eurodollar Rate,
the interest rate per annum (rounded upward, if necessary, to the next
1/100 of 1%) at which deposits in Dollars are offered by Bank of America to
prime banks in the Designated Eurodollar Market at or about 11:00 a.m.
local time in the Designated Eurodollar Market, two (2) Eurodollar Banking
Days before the first day of the applicable Eurodollar Period in an
aggregate amount approximately equal to the amount of the Advance made by
Bank of America with respect to such Eurodollar Rate Loan and for a period
of time comparable to the number of days in the applicable Eurodollar
Period.
-17-
"Eurodollar Rate Advance" means an Advance made hereunder and
-----------------------
specified to be a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and specified to be
--------------------
a Eurodollar Rate Loan in accordance with Article 2.
"Event of Default" shall have the meaning provided in Section 9.1.
----------------
"Existing Loan Agreement" has the meaning set forth in the Recitals to
-----------------------
this Agreement.
"Facility Rating" means, as of each date of determination, the higher
---------------
of the credit ratings assigned by Moody's or S&P to the credit facilities
provided hereunder whether senior secured or senior unsecured, provided
--------
however that (a) each change in either such credit rating shall be deemed
-------
to be effective five days following the announcement by Moody's or S&P of
the change, and (b) in the event of a double split rating (or more) the
intermediate rating shall apply.
"Facility Ratings Matrix" means the following matrix, upon which
-----------------------
interest rates and certain fees hereunder may be determined on the basis of
the Facility Rating (expressed below in basis points), provided that as of
--------
any date when (a) there is no Facility Rating or (b) both the Facility
Rating granted by ▇▇▇▇▇'▇ is less creditworthy than Ba1 and the Facility
Rating granted by S&P is less creditworthy than BB+, then the Leverage
Matrix shall instead apply:
Facility Eurodollar Base Rate Commitment Letter of
Rating Spread Spread Fee Credit Fees
------ ------ ------ ---------- -----------
BBB+/Baa1 35.0 0.0 12.5 35.0
BBB/Baa2 40.0 0.0 15.0 40.0
BBB-/Baa3 60.0 0.0 17.5 60.0
BB+/Ba1 75.0 0.0 25.0 75.0;
provided further that during each Pricing Period for which the Leverage
-------- -------
Ratio (determined as of the last day of the Fiscal Quarter ending
approximately 45 days prior to the commencement of such Pricing Period) (a)
is below 1.00, 10.0 basis points shall be deducted from the Eurodollar
Spreads and Letter of Credit Fees set forth above, and (b) exceeds 3.50,
10.0 basis points will be added to the Eurodollar Spreads and Letter of
Credit Fees set forth above.
"Federal Funds Rate" means, as of any date of determination, the rate
------------------
set forth in the weekly statistical release designated as H.15(519), or any
successor
-18-
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such date opposite the caption "Federal Funds
(Effective)". If for any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the
"Composite 3:30 p.m. Quotation") for such date under the caption "Federal
Funds Effective Rate". If on any relevant date the appropriate rate for
such date is not yet published in either H.15(519) or the Composite 3:30
p.m. Quotations, the rate for such date will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York City time) on that date by each of three leading
brokers of Federal funds transactions in New York City selected by the
Administrative Agent. For purposes of this Agreement, any change in the
Base Rate due to a change in the Federal Funds Rate shall be effective as
of the opening of business on the effective date of such change.
"FIRREA" means the Financial Institutions Reform, Recovery and
------
Enforcement Act of 1989, as it may be amended from time to time.
"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.
"Funded Debt" means, as of any date of determination, the sum (without
----------- ---
duplication) of (a) all principal Indebtedness of Borrower, its Restricted
Subsidiaries and (to the extent that the same are then directly or
indirectly owned by Borrower) the Australia Companies for borrowed money
(including debt securities issued by Borrower, any of its Restricted
----------
Subsidiaries or the Australia Companies) 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, its Restricted
Subsidiaries and (to the extent that the same are then directly or
indirectly owned by Borrower) the Australia Companies on that date, plus
----
(c) obligations in respect of letters of credit or other similar
instruments which support Indebtedness of the type described in
-19-
clause (a) and Capital Lease Obligations, to the extent of the amount
drawable under such letters of credit or similar instruments, provided that
--------
no Guaranty Obligation by Borrower or its Restricted Subsidiaries of the
Indebtedness of another Person shall be deemed to be Funded Debt except to
the extent that Generally Accepted Accounting Principles require that
Guaranty Obligation to be set forth on Borrower's consolidated balance
sheet (and not merely as a footnote) as the exposure of Borrower and its
Subsidiaries with respect thereto.
"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 and
(e) any other Governmental Agency 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 Restricted Subsidiaries
within its jurisdiction.
"Generally Accepted Accounting Principles" means, as of any date of
----------------------------------------
determination, accounting principles (a) set forth as generally accepted in
then currently effective Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) set forth as
generally accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then approved by such other
entity as may be approved by a significant segment of the accounting
profession in the United States of America. The term "consistently
------------
applied," as used in connection therewith, means that the accounting
-------
principles applied are consistent in all material respects with those
applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full faith
---------------------
and credit obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or corporation owned,
controlled or sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of the
United States of America.
-20-
"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, Las Vegas, Atlantic City, MGM Grand
----------
Monorail, Inc., each other 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 5.10, provided that
--------
any Guarantor which is the subject of a Disposition permitted by Section
6.2 may be released from its guaranty of the Obligations in accordance with
Section 11.2(d)(iii).
"Guaranty Obligation" means, as to any Person (without duplication),
-------------------
any (a) guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person to
an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person, whether
direct, indirect or contingent, including any purchase or repurchase
---------
agreement covering such obligation or any collateral security therefor, any
agreement to provide funds (by means of loans, capital contributions or
otherwise) to such other Person, any agreement to support the solvency or
level of any balance sheet or income statement item of such other Person or
any "keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that the
-----------------
term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation in respect of Indebtedness shall be deemed to be an
amount equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty Obligation is limited by its terms to a
lesser amount, in which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith. The amount of
any other Guaranty Obligation shall be deemed to be zero unless and until
the amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes thereto) of
Borrower and its Subsidiaries.
-21-
"Hazardous Materials" means substances defined as "hazardous
-------------------
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. (S) 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. (S) 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901, et seq., or
as "friable asbestos" pursuant to the Toxic Substances Control Act, 15
U.S.C. (S) 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)
------------
indebt edness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation for any such indebtedness, (b)
---------
indebtedness of such Person of the nature described in clause (a) that is
non-recourse to the credit of such Person but is secured by assets of such
Person, to the extent of the value of such assets, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising under
bankers' acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (e) any direct or contingent
obligations of such Person under letters of credit issued for the account
of such Person and (f) any net obligations of such Person under Swap
Agreements.
"Intangible Assets" means assets that are considered intangible assets
-----------------
under Generally Accepted Accounting Principles, including customer lists,
---------
goodwill, computer software, copyrights, trade names, trademarks and
patents.
"Interest Charge Coverage Ratio" means, as of the last day of each
------------------------------
Fiscal Quarter, the ratio for the four Fiscal Quarter period ending on such
date of (a) Annualized Cash Flow minus Maintenance Capital Expenditures
-----
minus the aggregate amount of federal, state and local taxes on or measured
-----
by income of Borrower and its Restricted Subsidiaries (whether or not
payable during the period described below) minus Distributions made by
-----
Borrower in Cash to (b) Cash Interest Charges of Borrower, its Restricted
Subsidiaries and (to the extent that the same are then directly or
indirectly owned by Borrower) the Australia Companies, (other than
----------
Qualified Interest Charges), plus payments required to be made by Borrower
----
with respect to New York Contingent Obligations.
-22-
"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 Generally Accepted Accounting
Principles, plus (b) the portion of rent paid or payable (without
----
duplication) for that fiscal period by that Person under Capital Lease
Obligations that should be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"Interest Differential" means, with respect to any prepayment of a
---------------------
Eurodollar Rate Loan on a day other than the last day of the applicable
Eurodollar Period and with respect to any failure to borrow a Eurodollar
Rate Loan on the date or in the amount specified in any Request for Loan,
(a) the Eurodollar Rate payable (or, with respect to a failure to borrow,
the Eurodollar Rate which would have been payable) with respect to the
Eurodollar Rate Loan minus (b) the Eurodollar Rate on, or as near as
-----
practicable to, the date of the prepayment or failure to borrow for a
Eurodollar Rate Loan with an Eurodollar Period commencing on such date and
ending on the last day of the Eurodollar Period of the Eurodollar Rate Loan
so prepaid or which would have been borrowed on such date.
"Investment" means, when used in connection with any Person, any
----------
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of
a loan, advance creating a debt, capital contribution, guaranty or other
debt or equity participation or interest in any other Person, including any
---------
partnership and joint venture interests of such Person. The amount of any
Investment shall be the amount actually invested (minus any return of
-----
capital with respect to such Investment which has actually been received in
Cash or Cash Equivalents or has been converted into Cash or Cash
Equivalents), without adjustment for subsequent increases or decreases in
the value of such Investment.
"Issuing Bank" means Bank of America National Trust and Savings
------------
Association.
"Las Vegas" means MGM Grand Hotel, Inc., a Nevada corporation which is
---------
the owner of the MGM Grand Hotel and Casino in Las Vegas, Nevada, its
successors and permitted assigns.
-23-
"Laws" means, collectively, all international, foreign, federal, state
----
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Letters of Credit" means any of the Standby Letters of Credit or
-----------------
Commercial Letters of Credit issued by the Issuing Bank under the
Commitment pursuant to Section 2.4, either as originally issued or as the
same may be supplemented, modified, amended, renewed, extended or
supplanted.
"Leverage Matrix" means the following matrix, upon which interest
---------------
rates and certain fees hereunder may be determined on the basis of the
Leverage Ratio (expressed in basis points):
Leverage Eurodollar Base Rate Commitment Letter of
Ratio Spread Spread Fee Credit Fees
----- ------ ------ ---------- -----------
less than 1.00 50.00 0.00 17.50 50.00
equal to or greater
than 1.00
but less than 2.00 62.50 0.00 20.00 62.50
equal to or greater
than 2.00
but less than 2.50 75.00 0.00 25.00 75.00
equal to or greater
than 2.50
but less than 3.00 87.50 0.00 30.00 87.50
equal to or greater
than 3.00
but less than 3.50 100.00 0.00 35.00 100.00
equal to or greater
than 3.50
but less than 4.00 115.00 15.00 37.50 115.00
equal to or greater
than 4.00
but less than 5.00 130.00 30.00 37.50 130.00
equal to or greater
than 5.00 150.00 50.00 37.50 150.00
-24-
"Leverage Ratio" means, as of the last day of each Fiscal Quarter, the
--------------
ratio of (a) Total Debt as of that date to (b) Annualized Cash Flow as of
----- -- --
that date.
"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 of Las Vegas, or,
after the Completion Date for any Material Project, each Guarantor which
owns any material portion of that Material Project.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment for security, security interest, encumbrance, lien or charge of
any kind, whether voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any agreement to grant any of
---------
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature of a security interest, and/or the filing of or
agreement to give any financing statement (other than a precautionary
----- ----
financing statement with respect to a lease that is not in the nature of a
security interest) under the Uniform Commercial Code or comparable Law of
any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time by the
----
Banks pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
--------------
Swing Line Documents, the Collateral Documents, the Borrower Guaranty, the
Subsidiary Guarantees, the Solvency Certificates, each Request for Loan,
each Request for Letter of Credit, each Competitive Bid Request, each
Pricing Certificate, each Compliance Certificate, any Secured Swap
Agreement and any other agreements of any type or nature hereafter executed
and delivered by Borrower or any of its Restricted Subsidiaries to the
Administrative Agent or to any Bank in any way relating to or in
furtherance of this Agreement, in each case either as originally executed
or as the same may from time to time be supplemented, modified, amended,
restated, extended or supplanted.
"Maintenance Capital Expenditure" means a Capital Expenditure for the
-------------------------------
maintenance, repair, restoration or refurbishment of tangible Property of
Borrower or its Restricted Subsidiaries, but excluding any Capital
---------
Expenditures associated with Master Plan and any other Capital Expenditure
which adds to or further improves any such Property.
-25-
"Managing Agents" means, collectively, Societe Generale, The Bank of
---------------
Nova Scotia, Bank of Scotland, Bankers Trust Company, CIBC Inc.,
Commerzbank AG, Los Angeles Branch, The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency, PNC Bank, National Association, and ▇▇▇▇▇ Fargo
Bank, N.A. The capacity of the Managing Agent is titular in nature only
and the Managing Agents shall have no rights, duties or responsibilities
under the Loan Documents beyond those of a Bank.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation G or U.
"Marriott Marquis" means the proposed Marriott Marquis hotel, to
----------------
consist of approximately 1500 rooms and related amenities, to be
constructed on the Property subject to the Nevada Deed of Trust.
"Master Plan" means Borrower's plan for the expansion and enhancement
-----------
of the MGM Grand-Las Vegas described on Schedule 6.13.
"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
business or condition (financial or otherwise) of Borrower and its
Subsidiaries, taken as a whole and with a view to the totality of
circumstances then existing with respect to Borrower and its Subsidiaries,
provided that it is understood that this clause (b) shall not be deemed to
--------
expand the obligations of Borrower under any express covenants set forth
herein, but is rather understood to describe a set of circumstances or
events which, although not the subject of a specific covenant, are material
and adverse in the manner described above, 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 Project" means, as of each date of determination, (a) Master
----------------
Plan, (b) the MGM Grand-Atlantic City, and (c) each other casino, hotel
and/or entertainment complex project proposed by Borrower or any of its
Restricted Subsidiaries which at that date has a development and capital
expenditure budget in excess of $250,000,000.
"Maturity Date" means December 31, 2002, or such later anniversary
-------------
thereof to which the Maturity Date may be extended pursuant to Section
2.12.
-26-
"Maximum Competitive Advance" means, with respect to any Competitive
---------------------------
Bid made by a Bank, the amount set forth therein as the maximum Competitive
Advance which that Bank 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 Commitment.
"MGM Grand - Atlantic City" means the proposed MGM Grand Hotel and
-------------------------
Casino in Atlantic City, New Jersey. The MGM Grand - Atlantic City project
may be the result of new construction or of the redevelopment of existing
hotel/casino properties.
"MGM Grand - Las Vegas" means the MGM Grand Hotel and Casino in Las
---------------------
Vegas, Nevada.
"MGM Grand Monorail, Inc." means MGM Grand Monorail, Inc., a Nevada
------------------------
corporation, its successors and permitted assigns.
"Minimum Title Insurance Amount" means, as of each date of
------------------------------
determination, (a) as to the MGM Grand - Las Vegas (including Master Plan),
the greater of $600,000,000 or the Outstanding Obligations as of that date,
(b) as to each other Material Project for which Borrower and its Restricted
Subsidiaries have commenced construction, the greater of the "as built"
appraised value for such Material Project established by appraisals
reasonably acceptable to the Administrative Agent and the Outstanding
Obligations as of that date, provided that the Minimum Title Insurance
--------
Amount for each of the MGM Grand Las Vegas and for each other Material
Project shall not exceed $1,000,000,000, and provided further that any
--------
title insurance provided with respect to any such Property may be subject
to pro tanto reduction endorsements which are reasonably acceptable to the
--- -----
Administrative Agent which do not result in the aggregate amount of title
insurance coverage provided to the Administrative Agent and the Banks being
less than the then effective amount of the Commitment.
"Monorail" means The MGM Grand - Bally's Monorail Limited Liability
--------
Company, a Nevada limited liability company, its successors and assigns.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
-27-
"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 6.8 which affects only the Property that is the subject of
such permitted Lien and (b) any such covenant that does not apply to Liens
securing the Obligations or any indebtedness which is used, directly or
indirectly, to refinance the Obligations.
"Net Income" means, with respect to any fiscal period and with respect
----------
to any Person, the consolidated net income of that Person from continuing
operations for that period, determined in accordance with Generally
Accepted Accounting Principles, consistently applied.
"Net Proceeds" means, with respect to any Disposition, the gross sales
------------
proceeds received by Borrower and its Restricted Subsidiaries from such
Disposition (including Cash, Property and the assumption by the purchaser
---------
of any liability of Borrower or its Restricted Subsidiaries) net of
------
brokerage commissions, legal expenses and other transactional costs
(excluding any tax on or measured by income with respect to such
----------
Disposition) payable by Borrower and its Restricted Subsidiaries with
respect to such Disposition.
"Nevada Deed of Trust" means the Deed of Trust, Assignment of Rents
--------------------
and Fixture Filing executed by Las Vegas as of October 2, 1996 with respect
to the MGM Grand - Las Vegas and the other real property and improvements
described therein, as amended and restated in connection herewith, and as
it may from time to time hereafter be further supplemented, modified,
amended, extended or supplanted.
"New Jersey Mortgage" means the Mortgage executed by Atlantic City,
-------------------
▇▇▇▇▇▇, Inc. and FCR Boardwalk, Inc. as of October 2, 1996 with respect to
the Real Property in Atlantic City, New Jersey owned by them as of that
date, and the other real property and improvements described therein,
together with the related Assignment of Rents, in each case as amended and
restated in connection herewith, and as it may from time to time hereafter
be further supplemented, modified, amended, extended or supplanted.
-▇▇-
"▇▇▇ ▇▇▇▇" means New York-New York Hotel & Casino LLC, a Nevada
--------
limited liability company (formerly known as New York-New York Hotel LLC),
the members of which are Borrower and PRMA Las Vegas, Inc. (a subsidiary of
Primadonna Resorts, Inc.), its successors and permitted assigns.
"New York EBITDA" means, for any fiscal period, EBITDA of New York for
---------------
that fiscal period plus expenses classified as "pre-opening expenses" on
the applicable financial statements of New York for that fiscal period plus
any write-off of assets associated with their premature demolition to the
extent necessary to accommodate expansion of New York's hotel/casino
complex, in each case determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
"New York Available EBITDA" means, for each Fiscal Quarter, that
-------------------------
portion of the New York EBITDA for that Fiscal Quarter which may be
distributed in Cash by New York to Borrower and its Restricted Subsidiaries
in accordance with applicable Law, New York's operating agreement, the
credit documents to which New York is a party, and other Contractual
Obligations binding upon New York (whether or not so distributed and
whether or not New York elects to repay its own Indebtedness in lieu of
distributing funds to Borrower and its Restricted Subsidiaries) other than
----- ----
any amount which, in accordance with Generally Accepted Accounting
Principles, constitutes a return of capital on the books of New York.
"New York Contingent Obligations" means, collectively, the New York
-------------------------------
Keep Well and any other Guaranty Obligations of Borrower and its Restricted
Subsidiaries supporting obligations of New York for borrowed money or
Capital Lease Obligations.
"New York Keep-Well" means the Keep-Well Agreement dated September 15,
------------------
1995, executed by the Borrower and Primadonna Resorts, Inc., as in effect
on the date of this Agreement.
"Notes" means, collectively, the Competitive Advance Notes and the
-----
Committed Advance 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 Bank, the
Swing Line Bank or the Banks or any one or more of them, under any one or
more of
-29-
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) ▇▇▇▇▇▇,
--------
Fink, Jacobs, ▇▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇▇, LLP counsel to Borrower, and (b)
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Nevada counsel to Borrower, and (c) ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, a professional corporation, New Jersey counsel to Borrower,
together with copies of all factual certificates and legal opinions upon
which such counsel has relied.
"Outstanding Obligations" means, as of each date of determination, and
-----------------------
giving effect to the making of any such credit accommodations requested on
that date, the sum of (i) the aggregate principal amount of the outstanding
---
Committed Loans, plus (ii) the aggregate principal amount of the
----
outstanding Competitive Advances, plus (iii) the Swing Line Outstandings,
----
plus (iv) the Aggregate Effective Amount of all Letters of Credit.
----
"Party" means any Person other than the Administrative Agent, the
-----
Issuing Bank, the Swing Line Bank, the Co-Agents and the Banks, which now
or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term
------------
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
----------
which is subject to Title IV of ERISA and is maintained by Borrower or any
of its Subsidiaries or to which Borrower or any of its Subsidiaries
contributes or has an obligation to contribute.
"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
-30-
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;
-31-
(g) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses
(a) or (b) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested
in good faith, provided that, if 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; provided that if such Property is
--------
then encumbered by a Deed of Trust, such lease or rental agreement is
junior and subordinate to that Deed of Trust by operation of law or
contract;
(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);
-32-
(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 (at all times prior to a Collateral Release) such Lien is junior
to the Lien of the Collateral Documents and, in any event, adequate
reserves have been set aside and no material Property is subject to a
material risk of loss or forfeiture;
(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with an extension of credit,
which do not in the aggregate, when taken together with all other
Liens, materially impair the value or use of the Property of the
Borrower and the Restricted Subsidiaries of Borrower, taken as a
whole; and
(t) leases of portions of the land subject to the Nevada Deed
of Trust occupied by the Marriott Marquis or the Supplemental Hotel
Facility to Borrower's joint venture partners with respect thereto or
other Persons, provided that such leases contain appropriate
--------
provisions requiring the use of such facilities in a manner which is
complementary to the operation of the MGM Grand - Las Vegas.
"Permitted Right of Others" means a Right of Others consisting of (a)
-------------------------
an interest (other than a legal or equitable co-ownership interest, an
option or right to acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease), that does not
materially impair the value or use of Property for the purposes for which
it is or may reasonably be expected to be held, (b) an option or right to
acquire a Lien that would be a Permitted
-33-
Encumbrance, (c) the subordination of a lease or sublease in favor of a
financing entity, (d) a lease, rental or similar agreement covering
Property entered into in the ordinary course of business and (e) a license,
or similar right, of or to Intangible Assets granted in the ordinary course
of business.
"Person" means any individual or entity, including a trustee,
------ ---------
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Pledge Agreement" means the pledge agreement executed and delivered
----------------
by Borrower as of October 2, 1996 and confirmed pursuant to the
Confirmation of Pledge Agreement as of the date hereof, and as the same may
from time to time be supplemented, modified, amended, extended or
supplanted.
"Pre-Opening Expenses" means, with respect to any fiscal period, the
--------------------
amount of expenses (other than Interest Charges) classified as "pre-opening
----- ----
expenses" on the applicable financial statements of Borrower and its
Restricted Subsidiaries for such period, prepared in accordance with
Generally Accepted Accounting Principles consistently applied.
"Pricing Certificate" means a certificate substantially in the form of
-------------------
Exhibit H, properly completed and signed by a Senior Officer of Borrower
and each Co-Borrower.
"Pricing Period" means (a) the period commencing on the Closing Date
--------------
and ending on August 16, 1997, and (b) the subsequent concurrent quarterly
periods of approximately 90 days each commencing on each November 16,
February 16, May 16 and August 16.
"Prior Closing Date" means July 1, 1996, the closing date for the
------------------
Existing Loan Agreement.
"Projections" means the financial projections for Borrower and its
-----------
Subsidiaries attached hereto as Schedule 4.17 prepared on behalf of
Borrower and heretofore distributed to the Banks.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
-34-
"Pro Rata Share" means, with respect to each Bank, the percentage of
--------------
the Commitment, the Loans, the Letters of Credit and the Swing Line
Advances held by that Bank (or by an SPC (as defined in Section 11.8(g))
for which that Bank is the Granting Bank). As of the Closing Date, the Pro
Rata Share of each Bank is set forth opposite the name of that Bank on
Schedule 1.1. The percentage Pro Rata Share of each Bank (but without the
consent of that Bank not the dollar amount thereof) is subject to
adjustment as set forth in Section 2.10 or pursuant to any Assignment
Agreement executed in accordance with Section 11.8.
"Qualified Investments" means Investments by Borrower and its
---------------------
Restricted Subsidiaries in (a) equity securities of gaming, hotel or
related companies which are traded on the New York Stock Exchange, the
NASDAQ National Markets, the American Stock Exchange or any other major
national or international stock exchange reasonably approved by the
Administrative Agent and not objected to by the Requisite Banks within 5
Banking Days following notice thereof from the Administrative Agent, and
(b) the common stock of Borrower.
"Qualified Interest Charges" means Cash Interest Charges with respect
--------------------------
to Indebtedness incurred by Borrower and its Restricted Subsidiaries to
finance the purchase of Qualified Investments (but only to the extent that
ownership of such Qualified Investments is maintained by Borrower and its
Restricted Subsidiaries and such Indebtedness (or any refinancing thereof)
remains outstanding).
"Quantified New York Exposure" means, as of each date of
----------------------------
determination, the amount required by Generally Accepted Accounting
Principles to be set forth on Borrower's consolidated balance sheet (and
not merely as a footnote) as the exposure of Borrower and its Subsidiaries
with respect to the New York Keep Well or any other then effective New York
Contingent Obligation.
"Quarterly Payment Date" means each September 30, December 31, March
----------------------
31 and June 30.
"Real Property" means, as of any date of determination, all real
-------------
Property then or theretofore owned, leased or occupied by Borrower or any
of its Restricted Subsidiaries.
-35-
"Reduction Amount" means, as to each Reduction Date, and subject to
----------------
Section 2.8(b), an amount equal to the greater of (a) $62,500,000, or (b)
-------
5% of the sum of (i) principal amount of the Commitment in effect on the
Closing Date plus (ii) the amount of any increases in the Commitment which
----
have occurred as of that Reduction Date pursuant to Section 2.9.
"Reduction Date" means December 31, 2001 and each Quarterly Payment
--------------
Date thereafter.
"Reference Rate" means the rate of interest publicly announced from
--------------
time to time by Bank of America in San Francisco, California, as its
"reference rate." It is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the Reference Rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Regulations D, G, T, U and X" means Regulations D, G, T, U and X, as
----------------------------
at any time amended, of the Board of Governors of the Federal Reserve
System, or any other regulations in substance substituted therefor.
"Request for Letter of Credit" means a written request for a Letter of
----------------------------
Credit substantially in the form of Exhibit 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.
"Request for Loan" means a written request for a Loan substantially in
----------------
the form of Exhibit J, 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 Banks" means (a) as of any date of determination if the
---------------
Commitment is then in effect, Banks having Pro Rata Shares which are, in
the
-36-
aggregate, 66-2/3% or more of the Pro Rata Shares of the Commitment then in
effect and (b) as of any date of determination if the Commitment has then
been terminated and there are then any Obligations outstanding, Banks or
other creditors holding 66-2/3% or more of the Outstanding Obligations.
"Responsible Official" means (a) when used with reference to a Person
--------------------
other than an individual, any officer or manager of such Person, general
partner of such Person, officer of a corporate or limited liability company
general partner of such Person, officer of a corporate or limited liability
company general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on behalf
thereof, and (b) when used with reference to a Person who is an individual,
such Person, provided that for the purposes of this Agreement and the other
--------
Loan Documents, each Responsible Official of Borrower shall be deemed to
also be a Responsible Official of each Co-Borrower, and each Responsible
Official of a Co-Borrower shall also be deemed to be a Responsible Official
of Borrower and any other Co-Borrowers. The Banks 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
--------------------- -----
New York, Monorail, the Australia Companies, 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
(including without limitation MGM Grand South Africa, Inc., a Nevada
corporation) owning as their sole asset the stock or other securities and
obligations thereof.
"Right of Others" means, as to any Property in which a Person has an
---------------
interest, any legal or equitable right, title or interest (other than a
Lien) held by any other Person in that Property, and any option or right
held by any other Person to acquire any such right, title or interest in
that Property, including any option or right to acquire a Lien; provided,
--------- --------
however, that (a) any covenant restricting the use or disposition
of Property of such Person contained in any Contractual Obligation of such
Person and (b) any provision contained in a contract creating a right of
payment or performance in favor of a Person that conditions, limits,
restricts, diminishes, transfers or terminates such right, shall not be
deemed to constitute a Right of Others.
-37-
"Secured Swap Agreement" means a Swap Agreement between Borrower and a
----------------------
Bank or an Affiliate of a Bank (but, in the case of any such Affiliate,
only to the extent that the same expressly relates to the Obligations).
"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.
"Solvency Certificate" means a Solvency Certificate executed by the
--------------------
chief financial officer of Las Vegas and each other Guarantor having assets
in excess of $50,000,000 as of the Closing Date on behalf of such Guarantor
on the Closing Date.
"Special Eurodollar Circumstance" means the application or adoption
-------------------------------
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Bank or its Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental Agency,
central bank or com parable authority, or the existence or occurrence of
circumstances affecting the Designated Eurodollar Market generally that are
beyond the reasonable control of the Banks.
"Standby Letter of Credit" means each Letter of Credit that is not a
------------------------
Commercial Letter of Credit.
"Standby Letter of Credit Fee" means, as of each date of
----------------------------
determination, the lesser percentage of (a) the applicable percentage set
------
forth in the Leverage Matrix opposite the Leverage Ratio (determined,
during each Pricing Period, as of the last day of the Fiscal Quarter ending
approximately 45 days prior to the commencement of such Pricing Period),
and (b) to the extent the Facility Ratings Matrix is then applicable, the
applicable percentage set forth opposite the effective Facility Rating in
the Facility Ratings Matrix.
"Stockholders' Equity" means, as of any date of determination and with
--------------------
respect to any Person, the consolidated stockholders', partners' or
members' equity of that Person as of that date determined in accordance
with Generally Accepted Accounting Principles; provided that there shall be
--------
excluded from
-38-
Stockholders' Equity any capital stock, warrants, options or other rights
to acquire capital stock (but excluding any debt security which is
convertible, or exchangeable, for capital stock), which, by its terms (or
by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part,
on or prior to the Maturity Date.
"Subordinated Obligations" means unsecured Indebtedness of Borrower
------------------------
(but not Indebtedness of any Subsidiary of Borrower), which:
(a) does not require amortization prior to the Maturity Date;
(b) is governed by agreements which contain no representations,
warranties, covenants, defaults and other provisions which are more
restrictive upon, or onerous to, Borrower and its Restricted
Subsidiaries than the provisions of the Loan Documents; and
(c) is subordinated in right of payment to the Obligations
pursuant to subordination provisions which are acceptable to the
Requisite Banks in the exercise of their sole discretion
provided that (i) Borrower shall provide the Banks with a form of indenture
--------
to proposed to govern future Subordinated Obligations which has been
reasonably approved by the Administrative Agent and, unless the Requisite
Banks have objected to the form thereof within ten Business Days following
the delivery thereof to the Banks, the provisions thereof shall be deemed
acceptable to the Banks in connection with any issuance of Subordinated
Obligations, (ii) in the event that the terms of any proposed Subordinated
Obligations to be issued by Borrower deviate, in any material respect, from
the terms of the indenture referred to above, Borrower shall provide to the
Administrative Agent (and the Administrative Agent shall promptly deliver
to the Banks) a revised form of such indenture which, if not objected to
within five Business Days following the delivery thereof to the Banks,
shall be deemed acceptable to the Banks in connection with any issuance
following such date of Subordinated Obligations, and (iii) in any event,
the subordination provisions of Indebtedness containing Subordination
Provisions incorporating each of the provisions contained in Exhibit L in a
manner which is reasonably acceptable to the Administrative Agent shall be
deemed acceptable to the Banks.
-39-
"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.
"Subsidiary Guaranty" means each of the continuing guaranty of the
-------------------
Obligations (or, in the case of Detroit, of the portion of the Obligations
which are used, directly or indirectly, to finance the design, development,
construction or operation of the Detroit Project or which are actually
borrowed or received by Detroit) executed and delivered by the Guarantors
as of October 2, 1996, as amended and restated on the date hereof as an
Amended and Restated Subsidiary Guaranty, and as the same may from time to
time be further supplemented, modified, amended, extended or supplanted.
"Subsidiary Pledge Agreement" means each of the three Subsidiary
---------------------------
Pledge Agreements executed and delivered as of October 2, 1996 by
Subsidiaries of Borrower with respect to the Existing Loan Agreement, as
amended and restated concurrently herewith, and each other pledge agreement
which is hereafter executed by a Subsidiary of Borrower with respect to its
own Subsidiaries under Section 5.10 substantially in the form thereof,
either as originally executed or as they may from time to time be
supplemented, modified, amended, extended or supplanted.
"Subsidiary Security Agreement" means the Subsidiary Security
-----------------------------
Agreement executed and delivered as of October 2, 1996 by each of the
Guarantors and amended and restated concurrently herewith, either as
originally executed or as it may hereafter from time to time be further
supplemented, modified, amended, extended or supplanted.
"Supplemental Hotel Facility" means the ▇▇▇▇-▇▇▇▇▇▇▇ Hotel to consist
---------------------------
of approximately 500 rooms and related amenities (or a similar facility
constructed with or without an unaffiliated joint venturer or partner)
proposed to be built on the Property subject to the Las Vegas Deed of Trust
on land which, as of the
-40-
Closing Date, is occupied by the MGM Grand Theme Park. The Marriott Marquis
is not the Supplemental Hotel Facility.
"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 Bank in favor of Borrower and the Co-Borrowers pursuant to
Section 2.6.
"Swing Line Bank" means Bank of America, acting through its Las Vegas
---------------
Commercial Banking Division.
"Swing Line Documents" means the promissory note and any other
--------------------
documents executed by Borrower and each Co-Borrower in favor of the Swing
Line Bank in connection with the Swing Line.
"Swing Line Loans" means loans made by the Swing Line Bank 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.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw
---
Hill, Inc.).
"Tangible Net Worth" means, as of any date of determination, the
------------------
Stockholders' Equity of Borrower and its Restricted Subsidiaries on that
date minus the aggregate Intangible Assets of Borrower and its Restricted
-----
Subsidiaries on that date.
"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
-41-
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).
"Total Assets" means, as of any date of determination, the
------------
consolidated total assets of Borrower and its Restricted Subsidiaries on
that date, determined in accordance with Generally Accepted Accounting
Principles.
"Total Debt" means, as of each date of determination, the sum without
---------- ---
duplication, as of such date, of (a) Average Quarterly Funded Debt as of
that date plus (b) Quantified New York Exposure as of that date.
----
"Trademark Security Interest Assignment" means the Trademark Security
--------------------------------------
Interest Assignment executed and delivered as of October 2, 1996 by
Borrower and amended and restated concurrently herewith, either as
originally executed or as it may from time to time be further supplemented,
modified, amended, extended or supplanted.
"type", when used with respect to any Loan or Advance, means the
----
designation of whether such Loan or Advance is a Base Rate Loan or Advance,
or a Eurodollar Rate Loan or Advance.
"Unrelated Person" means any Person other than (i) an employee stock
---------------- ----- ----
ownership plan or other employee benefit plan covering the employees of
Borrower and its Subsidiaries or (ii) an Affiliate of any Person or group
of related Persons which as of the date of this Agreement is the beneficial
owner of 25% or more (in the aggregate) of the outstanding common stock of
Borrower.
1.2 Use of Defined Terms. Any defined term used in the plural shall
--------------------
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms - Fiscal Periods. All accounting terms not
---------------------------------
specifically defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, Generally Accepted Accounting Principles applied on
a consistent basis, except as otherwise specifically prescribed herein. In the
------
event that Generally Accepted Accounting Principles or Borrower's Fiscal Year or
Fiscal Quarters change during the term of this Agreement such that the covenants
contained in Sections 6.11 through 6.14 would then be calculated for different
periods, in a different manner or
-42-
with different components, (a) Borrower, the Co-Borrowers and the Banks agree to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in Fiscal
Year, Fiscal Quarters or in Generally Accepted Accounting Principles and (b)
Borrower 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 been in compliance therewith for the pre-
existing fiscal periods and under Generally Accepted Accounting Principles as in
effect immediately prior to such change, but shall have the obligation to
deliver each of the materials described in Article 7 to the Creditors, on the
dates therein specified, with financial data presented for its pre-existing
fiscal periods and in a manner which conforms with Generally Accepted Accounting
Principles as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by
--------
Borrower 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. In the Loan Documents, the term "or" is
-------------------
disjunctive; the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females; feminine terms
also apply to males. The term "including" is by way of example and not
limitation.
-43-
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 Banking Day immediately prior to the Maturity Date, each Bank shall,
pro rata according to that Bank's Pro Rata Share of the then applicable
Commitment, make Committed Advances to Borrower or to any Co-Borrower under
the Commitment in such amounts as Borrower or any Co-Borrower may request
that (i) do not result in the Outstanding Obligations being in excess of
the then effective 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 Bank under its Pro Rata Share of the Commitment may be
prepaid without premium or penalty.
(b) 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, and (iv) in the case of a Eurodollar Rate Loan, the
Eurodollar Period for such Loan. Unless the Administrative Agent, in its
sole and absolute discretion, has notified Borrower to the contrary, a Loan
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, and
Borrower hereby agrees to indemnify each Creditor from any loss, cost,
expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Bank by telephone or telecopier (and
if
-44-
by telephone, promptly confirmed by telecopier) of the date and type of the
Loan, any applicable Eurodollar Period, and that Bank's Pro Rata Share of
the Loan. Not later than 11:00 a.m., California local time, on the date
specified for any Loan (which must be a Banking Day), each Bank 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.
(d) Unless the Requisite Banks otherwise consent, each
Committed Loan shall be in an integral multiple of $1,000,000 which is not
less than $5,000,000.
(e) The Committed Advances made by each Bank shall be
evidenced by that Bank's Committed Advance Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(b), if applicable) has
been made within the requisite notice periods set forth in Section 2.2 or
2.3 prior to the end of the Eurodollar Period for any Eurodollar Rate Loan,
then on the last day of such Eurodollar Period, such Eurodollar Rate Loan
shall be automatically converted into a Base Rate Loan in the same amount.
(h) If a Loan is to be made on the same date that another
Loan is due and payable:
(i) the Banks shall make available to the
Administrative Agent (or the Administrative Agent shall make available
to the Banks) 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
-45-
(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(b), if
applicable) received by the Administrative Agent, at the Administrative Agent's
Office, not later than 9:00 a.m. California local time, on the date (which must
be a Banking Day) of the requested Base Rate Loan. All Committed Loans shall
constitute Base Rate Loans unless properly designated as a Eurodollar Rate Loan
pursuant to Section 2.3.
2.3 Eurodollar Rate Loans.
---------------------
(a) Each request by Borrower or any Co-Borrower for a
Eurodollar Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m., California local
time, at least three Eurodollar Banking Days before the first day of the
applicable Eurodollar Period.
(b) On the date which is two Eurodollar Banking Days before
the first day of the applicable Eurodollar Period, the Administrative Agent
shall confirm its determination of the applicable Eurodollar Rate (which
determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to Borrower and any relevant Co-
Borrowers and the Banks by telephone or telecopier (and if by telephone,
promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Banks
otherwise consent, no more than twenty five Eurodollar Rate Loans shall be
outstanding at any one time.
-46-
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank to fund
any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Letters of Credit.
-----------------
(a) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the Banking Day
immediately prior to the Maturity Date, the Issuing Bank shall issue such
Letters of Credit under the Commitment as Borrower or any Co-Borrower may
request by a Request for Letter of Credit; provided that (i) giving effect
--------
to all such Letters of Credit, the Outstanding Obligations do not exceed
the then applicable Commitment, (ii) the Aggregate Effective Amount under
all outstanding Letters of Credit shall not exceed $40,000,000, and (iii)
each Letter of Credit issued for the account of a Co-Borrower shall be
directly used to support the development, construction or operation of
hotel/casino properties owned by that Co-Borrower. Each Letter of Credit
shall be in a form reasonably acceptable to the Issuing Bank. Unless all
the Banks otherwise consent in a writing delivered to the Administrative
Agent, the term of any Letter of Credit shall not exceed one (1) year or
extend beyond the Maturity Date.
(b) Each Request for Letter of Credit shall be submitted to
the Issuing Bank, with a copy to the Administrative Agent, at least five
(5) Banking Days prior to the date upon which the related Letter of Credit
is proposed to be issued. The Administrative Agent shall promptly notify
the Issuing Bank whether such Request for Letter of Credit, and the
issuance of a Letter of Credit pursuant thereto, conforms to the
requirements of this Agreement. Upon issuance of a Letter of Credit, the
Issuing Bank shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Banks, of the amount and
terms thereof.
(c) Upon the issuance of a Letter of Credit, each Bank shall
be deemed to have purchased at par a pro rata participation in such Letter
of Credit from the Issuing Bank in an amount equal to that Bank's Pro Rata
Share. Without limiting the scope and nature of each Bank's participation
in any Letter of Credit, to the extent that the Issuing Bank has not been
reimbursed by
-47-
Borrower or the relevant Co-Borrower for any payment required to be made by
the Issuing Bank under any Letter of Credit, each Bank shall, pro rata
according to its Pro Rata Share, pay the purchase price for such
participation to the Issuing Bank through the Administrative Agent promptly
upon demand therefor. The obligation of each Bank to so pay the
participation purchase price to the Issuing Bank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event. Any such payment of the purchase
price shall not relieve or otherwise impair the obligation of Borrower or
the relevant Co-Borrower to reimburse the Issuing Bank for the amount of
any payment made by the Issuing Bank under any Letter of Credit together
with interest as hereinafter provided.
(d) Borrower and each Co-Borrower jointly and severally agree
to pay to the Issuing Bank through the Administrative Agent an amount equal
to any payment made by the Issuing Bank with respect to each Letter of
Credit within one Banking Day after written demand made by the Issuing Bank
therefor, together with interest on such amount from the date of any
payment made by the Issuing Bank at the rate applicable to Base Rate Loans
for three Banking Days and thereafter at the Default Rate, provided that,
--------
anything to the contrary herein notwithstanding, in the event that Borrower
designates Detroit as an additional Co-Borrower, the liability of Detroit
shall be limited to those Letters of Credit which are used, directly or
indirectly, to finance the design, development, construction or operation
of the Detroit Project or which are actually issued to or for the account
of Detroit. The principal amount of any such payment shall be used to
reimburse the Issuing Bank for the payment made by it under the Letter of
Credit and, to the extent that the Banks have not reimbursed the Issuing
Bank pursuant to Section 2.4(c), the interest amount of any such payment
shall be for the account of the Issuing Bank. Each Bank that has paid the
participation purchase price to the Issuing Bank pursuant to Section 2.4(c)
shall thereupon acquire a pro rata participation, to the extent of such
payment, in the claim of the Issuing Bank against Borrower and the Co-
Borrowers for reimbursement of principal and interest under this Section
2.4(d) and shall share, in accordance with that pro rata participation, in
any principal payment made by Borrower or the relevant Co-Borrowers with
respect to such claim and in any interest payment made by Borrower or the
relevant Co-Borrowers (but only with respect to periods subsequent to the
date such Bank paid the participation purchase price to the Issuing Bank)
with respect to such claim.
-48-
(e) Borrower or the relevant Co-Borrower may, pursuant to a
Request for Loan, request that Committed Advances be made pursuant to
Section 2.1(a) to provide funds for the payment required by Section 2.4(d)
and, for this purpose, the conditions precedent set forth in Article 8
shall not apply. The proceeds of such Advances shall be paid directly to
the Issuing Bank to reimburse it for the payment made by it under the
Letter of Credit.
(f) If Borrower or the relevant Co-Borrower fails to make the
payment required by Section 2.4(d) on a timely basis then, in lieu of the
payment of the participation purchase price to the Issuing Bank under
Section 2.4(c), the Issuing Bank may (but is not required to), without
notice to or the consent of Borrower or any Co-Borrower, instruct the
Administrative Agent to cause Committed Advances to be made by the Banks
under their Pro Rata Shares of the Commitment in an aggregate amount equal
to the amount paid by the Issuing Bank with respect to that Letter of
Credit and, for this purpose, the conditions precedent set forth in Article
8 shall not apply. The proceeds of such Advances shall be paid directly to
the Issuing Bank to reimburse it for the payment made by it under the
Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in all
respects the same as the issuance of a new Letter of Credit, except that
the Issuing Bank's issuance fees shall be payable as set forth in the
letter agreement referred to in Section 3.5.
(h) The obligation of Borrower and each Co-Borrower to pay to
the Issuing Bank the amount of any payment made by the Issuing Bank under
any Letter of Credit shall be absolute, unconditional, and irrevocable,
subject only to performance by the Issuing Bank of its obligations to
Borrower and each Co-Borrower under Uniform Commercial Code Section 5109.
Without limiting the foregoing, the obligations of Borrower and each Co-
Borrower to the Issuing Bank shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of
the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
-49-
(ii) any amendment or waiver of or any consent
to departure from the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, with the consent of Borrower
and the Co-Borrowers;
(iii) the existence of any claim, setoff,
defense, or other rights which Borrower or any Co-Borrower may have at
any time against the Issuing Bank, the Administrative Agent or any
Bank, any beneficiary of the Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or any other
Person, whether in connection with the Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto, or
any unrelated transactions;
(iv) any demand, statement, or any other
document presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever so long
as any such document appeared to comply with the terms of the Letter
of Credit;
(v) payment by the Issuing Bank in good faith
under the Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the terms of
the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery of any Property
purported to be represented by documents presented in connection with
any Letter of Credit or any difference between any such Property and
the character, quality, quantity, condition, or value of such Property
as described in such documents;
(vii) the time, place, manner, order or contents
of shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the existence,
nature and extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a Letter of Credit;
-50-
(ix) any failure or delay in notice of shipments
or arrival of any Property;
(x) any error in the transmission of any
message relating to a Letter of Credit not caused by the Issuing Bank,
or any delay or interruption in any such message;
(xi) any error, neglect or default of any
correspondent of the Issuing Bank in connection with a Letter of
Credit (but without prejudice to any claim by Borrower or any Co-
Borrower against such correspondent);
(xii) any consequence arising from acts of God,
war, insurrection, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of the Issuing
Bank;
(xiii) so long as the Issuing Bank in good faith
determines that the contract or document appears to comply with the
terms of the Letter of Credit, the form, accuracy, genuineness or
legal effect of any contract or document referred to in any document
submitted to the Issuing Bank in connection with a Letter of Credit;
and
(xiv) where the Issuing Bank has acted in good
faith and observed general banking usage, any other circumstances
whatsoever.
(i) The Issuing Bank shall be entitled to the protection
accorded to the Administrative Agent pursuant to Article 10, mutatis
-------
mutandis.
--------
(j) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the International
Chamber of Commerce, shall be deemed a part of this Section and shall apply
to all Letters of Credit to the extent not inconsistent with applicable
Law.
2.5 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
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Bank may in its sole and absolute discretion make Competitive Advances to
Borrower or to any Co-Borrower 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 Advance Notes being in excess of the Maximum Competitive
Outstandings Amount, provided that after giving effect to the making of each
--------
Competitive Advance, the Outstanding Obligations shall not exceed the
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 Bank
shall relieve that Bank of its Pro Rata Share of the undrawn 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
Eurodollar 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, 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., California local time, on a Banking Day that is at least one (1)
Banking Day prior to the date of the proposed Competitive Advance if an Absolute
Rate Bid is requested; if a Eurodollar Margin Bid is requested, it must be
received by the Administrative Agent five (5) Banking 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 Banking 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.
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(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 Banks thereof by telephone and provide the
Banks a copy thereof by telecopier. Any Bank 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 Bank of
the Competitive Bid Request.
(g) Each Bank 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 Bank which
is also the Administrative Agent, not later than 7:15 a.m.) California local
time, in the case of a Eurodollar Margin Bid, on the date which is four (4)
Banking 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 Bank 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 Bank, 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 Bank.
(h) Each Competitive Bid shall specify the fixed interest rate or
the margin over the Eurodollar Rate, as applicable, for the offered Maximum
Competitive Advance set forth in the Competitive Bid. The Maximum Competitive
Advance offered by a Bank 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 the Eurodollar Rate, is in a form other than set forth in
Exhibit E or which otherwise contains any term, condition or provision not
contained in the Competitive Bid Request shall be
-53-
disregarded for purposes of this Agreement. A Competitive Bid once submitted to
the Administrative Agent shall be irrevocable until 8:30 a.m. California local
time, in the case of a Eurodollar Margin Bid, on the date which is three (3)
Banking Days prior to the requested Competitive Advance and, in the case of an
Absolute Rate Bid, on the date of the proposed Competitive 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. California local time, in the case of
a Eurodollar Margin Bid, on the date which is four (4) Banking 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 Banks
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 Bank which is also the Administrative
Agent) and the Maximum Competitive Advance and fixed interest rate or margin
over the Eurodollar Rate set forth by each such Bank 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 Eurodollar Margin Bids at all lower margins over the Eurodollar
Rate before accepting any portion of a Eurodollar Margin Bid at a higher margin
over the Eurodollar Rate, (c) if two or more Banks 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 Bank bears to the aggregate Maximum Competitive Advances of all such Banks,
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 Eurodollar Margin Rate Bid prior to 8:30 a.m. on the date which is three
(3) Banking Days prior to the requested Competitive Advance and (iii) each
Absolute Rate Bid prior to 8:30 a.m. on the date of
-54-
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
Banks 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 Banks.
(k) In the case of Eurodollar Margin Bids, the Administrative Agent
shall determine the Eurodollar Rate (as the case may be) on the date which is
two (2) Eurodollar Banking Days prior to the date of the proposed Competitive
Advance, and shall promptly thereafter notify Borrower or the relevant Co-
Borrower and the Banks whose Competitive Bids were accepted by Borrower or the
relevant Co-Borrower of such Eurodollar Rate.
(l) A Bank 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, California local 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.
(m) The Administrative Agent shall notify Borrower and the Banks
promptly after any Competitive Advance is made of the amounts and maturity of
such Competitive Advances and the identity of the Banks making such Competitive
Advances.
(n) The Competitive Advances made by each Bank shall be evidenced
by that Bank's Competitive Advance 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 Bank 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
Outstanding Obligations being in excess of the then effective Commitment,
provided that (i) after giving effect to each Swing Line Loan, the Swing Line
--------
Outstandings shall not exceed $15,000,000,
-55-
(ii) without the consent of all of the Banks, no Swing Line Loan may be made
during the continuation of an Event of Default and (iii) the Swing Line Bank has
not given at least twenty-four (24) 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 Bank, 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., California
local time, on the Banking 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 Bank, the request must be submitted by 11:30 a.m., California
local time. Promptly after receipt of such a request for borrowing, the
Administrative Agent shall provide telephonic verification to the Swing Line
Bank that, after giving effect to such request, the Outstanding Obligations will
not exceed the Commitment (and such verification shall be promptly confirmed in
writing by telecopier). Unless notified to the contrary by the Swing Line Bank,
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 Bank to debit its demand deposit account at the Swing Line Bank in
the amount of any payment with respect to a Swing Line Loan, or the Swing Line
Bank otherwise receives repayment, after 3:00 p.m., California local time, on a
Banking Day, such payment shall be deemed received on the next Banking Day. The
Swing Line Bank shall promptly notify the Administrative Agent of the Swing Loan
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 Bank and in any event on the Maturity
Date. The Swing Line Bank shall be responsible for invoicing Borrower for such
interest. Interest payable on Swing Line Loans is solely for the account of the
Swing Line Bank (subject to clause (d) below).
(c) The Swing Line Loans shall be payable within five (5) Banking
Days after demand made by the Swing Line Bank and in any event on the Maturity
Date or any earlier date when all other obligations are due.
-56-
(d) Upon the making of a Swing Line Loan in accordance with Section
2.6(a), each Bank shall be deemed to have purchased from the Swing Line Bank a
participation therein in an amount equal to that Bank's Pro Rata Share times the
-----
amount of the Swing Line Loan. Upon demand made by the Swing Line Bank through
the Administrative Agent, each Bank shall, according to its Pro Rata Share,
promptly provide to the Swing Line Bank its purchase price therefor in an amount
equal to its participation therein. The obligation of each Bank to so provide
its purchase price to the Swing Line Bank shall be absolute and unconditional
(subject only to the making of a demand upon that Bank by the Swing Line Bank)
and shall not be affected by the occurrence of a Default or Event of Default;
provided that no Bank shall be obligated to purchase its Pro Rata Share of (i)
--------
Swing Line Loans to the extent that Swing Line Outstandings are in excess of
$15,000,000 or to the extent that the sum of the Indebtedness evidenced by the
---
Notes plus the Aggregate Effective Amount of all outstanding Letters of
----
Credit plus the Swing Line Outstandings exceeds the 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 Banks) during the continuation
of an Event of Default. Each Bank that has provided to the Swing Line Bank 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 Bank 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 Bank paid the Swing Line
Bank its purchase price) with respect to such claim.
(e) In the event that the Swing Line Outstandings are (a) outstanding
ten consecutive Banking Days, or (b) the Swing Line Outstandings are in excess
of $5,000,000 for three Banking Days, then, (unless Borrower and the Co-
Borrowers have made other arrangements acceptable to the Swing Line Bank to pay
the Swing Line Outstandings in full), on the next Banking Day Borrower or the
relevant Co-Borrower shall request a Loan pursuant to Section 2.1(a) sufficient
to pay the Swing Line Outstandings in full. In addition, upon any demand for
payment of the Swing Line Outstandings by the Swing Line Bank (unless Borrower
or the relevant Co-Borrower has made other arrangements acceptable to the Swing
Line Bank to reduce the Swing Line Outstandings to $0), Borrower or the relevant
Co-Borrower shall request a Loan pursuant to Section 2.1(a) sufficient to repay
all Swing Line Outstandings (and, for this purpose, Section 2.1(d) shall not
apply). In each case, the
-57-
Administrative Agent shall automatically provide the respective Committed
Advances made by each Bank to the Swing Line Bank (which the Swing Line Bank
shall then apply to the Swing Line Outstandings). In the event that Borrower and
the Co-Borrowers fail to request a 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 Banks under the 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 Advances to be
made by the Banks pursuant to the three preceding sentences but the Banks shall
not be obligated to make such 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
Advances shall be paid directly to the Swing Line Bank for application to the
Swing Line Outstandings.
2.7 Co-Borrowers. Atlantic City is hereby designated as a joint and
------------
several direct Co-Borrower under this Agreement, with the right to request Loans
and Letters of Credit through the Administrative Agent directly from the Banks
and the Issuing Bank, subject to the terms and conditions set forth herein,
provided that each Loan and Letter of Credit made hereunder to Atlantic City 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. From time to time following the Closing Date, Borrower may
designate one or more Guarantors to be joint and several direct Co-Borrowers
hereunder by written request to the Administrative Agent accompanied by (a) an
executed Assumption Agreement and 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
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, provided that in
--------
the event that Borrower designates Detroit as an additional Co-Borrower, the
liability of Detroit shall be limited to that portion of the Obligations which
are used, directly or indirectly, to finance the design, development,
construction or operation of the Detroit Project or which are actually borrowed
or received by Detroit. The Administrative Agent shall promptly notify the
Banks of such request, together with copies of such of the foregoing as any Bank
may request and the designated Guarantor shall become a Co-Borrower hereunder.
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2.8 Voluntary Reduction of Commitment.
---------------------------------
(a) 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
(3) Banking 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 not less than $5,000,000, or to
terminate, all or a portion of the then undisbursed portion of the
Commitment; provided that the Commitment may not be so reduced below an
--------
amount equal to the sum of (i) the aggregate principal amount outstanding
--- --
under the Notes, plus (ii) the Aggregate Effective Amount of all
----
outstanding Letters of Credit plus (c) the Swing Line Outstandings. The
----
Administrative Agent shall promptly notify the Banks of any reduction or
termination of the Commitment under this Section.
(b) Any voluntary reduction of the Commitment under this Section
shall be applied to reduce the Reduction Amount on such Reduction Dates as
may be specified by Borrower and the Co-Borrowers or, if no such
specification is made, to reduce the Reduction Amount for the most remote
Reduction Date (to the extent of such reduction) and thereafter to earlier
Reduction Dates (to the extent not previously applied) in the inverse order
of their occurrence.
2.9 Scheduled Reductions of Commitment. Subject to Section 2.8, on
----------------------------------
each Reduction Date, the Commitment shall automatically be permanently reduced
by the then applicable Reduction Amount.
2.10 Optional Increases to the Commitment.
------------------------------------
(a) Provided that no Default or Event of Default then exists,
--------
Borrower and each Co-Borrower may at any time jointly request in writing
that the then effective Commitment be increased to an amount which is not
greater than $1,500,000,000 minus the amount of any reductions to the
-----
Commitment which have then occurred pursuant to Sections 2.8 or 2.9, in
accordance with the provisions of this Section. Any request under this
Section shall be submitted by Borrower and the Co-Borrowers to the Banks
through the Administrative Agent not less than thirty (30) days prior to
the proposed
-59-
increase, specify the proposed effective date and amount of such increase
and be accompanied by (i) a Certificate of a Responsible Official, signed
by a Senior Officer of Borrower and each Co-Borrower, stating that no
Default or Event of Default exists as of the date of the request or will
result from the requested increase and (ii) a written consent to the
increase in the amount of the Commitment executed by each Guarantor.
Borrower and the Co-Borrowers may also specify any fees offered to those
Banks which agree to an increase in the amount of their Pro Rata Share of
the Commitment (which fees may be variable based upon the amount which any
such Bank is willing to assume as an increase to the amount of its Pro Rata
Share of the increased Commitment). The consent of the Banks, as such,
shall not be required for an increase in the amount of the Commitment
pursuant to this Section.
(b) Each Bank may approve or reject a request for an increase in
the amount of the Commitment in its sole and absolute discretion and,
absent an affirmative written response within fifteen (15) days after
receipt of such request, shall be deemed to have rejected the request. The
rejection of such a request by any number of Banks shall not affect
Borrower's and the Co-Borrowers' right to increase the Commitment pursuant
to this Section. No Bank which rejects a request for an increase in the
Commitment shall be subject to removal as a Bank.
(c) In responding to a request under this Section, each Bank which
is willing to increase the amount of its Pro Rata Share of the increased
Commitment shall specify the amount of the proposed increase which it is
willing to assume. Each consenting Bank shall be entitled to participate
ratably (based on its Pro Rata Share of the Commitment before such
increase) in any resulting increase in the Commitment, subject to the right
of the Administrative Agent to adjust allocations of the increased
Commitment so as to result in the amounts of the Pro Rata Shares of the
Banks being in integral multiples of $1,000,000.
(d) If the aggregate principal amount offered to be assumed by the
consenting Banks is less than the amount requested, Borrower and the Co-
Borrowers may (i) reject the proposed increase in its entirety, (ii) accept
the offered amounts or (iii) designate new lenders who qualify as Eligible
Assignees and which are reasonably acceptable to the Administrative Agent
as additional Banks hereunder in accordance with clause (e) of this Section
(each,
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a "New Bank"), which New Banks may assume the amount of the increase in the
Commitment that has not been assumed by the consenting Banks.
(e) Each New Bank designated by Borrower and the Co-Borrowers and
reasonably acceptable to the Administrative Agent shall become an
additional party hereto as a New Bank concurrently with the effectiveness
of the proposed increase in the Commitment upon its execution of an
instrument of joinder to this Agreement which is in form and substance
acceptable to the Administrative Agent and which, in any event, contains
the representations, warranties, indemnities and other protections afforded
to the Administrative Agent and the other Banks which would be granted or
made by an Eligible Assignee by means of the execution of a Commitment
Assignment and Acceptance.
(f) Subject to the foregoing, any increase to the Commitment
requested under this Section shall be effective as of the date proposed by
Borrower and the Co-Borrowers and shall be in the principal amount equal to
(i) the amount which consenting Banks are willing to assume as increases to
the amount of their Pro Rata Share plus (ii) the amount offered by any New
----
Banks. Upon the effectiveness of any such increase, Borrower and the Co-
Borrowers shall issue replacement Committed Advance Notes to each affected
Bank and new Committed Advance Notes and Competitive Advance Notes to each
New Bank, and the percentage Pro Rata Shares of each Bank will be adjusted
to give effect to the increase in the Commitment and set forth in a new
Schedule 1.1 issued by the Administrative Agent.
2.11 Optional Termination of Commitment. Following the occurrence
----------------------------------
of a Change in Control, the Requisite Banks may in their sole and absolute
discretion elect, during the thirty (30) 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, to terminate the Commitment, in which case the Commitment
shall be terminated effective on the date which is thirty (30) days subsequent
to written notice from the Administrative Agent to Borrower and the Co-Borrowers
thereof.
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2.12 Extension of Reduction Dates and Maturity Date. At any time
----------------------------------------------
following the one year anniversary of the Closing Date, the then remaining
Reduction Dates and the Maturity Date may each be extended for one year at
Borrower's and the Co-Borrowers' election with the written consent of all of the
Banks (which may be withheld in the sole and absolute discretion of each Bank).
Not earlier than June 1 nor later than August 1 of 1998 and of each subsequent
year, and provided that Borrower and the Co-Borrowers are then in compliance
--------
with Section 7.1, Borrower and the Co-Borrowers may deliver to the
Administrative Agent who will deliver to each of the Banks a written request for
a one year extension of the then remaining Reduction Dates and the Maturity Date
together with a Certificate of a Responsible Official signed by a Senior Officer
on behalf of Borrower and the Co-Borrowers stating that the representations and
warranties contained in Article 4 (other than 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 not a violation of this Agreement) are true and
correct on and as of the date of such Certificate. Within 60 days following the
delivery of such Certificate, each Bank shall notify the Administrative Agent
whether (in its sole and absolute discretion) it consents to such request. Each
Bank which fails to respond to any such request for extension shall be deemed to
have refused to consent thereto. After receiving the notifications from all of
the Banks or the expiration of such period, whichever is earlier, the
Administrative Agent shall notify Borrower, the Co-Borrower and the Banks of the
results thereof.
If all of the Banks have consented to the extension then the
remaining Reduction Dates and the Maturity Date shall each be extended for one
year.
If Banks holding at least 85% of the Commitment consent to the request
for extension, but other Banks (each a "Non-Consenting Bank") notify the
Administrative Agent that they will not consent to the request for extension (or
fail to notify the Administrative Agent in writing of their consent to the
extension), Borrower and the Co-Borrowers may cause all of the Non-Consenting
Banks to be removed as Banks under this Agreement pursuant to Section 11.27,
provided that such removal shall be accomplished by assignment to one or more
--------
Eligible Assignees which are willing to consent to the request for extension and
not by reduction of the amount of Commitment. In the event that sufficient
Eligible Assignees can be identified to assume the Pro Rata Shares of the Non-
Consenting Banks, then the request for extension shall be granted with the
effect as set forth above.
-62-
2.13 Administrative Agent's Right to Assume Funds Available for
----------------------------------------------------------
Advances. Unless the Administrative Agent shall have been notified by any Bank
--------
no later than 10:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of the total amount of
such Loan, the Administrative Agent may assume that such Bank 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 Bank, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Bank. If such
Bank 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 corres ponding amount to the
Administrative Agent. The Administrative Agent also shall be entitled to recover
from such Bank 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 Bank from its
obligation to fulfill its share of the Commitment or to prejudice any rights
which the Administrative Agent, Borrower or any Co-Borrower may have against any
Bank as a result of any default by such Bank hereunder.
2.14 Release of Collateral.
---------------------
(a) 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 the Liens
created by the Collateral Documents in accordance with this Section if, as
of the date of their request, the credit facilities governed by this
Agreement have unsecured ratings of BBB- from S&P and Baa3 from ▇▇▇▇▇'▇.
--------- ---
In the event that either S&P or ▇▇▇▇▇'▇ do not rate the credit facilities
governed hereby, the corporate rating of Borrower issued by such rating
agency shall be deemed the equivalent of a rating of this credit facility.
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
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Borrower and each Co-Borrower certifying that no Default or Event of
Default exists and setting for the ratings granted by S&P and ▇▇▇▇▇'▇,
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 creditors holding all Indebtedness of the
type described in Section 6.9(m) shall concurrently release any Liens held
by such creditors.
(b) Promptly upon receipt of such a Certificate, the
Administrative Agent shall provide a copy thereof to the Banks and, unless
the Requisite Banks contest the accuracy thereof within five Banking Days,
shall (i) execute and deliver to Borrower and its Subsidiaries
reconveyances and releases of the Collateral Documents, and (ii) return to
the Persons legally entitled thereto, all Collateral pledged thereunder,
all at the sole expense of Borrower and the Co-Borrowers (a "Collateral
Release").
(c) The Collateral Release shall not constitute or be
construed as a release (or to require the release) of the Subsidiary
Guarantees or the Borrower Guaranty.
2.15 Collateral and Guarantees. Subject to Section 2.14, the
-------------------------
Obligations shall be guaranteed by the Guarantors and secured by the Collateral
pursuant to the Collateral Documents.
2.16 Senior Indebtedness. The Obligations shall be and hereby are
-------------------
designated as "Senior Indebtedness" with respect to all Subordinated Obligations
and all payments with respect to any Subordinated Obligations shall be subject
to Section 6.1.
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Article 3
PAYMENTS AND FEES
-----------------
3.1 Principal and Interest.
----------------------
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue interest
at the Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on the first
Banking Day of each calendar month shall be due and payable on that day.
Except as otherwise provided in Section 3.9, the unpaid principal amount of
------
any Base Rate Loan shall bear interest at a fluctuating rate per annum
equal to the Base Rate plus the applicable Base Rate Margin. Each change in
----
the interest rate under this Section 3.1(b) due to a change in the Base
Rate shall take effect simultaneously with the corresponding change in the
Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is
for a term of three months or less shall be due and payable on the last day
of the related Eurodollar Period. Interest accrued on each other Eurodollar
Rate Loan shall be due and payable on the date which is three months after
the date such Eurodollar Rate Loan was made (and, in the event that all of
the Banks have approved a Eurodollar Period of longer than six months,
every three months thereafter through the last day of the Eurodollar
Period) and on the last day of the related Eurodollar Period. Except as
------
otherwise provided in Section 3.9, the unpaid principal amount of any
Eurodollar Rate Loan shall bear interest at a rate per annum equal to the
Eurodollar Rate for that Eurodollar Rate Loan plus the applicable
----
Eurodollar Margin.
(d) 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
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Competitive Advance shall bear interest at the fixed interest rate or the
margin over the Eurodollar Rate 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 Outstanding
Obligations at any time exceed the then applicable Commitment, shall
be payable immediately;
(ii) the principal amount of each Competitive Advance
shall be payable on the maturity date specified in the related
Competitive Bid; and
(iii) 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 prepayment under
------
this Section (i) any partial prepayment shall be not less than $5,000,000,
or in integral multiples of $1,000,000 which are in excess of $5,000,000,
(ii) the Administrative Agent shall have received written notice of any
prepayment by 9:00 a.m., California local time, on the Banking Day prior to
the date of prepayment (which must be a Banking Day) in the case of a Base
Rate Loan, and, in the case of a Eurodollar Rate Loan, three Banking Days
before the date of prepayment, which notice shall identify the date and
amount of the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal on any Eurodollar Rate Loan shall be accompanied by
payment of interest accrued to the date of payment on the amount of
principal paid and (iv) any payment or prepayment of all or any part of any
Eurodollar Rate Loan on a day other than the last day of the applicable
Eurodollar Period shall be subject to Section 3.8(e). Promptly following
receipt of a notice of prepayment under clause (ii) above, the
Administrative Agent shall notify each Bank by telephone or telecopier (and
if by telephone, promptly confirmed by telecopier) of the date and amount
thereof.
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(g) No Competitive Advance Note may be prepaid without the prior
written consent of the Bank making such Competitive Advance.
(h) Each payment of principal by Borrower or Co-Borrower hereunder
shall be applied ratably to the Advances made to Borrower or that Co-Borrower
which are then due and payable, provided that if the Obligations are then
--------
accelerated or have deemed to have been accelerated, each payment of principal
hereunder shall be applied ratably to the outstanding Advances.
3.2 Arranger's Fees. On the Closing Date, Borrower shall pay to
---------------
Arranger through the Administrative Agent underwriting fees in the amount
heretofore agreed upon by letter agreement between Borrower and the Arranger.
These fees are for the services of the Arranger in arranging the credit
facilities under this Agreement and are fully earned when paid and are
nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall pay to the
------------
Administrative Agent, for the account of each Bank, upfront fees in an amount
equal to (a) that Bank's allocated Pro Rata Share of the Commitment times a fee
-----
percentage based upon the amount of the offered commitment of that Bank to the
credit facilities described herein, as set forth in the Confidential Information
Memorandum, 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 Bank under this Agreement and are fully
earned when paid. The upfront fees paid to each Bank are solely for its own
account and are nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrower and the Co-
---------------
Borrowers shall pay to the Administrative Agent, for the ratable accounts of the
Banks pro rata according to their Pro Rata Share, a commitment fee equal to the
Commitment Fee Rate in effect from time to time times the average daily amount
-----
by which the Commitment exceeds the sum of (a) the aggregate principal amount
------
outstanding under the Committed Advance Notes (but not the aggregate principal
-------
amount outstanding under the Competitive Advance Notes or the Swing Line
Outstandings) plus (b) the Aggregate Effective Amount under all outstanding
----
Standby Letters of Credit. The commitment fee shall be payable quarterly in
arrears on each Quarterly Payment Date, on the Maturity Date upon the date of
any partial reduction or termination of the Commitment pursuant to Sections 2.8,
2.9 or 2.11 and upon any increase to the Commitment pursuant to Section 2.10.
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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 Bank for the
sole account of the Issuing Bank, in an amount set forth in a letter
agreement between Borrower and the Issuing Bank;
(b) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent for the ratable account of the
Banks in accordance with their Pro Rata Share, a standby letter of
credit fee in an amount equal to the applicable Standby Letter of
Credit Fee per annum as of the date of such issuance times the face
-----
amount of such Standby Letter of Credit through the termination or
expiration of such Standby Letter of Credit, which the Administrative
Agent shall promptly pay to the Banks; and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Commercial Letter of Credit, to the Issuing Bank for
the sole account of the Issuing Bank, issuance, negotiation, drawing
and amendment fees in the amounts set forth from time to time as the
Issuing Bank'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 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 Bank 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
-68-
Agency charged with the interpretation or administration thereof, or compliance
by such Bank (or its Eurodollar Lending Office) or any corporation controlling
the Bank, 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 Bank or any corporation controlling such Bank and (taking
into consideration such Bank's or such corporation's policies with respect to
capital adequacy and such Bank'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 (10) Banking Days after demand of such Bank, Borrower and the
Co-Borrowers shall pay to such Bank, from time to time as specified in good
faith by such Bank, additional amounts sufficient to compensate such Bank 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 (90) days preceding the date of such demand or is attributable
to periods prior to the date which is ninety (90) days preceding the date of
such demand. Each Bank's determination of such amounts shall be conclusive in
the absence of manifest error. Any request for compensation by a Bank 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 Bank. If Borrower and
the Co-Borrowers become obligated to pay a material amount under this Section to
any Bank, that Bank will be subject to removal in accordance with Section 11.27;
provided that Borrower and the Co Borrowers shall have paid such amount to that
--------
Bank and that Borrower and the Co-Borrowers, within the thirty (30) day period
following the date of such payment, shall have notified that Bank in writing of
their intent to so remove the Bank.
3.8 Eurodollar Costs and Related Matters.
------------------------------------
(a) In the event that any Governmental Agency imposes on any
Bank any reserve or comparable requirement (including any emergency,
---------
supplemental or other reserve) with respect to the Eurodollar Obligations
of that Bank, Borrower or the relevant Co-Borrower shall pay that Bank
within five (5) Banking Days after demand all amounts necessary to
compensate such Bank (determined as though such Bank's Eurodollar Lending
Office had funded 100% of its Eurodollar Rate Advance in the Designated
Eurodollar Market) in
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respect of the imposition of such reserve requirements. The Bank'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 Bank or its Eurodollar Lending Office
to any tax, duty or other charge or cost with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Advances or its obligation to make Eurodollar Rate Advances, or shall
change the basis of taxation of payments to any Bank attributable to
the principal of or interest on any Eurodollar Rate Advance or any
other amounts due under this Agreement in respect of any Eurodollar
Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or
its obligation to make Eurodollar Rate Advances, excluding (i) taxes
---------
imposed on or measured in whole or in part by its overall net income,
gross income or gross receipts, (ii) franchise taxes imposed by (A)
any jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business," and (iii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide Borrower
with the appropriate form or forms required by Section 11.21, to the
extent such forms are then available under applicable Laws;
(2) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including any
---------
reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against
assets of, deposits with or for the account of, or credit extended by,
any Bank or its Eurodollar Lending Office); or
(3) shall impose on any Bank or its Eurodollar Lending Office
or the Designated Eurodollar Market any other condition affecting any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
-70-
Advances, its obligation to make Eurodollar Rate 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
Bank, increases the cost to such Bank or its Eurodollar Lending Office of
making or maintaining any Eurodollar Rate Advance or in respect of any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Advances or its obligation to make Eurodollar Rate Advances or reduces the
amount of any sum received or receivable by such Bank or its Eurodollar
Lending Office with respect to any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Advances or its obligation to make
Eurodollar Rate Advances (assuming such Bank's Eurodollar Lending Office
had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
Market), then, within five (5) Banking Days after demand by such Bank (with
a copy to the Administrative Agent), Borrower and the Co-Borrowers shall
pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction (determined as though such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in
the Desig nated Eurodollar Market). A statement of any Bank 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
Bank, make it unlawful or impossible for such Bank or its Eurodollar
Lending Office to make, maintain or fund its portion of any Eurodollar Rate
Advance or materially restrict the authority of such Bank to purchase or
sell, or to take deposits of, Dollars in the Designated Eurodollar Market,
or to determine or charge interest rates based upon the Eurodollar Rate,
and such Bank shall so notify the Administrative Agent, then such Bank's
obligation to make Eurodollar Rate Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative Agent
forthwith shall give notice thereof to the other Banks and Borrower. Upon
receipt of such notice, the outstanding principal amount of such Bank's
Eurodollar Rate Advances, together with accrued interest thereon,
automatically shall be converted to Base Rate Advances on either (1) the
last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Bank may lawfully continue to
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maintain and fund such Eurodollar Rate Advances to such day(s) or (2)
immediately if such Bank may not lawfully continue to fund and maintain
such Eurodollar Rate Advances to such day(s), provided that in such event
--------
the conversion shall not be subject to payment of a prepayment fee under
clause (e) of this Section. Each Bank agrees to endeavor promptly to notify
Borrower of any event of which it has actual knowledge, occurring after the
Closing Date, which will cause that Bank to notify the Administrative Agent
under this Section, and agrees to designate a different Eurodollar Lending
Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Bank, otherwise be materially
disadvantageous to such Bank. In the event that any Bank is unable, for the
reasons set forth above, to make, maintain or fund its portion of any
Eurodollar Rate Loan or Advance, such Bank 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 Bank whose obligation to make
Eurodollar Rate Advances has been suspended under this Section shall
promptly notify the Administrative Agent and Borrower of the cessation of
the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar Market
generally that are beyond the reasonable control of the Banks, deposits
in Dollars (in the applicable amounts) are not being offered to any
Bank in the Designated Eurodollar Market for the applicable Eurodollar
Period; or
(2) the Requisite Banks advise the Administrative Agent that
the Eurodollar Rate as determined by the Administrative Agent (i) does
not represent the effective pricing to such Banks for deposits in
Dollars in the Designated Eurodollar Market in the relevant amount for
the applicable Eurodollar Period, or (ii) will not adequately and
fairly reflect the cost to such Banks of making the applicable
Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Banks, whereupon until the Administrative Agent notifies
Borrower that
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the circumstances giving rise to such suspension no longer exist, the
obligation of the Banks to make any future Eurodollar Rate Advances shall
be suspended unless (but 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 Eurodollar Margin with
respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance
(other than as the result of a conversion required under clause (c) of this
------ ----
Section) on a day other than the last day in the applicable Eurodollar
Period (whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower or any Co-Borrower (for a
reason other than the failure of a Bank to make an Advance) to borrow on
the date or in the amount specified for a Eurodollar Rate Advance in any
Request for Loan or Request for Competitive Bids, or upon the failure of
Borrower or any Co-Borrower to prepay a Eurodollar Rate Loan or Advance on
the date specified in a notice of prepayment delivered to the
Administrative Agent pursuant to Section 3.1(e), Borrower and the Co-
Borrowers shall pay to the appropriate Bank within ten (10) Banking 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 Bank's
Eurodollar Rate Advance had been funded in the Designated Eurodollar
Market), equal to the sum of:
--- --
(1) the principal amount of the Eurodollar Rate Advance
prepaid or not borrowed or prepaid, as the case may be, times [the
-----
number of days from and including the date of prepayment or failure to
borrow or prepay, as applicable, to but excluding the last day in the
applicable Eurodollar Period], divided by 360, times the applicable
------- -----
Interest Differential (provided that the product of the foregoing
--------
formula must be a positive number); plus
(2) all out-of-pocket expenses incurred by the Bank
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Bank'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.
-73-
(f) Each Bank agrees to endeavor promptly to notify Borrower of
any event of which it has actual knowledge, occurring after the Closing
Date, which will entitle such Bank to compensation pursuant to clause (a)
or clause (b) of this Section, and agrees to designate a different
Eurodollar Lending Office if such designation will avoid the need for or
reduce the amount of such compensation and will not, in the good faith
judgment of such Bank, otherwise be materially disadvantageous to such
Bank. Any request for compensation by a Bank 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
Bank.
(g) If any Bank claims compensation or is excused from making or
continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at
least four (4) Eurodollar Banking Days' prior notice to the
Administrative Agent and such Bank and upon payment in full of the
amounts provided for in this Section through the date of such payment
plus any prepayment fee (subject to clause (c) of this Section)
----
required by clause (e) of this Section, pay in full the affected
Eurodollar Rate Advances of such Bank or request that such Eurodollar
Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers
become obligated to pay a material amount under this Section to any
Bank, that Bank will be subject to removal in accordance with Section
11.27; provided that Borrower and the Co-Borrowers shall have paid
--------
such amount to that Bank and that Borrower and the Co-Borrowers,
within the thirty (30) day period following the date of such payment,
shall have notified that Bank in writing of their intent to so remove
the Bank.
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 Bank is not paid when due, it shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the sum
---
of the Base Rate plus the applicable Base Rate Margin plus 2%, to the fullest
---- ----
extent permitted by applicable
-74-
Laws. Accrued and unpaid interest on past due amounts (including interest on
---------
past due interest) shall be compounded monthly, on the last day of each calendar
month, to the fullest extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of interest on
--------------------------------
Base Rate Loans shall be calculated on the basis of a year of 365 or 366 days,
as the case may be, and the actual number of days elapsed; computation of
interest on Eurodollar Rate Loans, Competitive Advances and all fees under this
Agreement shall be cal culated 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 Banks 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-Banking Days. If any payment to be made by Borrower or any
----------------
other Party under any Loan Document shall come due on a day other than a Banking
Day, payment shall instead be considered due on the next succeeding Banking 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 Banks or the Administrative
Agent, as the case may be, in immediately available funds not later than
11:00 a.m. (other than payments with respect to Swing Line Loans, which
-----
must be paid directly to the Swing Line Bank and received by 3:00 p.m.),
California local time, on the day of payment (which must be a Banking Day).
All payments received after such time, on any Banking Day, shall be deemed
received on the next succeeding Banking Day. The amount of all payments
received by the Administrative Agent for the account of each Bank shall be
-75-
immediately paid by the Administrative Agent to the applicable Bank in
immediately available funds and, if such payment was received by the
Administrative Agent by 11:00 a.m., California local time, on a Banking Day
and not so made available to the account of a Bank on that Banking Day, the
Administrative Agent shall reimburse that Bank for the cost to such Bank of
funding the amount of such payment at the Federal Funds Rate. All payments
shall be made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each Bank
comprising such Loan.
(c) Each Bank shall use its best efforts to keep a record (which
may be in tangible or electronic or other intangible form) of Advances made
by it and payments received by it with respect to each of its Notes and,
subject to Section 10.6(g), such record shall, as against Borrower and the
Co-Borrowers, be presumptive evidence of the amounts owing. Notwithstanding
the foregoing sentence, the failure by any Bank 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 Bank by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal
office or Eurodollar Lending Office or (B) any jurisdiction (or political
subdivision thereof) in which it is "doing business", (iii) any withholding
taxes or other taxes based on gross income imposed by the United States of
America that are not attributable to any change in any Law or the
interpretation or administration of any Law by any Governmental Agency and
(iv) any withholding tax or other taxes based 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 immediately paid by
the Administrative Agent to the applicable Bank in
-76-
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
Bank 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 Bank as is necessary to result in that
Bank's receiving a net after-Tax amount equal to the amount to which that
Bank 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 Bank on account of such Taxes, that Bank 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 Bank, that Bank will be subject to removal in accordance
with Section 11.27; provided that Borrower or the relevant Party shall have
--------
paid such amount to that Bank and that Borrower and the Co-Borrowers,
within the thirty (30) day period following the date of such payment, shall
have notified that Bank in writing of their intent to so remove the Bank.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Bank to obtain the funds for any Loan or Advance in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan or Advance in any particular
place or manner, provided that each Bank severally represents and warrants that
--------
it has obtained the funds for its Advances in compliance with applicable Laws
and that the making of its Advances will not constitute "prohibited
transactions" as such term is defined in ERISA.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
---------------------------------------
Administrative Agent or any Bank 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 Bank's right to require full payment of any
interest (including interest at the Default Rate), fee, cost or other amount
---------
payable under any Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made by
---------------------------------------------------------------
Borrower and the Co-Borrowers. Unless the Administrative Agent shall have been
-----------------------------
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notified by Borrower and the Co-Borrowers prior to the date on which any payment
to be made by Borrower and the Co-Borrowers hereunder is due that Borrower and
the Co-Borrowers do not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower and the Co-Borrowers have remitted
such pay ment when so due and the Administrative Agent may, in its discretion
and in reliance upon such assumption, make available to each Bank on such
payment date an amount equal to such Bank's share of such assumed payment. If
Borrower and the Co-Borrowers have not in fact remitted such payment to the
Administrative Agent, each Bank shall forthwith on demand repay to the
Administrative Agent the amount of such assumed payment made available to such
Bank, 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 Bank
to the date such amount is repaid to the Administrative Agent at the Federal
Funds Rate.
3.16 Fee Determination Detail. The Administrative Agent and any Bank
------------------------
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 Bank, 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 (90) days
following the date on which the Commitment is terminated, all Obligations
hereunder are fully paid and all Letters of Credit have expired.
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Article 4
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower and Atlantic City (and to the extent any such representations
and warranties are at any date re-affirmed pursuant to Article 8, each other Co-
Borrower as of that date) represent and warrant to the Banks 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. The Banks acknowledge that Atlantic City is not required to
hold any licenses under applicable Gaming Laws until the Completion Date for
Atlantic City.
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:
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(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
or Right of Others upon or with respect to any Property now owned or leased
or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in Schedule 4.3;
(e) Result in a breach of or constitute a default under, or cause
or permit the acceleration of any obligation owed under, any indenture or
loan or credit agreement or any other Contractual Obligation to which such
Party is a party or by which such Party or any of its Property is bound or
affected;
and neither Borrower, 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, number of shares of capital stock issued and outstanding,
number
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of shares owned by Borrower or a Subsidiary of Borrower (specifying
such owner) 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 and Rights
of Others, except for Permitted Encumbrances and Permitted Rights of
------
Others.
(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 Banks (a) the audited consolidated and consolidating financial
statements of Borrower and its Subsidiaries for the Fiscal Year ended December
31,
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1996 and (b) the unaudited consolidated and consolidating financial statements
of each of Borrower and its Subsidiaries for the Fiscal Quarter ended March 31,
1997. 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 Generally Accepted Accounting Principles, consistently
applied.
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 Generally Accepted Accounting Principles to be
reflected or disclosed and not reflected or disclosed in the financial
statements described in Section 4.5(b), 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, 1996. As
of any date subsequent to the Closing Date, no circumstance or event has
occurred that constitutes a Material Adverse Effect since the Closing Date.
4.7 Title to Property. Borrower and its Subsidiaries have valid
-----------------
title to the Property reflected in the financial statements described in Section
4.5(b), other than immaterial items of Property and Property subsequently sold
or disposed of in the ordinary course of business, free and clear of all Liens
and Rights of Others, other than Permitted Encumbrances, Permitted Rights of
----------
Others and Liens or Rights of Others described in Schedule 4.7 or permitted by
Section 6.8.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or possess
-----------------
the right to use to the extent necessary in their businesses, all material
trademarks, trade names, copyrights, patents, patent rights, computer software,
licenses and other Intangible Assets that are used in the conduct of their
businesses, and no such Intangible Asset, to the best knowledge of Borrower and
the Co-Borrowers, conflicts with the valid trademark, trade name, copyright,
patent, patent right or Intangible Asset of any other Person to the extent that
such conflict constitutes a Material Adverse Effect. Schedule 4.8 sets forth
all material patents, trademarks, trade names, trade styles and copyrights owned
by Borrower and its Restricted Subsidiaries.
4.9 Public Utility Holding Company Act. Neither Borrower nor any of
----------------------------------
its Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a
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"holding company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to
---------- ------
subject matter and amount (subject to applicable deductibles and retentions) by
insurance as to which the insurance carrier has been notified and has not
asserted lack of subject matter coverage or reserved its right to do so, (b) any
matter, or series of related matters, involving a claim against Borrower or any
of its Subsidiaries of less than $5,000,000, (c) matters of an administrative
nature not involving a claim or charge against Borrower or any of its
Subsidiaries and (d) matters set forth in Schedule 4.10, there are no actions,
suits, proceedings or investigations pending as to which Borrower or any of its
Subsidiaries have been served or have received notice or, to the best knowledge
of Borrower 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.
4.11 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. Each of the
certifications contained in the Solvency Certificates is accurate.
4.12 No Default. No event has occurred and is continuing that is a
----------
Default or Event of Default.
4.13 ERISA.
-----
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material Adverse
Effect;
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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.
4.14 Regulations G, T, U and X; Investment Company Act. The sum of
-------------------------------------------------
(a) the fair market value of the portion of the Collateral which is not Margin
Stock plus (b) one-half of the value of the Collateral which does consist of
----
Margin Stock is and at all times following the Closing Date shall be in excess
of the Outstanding Obligations. No part of the proceeds of any Loan hereunder
will be used to purchase or carry, or to extend credit to others for the purpose
of purchasing or carrying, any Margin Stock in violation of Regulations G, T, U
and X. Neither Borrower nor any of its Subsidiaries is or is required to be
registered as an "investment company" under the Investment Company Act of 1940.
4.15 Disclosure. No written statement made by a Senior Officer of
----------
Borrower, any Co-Borrower or any Guarantor to the Administrative Agent or any
Bank in connection with this Agreement, or in connection with any Loan, as of
the date thereof contained any untrue statement of a material fact or omitted a
material fact necessary to make the statement made not misleading in light of
all the circumstances existing at the date the statement was made.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
-------------
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
its Subsidiaries,
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except (a) such taxes, if any, as are being contested in good faith by
appropriate pro ceedings and as to which adequate reserves have been established
and maintained and (b) immaterial taxes so long as no material Property of
Borrower or any of its Subsidiaries is in jeopardy of being seized, levied upon
or forfeited.
4.17 Projections. As of the Closing Date, to the best knowledge of
-----------
Borrower 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.
4.18 Hazardous Materials. Except as described in Schedule 4.18, (a)
-------------------
neither Borrower nor any of its Subsidiaries at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under the Real Property in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b)
to the best knowledge of Borrower 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, (c) no Real Property or any portion thereof is or has been
utilized by Borrower or any of its Subsidiaries as a site for the manufacture of
any Hazardous Materials and (d) to the extent that any Hazardous Materials are
used, generated or stored by Borrower or any of its Subsidiaries on any Real
Property, or transported to or from such Real Property by Borrower or any of its
Subsidiaries, such use, generation, storage and transportation are in compliance
in all material respects with all Hazardous Materials Laws.
4.19 Security Interests. The Borrower Security Agreement and the
------------------
Subsidiary Security Agreement create valid and perfected first priority security
interests in the Collateral described therein securing the Obligations (subject
only to Permitted Encumbrances, Permitted Rights of Others, purchase money liens
permitted under Section 6.8(e) and matters disclosed in Schedule 4.7 and to such
qualifications and exceptions as are contained in the Uniform Commercial Code
with respect to the priority of security interests perfected by means other than
the filing of a financing statement or with respect to the creation of security
interests in Property to which Article 9 of the Uniform Commercial Code does not
apply) and all actions necessary to
-85-
perfect the security interest so created have been taken and completed. The
Trademark Security Interest Assignment creates a valid first priority collateral
assignment of the Collateral described therein securing the Obligations and all
action necessary to perfect the collateral assignment so created, other than the
----- ----
filing thereof with the United States Patent and Trademark Office will have been
taken and completed. The Pledge Agree ment and the Subsidiary Pledge Agreement,
and the delivery to the Administrative Agent of the Pledged Collateral described
therein create a valid and perfected first priority security interest in such
Pledged Collateral described therein. The Nevada Deed of Trust and the New
Jersey Mortgage create a valid Lien in the Collateral described therein securing
the Obligations, other than those arising under Sections 4.18, 5.11 and 11.22,
----- ----
(subject only to Permitted Encumbrances, Permitted Rights of Others and matters
described in Schedule 4.7), and all action necessary to perfect the Lien so
created, other than recordation or filing thereof with the appropriate
----- ----
Governmental Agencies, has been taken and completed.
4.20 No Default Under Existing Loan Agreement. As of the Closing
----------------------------------------
Date, no Default or Event of Default has occurred and remains continuing under
the Existing Loan Agreement.
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Article 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS)
----------------------
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower shall, and shall cause each of its
Restricted Subsidiaries to, and each Co-Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Banks)
otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
------------------------------------------
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that Borrower and its
------
Restricted Subsidiaries shall not be required to pay or cause to be paid (a) any
tax, assessment, charge or levy that is not yet past due, or is being contested
in good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material Property of Borrower or any of its
Restricted Subsidiaries is in jeopardy of being seized, levied upon or
forfeited.
5.2 Preservation of Existence. Preserve and maintain their
-------------------------
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business except (a) where the
------
failure to so preserve and maintain the existence of any 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.
-87-
5.3 Maintenance of Properties. Maintain, preserve and protect all of
-------------------------
their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain, preserve and protect
------
a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrower and its Restricted Subsidiaries,
taken as a whole, shall not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and other
------------------------
insurance (subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which Borrower and its Restricted Subsidiaries operate and,
in any event, such insurance as is required under the Deeds of Trust.
5.5 Compliance With Laws. Comply, within the time period, if any,
--------------------
given for such compliance by the relevant Governmental Agency with enforcement
authority, with all Requirements of Law noncompliance with which constitutes a
Material Adverse Effect, except that Borrower and its Restricted Subsidiaries
------
need not comply with a Requirement of Law then being contested by any of them in
good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time during
-----------------
regular business hours and as often as reasonably requested (but not so as to
materially interfere with the business of Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Bank, or any authorized employee, agent
or representative thereof, to examine, audit and make copies and abstracts from
the records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, managers, key
employees or accountants and, upon request, furnish promptly to the
Administrative Agent or any Bank true copies of all financial information made
available to the board of directors or audit committee of the board of directors
of Borrower.
5.7 Keeping of Records and Books of Account. Keep adequate records
---------------------------------------
and books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied, and in material
conformity with
-88-
all applicable requirements of any Governmental Agency having regulatory
jurisdiction over Borrower or any of its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with all
--------------------------
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a Bank or another
Person, except for any such Contractual Obligations (a) the performance of which
------
would cause a Default or (b) then being contested by any of them in good faith
by appropriate proceedings or if the failure to comply with such agreements,
indentures, leases or instruments does not constitute a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Loans (a) on the Closing
---------------
Date, to refinance the outstanding Loans under the Existing Loan Agreement, (b)
to finance expenses associated with the transactions contemplated herein, (c) to
finance design, development and construction expenses associated with the MGM
Grand Atlantic City, the Detroit Project and Master Plan (subject to the
limitations set forth herein), (d) to finance other Capital Expenditures,
Acquisitions and Investments permitted under Article 6 hereof, and (e) for other
general corporate purposes including the Acquisitions and Investments described
herein.
5.10 New Restricted Subsidiaries. Cause any Person which hereafter
---------------------------
becomes a Restricted Subsidiary of Borrower to execute and deliver to the
Administrative Agent (a) a Subsidiary Guaranty, and (b) unless a Collateral
Release has then occurred, a Subsidiary Security Agreement and, to the extent
that Person owns any Property of the type described therein, a joinder to the
Trademark Security Interest Assignment, and to (subject to compliance with
applicable Gaming Laws) deliver the certificates evidencing all equity interests
in such Restricted Subsidiary to the Administrative Agent in pledge pursuant to
the Pledge Agreement or, if appropriate, pursuant to a Subsidiary Pledge
Agreement.
5.11 Hazardous Materials Laws. Keep and maintain all Real Property
------------------------
and each portion thereof in compliance in all material respects with all
applicable Hazardous Materials Laws and promptly notify the Administrative Agent
in writing (attaching a copy of any pertinent written material) of (a) any and
all material enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any and all material
claims made or
-89-
threatened in writing by any Person against Borrower or its Restricted
Subsidiaries relating to damage, contribution, cost recovery, compensation, loss
or injury resulting from any Hazardous Materials and (c) discovery by any Senior
Officer of Borrower or any Co-Borrower of any material occurrence or condition
on Property adjoining or in the vicinity of such Real Property that could
reasonably be expected to cause such Real Property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of such Real Property under any applicable Hazardous Materials Laws.
5.12 Change of Name. Notify the Administrative Agent in writing of
--------------
any change of the name of Borrower or any of its Restricted Subsidiaries within
five Banking Days of such change, and promptly (and in any event within ten
Banking Days of request) execute such amendments to any of the Collateral
Documents and take such other actions as may be requested by the Administrative
Agent to reflect such change of its name.
5.13 Material Projects.
-----------------
(a) Unless a Collateral Release has occurred, concurrently with
the acquisition by Borrower or any Restricted Subsidiary of any fee or
leasehold interest in Real Property which is to be used in conjunction with
the MGM Grand Atlantic City or any other Material Project, execute and
deliver to the Administrative Agent, a first mortgage with respect thereto
(in a form reasonably acceptable to the Administrative Agent and in any
event providing substantive remedies no less favorable to the Creditors
than the Nevada Deed of Trust), together with the following, in each case
at Borrower's and the Co-Borrowers' sole expense:
(i) to the extent that construction of the relevant Material
Project has then commenced, assurances from a title insurance company
acceptable to the Administrative Agent that it is prepared to issue
its "LP-10" ALTA construction lenders title policy (or such other
lenders title policy determined by the Administrative Agent to be the
equivalent thereof) insuring the Lien of such first mortgage in an
amount not less than the Minimum Title Insurance Amount for that
Project, subject only to such exceptions as are reasonably acceptable
to the Administrative Agent, with such title policy endorsements as
the Administrative Agent may reasonably require and with such
assurances as the Administrative
-90-
Agent may reasonably require from title re-insurers acceptable to the
Administrative Agent, together with the written commitment of such
-------- ----
title insurance company to issue on or before the relevant Completion
Date its replacement ALTA title policy in the same form with such
title policy endorsements as the Administrative Agent may reasonably
require;
(ii) a "Phase I" environmental report with respect to the
underlying Real Property prepared by a qualified independent
environmental expert acceptable to the Administrative Agent and having
results reasonably satisfactory to the Administrative Agent and the
Requisite Banks;
(iii) a Certificate of a Senior Officer of Borrower and each
relevant Co-Borrower setting forth all permits which it holds from
Governmental Agencies with respect to construction of the Material
Project; and
(iv) such other assurances, insurance certificates opinions
and the like as the Administrative Agent may reasonably request;
provided that the Liens granted to the Administrative Agent in the Property
--------
of Detroit shall secure only that portion of the Obligations which are
used, directly or indirectly, to finance the design, development,
construction or operation of the Detroit Project or which are actually
borrowed or received by Detroit.
(b) From the date of commencement of construction of any Material Project
until the Completion Date for that Material Project:
(i) Comply in all material respects with all existing Laws and
requirements of all Governmental Agencies having jurisdiction over
Borrower, its relevant Subsidiaries and the Material Project, and with
all future Laws and requirements that become applicable to that
Material Project and must be complied with prior to its Completion
Date;
(ii) Permit CSG to monitor the construction of the Material
Project and provide CSG with such information and access to the
Material Project and individuals employed by Borrower and its relevant
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Subsidiaries, and the architect and contractor for the Material
Project as it may reasonably request for that purpose;
(iii) Permit the Administrative Agent, or any Bank, at any
reasonable time to enter and visit each Material Project for the
purposes of performing an appraisal, observing the work of
construction and examining all materials, plans, specifications,
working drawings and other matters relating to the construction and\or
redevelopment thereof; and
(iv) Promptly pay when due (subject to applicable retentions)
or otherwise discharge all claims and Liens for labor done and
materials and services furnished in connection with that Material
Project's construction or redevelopment, except for claims contested
------
in good faith by appropriate proceedings, provided that any such
--------
claims are covered by such payment bonds or title insurance policy
endorsements as may be requested by the Administrative Agent.
5.14 Completion Certificates. As promptly as practicable following
-----------------------
the Completion Date for each Material Project, promptly provide the
Administrative Agent with:
(a) a written certificate executed by the primary architect, engineer
and contractor and reasonably acceptable to the Administrative Agent
certifying that the Material Project has been completed in all material
respects in accordance with the plans therefor and complies in all material
respects with all applicable zoning, building and land use Laws and that
the Material Project is ready to be opened for business;
(b) Unless a Collateral Release has occurred, an ALTA survey of the
Real Property underlying the Material Project that (i) demonstrates its
compliance in all material respects with all applicable Laws and
requirements of Governmental Agencies, (ii) sets forth all easements and
licenses burdening such Real Property, (iii) reflects no encroachments onto
such Real Property and no encroachments by Material Project onto adjoining
real property and (iv) certifies the legal description of the real property
underlying the Material Project to be the same as that set forth in the
title insurance policy delivered to the Banks with respect thereto; and
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(c) Unless a Collateral Release has occurred, any endorsements
to the title insurance policy referred to in Section 5.13(a)(i) as are
requested by the Administrative Agent, at the sole expense of Borrower and
the Co-Borrowers.
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Article 6
NEGATIVE COVENANTS
------------------
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, and each Co-Borrower shall not unless the
Administrative Agent (with the written approval of the Requisite Banks or, if
required by Section 11.2, of all of the Banks) 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) so long as no Default or Event of Default then exists or would
result therefrom, Borrower may make payments of scheduled interest on any
Subordinated Obligation; and
(b) Borrower may redeem Subordinated Obligations held by Persons
which are subject to a Disqualification in an aggregate amount which does
not exceed the Basket Amount during the term of this Agreement (net of any
Distributions theretofore made pursuant to Section 6.5(b), any Capital
Expenditures theretofore made pursuant to Section 6.13(e) and the amount of
any Acquisitions or Investments theretofore made pursuant to Section
6.15(l), in each case, utilizing the Basket Amount), provided that (i) no
-------- ----
Default or Event of Default then exists or would result therefrom, (ii)
after giving effect to such redemption, Borrower is in pro forma compliance
with the covenants set forth in Sections 6.11, 6.12 and 6.14, and (iii) to
the extent that, following the date of any such redemption, Borrower issues
replacement Subordinated Obligations, no such redemption shall be deemed to
utilize the Basket Amount.
6.2 Disposition of Property. Make any Disposition of its Property,
-----------------------
whether now owned or hereafter acquired, other than Dispositions of the types
----- ----
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described below made when no Default or Event of Default exists or would result
therefrom:
(a) the Disposition of MGM Grand Monorail, Inc. or the Disposition by
MGM Grand Monorail, Inc. of its interests in Monorail, provided that Las
--------
Vegas retains the right to reasonable access to, and the common use of, the
monorail owned by Monorail (including by way of any user fees imposed upon
passengers);
(b) Dispositions of tangible personal Property made in connection
with and in furtherance of the implementation of Master Plan improvements
to the MGM Grand - Las Vegas;
(c) a Disposition of New York to Primadonna Resorts, Inc. or its
Affiliates in accordance with Borrower's existing buy\sell agreements with
Primadonna Resorts, Inc. as in effect as of the Prior Closing Date; and
(d) Dispositions consisting of long term ground lease interests in
the land directly underlying the Marriott Marquis and the Supplemental
Hotel Facility which do not affect any land which underlies the MGM Grand
Hotel and Casino or its material appurtenant structures, and Dispositions
of the improvements such real property constituting the Marriott Marquis
and the Supplemental Hotel Facility and related personal property, provided
--------
that in no event shall Borrower dispose of the fee interests in real
property associated with such facilities;
(e) Dispositions of the Australia Companies (or of any Property
directly received in consideration thereof);
(f) Dispositions of assets expressly permitted by the terms of the
Collateral Documents;
(g) Dispositions of temporary casino facilities associated with the
Detroit Project after their use has terminated; and
(h) other Dispositions made in any Fiscal Year which do not result in
the aggregate Net Proceeds from all Dispositions made during that Fiscal
Year
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being in excess of 7% of Total Assets as of the last day of the preceding
Fiscal Year.
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, and (c) mergers with any Person which if acquired by
Borrower or its other Restricted Subsidiaries pursuant to Investments permitted
hereby, would be Restricted Subsidiaries, 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.
6.4 Hostile Acquisitions. Directly or indirectly use the proceeds of
--------------------
any Loan in connection with the acquisition of part or all of a voting interest
of five percent (5%) or more in any corporation or other business entity if such
acquisition is opposed by the board of directors or management of such
corporation or business entity.
6.5 Distributions. Make any Distribution, whether from capital,
-------------
income or otherwise, and whether in Cash or other Property, except:
------
(a) Distributions by a Subsidiary of Borrower to Borrower or
Restricted Subsidiary of Borrower;
(b) Distributions of Cash, Cash Equivalents or other securities paid
to shareholders of Borrower in an aggregate amount which does not exceed
the Basket Amount during the term of this Agreement (net of any redemptions
of Subordinated Obligations theretofore made pursuant to Section 6.1(b),
any Capital Expenditures theretofore made pursuant to Section 6.13(e) and
the amount of any Acquisitions or Investments theretofore made pursuant to
Section 6.15(l), in each case, utilizing the Basket Amount), provided that
-------- ----
(i) no Default or Event of Default then exists or would result therefrom,
and (ii) after giving effect to the making of such Distribution, Borrower
is in pro forma compliance with the covenants set forth in Sections 6.11,
6.12 and 6.14;
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(c) Distributions made by Detroit pursuant to the terms of the Detroit
Operating Agreement to the minority owners of Detroit which do not exceed
the amounts set forth in the Detroit Operating Agreement.
6.6 ERISA. (a) At any time, permit any Pension Plan to (i) engage in
-----
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code), (ii) fail to comply with ERISA or any other applicable Laws, (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.7 Change in Nature of Business. Make any material change in the
----------------------------
nature of the business of Borrower and its Subsidiaries, taken as a whole.
6.8 Liens and Negative Pledges. Create, incur, assume or suffer to
--------------------------
exist any Lien or Negative Pledge of any nature upon or with respect to any of
its Properties, or engage in any sale and leaseback transaction with respect to
any of its Properties, whether now owned or hereafter acquired, except:
------
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in Schedule 4.7 and any renewals/extensions or amendments
thereof, provided that the obligations secured or benefited thereby are not
--------
increased;
(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) Liens securing Indebtedness permitted by Section 6.9(d) on
and limited to the capital assets acquired, constructed or financed with
the proceeds of such Indebtedness or with the proceeds of any Indebtedness
directly
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or indirectly refinanced by such Indebtedness, provided that the
--------
obligations secured or benefitted thereby are not increased;
(f) any Lien or Negative Pledge created by an agreement or
instrument entered into by Borrower or a 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) Until a Collateral Release occurs, Liens securing the pari
----
passu Indebtedness described in Section 6.9(m) in collateral which is not
-----
more extensive than the collateral encumbered by the Collateral Documents,
and Negative Pledges which are not more extensive than the Negative Pledge
contained in this Section relating to such pari passu Indebtedness, and
---- -----
which in any event allow the Liens contemplated herein;
provided that this Section shall not be effective to prohibit the Liens or
--------
Negative Pledges with respect to securities issued by Las Vegas prior to the
Prior Closing Date to the extent that appropriate approvals of this covenant
have not been obtained under applicable Nevada Gaming Laws.
6.9 Indebtedness and Guaranty Obligations. Create, incur or assume
-------------------------------------
any Indebtedness or Guaranty Obligation except:
------
(a) Indebtedness and Guaranty Obligations existing on the Closing
Date and disclosed in Schedule 6.9 (and other Indebtedness and Guaranty
Obligations existing on the Closing Date but unintentionally omitted from
that Schedule, but only to the extent that the aggregate amount of such
Indebtedness and the amount so guaranteed does not exceed $5,000,000), and
refinancings, renewals, extensions or amendments thereto by the same
obligors that do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness and Guaranty Obligations owed to Borrower or a
Restricted Subsidiary by Borrower or a Restricted Subsidiary of Borrower;
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(d) Indebtedness consisting of Capital Lease Obligations, or
otherwise incurred to finance the purchase or construction of capital
assets (which shall be deemed to exist if the Indebtedness is incurred at
or within 90 days before or after the purchase or construction of the
capital asset), or to refinance any such Indebtedness, provided that the
--------
aggregate principal amount of such Indebtedness outstanding at any time
does not exceed $100,000,000;
(e) Indebtedness consisting of one or more Swap Agreements;
provided, that the aggregate notional amount of Indebtedness covered by all
--------
Secured Swap Agreements shall not exceed $250,000,000;
(f) Subordinated Obligations incurred when no Default or Event of
Default exists;
(g) Guaranty Obligations in support of the obligations of
Borrower or a Restricted Subsidiary of Borrower;
(i) New York Contingent Obligations;
(j) additional Guaranty Obligations issued to creditors of the
Australia Companies which, when aggregated with Investments outstanding
under Section 6.15(l), do not exceed $10,000,000 at any time;
(k) additional involuntary Investments in the Australia
Companies (i) in an amount not to exceed 97,000,000 Australian dollars,
made in accordance with the Australia Option Agreement concurrently with
the exercise of options to purchase a 22.5% interest in the Australia
Companies, and (ii) in the amount of any such demand, concurrently with the
making of any demand for payment under Borrower's guaranty of the
obligations of the Australia Companies described on Schedule 6.9 as in
effect on the Prior Closing Date;
(l) Guaranty Obligations in support of contracts reasonably
related to the business of Borrower and its Restricted Subsidiaries issued
to creditors of contractors, vendors and tenants of Borrower and its
Restricted Subsidiaries, to the extent issued in the ordinary course of
business and in an aggregate amount which does not exceed $10,000,000 at
any time; and
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(m) Other senior Indebtedness of Borrower incurred when no
Default or Event of Default has occurred and remains continuing which is
pari passu to the Obligations (and guarantees thereof issued by the
---- -----
Guarantors which are not more extensive or favorable to the holders thereof
than the Subsidiary Guarantees) in priority of payment in any insolvency
case involving Borrower or the Guarantors, provided that if Borrower and
--------
the Co-Borrowers are not then entitled to request a Collateral Release
pursuant to Section 2.14, the aggregate principal amount of the outstanding
Indebtedness permitted under this clause (m) shall not exceed $500,000,000.
6.10 Transactions with Affiliates. Enter into any transaction of any
----------------------------
kind with any Affiliate of Borrower other than (a) salary, bonus, employee stock
----------
option and other compensation arrangements with directors, officers or managers
in the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors of Borrower and expressly authorized by a resolution of
the board of directors of Borrower which is approved by a majority of the
directors not having an interest in the transaction, (c) transactions between or
among Borrower and its Restricted Subsidiaries, (d) transactions entered into
when no Default or Event of Default has occurred and remains continuing and
which are disclosed to the Administrative Agent in writing and in advance in an
aggregate amount not to exceed $5,000,000 in any Fiscal Year, and (e)
transactions on overall terms at least as favorable to Borrower or its
Restricted Subsidiaries as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
6.11 Adjusted Leverage Ratio. Permit the Adjusted Leverage Ratio, as
-----------------------
of the last day of any Fiscal Quarter ending on or after December 31, 1997 and
during a period set forth below, to be greater than the ratio set forth below
opposite that period:
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Period Ratio
------ -----
Closing Date through December
31, 1997 3.00 to 1.00
January 1, 1998 through
December 31, 1998 3.25 to 1.00
January 1, 1999 through
December 31, 1999 4.50 to 1.00
January 1, 2000 through
December 31, 2000 3.50 to 1.00
Each Fiscal Quarter
thereafter 3.00 to 1.00.
6.12 Interest Charge Coverage Ratio. Permit the Interest Charge
------------------------------
Coverage Ratio as of the last day of any Fiscal Quarter ending on or after
December 31, 1997, to be less than 3.00 to 1.00.
6.13 Capital Expenditures. Make, or become legally obligated to
--------------------
make, any Capital Expenditure except:
(a) Maintenance Capital Expenditures;
(b) Capital Expenditures associated with Master Plan made
following the Closing Date in an aggregate amount not to exceed
$750,000,000 (or, if Borrower and its Restricted Subsidiaries elect to
build the Supplemental Hotel Facility, $850,000,000);
(c) Capital Expenditures made following the Prior Closing Date to
design, develop and construct the MGM Grand - Atlantic City in an aggregate
amount not to exceed $1,000,000,000;
(d) Capital Expenditures to design, develop and construct the
Detroit Project in an aggregate amount not to exceed $750,000,000; and
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(e) Other Capital Expenditures in an aggregate amount which does
not exceed the then effective Basket Amount (net of the amount of any
redemptions of Subordinated Obligations theretofore made pursuant to
Section 6.1(b), any Distributions theretofore made pursuant to Section
6.5(b) and the amount of any Investments and Acquisitions theretofore made
pursuant to Section 6.15(l), in each case, utilizing the Basket Amount).
6.14 Tangible Net Worth. Permit Tangible Net Worth, as of the last
------------------
day of any Fiscal Quarter ending on or after December 31, 1997, to be less than
the sum of (a) $815,000,000 plus (b) 50% of cumulative Net Income of Borrower
--- ----
and its Subsidiaries for each Fiscal Quarter beginning after June 30, 1997
(without reduction for any net loss during any such Fiscal Quarter), plus (c)
----
75% of the Cash proceeds received by Borrower of the issuance of equity
securities by Borrower after the Closing Date after deduction of associated
transactional expenses, minus (d) the purchase cost of treasury stock purchased
-----
by Borrower following the Closing Date, minus (e) non-cash losses of Borrower
-----
and its Restricted Subsidiaries following the Closing Date from asset sales and
asset write-downs, as determined in accordance with Generally Accepted
Accounting Principles.
6.15 Investments and Acquisitions. Make any Acquisition or enter
----------------------------
into any agreement to make any Acquisition, or suffer to exist any Investment,
other than:
----- ----
(a) Investments in existence on the Closing Date and disclosed on
Schedule 6.15;
(b) Investments consisting of Cash Equivalents;
(c) Investments consisting of advances to officers, managers,
directors and employees of Borrower and the Restricted Subsidiaries for
travel, entertainment, relocation and analogous ordinary business purposes;
(d) Investments in Restricted Subsidiaries;
(e) Investments consisting of or evidencing the extension of
credit to customers or suppliers of Borrower and its Restricted
Subsidiaries in the ordinary course of business and any Investments
received in satisfaction or partial satisfaction thereof;
-102-
(f) Investments received in connection with the settlement of a
bona fide dispute with another Person;
(g) Investments representing all or a portion of the sales price
of Property sold or services provided to another Person in the ordinary
course of business;
(h) Investments consisting of Guaranty Obligations permitted by
Section 6.9, and to the extent that no Default or Event of Default has
occurred and remains continuing, payments thereunder;
(i) Investments made pursuant to the New York Contingent
Obligations;
(j) Investments made to satisfy the alternative investment tax
obligations of Borrower or any of its Subsidiaries under the New Jersey
Casino Control Act, or as may be required by any Gaming Board under
applicable Gaming Laws;
(k) Investments in the Australia Companies which, when
aggregated with the outstanding Guaranty Obligations described in Section
6.9(k), do not exceed $10,000,000 at any time; and
(l) Acquisitions and Qualified Investments made during the term
of this Agreement (on a non-revolving basis) in an aggregate amount which
does not exceed the Basket Amount (after deducting the amount of any
redemptions of Subordinated Obligations theretofore made pursuant to
Section 6.1(b), any Distributions theretofore made pursuant to Section
6.5(b) and the amount of any Capital Expenditures theretofore made pursuant
to Section 6.13(e), in each case, utilizing the Basket Amount).
6.16 Restricted Subsidiary Indebtedness and Guaranty Obligations.
-----------------------------------------------------------
Permit any Co-Borrower or any Restricted Subsidiary to create, incur, assume or
suffer to exist any Indebtedness or Guaranty Obligation (even if Borrower would
be permitted to incur the same under Section 6.9), except:
------
(a) the Indebtedness and Guaranty Obligations described in
Section 6.9(a) and 6.9(b);
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(b) the Subsidiary Guarantees;
(c) Indebtedness owed to Borrower or another Restricted
Subsidiary of Borrower;
(d) Capital Leases and purchase money obligations permitted by
Section 6.9 in respect of Property owned and used by that Restricted
Subsidiary;
(e) Guaranty Obligations permitted by Section 6.9(l);
(f) the Obligations of any Co-Borrower hereunder; and
(g) other unsecured Indebtedness incurred in the ordinary course
of business in an aggregate principal amount not in excess of
$5,000,000.
6.17 Qualified Investments. Make or acquire any Qualified Investments
---------------------
unless and until Borrower and its Restricted Subsidiaries have:
(a) informed the Administrative Agent of the manner in which they
will obtain ownership of the proposed Qualified Investment; and
(b) entered into such Collateral Documents as the Administrative
Agent may reasonably require to create and perfect a first priority Lien in
such Qualified Investments securing the Obligations.
6.18 Minimum Title Insurance. Unless a Collateral Release has then
-----------------------
occurred, permit the amount of the ALTA title insurance coverage provided to the
Administrative Agent and the Banks with respect to the MGM Grand - Las Vegas or
any other Material Project as to which Borrower or its Restricted Subsidiaries
have commenced substantial construction, to be less than the Minimum Title
Insurance Amount for each such Property.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
7.1 Financial and Business Information. So long as any Advance
----------------------------------
remains unpaid, or any Letter of Credit remains outstanding or any other
Obligation remains unpaid, or any portion of the Commitment remains in force,
Borrower and each Co-Borrower shall, unless the Administrative Agent (with the
written approval of the Requisite Banks) otherwise consents, at Borrower's and
the Co-Borrowers' sole expense, deliver to the Administrative Agent for
distribution by it to the Banks, a sufficient number of copies for all of the
Banks of the following:
(a) As soon as practicable, and in any event within 60 days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
----- ----
Fiscal Year), the consolidated and consolidating balance sheet of Borrower
and its Subsidiaries as at the end of such Fiscal Quarter and the
consolidated and consolidating statement of operations for such Fiscal
Quarter, and its statement of cash flows for the portion of the Fiscal Year
ended with such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer of Borrower as fairly
presenting the financial condition, results of opera tions and cash flows
of Borrower and its Subsidiaries in accordance with Generally Accepted
Accounting Principles (other than footnote disclosures), consistently
----- ----
applied, as at such date and for such periods, subject only to normal year-
end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 45 days after
the end of each Fiscal Quarter, a Pricing Certificate setting forth a
preliminary calculation of the 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 and consolidating
balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal
Year and the
-105-
consolidated and consolidating statements of operations, shareholders'
equity and cash flows, in each case of Borrower and its Subsidiaries for
such Fiscal Year, in each case as at the end of and for the Fiscal Year,
all in reasonable detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles, consistently
applied, and such consolidated balance sheet and consolidated statements
shall be accompanied by a report of one of the six largest public
accounting firms in the United States of America or other independent
public accountants of recognized standing selected by Borrower and
reasonably satisfactory to the Requisite Banks, 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 Banks in their good faith business judgment to
be adverse to the interests of the Banks. Such accountants' report shall be
accompanied by a certificate stating that, in making the examination
pursuant to generally accepted auditing standards necessary for the
certification of such financial statements and such report, such
accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants have
reviewed Borrower's financial calculations as at the end of such Fiscal
Year (which shall accompany such certificate) under Sections 6.11 through
6.14, have read such Sections (including the definitions of all defined
terms used therein) and that nothing has come to the attention of such
accountants in the course of such examination that would cause them to
believe that the same were not calculated by Borrower in the manner
prescribed by this Agreement;
(d) As soon as practicable, and in any event within 45 days after
the commencement of each Fiscal Year, a budget and projection by Fiscal
Quarter for that Fiscal Year and by Fiscal Year for the next two succeeding
Fiscal Years, including for the first such Fiscal Year, projected
---------
consolidated balance sheets, statements of operations and statements of
cash flow and, for the second and third such Fiscal Years, projected
consolidated condensed balance sheets and statements of operations and cash
flows, of Borrower and its Subsi diaries, all in reasonable detail;
(e) Promptly after request by the Administrative Agent or any
Bank, copies of any detailed audit reports, management letters or
recommenda-
-106-
tions submitted to the board of directors (or the audit committee of the
board of directors) of Borrower by independent accountants in connection
with the accounts or books of Borrower or any of its Subsidiaries, or any
audit of any of them;
(f) Promptly after the 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 Banks pursuant
to other provisions of this Section;
(g) Promptly after request by the Administrative Agent or any
Bank, copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any
Bank, 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);
(i) As soon as practicable, and in any event within ten (10)
Banking Days after a Senior Officer of Borrower or any Co-Borrower becomes
aware of the occurrence of any (i) "reportable event" (as such term is
defined in Section 4043 of ERISA) or (ii) "prohibited transaction" (as such
term is defined in Section 406 of ERISA or Section 4975 of the Code) in
connection with any Pension Plan or any trust created thereunder,
telephonic notice specifying the nature thereof, and, no more than five (5)
Banking Days after such telephonic notice, written notice again specifying
the nature thereof and specifying what action Borrower or any of its
Subsidiaries is taking or proposes to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect
thereto;
(j) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer of Borrower or any Co-Borrower
-107-
becomes aware of the existence of any condition or event which constitutes
a Default or Event of Default, telephonic notice specifying the nature and
period of existence thereof, and, no more than two (2) Banking 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;
(k) Promptly upon a Senior Officer of Borrower or any Co-Borrower
becoming aware that (i) any Person has commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsidiaries that is
$5,000,000 or more in excess of the amount thereof that is fully covered by
insurance, (ii) any creditor or lessor under a written credit agreement or
material lease has asserted a default thereunder on the part of Borrower or
any of its Subsidiaries, (iii) any Person has commenced a legal proceeding
with respect to a claim against Borrower or any of its Subsidiaries under a
contract that is not a credit agreement or material lease in excess of
$5,000,000 or which otherwise may reasonably be expected to result in a
Material Adverse Effect, (iv) any labor union has notified Borrower of its
intent to strike Borrower or any of its Subsidiaries on a date certain and
such strike would involve more than 100 employees of Borrower or its
Subsidiaries, or (v) any Gaming Board has indicated its intent to consider
or act upon a License Revocation or a fine or penalty of $1,000,000 or more
with respect to Borrower or any of its Subsidiaries, a written notice
describing the pertinent facts relating thereto and what action Borrower or
its Subsidiaries are taking or propose to take with respect thereto;
(l) As soon as practicable following the substantial commencement
of construction for any Material Project, and in any event by the thirtieth
day in the next following month, a construction progress report with
respect to the MGM Grand - Atlantic City and each other Material Project,
as the case may be, as of the last day of the preceding calendar month in a
form reasonably acceptable to the Administrative Agent, which report shall
compare the status of construction and amounts expended to the construction
timetable and budget;
(m) As soon as practicable, and in any event by the thirtieth day
in the next following month, an operating revenue report for the preceding
calendar month with respect to each operating casino property of Borrower
and
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its Subsidiaries (including New York and the Australia Companies),
segmented for each such casino property and otherwise in a form reasonably
acceptable to the Administrative Agent, together with a written narrative
statement discussing any significant trends reflected therein signed by a
Senior Officer of Borrower;
(n) Promptly following receipt thereof, copies of all changes to
the construction plans, budget, timetable and the related architectural,
construction and engineering contracts for the MGM Grand - Atlantic City
and each other Material Project, and with an advance draft copy of any
proposed such change that involves more than $10,000,000;
(o) Promptly following any Senior Officer of Borrower or any Co-
Borrower becoming aware of any change in the credit ratings assigned by
▇▇▇▇▇'▇ or S&P to the credit facilities provided hereunder (whether senior
secured or senior unsecured) written notice of such change and, if the same
will result in a revision to the Facility Rating, a revised Pricing
Certificate setting forth the revised Facility Rating; and
(p) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Bank (through the
Administrative Agent) or the Requisite Banks.
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 the Commitment remains outstanding,
Borrower and the Co-Borrowers shall, at their sole expense, deliver to the
Administrative Agent for distribution by it to the Banks concurrently with the
financial 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
-------------------------------------
Bank 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 Banks, in their
sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
(1) at least one (1) executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative Agent for
additional executed counterparts, sufficient in number for distribution to
the Banks, Borrower and Atlantic City;
(2) Committed Advance Notes executed by Borrower and Atlantic
City in favor of each Bank, each in a principal amount equal to that Bank's
Pro Rata Share of $1,250,000,000;
(3) Competitive Advance Notes executed by Borrower and Atlantic
City in favor of each Bank, each in a principal amount of $750,000,000;
(4) with respect to Borrower, Atlantic City and each Guarantor,
such documentation as the Administrative Agent may require to establish the
due organization, valid existence and good standing of Borrower, Atlantic
City and 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
---------
-110-
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;
(5) the Swing Line Documents;
(6) the amended and restated Borrower Security Agreement executed by
Borrower;
(7) such financing statements on Form UCC-1 executed by Borrower with
respect to the Borrower Security Agreement as the Administrative Agent may
request;
(8) a Certificate of a Senior Officer of Borrower to the effect that
no event or circumstance has occurred since the Prior Closing Date with
respect to the MGM Grand - Las Vegas that would cause the representation
set forth in Section 4.18 to be inaccurate;
(9) the Confirmation of Pledge Agreement executed by Borrower;
(10) the Subsidiary Guaranty executed by each Guarantor;
(11) the Borrower Guaranty, executed by Borrower;
(12) the Solvency Certificate executed by the chief financial officer
of each Guarantor having assets with a value in excess of $50,000,000 on
behalf of that Guarantor;
(13) the amended and restated Subsidiary Security Agreement executed
by each Guarantor;
(14) a Subsidiary Pledge Agreement executed by Las Vegas and each
other Guarantor which has Subsidiaries which are Restricted Subsidiaries
and by MGM Grand Monorail, Inc. with respect to its interests in Monorail,
together with the related Pledged Collateral accompanied by appropriate
stock powers executed in blank (or, in the
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case of the pledge by MGM Grand Monorail, Inc. of its membership interests
in Monorail, appropriate UCC-1 financing statements describing such
interests);
(15) such financing statements on Form UCC-1 executed by Borrower and
each Restricted Subsidiary of Borrower (if any are in existence on the
Closing Date) with respect to the Security Agreement, and Trademark
Security Interest Assignment as the Administrative Agent may request;
(16) a certificate of insurance issued by Borrower's insurance carrier
or agent with respect to the insurance required to be maintained pursuant
to the Nevada Deed of Trust, together with lenders' loss payable
endorsements thereof on Form 438BFU or other form acceptable to the
Administrative Agent;
(17) the Opinions;
(18) a Request for Loan in compliance with Article 2;
(19) a completed Pricing Certificate;
(20) the fee letter described in Sections 3.2, 3.3 and 3.5;
(21) 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;
(22) a Certificate signed by a Senior Officer and attaching thereto
the Detroit Operating Agreement;
(23) a Certificate signed by a Senior Officer of Borrower and Atlantic
City certifying that the conditions specified in Sections 8.1(e) and 8.1(f)
have been satisfied; and
(24) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent reasonably may require.
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(b) The upfront fees payable on the Closing Date pursuant to Section
3.3 shall have been paid.
(c) The agency fees payable on the Closing Date pursuant to Section
3.6 shall have been paid.
(d) The reasonable costs and expenses of the Administrative Agent in
connection with the preparation of the Loan Documents payable pursuant to
Section 11.3, and invoiced to Borrower prior to the Closing Date, shall
have been paid.
(e) The representations and warranties of Borrower and the Co-
Borrowers contained in Article 4 shall be true and correct.
(f) Borrower, Atlantic City and any other Parties shall be in
compliance with all the terms and provisions of the Loan Documents, and
giving effect to the initial Advance, no Default or Event of Default shall
have occurred and be continuing.
(g) The form of the Collateral Documents referred to in Section 8.2
shall have been approved by Borrower, MGM Grand Hotel, Inc. and Atlantic
City.
(h) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special counsel
to the Administrative Agent.
8.2 Any Advance. The obligation of each Bank to make any Advance, and the
-----------
obligation of the Issuing Bank to issue a Letter of Credit, which would result
in the Outstanding Obligations being in excess of $600,000,000, is subject to
the following conditions precedent, each of which shall be satisfied prior to
the making of any such Advances and the issuance of any such Letters of Credit
(unless all of the Banks, in their sole and absolute discretion, shall agree
otherwise):
(a) The Administrative Agent shall have received, substantially in
the form previously delivered to Borrower, the Co-Borrowers and the Banks,
the following:
(1) the amended and restated Nevada Deed of Trust executed by
Las Vegas; together with assurances acceptable to the Administrative
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Agent from First American Title Insurance Company that it is prepared
to issue a modification endorsement to the ALTA lenders title policy
issued as of the Prior Closing Date insuring the continued priority
and perfection of the Lien of the Nevada Deed of Trust in the then
effective Minimum Title Insurance Amount; and
(2) the amended and restated New Jersey Mortgage executed by
Atlantic City, FCR Boardwalk, Inc. and ▇▇▇▇▇▇, Inc.;
(3) the amended and restated Trademark Security Interest
Assignment executed by Borrower and each relevant Guarantor; and
(b) the Nevada Deed of Trust and the New Jersey Mortgage shall have
been duly recorded in the appropriate governmental offices.
8.3 Any Advance. The obligation of each Bank to make any Advance, and the
-----------
obligation of the Issuing Bank to issue a Letter of Credit, is subject to the
following conditions precedent (unless the Requisite Banks, 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 by the Requisite
Banks, the representations and warranties contained in Article 4 (other
-----
than Sections 4.4(a), 4.6 (first sentence), 4.10, 4.17 and 4.18 (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) other than matters described in Schedule 4.10 or not required
as of the Closing Date to be therein described, there shall not be then
pending or threatened any action, suit, proceeding or investigation against
or affecting Borrower or any of its Restricted Subsidiaries or any Property
of any of them before any Governmental Agency that constitutes a Material
Adverse Effect;
(c) the Administrative Agent shall have timely received a Request for
Loan in compliance with Article 2 (or telephonic or other request for Loan
referred to in the second sentence of Section 2.1(b), if applicable) or
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the Issuing Bank shall have received a Request for Letter of Credit, as the
case may be, in compliance with Article 2; and
(d) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Banks reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
----------------------------------------------------
9.1 Events of Default. The existence or occurrence of any one or
-----------------
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default so long as such
event is continuous and has not been waived in accordance with Section 11.2:
(a) Borrower or the Co-Borrowers fail to pay any principal on
any of the Notes, 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 (5) Banking Days after the date when due; or fails to
pay any other fee or amount payable to the Banks under any Loan Document,
or any portion thereof, within five (5) Banking 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 covenants contained in
----- ----
Sections 6.6, 6.7, 6.10, or 6.15; or
(d) Borrower or the Co-Borrowers fail to comply with Section
7.1(j) in any respect that is materially adverse to the interests of the
Banks; 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 (10)
Banking Days after the giving of notice by the Administrative Agent on
behalf of the Requisite Banks of such Default or (ii) if the nature of the
covenant or agreement is such that the violation can be cured, thirty (30)
Banking 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
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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 Banks; 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 $15,000,000 or more, or any guaranty of present or future
Indebtedness of $15,000,000 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 Indebted ness of $15,000,000 or
more, or of any guaranty of present or future Indebtedness of $15,000,000
or more, if as a result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or their behalf) has the right to
declare such Indebtedness due before the date on which it otherwise would
become due or the right to require 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 Banks 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 Banks, is materially adverse to the interests of
the Banks; 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
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(j) A final judgment against Borrower or any of its Subsidiaries
is entered for the payment of money in excess of $1,000,000 and, absent
procurement of a stay of execution, such judgment remains unsatisfied for
thirty (30) calendar days after the date of entry of judgment, or in any
event later than five (5) 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 (30) calendar days after its issue or levy; or
(k) 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 (90) 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 (90) calendar days; or
(l) 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
(m) A final unstayed judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(n) 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 Borrower or any its ERISA Affiliates
incurs any withdrawal liability in respect of any Multiemployer Plan which
is in an amount
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in excess of $15,000,000 which withdrawal liability is not paid or
otherwise satisfied within thirty (30) days; or
(o) The occurrence of a License Revocation that continues for
seven (7) consecutive calendar days.
9.2 Remedies Upon Event of Default. Without limiting any other
------------------------------
rights or remedies of the Creditors provided for elsewhere in this Agreement, or
the other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 9.1(k):
----- ----
(1) the Commitment to make Advances, the obligation of the
Issuing Bank to issue Letters of Credit, the obligation of the Swing Line
Bank 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 Banks or the Requisite Banks (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 Banks or Requisite Banks, as the case may be, to reinstate the
Commitment and such other obligations and rights and make further Advances,
and cause the Issuing Bank to issue further Letters of Credit which waiver
or determination shall apply equally to, and shall be binding upon, all the
Banks;
(2) the Issuing Bank may, with the approval of the
Administrative Agent on behalf of the Requisite Banks, 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 Bank in an interest-bearing cash collateral account as collateral
hereunder; and
(3) the Requisite Banks may request the Administrative Agent to,
and the Administrative Agent thereupon shall, terminate the Commitment
and/or declare all or any part of the unpaid principal of all
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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(k):
(1) the Commitment to make Advances, the obligation of the
Issuing Bank to issue Letters of Credit, the obligation of the Swing Line
Bank 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 expressly waived by Borrower and the
Co-Borrowers, except that all of the Banks may waive the Event of Default
------
or, without waiving, determine, upon terms and conditions satisfactory to
all the Banks, to reinstate the Commitment and such other obligations and
rights and make further Advances and to cause the Issuing Bank to issue
further Letters of Credit, which determination shall apply equally to, and
shall be binding upon, all the Banks;
(2) an amount equal to the aggregate amount of all outstanding
Letters of Credit shall be immediately due and payable to the Issuing Bank
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 Bank in an interest-bearing cash collateral account as collateral
hereunder; and
(3) the unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents shall
be forthwith due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower and the Co-Borrowers.
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(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 Banks)
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) In addition to any other rights and remedies, if an Event of
Default occurs prior to the Completion Date for any Material Project, the
Creditors shall have the right to take possession of that Material Project,
whether in person or through a designee or receiver, and take such steps as
the Creditors reasonably deem necessary or appropriate to complete
construction that Material Project, including making any changes to the
---------
construction plans, budget or timetable and/or terminating or amending any
of the architects contracts, engineering contracts, construction contracts
or any other contract or arrangement related to the Material Project;
provided, however, that the Administrative Agent shall be responsible for
--------
any breach of contract resulting from any such change, termination or
amendment. Any such action shall not be construed as an assumption of
responsibility by the Creditors to complete the Material Project, and such
steps may be discontinued at any time. Any such action shall not be
construed to make any of the Creditors a partner or joint venturer with
Borrower, the Co-Borrowers or any of their Affiliates. All amounts
expended by the Creditors for the completion of any such Material Project
shall be deemed additional Advances and shall be secured by the Collateral
Documents.
(e) The order and manner in which the Creditors' rights and
remedies are to be exercised shall be determined by the Requisite Banks 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 Banks in the same proportions that the
aggregate Obligations owed to each Bank under the Loan Documents bear to
the aggregate Obligations owed under the Loan Documents to all the Banks,
without priority or preference among the Banks.
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Regardless of how each Bank 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 forthabove, 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 Bank
under a Secured Swap Agreement shall be considered a principal amount for
purposes of the preceding sentence. No application of payments will cure
any Event of Default, or prevent acceleration, or continued acceleration,
of amounts payable under the Loan Documents, or prevent the exercise, or
continued exercise, of rights or remedies of the Banks hereunder or
thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
------------------------
10.1 Appointment and Authorization. Subject to Section 10.8, each
-----------------------------
Bank hereby irrevocably appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof or
are reasonably incidental, as determined by the Administrative Agent, thereto.
This appointment and authorization is intended solely for the purpose of
facilitating the servicing of the Loans and does not constitute appointment of
the Administrative Agent as trustee for any Bank or as representative of any
Bank for any other purpose and, except as specifically set forth in the Loan
------
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of America (and each
-----------------------------------
successor Administrative Agent) has the same rights and powers under the Loan
Documents as any other Bank and may exercise the same as though it were not the
Administrative Agent, and the term "Bank" or "Banks" includes Bank of America in
its individual capacity. Bank of America (and each successor Administrative
Agent) and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with Borrower, any
Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary thereof, as
if it were not the Administrative Agent and without any duty to account therefor
to the Banks. Bank of America (and each successor Administrative Agent) need
not account to any other Bank for any monies received by it for reimbursement of
its costs and expenses as Administrative Agent hereunder, or for any monies
received by it in its capacity as a Bank hereunder. The Administrative Agent
shall not be deemed to hold a fiduciary or other special rela tionship with any
Bank and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent.
10.3 Proportionate Interest in any Collateral. The Administrative
----------------------------------------
Agent, on behalf of all the Banks, 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 Banks'
rights to reimbursement for their costs and expenses hereunder (including
---------
reasonable attorneys' fees and disbursements
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and other professional services and the reasonably allocated costs of attorneys
employed by the Administrative Agent or a Bank) and subject to the application
of payments in accordance with Section 9.2(d), each Bank shall have an interest
in the Banks' interest in the Collateral or interests therein in the same
proportions that the aggregate Obligations owed such Bank under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Banks, without priority or preference among the Banks, except that
------
Obligations owed to any Bank under a Secured Swap Agreement shall be secured on
a pari passu basis with all other Obligations up to an amount equal to the
---- -----
Administrative Agent's then customary credit risk factor for Swap Agreements
times the notional amount of Indebtedness covered by such Secured Swap Agreement
and shall be secured on a subordinate basis as to amounts in excess of such
amount.
10.4 Banks' Credit Decisions. Each Bank agrees that it has,
-----------------------
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys thereof, and
instead in reliance upon information supplied to it by or on behalf of Borrower
and its Subsidiaries and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Bank also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Creditor or the directors,
officers, agents, employees or attorneys thereof, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
10.5 Action by Administrative Agent.
------------------------------
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default
has occurred and is continuing, unless the Administrative Agent has
received notice from Borrower and the Co-Borrowers stating the nature of
the Default or has received notice from a Bank stating the nature of the
Default and that such Bank considers the Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
------
Documents and as long as the Administrative Agent may assume that no Event
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of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
------
upon the instructions of the Requisite Banks (or of all the Banks, to the
extent required by Section 11.2) and those instructions shall be binding
upon the Administrative Agent and all the Banks, provided that the
--------
Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Law or could
result, in the judgment of the Administrative Agent, in a material risk of
liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice specified
in clause (a), the Administrative Agent shall immediately give notice
thereof to the Banks and shall act or not act upon the instructions of the
Requisite Banks (or of all the Banks, to the extent required by Section
11.2), provided that the Administrative Agent shall not be required to act
--------
or not act if to do so would be contrary to any Loan Document or to
applicable Law or could result, in the judgment of the Administrative
Agent, in a material risk of liability to the Administrative Agent, and
except that if the Requisite Banks (or all the Banks, if required under
------
Section 11.2) fail, for five (5) Banking Days after the receipt of notice
from the Administrative Agent, to instruct the Administrative Agent, then
the Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Banks.
(e) The Administrative Agent shall have no liability to any Bank
for acting, or not acting, as instructed by the Requisite Banks (or all the
Banks, if required under Section 11.2), notwithstanding any other provision
hereof.
10.6 Liability of Administrative Agent. Neither the Administrative
---------------------------------
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or willful misconduct. Without
------
limitation on the foregoing, the Administrative Agent and its directors,
officers, agents and employees:
(a) May treat the payee of any Note as the holder thereof until
the Administrative Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Administrative Agent, signed by the
payee, and may treat each Bank as the owner of that Bank's interest in the
Obligations for all
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purposes of this Agreement until the Administrative Agent receives notice
of the assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Bank;
(b) May consult with legal counsel (including in-house legal
---------
counsel), accountants (including in-house accountants) and other
---------
professionals or experts selected by it, or with legal counsel, accountants
or other professionals or experts for Borrower and/or its Subsidiaries or
the Banks, and shall not be liable for any action taken or not taken by it
in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts;
(c) Shall not be responsible to any Bank for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents;
(d) Shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms, conditions
or covenants of any of the Loan Documents or to inspect any Collateral or
the Property, books or records of Borrower or its Subsidiaries;
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency
or value of any Loan Document, any other instrument or writing furnished
pursuant thereto or in connection therewith, or any Collateral;
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed in good faith by it to be
genuine and signed or sent by the proper party or parties; and
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrower or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any
Bank under any Loan Document, including, principal, interest, commitment
---------
fees, Advances and other amounts; provided that, promptly upon discovery of
--------
such an error in computation, the Administrative Agent, the Banks and (to
the extent
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applicable) Borrower and/or its Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
10.7 Indemnification. Each Bank shall, ratably in accordance with
---------------
its Pro Rata Share (if the Commitment is then in effect) or in accordance with
its proportion of the aggregate Indebtedness then evidenced by the Notes (if the
Commitment has then been terminated), indemnify and hold the Administrative
Agent and its directors, officers, agents, employees and attorneys harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, attorneys' fees and
---------
disbursements and allocated costs of attorneys employed by the Administrative
Agent) that may be imposed on, incurred by or asserted against it or them in
such capacity in any way relating to or arising out of the Loan Documents (other
than losses incurred by reason of the failure of Borrower and the Co-Borrowers
to pay the Indebtedness represented by the Notes) or any action taken or not
taken by it as Administrative Agent thereunder, except such as result from its
------
own gross negligence or willful misconduct. Without limitation on the
foregoing, each Bank shall reimburse the Administrative Agent upon demand for
that Bank's Pro Rata Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization (including a
---------
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that Borrower, any Co-Borrower or any other Party is
required by Section 11.3 to pay that cost or expense but fails to do so upon
demand. Nothing in this Section shall entitle the Administrative Agent to
recover any amount from the Banks if and to the extent that such amount has
theretofore been recovered from Borrower, and Co-Borrower or any other Party.
To the extent that the Administrative Agent is later reimbursed such cost or
expense by Borrower, a Co-Borrower or any other Party, it shall return the
amounts paid to it by the Banks in respect of such cost or expense.
10.8 Successor Administrative Agent. The Administrative Agent may,
------------------------------
and at the request of the Requisite Banks shall, resign as Administrative Agent
upon thirty (30) days' notice to the Banks and Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, the Requisite
Banks shall appoint from among the Banks a successor Administrative Agent for
the Banks, which successor Administrative Agent shall be approved by Borrower
(and such approval shall not be unreasonably withheld or delayed), provided
--------
that, to the extent required by
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applicable Gaming Laws, the incumbent Administrative Agent shall remain the
collateral agent for the Creditors with respect to any Collateral for which a
lienholder must be qualified under such Gaming Laws until the new Administrative
Agent can be so qualified (but the incumbent Administrative Agent shall be
entitled to the indemnities and other protections provided to the Administrative
Agent hereunder in such capacity). If no successor Administrative Agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Banks and
the Borrower, a successor Administrative Agent from among the Banks. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
11.11 and 11.22, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement. If (a)
the Administrative Agent has not been paid its agency fees under Section 3.6 or
has not been reimbursed for any expense reimbursable to it under Section 11.3,
in either case for a period of at least one (1) year and (b) no successor
Administrative Agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Requisite Banks appoint a successor Administrative Agent as provided for above.
10.9 Foreclosure on Collateral. In the event of foreclosure or
-------------------------
enforcement of the Lien created by any of the Collateral Documents, title to the
Collateral covered thereby shall be taken and held by the Administrative Agent
(or an Affiliate or designee thereof) pro rata for the benefit of the Banks in
accordance with the Obligations outstanding to each of them and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities.
10.10 Intercreditor Arrangements; Attornment Agreements. Provided
-------------------------------------------------
that no Default or Event of Default has then occurred, the Administrative Agent
is hereby irrevocably authorized by the other Creditors to enter into (a)
intercreditor
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arrangements acceptable to the Administrative Agent with creditors (or a trustee
or other representative for such creditors) holding Indebtedness of the type
described in Section 6.9(m) to effectuate the provisions of that Section,
including without limitation making pari passu to the Collateral Documents the
---- -----
Liens held by any such creditors, provided that any such arrangements shall
require the concurrent release of the Liens held by such Creditors if a
Collateral Release occurs, and (b) 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 (including lessees of ground lease interests in the Marriott Marquis or
Supplemental Hotel Facility), provided in each case that not less than 10
--------
Business Days prior to entering into any such arrangement or agreement, the
Administrative Agent shall circulate drafts thereof to the Banks, and the
Requisite Banks shall not have objected to the form thereof.
10.11 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 Banks under any provision of this
Agreement, and Borrower and the Co-Borrowers shall have no liability to the
Administrative Agent or any of the Banks in respect of any failure by the
Administrative Agent or any Bank 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 Banks, Borrower's and the Co-Borrowers' obligations to the Banks
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 Bank 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 Banks' rights to assert them in
whole or in part in respect of any other Loan.
11.2 Amendments; Consents. Each amendment, modification, supplement,
--------------------
extension, termination, waiver, approval and consent under this Agreement and
the other Loan Documents shall be subject to the terms of all applicable Laws,
including Gaming Laws. No amendment, modification, supplement, extension,
termination or waiver of any provision of this Agreement or any other Loan
Document, no approval or consent thereunder, and no consent to any departure by
the Borrower, 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 Banks (and, in the case of any amendment, modification or
supplement of or to any Loan Document to which any of the Borrower or any of its
Subsidiaries is a Party, signed by each such Party, and, in the case of any
amendment, modification or supplement to Article 10, signed by the
Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writ ing of all the Banks,
no amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any
Note, or (except as provided in Section 2.10) the amount of the Commitment
or the Pro Rata Share of any Bank or the amount of any commitment fee
payable to any Bank, or any other fee or amount payable to any Bank under
the Loan
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Documents or to waive an Event of Default consisting of the failure of
Borrower or the Co-Borrowers to pay when due principal, interest or any
commitment 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 commitment fee, or to extend the term of the
Commitment;
(c) To permit the term of any Letter of Credit to exceed one (1)
year or extend beyond the Maturity Date;
(d) To release the Subsidiary Guaranties or any material portion
of the Collateral, provided that if no Default or Event of Default exists,
--------
the Administrative Agent may without the consent of any Bank (and shall at
the request of Borrower), (i) release its Lien in any personal property
financed or leased by the Borrower or its Subsidiaries in accordance with
Section 6.9(d), (ii) release its Lien in any other Collateral as otherwise
may be expressly provided for in any Loan Document, (iii) release its Lien
in the equity securities of, and the Subsidiary Guaranty executed by, any
Subsidiary which is the subject of a Disposition permitted under Section
6.2 or which has Property having a value of less than $50,000 as of the
date of such release, (iv) subordinate its Lien with respect to any
Property which is the subject of a Disposition permitted under Section
6.2(d) (including any Disposition consisting of a ground lease interest in
the Marriott Marquis or the Supplemental Hotel Facility), (v) release its
Lien in any Property which is the subject of a Distribution permitted under
Section 6.5(b), and (vi) release all of the Collateral Documents in a
Collateral Release under Section 2.14.
(e) To amend the provisions of the definitions of "Reduction
---------
Amount", "Reduction Date", Requisite Banks" 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 Banks.
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Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section shall apply equally to, and shall be binding upon, all the Banks
and the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrower and the Co-Borrowers shall
-------------------------
pay within five (5) Banking Days after demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, syndication, execution and
delivery of the Loan Documents and any amendment thereto or waiver thereof.
Borrower and the Co-Borrowers shall also pay on demand, accompanied by an
invoice therefor, the reasonable costs and expenses of the Creditors in
connection with the refinancing, restructuring, reorganization (including a
---------
bankruptcy reorganization) and enforcement or attempted enforcement of the Loan
Documents, and any matter related thereto. The foregoing costs and expenses
shall include filing fees, recording fees, title insurance fees, appraisal fees,
search fees, and other out-of-pocket expenses and the reasonable fees and out-
of-pocket expenses of any legal counsel (including reasonably allocated costs of
---------
legal counsel employed by the Administrative Agent or any Bank), independent
public accountants and other outside experts retained by the Administrative
Agent or any Bank, whether or not such costs and expenses are incurred or
suffered by the Administrative Agent or any Bank in connection with or during
the course of any bankruptcy or insolvency proceedings of Borrower or any
Subsidiary thereof. Such costs and expenses shall also include, in the case of
any amendment or waiver of any Loan Document requested by Borrower or the Co-
Borrowers, the administrative costs of the Administrative Agent reasonably
attributable thereto. Borrower and the Co-Borrowers shall pay any and all
documentary and other taxes, excluding (i) taxes imposed on or measured in whole
---------
or in part by overall net income, gross income or gross receipts and franchise
taxes imposed on any Bank by (A) any jurisdiction (or political subdivision
thereof) in which it is organized or maintains its principal office or
Eurodollar Lending Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business", (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America that are not
attributable to any change in any Law or the interpretation or administration of
any Law by any Governmental Agency and (iii) any withholding tax or other taxes
based on gross income imposed by the United States of America for any period
with respect to which it has failed to provide Borrower with the appropriate
form or forms required by Section 11.21, to the extent such forms are then
required by applicable Laws, and all costs, expenses, fees and charges payable
or determined to be payable in connection with the filing or recording of this
Agreement, any other Loan Document or any other
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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 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 Bank under this Section shall bear interest from
the second Banking Day following the date of demand for payment at the Default
Rate.
11.4 Nature of Banks' Obligations. The obligations of the Banks
----------------------------
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the Creditors
or any of them pursuant hereto or thereto may, or may be deemed to, make the
Banks a partnership, an association, a joint venture or other entity, either
among themselves or with the Borrower, the Co-Borrowers or any Affiliate of
Borrower. Each Bank'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 Banks of their obligations to
make initial Advances. A default by any Bank will not increase the Pro Rata
Share of any other Bank. Any Bank not in default may, if it desires, assume in
such proportion as the nondefaulting Banks agree the obligations of any Bank 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 Banks to assume the
obligations of a Bank in default or to obtain another Bank, reasonably
satisfactory to Borrower and the Co-Borrowers, to replace such a Bank in
default.
11.5 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties contained herein or in any other Loan Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Loans hereunder and
the execution and delivery of the Notes, and have been or will be relied upon by
the Administrative Agent and each Bank, notwithstanding any investigation made
by the Administrative Agent or any Bank or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
------- ------
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must
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be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. 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. Except as otherwise expressly provided in any Loan Document,
------
if any notice, request, demand, direction or other communication required or
permitted by any Loan Document is given by mail it will be effective on the
earlier of receipt or the fourth Banking Day after deposit in the United States
mail with first class or airmail postage prepaid; if given by telegraph or
cable, when delivered to the telegraph company with charges prepaid; if given by
telecopier, when sent; if dispatched by commercial courier, on the scheduled
delivery date; or if given by personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative Agent
---------------------------
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party followed by prompt transmission of an original
signature. The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts hereof or
thereof, as the case may be, have been executed by all the parties hereto or
thereto.
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
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the benefit of Borrower, the Co-Borrowers, the Administrative Agent, the
Issuing Bank, each of the Banks, 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 Banks. Each Bank represents
that it is not acquiring its Note with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (subject to
any requirement that disposition of such Note must be within the control of
such Bank). Any Bank may at any time pledge its Note or any other
instrument evidencing its rights as a Bank under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Bank from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Bank hereunder absent foreclosure of such pledge.
(b) From time to time, each Bank may assign to one or more
Eligible Assignees all or any portion of its Pro Rata Share, provided that
--------
(i) such Eligible Assignee, if not then a Bank or an Affiliate of the
assigning Bank, 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) such
assignment shall be evidenced by an Assignment Agreement, a copy of which
shall be furnished to the Administrative Agent as hereinbelow provided,
(iii) except in the case of an assignment to an Affiliate of the assigning
------
Bank, to another Bank or of the entire remaining Commitment of the
assigning Bank, the assignment shall not assign a Pro Rata Share that is
less than $10,000,000, (iv) the effective date of any such assignment shall
be as specified in the Assignment Agreement, but not earlier than the date
which is five (5) Banking Days after the date the Administrative Agent has
received the Assignment Agreement, and (v) shall be of a constant and non-
varying percentage of the Pro Rata Share of the assigning Bank. Upon the
effective date of such Assignment Agreement, the Eligible Assignee named
therein shall be a Bank 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 Bank 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 Bank to Borrower of its Note) to
such assignee Bank, a Note evidencing that assignee Bank's Pro Rata Share,
and to the assigning Bank, a Note evidencing the remaining balance Pro Rata
Share retained by the assigning Bank.
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(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 Bank 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 Bank 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 Bank 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 Bank.
(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 Banks and the Pro Rata Share held by each Bank, giving effect to each
Assignment Agreement. The Register shall be available during normal
business hours for inspection by Borrower, the Co-Borrowers or any Bank
upon reasonable prior notice to the Administrative Agent. After receipt of
a completed Assignment Agreement executed by any Bank and an Eligible
Assignee, and receipt of an assignment fee of $2,500 from such Bank or
Eligible Assignee, the Administrative Agent shall, promptly following the
effective date thereof, provide to Borrower and the Banks a revised
Schedule 1.1 giving effect thereto. Borrower, the Co-Borrowers and the
Creditors shall deem and treat the Persons listed as Banks in the Register
as the holders and owners of the Pro Rata Share listed therein for all
purposes hereof, and no assignment or transfer
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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 Bank
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 Bank shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Pro Rata Share.
(e) Each Bank may from time to time grant participations to one
or more banks or other financial institutions (including another Bank) in a
---------
portion of its Pro Rata Share (or in Competitive Advances made by that
Bank); provided, however, that (i) such Bank's obligations under this
-------- -------
Agreement shall remain unchanged, (ii) such Bank 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 Bank 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 Bank absent the
participation, (iv) Borrower, the Co-Borrowers, the Administrative Agent
and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement, (v) the participation interest shall be expressed as a
percentage of the granting Bank's Pro Rata Share as it then exists and
shall not restrict an increase in the Commitment, or in the granting Bank's
Pro Rata Share, so long as the amount of the participation interest is not
affected thereby, and (vi) the consent of the holder of such participation
interest shall not be required for amendments or waivers of provisions of
the Loan Documents other than those which (A) extend any Reduction Date,
----------
the Maturity Date or any other date upon which any payment of money is due
to the Banks, (B) reduce the rate of interest on the Notes, any fee or any
other monetary amount payable to the Banks, (C) reduce the amount of any
installment of principal due under the Notes, (D) release the Subsidiary
Guaranties or collateral for the Obligations (except to the extent
permitted under Sections 2.14 or 11.2(d), or (E) change the definition of
"Requisite Banks".
-137-
(f) Notwithstanding anything in this Section to the contrary,
the rights of the Banks to make assignments of, and grant participations
in, their Pro Rata Shares of the Commitment shall be subject to the
approval of any Gaming Board, to the extent required by applicable Gaming
Laws, and to compliance with applicable securities laws, if any.
(g) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Bank, identified as such in writing from time
to time by the Granting Bank to the Administrative Agent, the Borrower, and
the Co-Borrowers the option to provide all or any part of any Loan or
Advance that such Granting Bank would otherwise be obligated to make
pursuant to Sections 2.1, 2.2, 2.3 or 2.5, provided that (i) nothing herein
shall constitute a commitment to make any Loan by any SPC, (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank 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 Bank, and each SPC shall be
subject to all of the restrictions upon the Granting Bank herein contained.
Each SPC shall be conclusively presumed to have made arrangements with its
Granting Bank 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 Bank with respect
to Loans and Advances made by or through its SPC. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting Bank (and, if
such Loan is a Competitive Advance, shall be deemed to utilize the
Commitments of all the Banks) to the same extent, and as if, such Loan were
made by the Granting Bank. 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
Bank). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of
all outstanding senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or
any State thereof, provided that the Granting Bank for each SPC hereby
-------- ----
agrees to indemnify, save, and hold
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harmless each other party hereto for any loss, cost, damage and expense
arising out of their inability to institute any such proceeding against its
SPC. In addition, notwithstanding anything to the contrary contained in
this Section 11.8, any SPC may (i) with notice to, but without the prior
written consent of, the Borrower, 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 Bank 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 Bank 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 Bank (but in each case only with the
consent of the Requisite Banks) 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 Bank 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 Bank, through any
means, receives in payment of the Obligations held by that Bank, then, subject
to applicable Laws: (a) the Bank 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 Bank a participation in
the Obligations held by the other Bank and shall pay to the other Bank a
purchase price in an amount so that the share of the Obligations held by each
Bank 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
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other adjustments and purchases of participations shall be made from time to
time as shall be equitable to ensure that all of the Banks share any payment
obtained in respect of the Obligations ratably in accordance with each Bank'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 Bank 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 Bank 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 Bank were the
original owner of the Obligations purchased. Borrower and each Co-Borrower
expressly consents to the foregoing arrangements and agrees that any Bank
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 Bank were the original owner of the Obligation
purchased.
11.11 Indemnity by Borrower and the Co-Borrowers. Borrower and each
------------------------------------------
Co-Borrower jointly and severally agrees to indemnify, save and hold harmless
the Administrative Agent and each Bank and their directors, officers, agents,
attorneys and employees (collectively the "Indemnitees") from and against: (a)
-----------
any and all claims, demands, actions or causes of action (except a claim,
------
demand, action, or cause of action for any amount excluded from the definition
of "Taxes" in Section 3.12(d)) if the claim, demand, action or cause of action
arises out of or relates to any act or omission (or alleged act or omission) of
Borrower, its Subsidiaries or any of their officers, directors or stockholders
relating to the Commitment, the use or contemplated use of proceeds of any Loan,
or the relationship of Borrower, the Co-Borrowers and the Banks under this
Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) any and all liabilities,
-
losses, costs or expenses (including reasonable attorneys' fees and the
---------
reasonably allocated costs of attorneys employed by any Indemnitee and
disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; provided that no Indemnitee shall be
--------
entitled to indemnification under this Section for any loss caused by its own
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gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. If any claim, demand, action or cause of action is asserted
against any Indemnitee, such Indemnitee shall promptly notify Borrower and the
Co-Borrowers, but the failure to so promptly notify Borrower and the Co-
Borrowers shall not affect their obligations under this Section unless such
failure materially prejudices Borrower's and the Co-Borrowers' right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
and the Co-Borrowers in writing) contest the validity, applicability and amount
of such claim, demand, action or cause of action and shall permit Borrower and
the Co-Borrowers to participate in such contest. Any Indemnitee that proposes to
settle or compromise any claim or proceeding for which Borrower or any Co-
Borrower may be liable for payment of indemnity hereunder shall give Borrower
and the Co-Borrowers written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Borrower's and each Co-Borrowers prior consent
(which shall not be unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this Section against more
than one Indemnitee, all such Indemnitees shall be represented by the same legal
counsel (which may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrower and the Co-Borrowers;
provided, that if such legal counsel determines in good faith that representing
--------
all such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower and the Co-
Borrowers, with all such legal counsel using reasonable efforts to avoid
unnecessary duplication of effort by counsel for all Indemnitees; and further
-------
provided that the Administrative Agent (as an Indemnitee) shall at all times be
--------
entitled to representation by separate legal counsel (which may be a law firm or
attorneys employed by the Administrative Agent or a combination of the
foregoing). Any obligation or liability of Borrower and the Co-Borrowers to any
Indemnitee under this Section shall survive the expiration or termination of
this Agreement, the repayment of all Loans, the expiration or termination of all
Letters of Credit and the payment and performance of all other Obligations owed
to the Banks.
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11.12 Nonliability of the Banks. 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 Banks 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 Banks shall under any
circumstance be construed to be partners or joint venturers of Borrower or
its Affiliates; neither the Administrative Agent nor the Banks shall under
any circumstance be deemed to be in a relationship of confidence or trust
or a fiduciary or other "special" relationship with Borrower or its
Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates;
neither the Administrative Agent nor the Banks 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
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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 and
------
11.11, no other Person shall have any rights of any nature hereunder or by
reason hereof.
11.14 Confidentiality. Each Bank 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 Banks; (b) to
------
legal counsel and accountants for Borrower and the Co-Borrowers or any Bank; (c)
to other professional advisors to Borrower and the Co-Borrowers or any Bank,
provided that the recipient has accepted such information subject to a
confidentiality agreement sub stantially similar to this Section; (d) to
regulatory officials having jurisdiction over that Bank; (e) to any Gaming Board
having regulatory jurisdiction over Borrower or its Subsidiaries, provided that
each Bank 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
Bank 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 Bank's
interests hereunder or a parti cipation interest in its Note, provided that the
recipient has accepted such information subject to a confidentiality agreement
substantially similar to this Section. For purposes of the foregoing,
"confidential information" shall mean any information respecting Borrower or its
Subsidiaries reasonably considered by Borrower to be confidential, other than
----------
(i) information previously filed with any Governmental Agency and available to
the public, (ii) information previously published in any public medium from a
source other than, directly or indirectly, that Bank, and (iii) information
previously disclosed by Borrower or its Subsidiaries to any Person not
associated with Borrower without a confidentiality agreement or obligation
substantially similar to this Section. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the
Creditors to Borrower or any other Party.
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11.15 Further Assurances. Borrower and its Subsidiaries shall, at
------------------
their expense and without expense to the Banks or the Administrative Agent, do,
execute and deliver such further acts and documents as the Requisite Banks or
the Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Banks or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
-----------
Documents and the letter agreements referred to in Sections 3.2, 3.3, 3.5 and
3.6, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
--------
rights or remedies in favor of the Creditors in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted
with the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
------------- ------
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the local Laws of Nevada.
11.18 Severability of Provisions. Any provision in any Loan Document
--------------------------
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and
--------
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
-------------------
Documents.
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11.21 Foreign Banks and Participants. Each Bank that is incorporated
------------------------------
or otherwise organized under the Laws of a jurisdiction other than the United
States of America or any State thereof or the District of Columbia shall deliver
to Borrower (with a copy to the Administrative Agent), within twenty (20) days
after the Closing Date (or after accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if applicable) two duly
completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Bank and entitling it to a complete exemption from withholding
on all payments to be made to such Bank by Borrower and the Co-Borrowers
pursuant to this Agreement) or Form 4224 (relating to all payments to be made to
such Bank by Borrower and the Co-Borrowers pursuant to this Agreement) of the
United States Internal Revenue Service or such other evidence (including, if
---------
reasonably necessary, Form W-9) satisfactory to Borrower and the Co-Borrowers
and the Administrative Agent that no withholding under the federal income tax
laws is required with respect to such Bank. Thereafter and from time to time,
each such Bank shall upon request by Borrower and the Co-Borrowers (a) promptly
submit to Borrower and the Co-Borrowers (with a copy to the Administrative
Agent), such additional duly completed and signed copies of one of such forms
(or such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to Borrower, the Co-Borrowers and the Administrative Agent of any available
exemption from, United States withholding taxes in respect of all payments to
be made to such Bank by Borrower and the Co-Borrowers pursuant to this Agreement
and (b) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Bank, and as may be reasonably necessary (including
the re-designation of its Eurodollar Lending Office, if any) to avoid any
requirement of applicable Laws that Borrower and the Co-Borrowers make any
deduction or withholding for taxes from amounts payable to such Bank. In the
event that Borrower, the Co-Borrowers or the Administrative Agent become aware
that a participation has been granted pursuant to Section 11.8(e) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrower, the Co-Borrowers or
the Administrative Agent to the Bank which granted such participation, such Bank
shall cause such participant financial institution to deliver the same documents
and information to Borrower, the Co-Borrowers and the Administrative Agent as
would be required under this Section if such financial institution were a Bank.
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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 Banks (and any successor to a Bank) 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 Bank, 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 Bank or a representative of a Bank), in connection with the handling,
----
treatment, removal, storage, decontamination, clean-up, transport or disposal of
any Hazardous Materials at any time located or present on, in, under or about
any Real Property. The foregoing indemnity shall further apply to any residual
contamination on, in, under or about any Real Property, or affecting any natural
resources, and to any contamination of any Property or natural resources arising
in connection with the generation, use, handling, storage, transport or disposal
of any such Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable Laws, but
the foregoing indemnity shall not apply to Hazardous Materials on any Real
Property, the presence of which is caused by the Creditors. Borrower 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 4.18 and 5.11) 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 Loans, the expiration or termination of
all Letters of Credit and the payment and performance of all other Obligations
owed to the Banks.
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11.23 Gaming Boards. The Administrative Agent and each of the Banks
-------------
agree to cooperate with all Gaming Boards in connection with the administration
of their regulatory jurisdiction over Borrower and its Subsidiaries, including
---------
the provision of such documents or other information as may be requested by any
such Gaming Board relating to Borrower or any of its Subsidiaries or to the Loan
Documents.
11.24 Lien Releases. The Administrative Agent shall release any Lien
-------------
granted to or held by the Administrative Agent on any Collateral (i) sold,
transferred or otherwise disposed of in connection with any transaction not
prohibited by the Loan Documents, (ii) constituting Property leased to Borrower
or its Subsidiaries under a lease which has expired or been terminated in a
transaction not prohibited by the Loan Documents or which will concurrently
expire and which has not been, and is not intended by Borrower or the relevant
Subsidiary 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 Banks required by Section 11.2, or
(v) as otherwise expressly required by the Loan Documents. If the Collateral so
released consists of capital stock of a Subsidiary, then the Administrative
Agent shall concurrently also release such Subsidiary from its obligations under
its Subsidiary Guaranty. Upon the request of the Administrative Agent, each Bank
shall promptly provide written confirmation of the authority of the
Administrative Agent to release such Liens upon any one or more items of
Collateral under this Section.
11.25 Termination; Release of Liens. In addition to any Collateral
-----------------------------
Release as contemplated in Section 2.14, upon (a) the expiration or termination
of the Commitment, (b) the full and final payment in Cash of the Loans, all
interest and fees with respect thereto, (c) the reimbursement of all draws under
Letters of Credit and the payment of all fees with respect thereto, (d) the
expiration of all Letters of Credit or the deposit of Cash collateral with the
Issuing Bank in the effective face amount thereof, (e) the payment of all
amounts then demanded by any Bank or indemnitee under Sections 3.7, 3.8, 11.1
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 Banks 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 Collateral Documents, and shall return any
Property pledged to the Administrative Agent as Collateral for the Obligations,
notwithstanding the survival of any provisions of this Agreement herein provided
for.
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11.26 Nevada Gaming Collateral. Subject to any Collateral Release
------------------------
contemplated by Section 2.14 or and to Section 11.25, the Administrative Agent
shall, to the extent required by Nevada Gaming Laws, retain possession of all
pledged collateral consisting of the capital stock of Nevada gaming licensees
within the State of Nevada at a location designated to the Nevada State Gaming
Control Board.
11.27 Removal of a Bank. Borrower and the Co-Borrowers shall have
-----------------
the right to remove a Bank as a party to this Agreement in accordance with this
Section (a) under the circumstances set forth in Sections 2.12, 3.7, 3.8(g) and
3.12(d) and (b) if such Bank is the subject of a Disqualification. If Borrower
and the Co-Borrowers are entitled to remove a Bank pursuant to this Section
either:
------
(x) Upon notice from Borrower and the Co-Borrowers, the Bank being
removed shall execute and deliver a Assignment Agreement covering that
Bank'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 Bank under this Agreement
through the date of assignment and (ii) the written release of the
Issuing Bank and the Swing Line Bank of such Bank's obligations under
Sections 2.5(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 Bank 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 Bank pursuant to Section
2.10, Borrower and the Co-Borrowers may reduce the Commitment pursuant
to Section 2.8 (and, for this purpose, the numerical requirements of
such Section shall not apply) by an amount equal to that Bank's Pro
Rata Share, pay and provide to such Bank the amounts, assurances and
indemnities described in subclauses (i) and (ii) of clause (x) above
and release such Bank from its Pro Rata Share. In the event that the
Commitment is reduced pursuant to this clause (y), subsequent
Reduction Amounts shall be reduced by a proportional amount.
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11.28 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, in the event
--------
that Borrower designates Detroit as an additional Co-Borrower, the liability of
Detroit shall be limited to that portion of the Obligations which are used,
directly or indirectly, to finance the design, development, construction or
operation of the Detroit Project or 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.
11.29 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
--------------------------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.30 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
-149-
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 BANK THAT DOES NOT COMPLY WITH
SECTION 11.2 TO EFFECT AN AMENDMENT,
-150-
MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
MGM GRAND, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary and Treasurer
MGM GRAND ATLANTIC CITY, INC., a New Jersey
corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Secretary and Treasurer
-------------------------------------
Address for Borrower and each Co-Borrower:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-151-
With copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer
MGM Grand, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Christensen, Miller, Fink, Jacobs, ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, LLP
2121 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-152-
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Address:
Bank of America National Trust and Savings
Association
Agency Management Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-153-
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇, Managing Director
Address:
Bank of America National Trust and Savings
Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America National Trust and Savings
Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇-▇▇▇▇)
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇ ▇▇▇▇▇▇, Vice President
Bank of America Nevada
LV-CBD #2006
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
MAIL:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-154-
SOCIETE GENERALE, as a Managing Agent and a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Address:
Societe Generale
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA, as a Managing Agent and a
Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Relationship Manager
-------------------------------------
Address:
The Bank of Nova Scotia
21st Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier: 415/397-0791
Telephone: 415/▇▇▇-▇▇▇▇
-155-
BANK OF SCOTLAND, as a Managing Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇ Tat
----------------------------------------
▇▇▇▇▇ ▇▇▇▇ Tat, Vice President
Address:
Bank of Scotland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Tat, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of Scotland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY, as a Managing Agent and a
Bank
By: /s/ ▇.▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
Address:
Bankers Trust Company
▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-156-
CIBC INC., as a Managing Agent and a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, Director
CIBC Wood Gundy Securities Corp, as Agent
Address:
CIBC Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES BRANCH,
as a Managing Agent and a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Assistant Treasurer
-------------------------------------
Address:
Commerzbank Aktiengesellschaft, Los Angeles Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-157-
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS
ANGELES AGENCY, as a Managing Agent and a Bank
By: /s/ Koh ▇▇▇▇▇▇▇▇
----------------------------------------
Koh ▇▇▇▇▇▇▇▇, General Manager
Address:
The Long-Term Credit Bank of Japan, Ltd., Los
Angeles Agency
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION, as a Managing Agent
and a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Address:
PNC Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-158-
▇▇▇▇▇ FARGO BANK, N.A., as a Managing Agent and a
Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
Address:
▇▇▇▇▇ Fargo Bank, N.A.
Gaming Industry Division
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET BANK N.A., as Co-Agent and a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
Address:
Fleet Bank N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-159-
THE BANK OF NEW YORK, as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
Address:
The Bank of New York
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES
AGENCY, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
Address:
The Industrial Bank of Japan, Limited, Los Angeles
Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-160-
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇, Senior Vice President
Address:
KeyBank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUBISHI TRUST AND BANKING CORPORATION, LOS
ANGELES AGENCY, as a Bank
By: /s/ Yasushi Satomi
----------------------------------------
Title: Senior Vice President
-------------------------------------
Address:
The Mitsubishi Trust and Banking Corporation, Los
Angeles Agency
Mitsubishi Trust & Banking Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-161-
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH, as
a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, General Manager
Address:
The Sumitomo Bank, Limited, Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇, Credit Control
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇ ▇▇▇▇, Esq.
The Sumitomo Bank Ltd., New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SUMMIT BANK, as a Bank
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
Address:
Summit Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: L. ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-162-
UNITED STATES NATIONAL BANK OF OREGON, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Address:
United States National Bank of Oregon
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST SECURITY BANK, N.A., as a Bank
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Address:
First Security Bank, N.A.
Corporate Banking Division
▇.▇. ▇▇▇ ▇▇▇▇▇ (84130)
15 East ▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-163-
BANK OF HAWAII, as a Bank
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
Address:
Bank of Hawaii
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE DAI-ICHI KANGYO BANK, LTD., LOS ANGELES AGENCY,
as a Bank
By: /s/ Masatsugo Morishita
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice President and
Joint General Manager
Address:
The Dai-Ichi Kangyo Bank, Ltd., Los Angeles Agency
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-164-
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇, Assistant Vice President
Address:
Deutsche Bank AG, New York Branch and/or Cayman
Islands Branch
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
MICHIGAN NATIONAL BANK, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Relationship Manager
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Address:
Michigan National Bank
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-165-
THE SUMITOMO TRUST & BANKING CO., LTD., LOS ANGELES
AGENCY, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Manager & Vice President
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Address:
The Sumitomo Trust & Banking Co., Ltd., Los Angeles
Agency
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
UNION BANK OF CALIFORNIA, N.A., as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, Senior Vice President
Address:
Union Bank of California, N.A.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-166-
GIROCREDIT BANK AG DER SPARKASSEN, GRAND CAYMAN
ISLAND BRANCH, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President Vice President
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Address:
GiroCredit Bank AG der Sparkassen, Grand Cayman
Island Branch
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-167-