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AMENDED AND RESTATED LOAN AGREEMENT
Dated as of March 7, 1997
among
MIRAGE RESORTS, INCORPORATED
THE BANKS HEREIN NAMED
BANCAMERICA SECURITIES, INC.
CIBC WOOD GUNDY SECURITIES CORP.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
SOCIETE GENERALE,
as Co-Arrangers
BANKERS TRUST COMPANY
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT LYONNAIS
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY
PNC BANK, NATIONAL ASSOCIATION
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Co-Agents
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
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Exhibit 10(ggg)
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..................................29
1.3 Accounting Terms......................................30
1.4 Rounding..............................................30
1.5 Exhibits and Schedules................................30
1.6 References to "Borrower and its Subsidiaries".........30
1.7 Miscellaneous Terms...................................30
Article 2 LOANS.................................................31
2.1 Committed Loans-General...............................31
2.2 Alternate Base Rate Loans.............................32
2.3 Eurodollar Rate Loans.................................32
2.4 Competitive Advances..................................33
2.5 Letters of Credit.....................................36
2.6 Increase in the Commitment............................40
2.7 Voluntary Reduction of Commitment.....................41
2.8 Optional Termination of Commitment....................41
2.9 Extension of the Maturity Date........................42
2.10 Administrative Agent's Right to Assume Funds
Available for Advances...............................42
2.11 Swing Line............................................43
Article 3 PAYMENTS AND FEES.....................................45
3.1 Principal and Interest................................45
3.2 Arrangement Fees......................................47
3.3 Participation/Extension Fees..........................47
3.4 Commitment Fees.......................................47
3.5 Letter of Credit Fees.................................47
3.6 Agency Fees...........................................48
3.7 Increased Commitment Costs............................48
3.8 Eurodollar Costs and Related Matters..................48
3.9 Late Payments.........................................52
3.10 Computation of Interest and Fees......................52
3.11 Non-Banking Days......................................53
3.12 Manner and Treatment of Payments......................53
3.13 Funding Sources.......................................54
3.14 Failure to Charge Not Subsequent Waiver...............54
3.15 Administrative Agent's Right to Assume Payments
Will be Made by Borrower.............................55
3.16 Fee Determination Detail..............................55
3.17 Survivability.........................................55
Article 4 REPRESENTATIONS AND WARRANTIES........................56
4.1 Existence; Power......................................56
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations...............56
4.3 No Governmental Approvals Required....................56
4.4 Significant Subsidiaries..............................57
4.5 Financial Statements..................................57
4.6 No Other Liabilities..................................57
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4.7 Title to Property.....................................57
4.8 Intangible Assets.....................................57
4.9 Litigation............................................58
4.10 Binding Obligations...................................58
4.11 No Default............................................58
4.12 ERISA.................................................58
4.13 Regulations G, T, U and X; Investment Company Act.....59
4.14 Disclosure............................................59
4.15 Tax Liability.........................................59
4.16 Projections...........................................59
4.17 Hazardous Materials Laws..............................59
4.18 Developed Properties..................................60
4.19 Gaming Laws...........................................60
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS)...........................61
5.1 Preservation of Existence.............................61
5.2 Maintenance of Properties.............................61
5.3 Maintenance of Insurance..............................61
5.4 Compliance With Laws..................................61
5.5 Inspection Rights.....................................62
5.6 Keeping of Records and Books of Account...............62
5.7 Use of Proceeds.......................................62
Article 6 NEGATIVE COVENANTS....................................63
6.1 Disposition of Core Assets............................63
6.2 Mergers...............................................63
6.3 ERISA.................................................63
6.4 Change in Nature of Business..........................64
6.5 Liens and Negative Pledges............................64
6.6 Leverage Ratio........................................66
6.7 Restricted Expenditures...............................66
6.8 Commercial Paper......................................66
Article 7 INFORMATION AND REPORTING REQUIREMENTS................67
7.1 Financial and Business Information....................67
7.2 Compliance Certificates...............................69
Article 8 CONDITIONS; EFFECT OF CLOSING DATE....................70
8.1 Initial Advances, Etc.................................70
8.2 Any Increasing Advance, Etc...........................71
8.3 Any Advance...........................................72
8.4 Effect of the Closing Date............................72
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT...............................................73
9.1 Events of Default.....................................73
9.2 Remedies Upon Event of Default........................74
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Article 10 THE AGENTS............................................78
10.1 Appointment and Authorization.........................78
10.2 Agents and their Affiliates...........................78
10.3 Proportionate Interest in any Collateral..............78
10.4 Banks' Credit Decisions...............................79
10.5 Action by Administrative Agent........................79
10.6 Liability of Agents...................................80
10.7 Indemnification.......................................81
10.8 Successor Administrative Agent........................82
10.9 No Obligations of Borrower............................82
Article 11 MISCELLANEOUS.........................................84
11.1 Cumulative Remedies; No Waiver........................84
11.2 Amendments; Consents..................................84
11.3 Costs, Expenses and Taxes.............................85
11.4 Nature of Banks' Obligations..........................86
11.5 Survival of Representations and Warranties............86
11.6 Notices...............................................86
11.7 Execution of Loan Documents...........................87
11.8 Binding Effect; Assignment............................87
11.9 Right of Setoff.......................................90
11.10 Sharing of Setoffs....................................90
11.11 Indemnity by Borrower.................................91
11.12 Nonliability of the Banks.............................92
11.13 No Third Parties Benefited............................92
11.14 Confidentiality.......................................92
11.15 Further Assurances....................................93
11.16 Integration...........................................93
11.17 Governing Law.........................................94
11.18 Severability of Provisions............................94
11.19 Headings..............................................94
11.20 Time of the Essence...................................94
11.21 Foreign Banks and Participants........................94
11.22 Hazardous Material Indemnity..........................95
11.23 Gaming Boards.........................................95
11.24 The Existing Loan Agreement...........................95
11.25 Removal of a Bank.....................................96
11.26 Waiver of Right to Trial by Jury......................96
11.27 Purported Oral Amendments.............................96
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Exhibits
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A - Commitment Assignment and Acceptance
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G - 1 Opinion of Counsel (▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.)
G - 2 Opinion of Counsel (▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
H - Request for Letter of Credit
I - Request for Loan
Schedules
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1.1 Bank Commitments
4.4 Significant Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.9 Material Litigation
4.18 Developed Properties
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AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
Dated as of March 7, 1997
This AMENDED AND RESTATED LOAN AGREEMENT ("Agreement") is
entered into by and among Mirage Resorts, Incorporated, a Nevada
corporation ("Borrower"), each lender whose name is set forth on
the signature pages of this Agreement or which may hereafter
become a party to this Agreement pursuant to Section 11.8
(collectively, the "Banks" and individually, a "Bank"),
BancAmerica Securities, Inc., CIBC Wood Gundy Securities Corp.,
▇.▇. ▇▇▇▇▇▇ Securities Inc. and Societe Generale, as Co-
Arrangers, Bankers Trust Company, The Bank of New York, The Bank
of Nova Scotia, Commerzbank Aktiengesellschaft, Credit Lyonnais,
The Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency, PNC
Bank, National Association and Westdeutsche Landesbank
Girozentrale, as Co-Agents, Bank of America National Trust and
Savings Association, as Administrative Agent, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Documentation Agent, with reference
to the following facts:
RECITALS
A. Pursuant to a Reducing Revolving Loan Agreement dated as of
May 25, 1994 (as amended by Amendments No. 1 through No. 8
thereto, the "Existing Loan Agreement") among Borrower, THE
MIRAGE CASINO-HOTEL, a Nevada corporation, Treasure Island
Corp., a Nevada corporation, MR Realty (now known as
"Bellagio"), a Nevada corporation, MH, INC., a Nevada
corporation (together with GNLV, CORP., a Nevada corporation
which became an additional borrower thereunder pursuant to
Amendment No. 1 thereto) as joint and several co-borrowers,
the Banks and Co -Agents referred to therein and Bank of
America, as Administrative Co-Agent, such Banks have extended
credit facilities to Borrower and its co-borrowers in the
aggregate principal amount of $1,000,000,000.
B. Concurrently with this Agreement, the co-borrowers under the
Existing Loan Agreement (other than Borrower) have entered
into the Termination Agreement (as defined below) which
terminates their status as co-borrowers under the Existing
Loan Agreement. Concurrently with this Agreement, each 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.
C. The remaining parties to the Existing Loan Agreement desire
to amend and restate the Existing Loan Agreement in its
entirety as set forth herein and to increase the aggregate
amount of the credit facilities available hereunder to
$1,750,000,000 (subject to further increase pursuant to
Section 2.6).
-1-
NOW, THEREFORE, in consideration of the foregoing and of
the mutual covenants and agreements herein contained, the parties
hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 Defined Terms. As used in this Agreement, the fol-
lowing terms shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of
related transactions, by which Borrower or any of the
Restricted Subsidiaries directly or indirectly acquires any
ongoing business or all or substantially all of the assets of
any firm, corporation or division thereof constituting an
ongoing business, whether through purchase of capital stock or
assets, merger or otherwise.
"Adjusted EBITDA" means, with respect to any fiscal period,
EBITDA for that fiscal period plus any Adjustment Amount
for that fiscal period.
"Adjustment Amount" means, with respect to any fiscal period,
any pre-opening and related promotional expenses recorded
during that fiscal period with respect to the opening of
Bellagio, Beau Rivage or a New Venture.
"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 as provided in Article 2, and includes each
Alternate Base Rate Advance, Eurodollar Rate Advance,
Committed 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
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other Person that has more than 100 record holders of such
interests, will be deemed to control such corporation,
partnership or other Person.
"Agents" means, collectively, the Administrative Agent and
the Documentation Agent.
"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 pursuant to Section 2.5(d) and
not the subject of Advances made pursuant to Section 2.5(e).
"Agreement" means this Amended and Restated Loan Agreement,
either as originally executed or as it may from time to time
be supplemented, modified, amended, restated or extended.
"Alternate 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).
"Alternate Base Rate Advance" means a Committed Advance
made hereunder and specified to be an Alternate Base Rate
Advance in accordance with Article 2.
"Alternate Base Rate Loan" means a Committed Loan made
hereunder and specified to be an Alternate Base Rate Loan in
accordance with Article 2.
"Annualized Adjusted EBITDA" means, as of the last day of
each Fiscal Quarter, (a) Adjusted EBITDA for the fiscal period
consisting of that Fiscal Quarter and the three immediately
preceding Fiscal Quarters plus (b) with respect to any such
fiscal period in which Bellagio, Beau Rivage or any New
Venture (whichever is applicable, herein the "Project") is
open for business for at least one (1) full Fiscal Quarter but
less than four (4) full Fiscal Quarters, such amount as is
necessary to reflect the annualization of Adjusted EBITDA
attributable to the Project using the following
conventions: (i) if the Project has been open for business
for one (1) full Fiscal Quarter, the Project's Adjusted EBITDA
for that Fiscal Quarter shall be multiplied by four, (ii) if
the Project has been open for business for two (2) full Fiscal
Quarters, the Project's Adjusted EBITDA for those Fiscal
Quarters shall be multiplied by two and (iii) if the Project
has been open for business for three (3) full Fiscal Quarters,
the Project's Adjusted EBITDA for those Fiscal Quarters shall
be multiplied by four-thirds (4/3).
-3-
"Applicable Commitment Fee Rate" means, for each Pricing
Period, the rate set forth below (expressed in basis points)
opposite the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Commitment Fee Rate
------------- -------------------
I 8.00
II 10.00
III 12.50
IV 15.00
V 17.50
VI 25.00
"Applicable Eurodollar Rate Margin" means, for each Pricing
Period, the interest rate margin set forth below (expressed in
basis points) opposite the Applicable Pricing Level for that
Pricing Period:
Applicable
Pricing Level Margin
------------- ------
I 24.00
II 25.00
III 35.00
IV 40.00
V 60.00
VI 75.00
"Applicable Letter of Credit Fee" means, for each Pricing
Period, the per annum rate set forth as the interest rate
margin in the definition of "Applicable Eurodollar Rate
Margin" opposite the Applicable Pricing Level for that Pricing
Period.
"Applicable Pricing Level" means, for each Pricing Period,
the pricing level set forth below opposite the Senior Debt
Rating assigned to Borrower as of the first day of that
Pricing Period:
Senior Debt Rating
Pricing Level (S&P/▇▇▇▇▇'▇)
------------- ------------------
I At least A or A2
II At least A- or A3
III At least BBB+ or Baa1
IV At least BBB or Baa2
V At least BBB- or
VI BB+ or Ba1 or below (or unrated)
-4-
"Attributable Value" means, as of each date of deter-
mination and in respect of any sale and leaseback transaction,
the total obligation (discounted to present value at the rate
of interest applicable to the Senior Notes compounded
semiannually (or, if the Senior Notes have been repaid, the
rate of interest which previously applied to the Senior
Notes)) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items
which do not constitute payments for property rights) during
the remaining portion of the base term of the lease included
in such sale and leaseback transaction.
"Average Quarterly Total Debt" means, as of the last day of
each Fiscal Quarter, the average of the principal amounts of
the outstanding Total Debt on the last day of each of the
calendar months comprising such Fiscal Quarter.
"Bank of America" means Bank of America National Trust and
Savings Association, its successors and permitted assigns.
"Banking Day" means any Monday, Tuesday, Wednesday, Thurs-
day or Friday, other than a day on which banks are author-
ized or required to be closed in California, Nevada or New
York.
"Beau Rivage" means the hotel-casino and resort known as of
the Closing Date as "Beau Rivage", which as of the Closing
Date is under construction in Biloxi, Mississippi.
"Bellagio" means the hotel-casino and resort known as of
the Closing Date as "Bellagio", which as of the Closing Date
is under construction in Las Vegas, Nevada.
"Bellagio Opening Date" means the first date upon which
Bellagio is open for business to the general public with
(a) at least 90% of the hotel rooms provided for in the
construction plans in existence on the Closing Date ready for
occupancy, (b) at least 90% of the square footage of the
casino space provided for in such construction plans ready for
gaming and (c) substantially all other amenities (or
reasonably equivalent amenities) provided for in such
construction plans substantially complete.
"Borrower" means Mirage Resorts, Incorporated, a Nevada
corporation, and its successors and permitted assigns.
-5-
"Capital Expenditure" means any expenditure that is
considered a capital expenditure under Generally Accepted
Accounting Principles, including any amount which is required
to be treated as an asset subject to a Capital Lease
Obligation; provided, however, that Capital Expenditures to
replace or restore Property theretofore owned by Borrower or
any Restricted Subsidiary that is damaged, destroyed or taken
by a Governmental Agency under eminent domain or threat
thereof shall not be deemed to be Capital Expenditures to the
extent funded by the proceeds of insurance or compensation
from that Governmental Agency received by Borrower or the
Restricted Subsidiary.
"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.
"Certificate of a Responsible Official" means a certificate
signed by a Responsible Official of the Person providing the
certificate.
"Change in Control" means (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ceases for
any reason (except only his death or disability) to be the
chief executive officer of Borrower, (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
ceases for any reason (except only his death) to own
beneficially at least 7,500,000 shares of Common Stock (sub-
ject to adjustment in the event of a stock split, reverse
stock split, stock dividend or other recapitalization),
(c) the estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ceases for any reason to own
beneficially at least 5,000,000 shares of Common Stock
(subject to adjustment as aforesaid), (d) 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 out-
standing Common Stock, or (e) any event or circumstance
constituting a "change in control" or other similar
occurrence under documentation evidencing or governing any
Indebtedness of Borrower of $25,000,000 or more which results
in an obligation of Borrower to prepay, purchase, offer to
purchase, redeem or defease such Indebtedness. For purposes
of the foregoing, the term "Unrelated Person" means any
Person other than (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or a Person with which
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is affiliated or associated, within the
meanings of such terms under the Securities Exchange Act
of 1934, as amended, (b) a Subsidiary of Borrower or (c) an
employee stock ownership plan or other employee benefit plan
covering the employees of Borrower and its Subsidiaries.
-6-
"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 and the Banks
of the date that is the Closing Date.
"Co-Agents" means, collectively, Bankers Trust Company, The
Bank of New York, The Bank of Nova Scotia, Commerzbank
Aktiengesellschaft, Credit Lyonnais, The Long-Term Credit Bank
of Japan, Ltd., Los Angeles Agency, PNC Bank, National
Association and Westdeutsche Landesbank Girozentrale. The
Co-Agents shall have no duties under the Loan Documents beyond
those of a Bank.
"Co-Arrangers" means, collectively, BancAmerica Securities,
Inc., CIBC Wood Gundy Securities Corp., ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and Societe Generale. The Co-Arrangers shall have no
duties under the Loan Documents after the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended
or replaced and as in effect from time to time.
"Commercial Paper Outstandings" means, as of any date of
determination, the aggregate principal amount of commercial
paper of Borrower that is outstanding on that date.
"Commitment" means $1,750,000,000 as of the Closing Date.
From time to time following the Closing Date, the amount of
the Commitment may be reduced pursuant to Sections 2.7 and
2.8. The Commitment may also be increased in the manner and
subject to the limitations set forth in Section 2.6. The
respective Pro Rata Shares of the Commitment of the Banks as
of the Closing Date are set forth in Schedule 1.1.
"Commitment Assignment and Acceptance" means a commitment
assignment and acceptance substantially in the form of
Exhibit A.
"Committed Advance" means an Advance made to Borrower by
any Bank in accordance with its Pro Rata Share of the Commit-
ment pursuant to Section 2.1.
"Committed Advance Note" means the promissory note made by
Borrower to a Bank evidencing the Committed Advances under
that Bank's Pro Rata Share of the Commitment, 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.
"Committed Loans" means Loans that are comprised of
Committed Advances.
"Common Stock" means the common stock of Borrower or its
successor by merger.
-7-
"Competitive Advance" means an Advance made to Borrower by
any Bank not determined by that Bank's Pro Rata Share of the
Commitment pursuant to Section 2.4.
"Competitive Advance Note" means the promissory note made
by Borrower in favor of a Bank to evidence the Competitive
Advances made by that Bank, substantially in the form of
Exhibit C, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed,
extended or supplanted.
"Competitive Bid" means (a) a written bid to provide a
Competitive Advance substantially in the form of Exhibit D,
signed by a Responsible Official of a 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 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 D, and shall promptly be confirmed by a written
Competitive Bid.
"Competitive Bid Request" means (a) a written request
submitted by Borrower to the Administrative Agent to provide a
Competitive Bid, substantially in the form of Exhibit E,
signed by a Responsible Official of Borrower and properly
completed to provide all information required to be included
therein or (b) at the election of Borrower, a telephonic
request by Borrower to the Administrative Agent to provide a
Competitive Bid which, if so made, shall be made by a
Responsible Official of Borrower and deemed to have been made
incorporating the substance of Exhibit E, and shall promptly
be confirmed by a written Competitive Bid Request.
"Completion Guaranty" means a Guaranty Obligation given by
Borrower or a Restricted Subsidiary to a holder of
Indebtedness of, or an obligee of, a New Venture Entity which
obligates Borrower or the Restricted Subsidiary (a) to cause
the completion of construction of a New Venture, (b) to
provide funding for all or a portion of any construction cost
overruns with respect thereto, and/or (c) to cause the New
Venture Entity to perform any of its Contractual Obligations
(other than in respect of the repayment of any Indebtedness or
other monetary obligation of the New Venture Entity) to an
obligee of the New Venture Entity.
-8-
"Compliance Certificate" means a certificate in the form
of Exhibit F, properly completed and signed by a Senior
Officer of Borrower.
"Contractual Obligation" means, as to any Person, any
provision of any outstanding security issued by that Person or
of any material agreement, instrument or undertaking to which
that Person is a party or by which it or any of its Property
is bound.
"Core Assets" means (a) The Mirage hotel-casino and resort,
(b) Treasure Island hotel-casino and resort, (c) the Golden
Nugget hotel-casino in Las Vegas, Nevada, (d) Bellagio,
(e) Beau Rivage, (f) any other operating property of Borrower
or any of its Subsidiaries the disposition of which, if
effected on a pro-forma basis as of the last day of the Fiscal
Quarter then most recently ended, would have resulted in a
Leverage Ratio that did not comply with Section 6.6 (assuming
that the Total Debt and the EBITDA related to such operating
property were not included in the numerator and denominator,
respectively, of the Leverage Ratio), (g) all or substantially
all of the assets comprising or used in connection with any of
the foregoing and (h) any of the capital stock of any
Subsidiary of Borrower that owns any of the foregoing.
"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, morator-
ium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws from time to time in effect
affecting the rights of creditors generally.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1,
or both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.9.
"Designated Deposit Account" means a deposit account to be
maintained by Borrower with Bank of America, as from time to
time designated by Borrower by written notification to 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
-9-
are at the relevant time not accepting deposits of Dollars or
if the Administrative Agent determines in good faith that the
Cayman Islands Eurodollar Market does not represent at the
relevant time the effective pricing to the 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 and the
Requisite Banks.
"Developed Property" means, as of each date of
determination, each casino, hotel, hotel-casino, resort,
riverboat casino, dockside casino, golf course, entertainment
center or similar facility owned by Borrower or any of the
Restricted Subsidiaries and which is at such date
substantially complete and open for business.
"Disqualified Stock" means any capital stock, warrants,
options or other rights to acquire capital stock (but
excluding any debt security which is convertible into, 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; provided that the aforementioned interests
shall not be Disqualified Stock if they are redeemable prior
to the Maturity Date only if the board of directors of
Borrower determines in its judgment that as a result of a
holder or beneficial owner owning such interests (i) Borrower
or a Subsidiary of Borrower has lost or may lose any license
or franchise from any Gaming Board held by Borrower or any
Subsidiary of Borrower necessary to conduct any portion of the
business of Borrower or such Subsidiary of Borrower or
(ii) any Gaming Board has taken or may take action to
materially restrict or impair the operations of Borrower or
its Subsidiaries, which license, franchise or action is
conditioned upon some or all of the holders or beneficial
owners of such interests being licensed or found qualified or
suitable to own such interests.
"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, (i) the
retirement, redemption, purchase, or other acquisition for
Cash or for Property by such Person of any such security,
(ii) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Prop erty on or with
respect to any such security, (iii) any Investment by such
Person in the holder of 5% or more of any such security if a
purpose of such Investment is to avoid characterization of the
transaction as a Distribution and (iv) any other payment in
Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security.
-10-
"Documentation Agent" means ▇▇▇▇▇▇ Guaranty, when acting in
its capacity as Documentation Agent under any of the Loan
Documents, or any successor Documentation Agent. The
Documentation Agent shall be primarily responsible for
negotiating and preparing the Loan Documents through the
Closing Date.
"Dollars" or "$" means United States dollars.
"Domestic Reference Bank" means, as of any date of
determination, the Bank that is then the Administrative Agent.
"EBITDA" means, for any fiscal period, the sum of (a) Net
Income 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 Expense for
that period, plus (e) the aggregate amount of federal and
state taxes on or measured by income for that period (whether
or not payable during that period), plus (f) depreciation,
amortization and all other non-cash expenses for that period,
in each case as determined in accordance with Generally
Accepted Accounting Principles and, in the case of items (d)
and (e), only to the extent deducted in the determination of
Net Income for that period.
"Eligible Assignee" means (a) another Bank, (b) with respect
to any Bank, any Affiliate of that Bank and (c) any commercial
bank having a combined capital and surplus of $100,000,000 or
more that is (i) organized under the Laws of the United States
of America, any State thereof or the District of Columbia or
(ii) organized under the Laws of any other country which is a
member of the Organization for Economic Cooperation and
Development, or a political subdivision of such a country,
provided that (A) such bank is acting through a branch or
agency located in the United States of America and (B) is
otherwise exempt from withholding of tax on interest and
delivers Form 1001 or Form 4224 pursuant to Section 11.21 at
the time of any assignment pursuant to Section 11.8.
"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 each Person (whether or not
incorporated) which is required to be aggregated with Borrower
pursuant to 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.
-11-
"Eurodollar Base Rate" means, with respect to any Eurodollar
Rate Loan, the average of the interest rates per annum
(rounded upward, if necessary, to the next 1/16 of 1%) at
which deposits in Dollars are offered by the Eurodollar
Reference Banks to prime banks in the Designated Euro dollar
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 each Eurodollar Reference Bank with respect to such
Eurodollar Rate Loan and for a period of time comparable to
the number of days in the applicable Eurodollar Period. The
determination of the Eurodollar Base Rate by the
Administrative Agent shall be conclusive in the absence of
manifest error.
"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 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.
"Eurodollar Period" means, as to each Eurodollar Rate Loan,
the period commencing on the date specified by Borrower
pursuant to Section 2.1(b) and ending 1, 2, 3 or 6 months (or,
with the written consent of all of the Banks, any other
period) thereafter, as specified by Borrower in the applicable
Request for Loan; provided that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar 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; and
(c) No Eurodollar Period shall extend beyond the
Maturity Date.
-12-
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan, an interest rate per annum (rounded upward, if
necessary, to the nearest 1/16 of one percent) determined
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
"Eurodollar Rate Advance" means a Committed Advance made
hereunder and specified to be a Eurodollar Rate Advance in
accordance with Article 2.
"Eurodollar Rate Loan" means a Committed Loan made hereunder
and specified to be a Eurodollar Rate Loan in accordance with
Article 2.
"Eurodollar Reference Banks" means, collectively, Bank of
America, ▇▇▇▇▇▇ Guaranty, Canadian Imperial Bank of Commerce
and Societe Generale.
"Eurodollar Reserve Percentage" means, with respect to any
Eurodollar Rate Loan, the maximum reserve percentage
(expressed as a decimal, rounded upward, if necessary, to the
nearest 1/100th of 1%) in effect on the date the Eurodollar
Base Rate for that Eurodollar Rate Loan is determined (whether
or not applicable to any Bank) under regulations issued from
time to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with
respect to eurocurrency funding (currently referred to as
"eurocurrency liabilities") having a term comparable to the
Interest Period for such Eurodollar Rate Loan. The determina-
tion by the Administrative Agent of any applicable Eurodollar
Reserve Percentage shall be conclusive in the absence of
manifest error.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing Loan Agreement" means the Reducing Revolving Loan
Agreement described in Recital A to this Agreement.
"Exit Agreement" means the agreement among each Exiting
Bank, the Administrative Agent and the Borrowers under the
Existing Loan Agreement regarding the termination of each
Exiting Bank's Pro Rata Share of the Commitment under the
Existing Loan Agreement, the repayment of any outstanding
Loans thereunder to that Exiting Bank and the termination of
the lending relationship between that Exiting Bank and
Borrower.
"Exiting Bank" means each lender under the Existing Loan
Agreement which is not, as of the Closing Date, a Bank under
this Agreement.
-13-
"Federal Funds Rate" means, as of any date of determination,
the rate set forth in the weekly statistical release
designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such date opposite the caption
"Federal Funds (Effective)". If for any relevant date such
rate is not yet published in H.15(519), the rate for such date
will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including
any such successor, the "Composite 3:30 p.m. Quotation") for
such date under the caption "Federal Funds Effective Rate".
If on any relevant date the appropriate rate for such date is
not yet published in either H.15(519) or the Composite
3:30 p.m. Quotations, the rate for such date will be the
arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that date by each of three leading
brokers of Federal funds transactions in New York City
selected by the Administrative Agent. For purposes of this
Agreement, any change in the Alternate Base Rate due to a
change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such change.
"Fiscal Quarter" means the fiscal quarter of Borrower
consisting of a three-month fiscal period ending on each
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting
of a twelve-month period ending on each December 31.
"Gaming Board" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the
Mississippi Gaming Commission and (d) any other Governmental
Agency that holds regulatory, licensing or permit authority
over gambling, gaming or casino activities conducted by
Borrower and the Restricted Subsidiaries 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 the Restricted Subsidiaries within its jurisdiction.
-14-
"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.
"Governmental Agency" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-govern-
mental agency, authority, board, bureau, commission, depart-
ment, instrumentality or public body, or (c) any court or
administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any
(a) guarantee by that Person of Indebtedness of, or other
obligation performable by, any other Person or (b) assurance
given by that Person to an obligee of any other Person with
respect to the performance of an obligation by, or the
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 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 shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation
(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 Guaranty Obligation
consisting of a Completion Guaranty shall be deemed to be zero
unless and until Borrower or any of the Restricted
Subsidiaries has determined, or in good faith should determine
based on all information then available to it, that
performance by Borrower or the Restricted Subsidiary of its
obligations under the Completion Guaranty is at least
-15-
reasonably possible (within the meaning of such term under
Financial Accounting Standards Board Statement No. 5) and,
notwithstanding the preceding sentence, if such performance is
at least reasonably possible the amount thereof shall, if not
stated or determinable, be deemed the reasonably anticipated
liability in respect thereof as determined by Borrower or the
Restricted Subsidiary in good faith.
"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 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 any other applicable Hazardous
Materials Law, in each case as such Laws are amended from time
to time.
"Hazardous Materials Laws" means all federal, state or local
Laws governing the disposal of Hazardous Materials applicable
to any of the Real Property.
"Incremental Margin" means, during any Incremental Margin
Period, 1/10th of 1% (10 basis points) if, as of the last day
of the Fiscal Quarter most recently ended prior to such
Incremental Margin Period, the Leverage Ratio was greater than
3.50 to 1.00.
"Incremental Margin Period" means each of the periods
(a) commencing March 1 and ending May 31, (b) commencing
June 1 and ending August 31, (c) commencing September 1 and
ending November 30 and (d) commencing December 1 and ending
February 28 (or, in a leap year, February 29).
"Indebtedness" means, as to any Person (without
duplication), (a) indebtedness of such Person for borrowed
money or for the deferred purchase price of Property (exclud-
ing trade and other accounts payable in the ordinary course of
business in accordance with customary trade terms), including
any Guaranty Obligation for any such indebtedness, (b) indebt-
edness 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, but not in excess 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 "swaps", "caps", "collars" or
other interest rate protection arrangements with respect to
any of the foregoing.
-16-
"Intangible Assets" means assets that are considered
intangible assets under Generally Accepted Accounting
Principles, including customer lists, goodwill, copyrights,
trade names, trademarks and patents.
"Interest Differential" means, with respect to any prepay-
ment of a Eurodollar Rate Loan on a day other than the last
day of the applicable Interest 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 per annum
interest rate payable (or, with respect to a failure to
borrow, the interest rate which would have been payable) pur-
suant to Section 3.1(c) with respect to the Eurodollar Rate
Loan minus (b) the Eurodollar Rate on, or as near as practica-
ble to the date of the prepayment or failure to borrow for a
Eurodollar Rate Loan with an Interest Period commencing on
such date and ending on the last day of the Interest Period of
the Eurodollar Rate Loan so prepaid or which would have been
borrowed on such date.
"Interest Expense" means, 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 to a lender in connection with borrowed money or the
deferred purchase price of assets that are considered
"interest expense" under Generally Accepted Accounting
Principles, plus (b) the portion of rent paid or payable
(without duplication) for that fiscal period under Capital
Lease Obligations that should be treated as interest in
accordance with Financial Accounting Standards Board Statement
No. 13.
"Investment" means, when used in connection with any Person,
any investment by or of that Person, whether by means of
purchase or other acquisition of stock or other securities of
any other Person or by means of a loan, advance creating a
debt, capital contribution, guaranty or other debt or equity
participation or interest in any other Person, including any
partnership and joint venture interests of such Person. The
amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"Issuing Bank" means Bank of America.
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules,
regulations, ordinances, codes and administrative or judicial
precedents.
-17-
"Letters of Credit" means (a) commercial letter of credit
No. 1016135 issued by the Issuing Bank under the Existing Loan
Agreement in the original effective amount of $1,600,000, but
not any supplements, modifications, amendments, renewals or
extensions thereof and (b) any of the standby or commercial
letters of credit issued by the Issuing Bank under the
Commitment pursuant to Section 2.5, either as originally
issued or as the same may be supplemented, modified, amended,
renewed, extended or supplanted.
"Leverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) Average Quarterly Total Debt to
(b) Annualized Adjusted EBITDA, as such ratio is set forth in
the most recent Compliance Certificate delivered by Borrower
pursuant to Section 7.2.
"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 Borrower and the Restricted
Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether voluntarily
incurred or arising by operation of Law or otherwise,
affecting any Property, including any agreement to grant any
of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature of a security
interest, and/or the filing of or agreement to give any
financing statement (other than a precautionary financing
statement with respect to a lease that is not in the nature of
a security interest) 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, any Request for Loan, any
Request for Letter of Credit, any Compliance Certificate and
any other agreements of any type or nature hereafter executed
and delivered by Borrower or any of its Affiliates to the
Agents 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.
-18-
"Maintenance Capital Expenditures" means Capital
Expenditures made with respect to a Developed Property for the
maintenance, repair, restoration, refurbishment or enhancement
of that Developed Property, excluding any Capital Expenditure
that materially expands the Developed Property.
"Margin Stock" means "margin stock" as such term is defined
in Regulation G or U.
"Material Adverse Effect" means any set of circumstances or
events which (a) has or could reasonably be expected to have
any material adverse effect whatsoever upon the validity or
enforceability of any Loan Document, (b) is or could
reasonably be expected to be material and adverse to the
condition (financial or otherwise), business operations or
prospects of Borrower and its Subsidiaries, taken as a whole,
or (c) materially impairs or could reasonably be expected to
materially impair the ability of Borrower to perform the
Obligations.
"Maturity Date" means March 7, 2002, or such later
anniversary thereof as may be established pursuant to Section
2.9.
"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.
"Monte Carlo" means the Monte Carlo hotel-casino and resort
in Las Vegas, Nevada.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"▇▇▇▇▇▇ Guaranty" means ▇▇▇▇▇▇ Guaranty Trust Company of New
York, its successors and permitted assigns.
"Multiemployer Plan" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrower or any of the
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 6.5 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.
-19-
"Negative Pledge Termination Agreement" means the
Termination of Negative Pledge Agreement of even date herewith
executed by the Administrative Co -Agent under the Existing
Loan Agreement, pursuant to which the Negative Pledge
Agreement dated as of April 6, 1995 and recorded in the
Official Records of ▇▇▇▇▇ County, Nevada on April 7, 1995 as
Instrument No. 01595 in Book 950407 is terminated as a matter
of record.
"Net Cash Proceeds" means Net Proceeds to the extent
consisting of Cash.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for
that period, determined in accordance with Generally Accepted
Accounting Principles, consistently applied; provided, that,
in any event (a) any net loss of Victoria Partners shall not
be included in the calculation of Net Income and (b) net
income of Victoria Partners shall not be included in Net
Income except to the extent distributed in Cash or Property to
Borrower or a Restricted Subsidiary and, upon such
distribution, shall be included in Net Income.
"Net Proceeds" means, with respect to any disposition of a
Core Asset, the gross sales proceeds received by Borrower and
the Restricted Subsidiaries from such disposition (including
Cash, Property and the assumption by the purchaser of any lia-
bility of Borrower or the Restricted Subsidiaries) net of
brokerage commissions, legal expenses and other transactional
costs payable by Borrower and the Restricted Subsidiaries with
respect to such disposition and net of an amount determined in
good faith by Borrower to be the estimated amount of income
taxes payable by Borrower attributable to such disposition.
"New Bank" has the meaning set forth for that term in
Section 2.6(d).
"New Capital Amount" means, as of any date of determin-
ation, an amount equal to the aggregate net cash proceeds
received by Borrower from the issuance and sale of capital
stock of Borrower (including upon any conversion or exchange
of debt securities of Borrower issued after the Closing Date
into or for such capital stock) after the Closing Date and
through such date.
"New Venture" means a casino, hotel, hotel-casino, resort,
riverboat casino, dockside casino, golf course, entertainment
center or similar facility (or any site or proposed site for
any of the foregoing) owned or to be owned by Borrower or any
of its Subsidiaries (or owned or to be owned by a Person in
which Borrower, any of the Restricted Subsidiaries or a New
Venture Entity owned directly or indirectly by Borrower or any
of the Restricted Subsidiaries holds an Investment) and which
is not at the Closing Date a Developed Property.
-20-
"New Venture Entity" means the Person that directly owns a
New Venture.
"Notes" means, collectively, the Committed Advance Notes and
the Competitive Advance Notes.
"Obligations" means all present and future obligations of
every kind or nature of Borrower or any Party at any time and
from time to time owed to the Administrative Agent or the
Banks or any one or more of them, under any one or more of the
Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well as
obligations of payment, and including interest that accrues
after the commencement of any proceeding under any Debtor
Relief Law by or against Borrower or any Subsidiary or
Affiliate of Borrower.
"Opinions of Counsel" means the favorable written legal
opinions of (a) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Assistant General
Counsel of Borrower and (b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special counsel to
Borrower and the Restricted Subsidiaries, substantially in the
form of Exhibits G-1 and G-2, respectively, together with
copies of all factual certificates and other legal opinions
upon which such counsel have relied.
"Outstandings" means, as of any date of determination, the
sum of (a) the aggregate outstanding principal Indebtedness
evidenced by the Notes on that date, plus (b) the Aggregate
Effective Amount of all outstanding Letters of Credit on that
date, plus (c) the Swing Line Outstandings on that date, plus
(d) the Commercial Paper Outstandings on that date.
"Party" means any Person other than the Agents, the Co-
Arrangers, 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 ERISA Affiliates or to
which Borrower or any of its ERISA Affiliates contributes or
has an obligation to contribute.
-21-
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction on or main-
tenance of Real Property; or Liens incident to construction
on or maintenance of Real Property now or hereafter filed of
record for which adequate reserves have been set aside (or
deposits made pursuant to applicable Law) and which are
being contested in good faith by appropriate proceedings and
have not proceeded to judgment, provided that, by reason of
nonpayment of the obligations secured by such Liens, no such
Real Property is subject to a material risk of loss or
forfeiture;
(b) Liens for taxes and assessments on Real Property
which are not yet past due; or Liens for taxes and
assessments on Real Property for which adequate reserves
have been set aside and are being contested in good faith by
appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations
secured by such Liens, no such Real Property is subject to a
material risk of loss or forfeiture;
(c) minor defects and irregularities in title to any Real
Property which in the aggregate do not materially impair
the fair market value or use of the Real Property for the
purposes for which it is or may reasonably be expected to be
held;
(d) easements, exceptions, 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 Real Property, facilities, or equipment which in
the aggregate do not materially burden or impair the fair
market value or use of such Real Property for the purposes
for which it is or may reasonably be expected to be held;
(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 Real Property project affecting Real 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 Real
Property;
-22-
(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 Real 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 Real Property which in the aggregate do not
materially impair the fair market value or use of the Real
Property for the purposes for which it is or may reasonably
be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Real Property entered into in the ordinary course
of business of the Person owning such Real Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar
legislation, including Liens of judgments thereunder which
are not currently dischargeable;
(m) Liens consisting of pledges or deposits of Property
to secure performance in connection with operating leases
made in the ordinary course of business to which Borrower or
a Subsidiary of Borrower is a party as lessee, provided the
aggregate value of all such pledges and deposits in
connection with any such lease does not at any time exceed
20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure
bids made with respect to, or performance of, contracts
(other than contracts creating or evidencing an extension of
credit to the depositor) in the ordinary course of business;
(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;
-23-
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrower or a Subsidiary of
Borrower in the ordinary course of its business;
(q) Liens consisting of deposits of Property to secure
(or in lieu of) surety, appeal or customs bonds in
proceedings to which Borrower or a Subsidiary of Borrower is
a party in the ordinary course of its business;
(r) Liens created by or resulting from any litigation or
legal proceeding involving Borrower or a Subsidiary of
Borrower in the ordinary course of its business which is
currently being contested in good faith by appropriate
proceedings, provided that adequate reserves have been set
aside and no material Property is subject to a material risk
of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with an extension
of credit, which do not in the aggregate, when taken
together with all other Liens, materially impair the value
or use of the Property of Borrower and the Subsidiaries of
Borrower, taken as a whole.
"Permitted Right of Others" means a Right of Others
consisting of (a) an interest (other than a legal or equitable
co-ownership interest, an option or right to acquire a legal
or equitable co-ownership interest and any interest of a
ground lessor under a ground lease), that does not materially
impair the value or use of Property for the purposes for which
it is or may reasonably be expected to be held, (b) an option
or right to acquire a Lien that would be a Permitted
Encumbrance, (c) the subordination of a lease or sublease in
favor of a financing entity and (d) 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 part nership, joint stock company, trust,
estate, unincorporated organization, business association,
firm, joint venture, Governmental Agency, or other entity.
"Pricing Occurrence" means the date of a change in the
Senior Debt Rating which results in a change in the Applicable
Pricing Level.
"Pricing Period" means (a) the period commencing on the
Closing Date and ending on the first Pricing Occurrence to
occur thereafter and (b) each subsequent period commencing on
the date of a Pricing Occurrence and ending on the next
Pricing Occurrence to occur.
-24-
"Projections" means the financial projections contained at
Tab VII of the Confidential Information Memorandum distributed
by or on behalf of Borrower to the Banks on or about
January 30, 1997.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or
intangible.
"Pro Rata Share" means, with respect to each Bank, the
percentage of the Commitment set forth opposite the name of
that Bank on Schedule 1.1.
"Quarterly Payment Date" means each June 30, September 30,
December 31 and March 31.
"Real Property" means, as of any date of determination, all
real Property then or theretofore owned, leased or occupied by
Borrower or any of the Restricted Subsidiaries.
"Reference Rate" means the rate of interest publicly
announced from time to time by the Domestic Reference Bank in
San Francisco, California (or other headquarters city of the
Domestic Reference Bank), as its "reference rate." It is a
rate set by the Domestic Reference Bank based upon various
factors including the Domestic Reference Bank'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 the Domestic
Reference Bank shall take effect at the opening of business on
the day specified in the public announcement of such change.
"Regulation D" means Regulation D, as at any time amended,
of the Board of Governors of the Federal Reserve System, or
any other regulation in substance substituted therefor.
"Regulations G, T, U and X" means Regulations 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 H,
signed by a Responsible Official of Borrower, on behalf of
Borrower, and properly completed to provide all information
required to be included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit I, signed by a
Responsible Official of Borrower, on behalf of Borrower, and
properly completed to provide all information required to be
included therein.
-25-
"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 in the
aggregate 65% or more of the Commitment then in effect and (b)
as of any date of determination if the Commitment has then
been terminated or suspended and there is then any
Indebtedness evidenced by the Notes, Banks holding Notes
evidencing in the aggregate 65% or more of the aggregate
Indebtedness then evidenced by the Notes.
"Responsible Official" means (a) when used with reference to
a Person other than an individual, any corporate officer of
such Person, general partner of such Person, corporate officer
of a corporate general partner of such Person, or corporate
officer of a corporate general partner of a partnership that
is a general partner of such Person, or any other responsible
official thereof duly acting on behalf thereof (including, in
the case of Borrower, its Director of Finance), and (b) when
used with reference to a Person who is an individual, such
Person; provided that the Responsible Officials of Borrower
shall be those Persons named on the most recent written
designation of Responsible Officials of Borrower, signed by a
Senior Officer of Borrower, furnished to the Administrative
Agent. Any document or certificate hereunder that is signed
or executed by a Responsible Official of another Person shall
be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the
part of such other Person.
"Restricted Expenditures" means (a) Distributions, (b)
Capital Expenditures (other than (i) Capital Expenditures
for the completion of Bellagio and Beau Rivage in substantial
accordance with the construction plans in existence on the
Closing Date and (ii) Maintenance Capital Expenditures),
(c) the purchase price paid in Cash for Acquisitions net of
any Indebtedness incurred to finance such Acquisitions that is
non-recourse to the credit or assets of Borrower or any Core
Asset and (d) Investments in New Venture Entities which are
not Subsidiaries of Borrower, in each case made by Borrower or
any of the Restricted Subsidiaries.
"Restricted Expenditure Basket" means, as of any date of
determination, the sum of (a) $500,000,000 plus (b) an amount
equal to 50% of cumulative Net Income for the period
commencing January 1, 1997 and ending on the last day of the
most recently-ended Fiscal Quarter (taken as a single fiscal
period), plus (c) the New Capital Amount as of that date.
-26-
"Restricted Subsidiary" means (a) each Subsidiary of
Borrower existing as of the Closing Date, (b) each Subsidiary
of Borrower which owns or operates any Developed Property
existing as of the Closing Date or which owns or operates the
hotel and casino projects currently under development by
Borrower in Atlantic City, New Jersey, and Biloxi,
Mississippi, and (c) each Subsidiary of Borrower formed or
acquired following the Closing Date which is not a New Venture
Entity.
"Right of Others" means, as to any Property in which a
Person has an interest, any legal or equitable right, title or
other interest (other than a Lien) held by any other Person in
that Property, and any option or right held by any other
Person to acquire any such right, title or other interest in
that Property, including any option or right to acquire a
Lien; 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.
"S&P" means Standard & Poor's Rating Group (a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.) and its successors.
"Senior Debt Rating" means (a) the rating of the Senior
Notes, as determined by either S&P or ▇▇▇▇▇'▇ (and, if by both
such rating agencies, then the more creditworthy of such
credit ratings unless the split rating is a "double split
rating" (in which case the Senior Debt Rating shall be the
credit rating that is in between such credit ratings) or a
"triple split rating" (in which case the Senior Debt Rating
shall be the credit rating that is immediately below the
higher of such credit ratings)), or (b) if the Senior Notes
are not outstanding, either (i) the implicit credit rating for
long-term senior unsecured debt securities of Borrower based
on the credit ratings of other securities of Borrower rated by
such rating agencies or (ii) at Borrower's option, the rating
designated in a writing from one of such rating agencies as
the rating which it would assign to long-term senior unsecured
debt securities of Borrower if any such debt securities were
outstanding.
"Senior Notes" means Borrower's 7.25% Senior Notes Due
October 15, 2006.
"Senior Officer" means the (a) chief executive officer,
(b) president, (c) executive vice president, (d) senior vice
president, (e) chief financial officer, (f) treasurer,
(g) assistant treasurer or (h) general counsel of Borrower.
-27-
"Significant Subsidiary" means, as of any date of
determination, each Restricted Subsidiary that as of the last
day of the Fiscal Quarter then most recently ended (a) had
total assets of five percent (5%) or more of the consolidated
total assets of Borrower and its Subsidiaries or (b) accounted
for five percent (5%) or more of the consolidated gross
revenues of Borrower and its Subsidiaries for the four (4)
Fiscal Quarter period then ended.
"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 comparable authority, or
the existence or occurrence of circumstances affecting the
Designated Eurodollar Market generally that are beyond the
reasonable control of the Banks.
"Stockholders' Equity" means, as of any date of
determination and with respect to any Person, the consolidated
stockholders' equity of the Person as of that date determined
in accordance with Generally Accepted Accounting Principles;
provided that there shall be excluded from Stockholders'
Equity any amount attributable to Disqualified Stock.
"Subsidiary" means, as of any date of determination and with
respect to any Person, any corporation, limited liability
company or partner ship (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.
"Swing Line" means the revolving line of credit established
by the Swing Line Bank in favor of Borrower pursuant to
Section 2.11.
"Swing Line Bank" means Bank of America, through its branch
located in Las Vegas, Nevada.
-28-
"Swing Line Documents" means the promissory note and any
other documents executed by 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 pursuant to Section 2.11.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of
Borrower on all Swing Line Loans then outstanding.
"Tangible Net Worth" means, as of any date of determination,
the consolidated Stockholders' Equity of Borrower and its
Subsidiaries on that date minus the aggregate Intangible
Assets of Borrower and its Subsidiaries on that date.
"Termination Agreement" means the Termination Agreement of
even date herewith among the Administrative Co-Agent under the
Existing Loan Agreement and (a) the co-borrowers ( other than
Borrower) thereunder, pursuant to which the rights and
obligations of each of such co-borrowers are terminated, and
(b) the Significant Subsidiaries (as defined in the Existing
Loan Agreement), pursuant to which the obligations of such
Significant Subsidiaries under the Subsidiary Guarantee (as
defined in the Existing Loan Agreement) are terminated.
"Total Debt" means, as of any date of determination, without
duplication, the sum of (a) all principal Indebtedness of
Borrower and its Subsidiaries for borrowed money (including
debt securities issued by Borrower or any of its Subsidiaries)
on that date, plus (b) the aggregate deferred purchase price
for any Property of Borrower or any of its Subsidiaries
(excluding trade debt to vendors and service suppliers), plus
(c) the aggregate monetary amount of all obligations secured
by a Lien on any Property of Borrower or any of its
Subsidiaries, whether or not such obligations are assumed by
Borrower or its Subsidiaries, plus (d) the aggregate amount of
all Capital Lease Obligations of Borrower and its Subsidiaries
on that date, plus (e) all letters of credit (including
Letters of Credit) for which Borrower or any of its
Subsidiaries is the account party outstanding on that date,
plus (f) the aggregate amount of all Guaranty Obligations of
Borrower or any of its Subsidiaries with respect to any of the
foregoing to the extent the same is or should be reflected as
a liability on a consolidated balance sheet of Borrower and
its Subsidiaries prepared in accordance with Generally
Accepted Accounting Principles, provided that, any of the
foregoing which constitute Indebtedness or other obligations
of Victoria Partners shall not be included in the calculation
of Total Debt to the extent that such Indebtedness and other
obligations are non-recourse to Borrower and its Subsidiaries.
-29-
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person,
that the fact or situation described therein is known by the
Person (or, in the case of a Person other than a natural
Person, known by a Responsible Official of that Person) making
the representation, warranty or other statement, or with the
exercise of reasonable due diligence under the circumstances
(in accordance with the standard of what a reasonable Person
in similar circumstances would have done) would have been
known by the Person (or, in the case of a Person other than a
natural Person, would have been known by a Responsible
Official of that Person).
"type", when used with respect to any Loan or Advance, means
the designation of whether such Loan or Advance is an
Alternate Base Rate Loan or Advance, or a Eurodollar Rate Loan
or Advance.
"Victoria Partners" means Victoria Partners, a Nevada
general partnership, of which Subsidiaries of Borrower and
Circus Circus Enterprises, Inc. are the general partners,
which owns and operates Monte Carlo.
1.2 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and any
defined term used in the singular shall refer to any one or more
of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specific-
ally 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 change during the
term of this Agreement such that the covenants contained in
Sections 6.6 and 6.7 would then be calculated in a different
manner or with different components, (a) Borrower 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 Generally Accepted Accounting
Principles and (b) Borrower shall be deemed to be in compliance
with the covenants contained in the aforesaid Sections during
the 90-day period following any such change in Generally
Accepted Accounting Principles if and to the extent that
Borrower would have been in compliance therewith under
Generally Accepted Accounting Principles as in effect immed-
iately prior to such change.
-30-
1.4 Rounding. Any financial ratios required to be main-
tained by Borrower pursuant to this Agreement shall be calculated
by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places
by which such ratio is expressed in this Agreement and rounding
the result up or down to the nearest number (with a round-up if
there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to
this Agreement, either as originally existing or as the same may
from time to time be supplemented, modified or amended, are
incorporated herein by this reference. A matter disclosed on any
Schedule shall be deemed disclosed on all Schedules.
1.6 References to Borrower and its Subsidiaries. Any
reference herein to "Borrower and its Subsidiaries" or the like
shall refer solely to Borrower during such times, if any, as
Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the
term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females;
feminine terms also apply to males. The term "including" is by
way of example and not limitation.
-31-
Article 2
LOANS
-----
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 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
under the Commitment in such amounts as Borrower may request
that do not result in the Outstandings exceeding the then
applicable Commitment. Subject to the limitations set forth
herein, Borrower may borrow, repay and reborrow under the
Commitment without premium or penalty.
(b) Subject to the next sentence, each Committed Loan
shall be made pursuant to a Request for Loan which shall spe-
cify 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 has notified, in its sole and
absolute discretion, Borrower to the contrary, a Loan may be
requested by telephone by a Responsible Official of Borrower,
in which case Borrower shall confirm such request by promptly
delivering a Request for Loan in person or by telecopier
conforming to the preceding sentence to the Administrative
Agent. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request for
Loan 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.
(c) Promptly following receipt of a Request for Loan,
the Administrative Agent shall notify each Bank by telephone
or telecopier (and if by telephone, promptly confirmed by
telecopier) of the date and type of the Loan, the applicable
Eurodollar Period, and that Bank's Pro Rata Share of the Loan.
Not later than 11:00 a.m., California time, on the date
specified for any Loan (which must be a Banking Day), each
Bank shall make its Pro Rata Share of the Loan in immediately
available funds available to the Administrative Agent at the
Administrative Agent's Office. Upon satisfaction or waiver of
the applicable conditions set forth in Article 8, all Advances
shall be credited on that date in immediately available funds
to the Designated Deposit Account.
-32-
(d) Unless the Requisite Banks otherwise consent, each
Committed Loan shall be an integral multiple of $1,000,000 and
not less than $10,000,000.
(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 in connection with a Loan
which, if made and giving effect to the application of the
proceeds thereof, would not increase the outstanding principal
Indebtedness evidenced by the Committed Advance Notes, then
Borrower shall be deemed to have requested, as of the date
upon which the related then outstanding Loan is due pursuant
to Section 3.1(f)(i), an Alternate Base Rate Loan in an amount
equal to the amount necessary to cause the outstanding
principal Indebtedness evidenced by the Notes to remain the
same and, subject to Section 8.3, the Banks shall make the
Advances necessary to make such Loan notwithstanding
Sections 2.1(b), 2.2 and 2.3.
(h) If a Loan is to be made on the same date that
another Loan is due and payable, Borrower or the Banks, as the
case may be, shall make available to the Administrative Agent
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 Alternate Base Rate Loans. Each request by Borrower
for an Alternate 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 appli-
cable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:15 a.m.,
California time, on the date (which must be a Banking Day) of
the requested Alternate Base Rate Loan. All Committed Loans
shall constitute Alternate 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 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 10:00 a.m., California time, at least three
(3) Eurodollar Banking Days before the first day of the
applicable Eurodollar Period.
-33-
(b) On the date which is two (2) 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 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 ten (10) Eurodollar Rate
Loans shall be outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during
the existence of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank
to fund any Eurodollar Rate Advance in the Designated Euro-
dollar Market.
2.4 Competitive Advances.
--------------------
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the
Maturity Date, but only so long as the Senior Debt Rating is
BBB-/Baa3 or higher, each Bank may in its sole and absolute
discretion make Competitive Advances to Borrower in such
principal amounts as Borrower may request pursuant to a
Competitive Bid Request that do not result in (i) the
aggregate outstanding principal Indebtedness evidenced by the
Competitive Advance Notes being in excess of $750,000,000 or
(ii) the Outstandings being in excess of the then applicable
Commitment.
(b) Borrower shall request Competitive Advances by
submitting a Competitive Bid Request to the Administrative
Agent, which Competitive Bid Request shall specify the
relevant date, amount and maturity for the proposed
Competitive Advance and shall state whether a Competitive Bid
is requested on the basis of a fixed interest rate (an
"Absolute Rate Bid") or on the basis of a margin over the
Eurodollar Base Rate (a "Eurodollar Margin Bid"). 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 9:15 a.m. California
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 at
least five (5) Banking Days prior to the date of the proposed
Competitive Advance.
-34-
(c) Unless the Administrative Agent otherwise agrees,
in its sole and absolute discretion, no Competitive Bid
Request shall be made by Borrower if Borrower has, within the
immediately preceding five (5) Banking Days, submitted another
Competitive Bid Request.
(d) Each Competitive Bid Request must be made for a
Competitive Advance of at least $10,000,000 and shall be in an
integral multiple of $1,000,000.
(e) No Competitive Bid Request shall be made for a
Competitive Advance with a maturity of less than 7 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, 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
Domestic Reference Bank, not later than 7:15 a.m.) California
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 Domestic Reference
Bank) 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 Base 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 in the Competitive
Bid Request, but shall be an integral multiple of $1,000,000.
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Any Competitive Bid which offers an interest rate other than
a fixed interest rate or a margin over the Eurodollar Base
Rate, is in a form other than set forth in Exhibit D or which
otherwise contains any term, condition or provision not
contained in the Competitive Bid Request shall be disregarded
for purposes of this Agreement. A Competitive Bid once
submitted to the Administrative Agent shall be irrevocable
until 8:30 a.m. California 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 prior thereto.
(i) Promptly after 7:30 a.m. California time, in the
case of a Eurodollar Margin Loan, 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 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 Domestic Reference Bank) and the Maximum Competitive
Advance and fixed interest rate or margin over the Eurodollar
Base 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.
(j) Borrower may, in its sole and absolute discretion,
reject any or all of the Competitive Bids. If Borrower
accepts any Competitive Bid, the following shall apply:
(a) 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 must accept all Eurodollar Margin Bids at all
lower margins over the Eurodollar Base Rate before accepting
any portion of a Eurodollar Margin Bid at a higher margin over
the Eurodollar Base Rate, (c) if two or more Banks have
submitted a Competitive Bid at the same fixed interest rate or
margin, then 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 may not accept Competitive Bids
for an aggregate amount in excess of the requested Competitive
Advance set forth in the Competitive Bid Request. Acceptance
by Borrower of a Eurodollar Margin Rate Bid must be made prior
to 8:30 a.m. on the date which is three (3) Banking Days prior
to the requested Competitive Advance and acceptance by
Borrower of an Absolute Rate Bid must be made prior to
8:30 a.m. on the date of the requested Competitive Advance.
Acceptance of a Competitive Bid by Borrower shall be irrevoc-
able upon communication thereof to the Administrative Agent.
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The Administrative Agent shall promptly notify each of the
Banks whose Competi tive Bid has been accepted by Borrower by
telephone, which notification shall promptly be confirmed in
writing delivered in person or by telecopier to such Banks.
Any Competitive Bid not accepted by Borrower by 8:30 a.m., in
the case of a Eurodollar Margin Bid, on the date which is
three (3) Banking Days prior to the proposed Competitive
Advance or, in the case of an Absolute Rate Bid, on the date
of the proposed Competitive Bid, shall be deemed rejected.
(k) In the case of a Eurodollar Margin Bid, the
Administrative Agent shall determine the Eurodollar Base Rate
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 and the Banks whose
Eurodollar Margin Bids were accepted by Borrower of such
Eurodollar Base Rate.
(l) A Bank whose Competitive Bid has been accepted by
Borrower 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 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 Designated 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 a Bank shall be
evidenced by that Bank's Competitive Advance Note.
(o) No Competitive Advance may be prepaid without the
prior written consent of the affected Bank.
2.5 Letters of Credit.
-----------------
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Clos ing Date through the
Maturity Date, the Issuing Bank shall issue such Letters of
Credit under the Commitment as Borrower may request by a
Request for Letter of Credit; provided that (i) giving effect
to all such Letters of Credit, the Outstandings do not exceed
the then applicable Commitment and (ii) the Aggregate
Effective Amount under all outstanding Letters of Credit shall
-37-
not exceed $50,000,000. Unless all the Banks other wise
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 date that is five (5) Banking Days prior
to the Maturity Date. A Request for Letter of Credit shall be
irrevocable absent the consent of the Issuing Bank.
(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 a pro rata participation in
such Letter of Credit from the Issuing Bank in an amount equal
to that Bank's Pro Rata Share of the Commitment. 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 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 of the
Commitment, reimburse the Issuing Bank through the
Administrative Agent promptly upon demand for the amount of
such payment. The obligation of each Bank to so reimburse 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 reimbursement shall not
relieve or otherwise impair the obligation of 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 agrees 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 (1) Banking Day after 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 Default
Rate. 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. Each Bank that has reimbursed the
Issuing Bank pursuant to Section 2.5(c) for its Pro Rata Share
of any payment made by the Issuing Bank under a Letter of
Credit shall thereupon acquire a pro rata participation, to
the extent of such reimbursement, in the claim of the Issuing
Bank against Borrower under this Section 2.5(d) and shall
share, in accordance with that pro-rata participation, in any
payment made by Borrower with respect to such claim.
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(e) If Borrower fails to make the payment required by
Section 2.5(d) within the time period therein set forth, in
lieu of the reimbursement to the Issuing Bank under Section
2.5(c) the Issuing Bank may (but is not required to), without
notice to or the consent of Borrower, instruct the
Administrative Agent to cause Advances to be made by the Banks
under 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 to the Issuing Bank to reimburse it for
the payment made by it under the Letter of Credit. Such
Advances shall be payable upon demand and shall bear interest
at the Default Rate.
(f) 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.
(g) The obligation of 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 under Nevada Revised Statutes
Section 104.5109. Without limiting the foregoing, Borrower's
obligations shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement,
or any other agreement or instrument relating thereto,
with the consent of Borrower;
(iii) the existence of any claim, setoff, defense,
or other rights which 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 con-
nection 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;
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(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 for any
difference between any such Property and the character,
quality, quantity, condition, or value of such Property
as described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in
documents presented in connection with any Letter of
Credit or the existence, nature and extent of any
insurance relative thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a
Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the
Issuing 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;
(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.
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(h) The Issuing Bank shall be entitled to the pro-
tection accorded to the Administrative Agent pursuant to
Section 10.6, mutatis mutandis.
(i) 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.
2.6 Increase in the Commitment.
--------------------------
(a) Provided that no Default or Event of Default then
exists, Borrower may at any time request in writing that the
then effective Commitment be increased to an amount which is
not greater than $2,000,000,000 in accordance with the
provisions of this Section. Any request under this Section
shall be submitted by Borrower to the Banks through the
Administrative Agent not less than thirty (30) days prior to
the proposed increase, specify the proposed effective date and
amount of such increase and be accompanied by a Certificate of
a Responsible Official, signed by a Senior Officer of
Borrower, stating that no Default or Event of Default exists
as of the date of the request or will result from the
requested increase. Borrower 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 Borrower's request in
its sole and absolute discretion and, absent an affirmative
written response within fifteen (15) days after receipt of
Borrower's request, shall be deemed to have rejected
Borrower's request. The rejection of Borrower's request by
any number of Banks shall not affect Borrower's right to
increase the Commitment pursuant to this Section. No Bank
which rejects Borrower's request for an increase in the
Commitment shall be subject to removal as a Bank.
(c) In responding to Borrower's request, 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.
-41-
(d) If the aggregate principal amount offered to be assumed
by the consenting Banks is less than the amount requested by
Borrower, Borrower may (i) reject the proposed increase in its
entirety, (ii) accept the offered amounts or (iii) designate
new lenders who qualify as Eligible Assignees and which are
reasonably acceptable to the Administrative Agent as
additional Banks hereunder in accordance with clause (e) of
this Section (each, 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 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 by a
Commitment Assignment and Acceptance.
(f) Subject to the foregoing, any increase requested by
Borrower shall be effective as of the date proposed by
Borrower 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 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.
2.7 Voluntary Reduction of Commitment. Borrower shall have
the right, at any time and from time to time, without penalty or
charge, upon at least three (3) Banking Days' prior written
notice by a Responsible Official of Borrower to the
Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral
multiple of $1,000,000 but not less than $10,000,000, or to
terminate, all or a portion of the then undisbursed portion of
the Commitment, provided that any such reduction or termination
shall be accompanied by payment of all accrued and unpaid
commitment fees with respect to the portion of the Commitment
being reduced or terminated. The Administrative Agent shall
promptly notify the Banks of any reduction or termination of the
Commitment under this Section.
-42-
2.8 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 Borrower's
written notice to the Administrative Agent of such occurrence 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 thereof.
2.9 Extension of the Maturity Date. The Maturity Date may
be extended for one-year periods at the request of Borrower and
with the written consent of all of the Banks (which may be
withheld in the sole and absolute discretion of each Bank)
pursuant to this Section. Not earlier than March 1, 1998 nor
later than May 1, 1998, or in the corresponding period in each
subsequent year, and provided that Borrower is then in compliance
with Section 7.1, Borrower may deliver to the Administrative
Agent and the Banks a written request for a one year extension of
the Maturity Date together with a Certificate of a Responsible
Official signed by a Senior Officer on behalf of Borrower stating
that the representations and warranties contained in Article 4
(other than (i) 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, (ii) as otherwise disclosed by Borrower and approved
in writing by the Requisite Banks and (iii) Sections 4.4, 4.6
(first sentence), 4.7, 4.8, 4.9, 4.16 and 4.18) shall be true
and correct on and as of the date of such Certificate. Each Bank
shall, on or prior to May 20 of such year, notify in writing the
Administrative Agent whether (in its sole and absolute
discretion) it consents to such request and the Administrative
Agent shall, after receiving the notifications from all of the
Banks or the expiration of such period, whichever is earlier,
notify Borrower and the Banks of the results thereof. If all of
the Banks have consented, then the Maturity Date shall be
extended for one year.
If the Requisite Banks consent to the request for extension,
but one or more Banks notifies the Administrative Agent that it
will not consent to the request for extension (or fails to notify
the Administrative Agent in writing of its consent to the
extension by May 20), Borrower may cause such Bank(s) to be
removed as a Bank(s) under this Agreement pursuant to
Section 11.25, whereupon the Maturity Date shall be extended for
one year.
-43-
2.10 Administrative Agent's Right to Assume Funds Available
for Advances. Unless the Administrative Agent shall have been
notified by any Bank no later than the Banking Day prior to the
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 a corresponding amount.
If the Administrative Agent has made funds available to Borrower
based on such assumption and such corresponding amount is not in
fact made available to the Administrative Agent by such 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 and Borrower shall pay such
corresponding 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 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 or Borrower may have against any
Bank as a result of any default by such Bank hereunder.
2.11 Swing Line. The Swing Line Bank shall from time to
time through the day prior to the Maturity Date make Swing Line
Loans to Borrower in such amounts as Borrower may request,
provided that (i) giving effect to such Swing Line Loan, the
Swing Line Outstandings do not exceed $15,000,000, (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 that availability under the Swing Line
is suspended or terminated. Borrower 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 made to
the Swing Line Bank not later than 3:00 p.m., Nevada time, on the
Banking Day of the requested borrowing (which telephonic request
shall be promptly confirmed in writing by telecopier). Promptly
after receipt of such a request for borrowing, the Swing Line
Bank shall obtain telephonic verification from the Administrative
Agent that, giving effect to such request, availability for Loans
will exist under Section 2.1 (and such verification shall be
-44-
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 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., Nevada 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.
Swing Line Loans shall bear interest at a fluctuating rate
per annum equal to the Alternate Base Rate minus the Applicable
Commitment Fee Rate, 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. The
interest payable on Swing Line Loans is solely for the account of
the Swing Line Bank.
The Swing Line Loans shall be payable on demand made by the
Swing Line Bank and in any event on the Maturity Date.
Upon the making of a Swing Line Loan, 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 of the
Commitment times the amount of the Swing Line Loan. Upon demand
made by the Swing Line Bank, each Bank shall, according to its
Pro Rata Share of the Commitment, 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 and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event.
In the event that any Swing Line Outstandings remain
outstanding for three (3) consecutive Banking Days, then on the
next Banking Day (unless Borrower has made other arrangements
acceptable to the Swing Line Bank to repay the Swing Line
Outstandings), Borrower shall request a Committed Loan pursuant
to Section 2.1(a) in an amount complying with Section 2.1(d) and
sufficient to repay the Swing Line Outstandings. The
Administrative Agent shall automatically provide such amount to
the Swing Line Bank (which the Swing Line Bank shall then apply
to the Swing Line Outstandings) and credit any balance of the
Committed Loan in immediately available funds to the Designated
Deposit Account. In the event that Borrower fails to request a
Committed Loan within the time specified by Section 2.2 on any
such date, the Administrative Agent may, but is not required to,
without notice to or the consent of Borrower, cause Committed
-45-
Advances to be made by the Banks under the Commitment in the
amount necessary to comply with Section 2.1(d) and sufficient to
repay the Swing Line Outstandings and, for this purpose, the
conditions precedent set forth in Sections 8.1, 8.2 and 8.3 shall
not apply. The proceeds of such Committed Advances shall be paid
to the Swing Line Bank for application to the Swing Line
Outstandings.
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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 Alternate Base Rate
Loan on each Quarterly Payment Date, and on the date of any
prepayment of the Notes pursuant to Section 3.1(g), shall be
due and payable on that day. Except as otherwise provided in
Section 3.9, the unpaid principal amount of any Alternate Base
Rate Loan shall bear interest at a fluctuating rate per annum
equal to the Alternate Base Rate. Each change in the interest
rate under this Section 3.1(b) due to a change in the Alternate
Base Rate shall take effect simultaneously with the
corresponding change in the Alternate 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
Sections 3.1(e) and 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 Rate Margin plus, during each
Incremental Margin Period, the Incremental Margin (if
applicable).
(d) Interest accrued on each Competitive Advance
which is for a term of 90 days or less shall be due and payable
on the maturity date of the Competitive Advance. Interest
accrued on each other Competitive Advance shall be due and
payable on the date which is 90 days after the date such
Competitive Advance was made and on the maturity date of the
Competitive Advance. Each Competitive Advance shall bear
interest at the rate per annum set forth in the related
Competitive Bid.
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(e) During the existence of a Default or Event of
Default, the Requisite Banks may determine that any or all then
outstanding Eurodollar Rate Loans shall be converted to
Alternate Base Rate Loans. Such conversion shall be effective
upon notice to Borrower from the Requisite Banks (or from the
Administrative Agent on behalf of the Requisite Banks) and
shall continue so long as such Default or Event of Default
continues to exist.
(f) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each Eurodollar
Rate Loan shall be payable (subject to Section 2.1(g) on
the last day of the Eurodollar Period for such Loan;
(ii) the principal amount of each Competitive
Advance shall be payable on the maturity date specified in
the related Competitive Bid;
(iii) the amount, if any, by which the
Outstandings at any time exceed the Commitment shall be
payable immediately and shall be applied first, to the
Committed Advance Notes, second, to establish an interest-
bearing cash collateral account to secure outstanding
Letters of Credit, third to the Swing Line Outstandings
and fourth, pro-rata to the Competitive Advance Notes; and
(iv) the principal Indebtedness evidenced by the
Notes shall in any event be payable on the Maturity Date.
(g) The Committed Advance 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 $10,000,000, (ii) the
Administrative Agent shall have received written notice of any
prepayment by 9:00 a.m. California time on the date of prepayment
(which must be a Banking Day) in the case of an Alternate Base
Rate Loan, and, in the case of a Eurodollar Rate Loan, three (3)
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 shall be
accompanied by payment of interest accrued to the date of payment
on the amount of principal paid and (iv) any payment or prepay-
ment 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(d).
(h) No Competitive Advance Note may be prepaid
without the prior written consent of the Bank holding such
Competitive Advance Note.
3.2 Arrangement Fees. On the Closing Date, Borrower
shall pay to the Co-Arrangers arrangement fees in the amount
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heretofore agreed upon by letter agreement among Borrower and the
Co-Arrangers. The arrangement fees are for the services of the
Co-Arrangers in arranging the amended and extended credit
facility under this Agreement and are fully earned when paid.
The arrangement fee paid to each Co-Arranger is solely for its
own account and is nonrefundable.
3.3 Participation/Extension Fees. On the Closing Date,
Borrower shall pay to the Administrative Agent, for the
respective accounts of the Banks, participation/extension fees in
the respective amounts set forth in the Confidential Information
Memorandum distributed on or about January 30, 1997. Such
participation/extension fees are for the amended and extended
credit facility committed by each Bank under this Agreement and
are fully earned when paid. The participation/extension fees
paid to each Bank are solely for its own account and are
nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrower
shall pay to the Administrative Agent, for the ratable accounts
of the Banks pro rata according to their Pro Rata Share of the
Commitment, a commitment fee equal to the Applicable Commitment
Fee Rate per annum times the average daily amount by which the
Commitment exceeds the sum of (a) the aggregate outstanding
principal Indebtedness evidenced by the Committed Advance Notes
(excluding the Competitive Advances and Swing Line Outstandings)
plus (b) the Aggregate Effective Amount of all Letters of Credit
outstanding. The commitment fee shall be payable quarterly in
arrears on each Quarterly Payment Date and on the Maturity Date.
3.5 Letter of Credit Fees. With respect to each Letter of
Credit, Borrower shall pay the following fees:
(a) concurrently with the issuance, negotiation,
drawing or amendment of each Letter of Credit, the letter of
credit fees to the Issuing Bank for the sole account of the
Issuing Bank, in the amounts set forth in a letter agreement
between Borrower and the Issuing Bank; and
(b) concurrently with the issuance of each Letter of
Credit, to the Administrative Agent, for the ratable account of
the Banks in accordance with their Pro Rata Share of the
Commitment, a letter of credit fee in an amount equal to the
sum of the Applicable Letter of Credit Fee plus any then
applicable Incremental Margin times the face amount of such
Letter of Credit through the termination or expiration of such
Letter of Credit.
Each of the fees payable with respect to Letters of Credit under
this Section is earned when due and is nonrefundable.
-49-
3.6 Agency Fees. Borrower shall pay to the
Administrative Agent an agency fee in such amounts and at such
times as heretofore agreed upon by letter agreement between
Borrower and the Administrative Agent. 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 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 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. Each Bank's
determination of such amounts shall be conclusive in the absence
of manifest error. If Borrower is required to (and does) pay any
Bank a material amount under this Section, Borrower may cause
such Bank(s) to be removed as a Bank(s) under this Agreement
pursuant to Section 11.25.
3.8 Eurodollar Costs and Related Matters.
------------------------------------
(a) 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 Loans 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 Loans or its obligation to make Eurodollar
Rate Advances, excluding, in the case of each Bank, the
Administrative Agent, each Co-Agent and each Eligible
-50-
Assignee, and any Affiliate or Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in
part by its overall net income, gross income or gross
receipts or capital and franchise taxes imposed on it, 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" (unless it would not be doing business in such
jurisdiction (or political subdivision thereof) absent the
transactions contemplated hereby), (ii) any withholding
taxes or other taxes based on gross income imposed by the
United States of America (other than withholding taxes and
taxes based on gross income resulting from or attributable
to any change in any law, rule or regulation or any change
in the interpretation or administration of any law, rule
or regulation by any Governmental Agency) or (iii) any
withholding taxes or other taxes based on gross income
imposed by the United States of America for any period
with respect to which it has failed to provide Borrower
with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required
by applicable Laws;
(2) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the date
hereof (including, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System,
but excluding the Eurodollar Reserve Percentage taken into
account in calculating the Eurodollar Rate), 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 Loans, 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 Loans 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 Loans 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),
-51-
then, within five (5) Banking Days after demand by such Bank
(with a copy to the Administrative Agent), Borrower 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 Designated
Eurodollar Market). Borrower hereby indemnifies each Bank
against, and agrees to hold each Bank harmless from and
reimburse such Bank within ten (10) Banking Days after demand
for (without duplication) all costs, expenses, claims,
penalties, liabilities, losses, reasonable legal fees and
damages incurred or sustained by each Bank in connection with
this Agreement, or any of the rights, obligations or transac-
tions provided for or contemplated herein, as a direct result
of the existence or occurrence of any Special Eurodollar
Circumstance. 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. 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 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. If any Bank claims
compensation under this Section, Borrower 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 required by
Section 3.8(d), pay in full the affected Eurodollar Rate
Advances of such Bank or request that such Eurodollar Rate
Advances be converted to Alternate Base Rate Advances.
(b) 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 Loan, 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
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principal amount of such Bank's Eurodollar Rate Advances,
together with accrued interest thereon, automatically shall be
converted to Alternate Base Rate Advances with Interest Periods
corresponding to the Eurodollar Loans of which such Eurodollar
Rate Advances were a part on either (1) the last day of the
Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Bank may lawfully continue to 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 Section 3.8(d). 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 3.8(b), 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, such Bank shall fund such amount
as an Alternate Base Rate Advance for the same period of time,
and such amount shall be treated in all respects as an
Alternate Base Rate Advance. Any Bank whose obligation to make
Eurodollar Rate Advances has been suspended under this
Section 3.8(b) shall promptly notify the Administrative Agent
and Borrower of the cessation of the Special Eurodollar
Circumstance which gave rise to such suspension.
(c) 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;
-53-
then the Administrative Agent forthwith shall give notice
thereof to Borrower and the Banks, whereupon until the
Administrative Agent notifies Borrower that 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. If at the time of such notice there is then
pending a Request for Loan that specifies a Eurodollar Rate
Loan, such Request for Loan shall be deemed to specify an
Alternate Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar
Rate Advance (other than as the result of a conversion required
under Section 3.1(e) or 3.8(b)), on a day other than the last
day in the applicable Eurodollar Period (whether voluntarily,
involuntarily, by reason of acceleration, or otherwise), or
upon the failure of Borrower (for a reason other than the
failure of a Bank to make an Advance) to borrow on the date or
in the amount specified for a Eurodollar Rate Loan in any
Request for Loan, Borrower shall pay to the appropriate Bank
within ten (10) Banking Days after demand a prepayment fee or
failure to borrow fee, as the case may be (determined as though
100% of the 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, as the case may be, times
[the number of days between the date of prepayment or
failure to borrow, as applicable, and the last day in the
applicable 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
payable under this Section 3.8(d) shall be conclusive in the
absence of manifest error.
(e) If Borrower is required to (and does) pay any
Bank a material amount under this Section 3.8, Borrower may
cause such Bank(s) to be removed as a Bank(s) under this
Agreement pursuant to Section 11.25.
-54-
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
Alternate Base Rate plus 2%, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest)
shall be compounded monthly, on the last day of each calendar
month, to the fullest extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of
interest on Alternate Base Rate Loans shall be calculated on the
basis of a year of 365 or 366 days, as the case may be, and the
actual number of days elapsed; computation of interest on
Eurodollar Rate Loans and all fees under this Agreement shall be
calculated on the basis of a year of 360 days and the actual
number of days elapsed. Borrower acknowledges that such latter
calculation method will result in a higher yield to the 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.
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 2.11, 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 12:30 p.m., California time, on the day of payment (which
must be a Banking Day). All payments received after
12:30 p.m., California 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 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 12:30 p.m., California 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.
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(b) Each payment or prepayment on account of any
Committed Loan shall be applied pro rata according to the
outstanding Advances made by each Bank comprising such
Committed Loan. Each payment or (subject to Section 3.1(g))
prepayment on account of a Competitive Advance shall be applied
to the Competitive Advance Note held by the Bank which made
such Competitive Advance.
(c) Each Bank shall use its best efforts to keep a
record of Advances made by it and payments received by it with
respect to each of its Notes and, subject to Section 10.6(g),
such record shall, as against Borrower, be presumptive evidence
of the amounts owing. Notwithstanding the foregoing sentence,
no Bank shall be liable to any Party for any failure to keep
such a record.
(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, in the case of each Bank, the Agents and
each Eligible Assignee, and any Affiliate or Eurodollar Lending
Office thereof, (i) taxes imposed on or measured in whole or in
part by its overall net income, gross income or gross receipts
or capital and franchise taxes imposed on it, 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" (unless it
would not be doing business in such jurisdiction (or political
subdivision thereof) absent the transactions contemplated
hereby), (ii) any withholding taxes or other taxes based on
gross income imposed by the United States of America (other
than withholding taxes and taxes based on gross income
resulting from or attributable to any change in any law, rule
or regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Agency) or (iii) any withholding taxes or other
taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to
provide Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by
applicable Laws (all such non-excluded taxes, assessments or
other charges being hereinafter referred to as "Taxes"). To
the extent that Borrower is obligated by applicable Laws to
make any deduction or withholding on account of Taxes from any
amount payable to any Bank under this Agreement, Borrower shall
(i) make such deduction or withholding and pay the same to the
relevant Governmental Agency and (ii) pay such additional
amount to that 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.
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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.
3.14 Failure to Charge Not Subsequent Waiver. Any deci-
sion by the Administrative Agent or any Bank not to require
payment of any interest (including interest arising under
Section 3.9), 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 arising
under Section 3.9), fee, cost or other amount payable under any
Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other
or subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will
be Made by Borrower. Unless the Administrative Agent shall have
been notified by Borrower prior to the date on which any payment
to be made by Borrower hereunder is due that Borrower does not
intend to remit such payment, the Administrative Agent may, in
its discretion, assume that Borrower has remitted such payment
when so due and the Administrative Agent may, in its discretion
and in reliance upon such assumption, make available to each Bank
on such payment date an amount equal to such Bank's share of such
assumed payment. If Borrower has not in fact remitted such pay-
ment 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
regarding the manner in which the amount of any payment to the
Administrative Agent and the Banks, or that Bank, under Article 3
has been determined, concurrently with demand for such payment.
3.17 Survivability. All of Borrower's obligations under
Sections 3.7 and 3.8 shall survive for ninety (90) days following
the date on which the Commitment is terminated, all Loans
hereunder are fully paid and all Letters of Credit have expired.
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Article 4
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to the Banks, as of the
date hereof and as of the Closing Date, that:
4.1 Existence; Power. Borrower is a corporation duly
incorporated, validly existing and in good standing under the
Laws of Nevada, and has all corporate power and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. The execution, delivery
and performance by Borrower of the Loan Documents to which it is
a Party have been duly authorized by all necessary corporate
action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security holder
or creditor of Borrower;
(b) Violate or conflict with any provision of
Borrower's articles of incorporation or bylaws;
(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 Borrower
or any of its Restricted Subsidiaries;
(d) Violate any Requirement of Law applicable to
Borrower or its Significant Subsidiaries; or
(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 Borrower is a party or by
which any of Borrower's Property is bound or affected.
4.3 No Governmental Approvals Required. 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 or any other
Party of the Loan Documents to which it is a Party, except to the
extent that the same have been previously obtained or made.
4.4 Significant Subsidiaries.
------------------------
(a) Schedule 4.4 hereto correctly sets forth as of
the Closing Date the name, form of legal entity, jurisdiction
of incorporation and direct ownership of each Significant
Subsidiary.
-58-
(b) Each Significant Subsidiary is a corporation
duly incorporated, validly existing and in good standing under
the Laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
4.5 Financial Statements. Borrower has furnished to the
Banks (a) the audited consolidated financial statements of
Borrower and its Subsidiaries for the Fiscal Year ended
December 31, 1995 and (b) the unaudited consolidated balance
sheet and statement of operations of Borrower and its
Subsidiaries for the nine month fiscal period ended September 30,
1996. The financial statements described in clause (a) fairly
present in all material respects the consolidated financial
condition, results of operations and cash flows, and the balance
sheet and statement of operations described in clause (b) fairly
present in all material respects the consolidated financial
condition and results of operations, 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. Borrower and its Subsidiaries
do not have any material liability or material contingent
liability not reflected or disclosed in the balance sheet
described in Section 4.5(b), other than (i) the Senior Notes,
(ii) Commercial Paper Outstandings incurred since the date of
such financial statements, and (iii) other 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 since September 30,
1996, that constitutes a Material Adverse Effect.
4.7 Title to Property. As of the Closing Date, Borrower
and the Restricted Subsidiaries have valid title to the Property
reflected in the balance sheet described in Section 4.5(b), other
than items of Property which are immaterial to Borrower and its
Subsidiaries, taken as a whole, 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 Liens or Rights of
Others described in Schedule 4.7 or permitted by Section 6.5 or
Permitted Rights of Others. Borrower owns or has the right to
occupy and use, directly or indirectly, 100% of the Core Assets
and such Core Assets are free and clear of all Liens and Rights
of Others, other than Liens or Rights of Others described in
Schedule 4.7 or permitted by Section 6.5 or Permitted Rights of
Others.
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4.8 Intangible Assets. As of the Closing Date, Borrower
and the Restricted Subsidiaries own, or possess the right to use
to the extent necessary in their respective businesses, all
material trademarks, trade names, copyrights, patents, patent
rights, licenses and other Intangible Assets that are used in the
conduct of their businesses as now operated, and no such
Intangible Asset, to the best knowledge of Borrower, conflicts
with the valid trademark, trade name, copyright, patent, patent
right or Intangible Asset of any other Person to the extent that
such conflict constitutes a Material Adverse Effect.
4.9 Litigation. Except for (a) any matter fully covered
as to subject matter and amount (subject to applicable
deductibles and retentions) by insurance for which the insurance
carrier 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 or charge against Borrower or any of
the Restricted Subsidiaries of less than $10,000,000 or which
otherwise may not reasonably be expected to result in a Material
Adverse Effect, (c) matters of an administrative or regulatory
nature not involving a claim or charge against Borrower or any of
the Restricted Subsidiaries and (d) matters set forth in Sched-
ule 4.9, there are no actions, suits, proceedings or investi-
gations pending as to which Borrower or any of the Restricted
Subsidiaries have been served or have received notice or, to the
best knowledge of Borrower, threatened against or affecting
Borrower or any of the Restricted Subsidiaries or any Property of
any of them before any Governmental Agency.
4.10 Binding Obligations. Each of the Loan Documents to
which Borrower is a party will, when executed and delivered, con-
stitute the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, except
as enforcement may be limited by Debtor Relief Laws, Gaming Laws
or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial
discretion.
4.11 No Default. No event has occurred and is continuing
that is a Default or Event of Default.
4.12 ERISA.
-----
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to
the extent that noncompliance could reasonably be
expected to have a Material Adverse Effect;
(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;
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(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 ERISA
Affiliates 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 ERISA
Affiliates has incurred or expects to incur any withdrawal
liability to any Multiemployer Plan that could reasonably
be expected to have a Material Adverse Effect.
4.13 Regulations G, T, U and X; Investment Company
Act. No part of the proceeds of any Loan hereunder will be
used to purchase or carry, or to extend credit to others for
the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations G, T, U and X. Borrower is not and is
not required to be registered as an "investment company" under
the Investment Company Act of 1940, as amended.
4.14 Disclosure. No written statement made by a
Senior Officer to the Agents 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.
4.15 Tax Liability. Borrower and the Restricted
Subsidiaries have filed all United States federal income tax
returns and all other material tax returns which are required
to be filed by them, and have paid, or made provision for the
payment of, all taxes with respect to the periods covered by
said returns, or pursuant to any assessment received by
Borrower or any of the Restricted Subsidiaries, except (a) such
taxes, if any, as are being contested in good faith by
appropriate proceedings and as to which reserves have been
established and maintained in amounts which are adequate in the
opinion of Borrower, and (b) immaterial taxes so long as no
material item or portion of Property of Borrower or any of the
Restricted Subsidiaries is in jeopardy of being seized, levied
upon or forfeited.
4.16 Projections. As of the Closing Date, to the
best knowledge of Borrower, the assumptions set forth in the
Projections are reasonable and consistent with each other and
with all facts known to Borrower, and the Projections are
reasonably based on such assumptions. Nothing in this Sec-
tion shall be construed as a representation or covenant that
the Projections or any specific financial results in fact will
be achieved.
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4.17 Hazardous Materials Laws. Borrower has
reasonably concluded that Hazardous Materials Laws are unlikely
to have a Material Adverse Effect.
4.18 Developed Properties. As of the Closing Date,
the facilities described on Schedule 4.18 comprise all of the
Developed Properties owned by Borrower and the Restricted
Subsidiaries.
4.19 Gaming Laws. Borrower and the Significant
Subsidiaries are in compliance with all Gaming Laws that are
applicable to them, non-compliance with which is reasonably
likely to constitute a Material Adverse Effect.
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Article 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND
---------------------------
REPORTING REQUIREMENTS)
-----------------------
Borrower covenants and agrees that, so long as any
Advance remains unpaid, or any other Obligation remains unpaid
or unperformed, or any portion of the Commitment remains in
force, unless the Administrative Agent (with the written
approval of the Requisite Banks) otherwise consents:
5.1 Preservation of Existence. Borrower shall, and
shall cause each Significant Subsidiary to, preserve and
maintain their respective existences in the jurisdiction of
their formation and all material authorizations, rights,
franchises, privileges, consents, approvals, orders, licenses,
permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business,
except where the failure to so preserve and maintain the
existence of any Significant Subsidiary and such authorizations
would not constitute a Material Adverse Effect and except that
a merger permitted by Section 6.2 shall not con stitute a vio-
lation of this covenant; and qualify and remain qualified to
transact business in each jurisdiction in which such qual-
ification is necessary in view of their respective business or
the ownership or leasing of their respective Properties, except
where the failure to so qualify or remain qualified would not
constitute a Material Adverse Effect.
5.2 Maintenance of Properties. Borrower shall, and
shall cause each Significant Subsidiary to, maintain, preserve
and protect all of their respective depreciable Properties in
good order and condition, subject to wear and tear in the
ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain,
preserve and protect a particular item of depreciable Property
that is not of significant value, either intrinsically or to
the operations of Borrower and its Subsidiaries, taken as a
whole, shall not constitute a violation of this covenant.
5.3 Maintenance of Insurance. Borrower shall, and
shall cause each Significant Subsidiary to, 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 the
Significant Subsidiaries operate; provided, however, that
Borrower may self-insure with respect to such risks as such
responsible companies would self-insure.
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5.4 Compliance With Laws. Borrower shall, and shall
cause each Significant Subsidiary to, comply, within the time
period, if any, given for such compliance by the relevant
Governmental Agency or Agencies with enforcement authority,
with all Requirements of Law (including all Hazardous Materials
Laws and ERISA), noncompliance with which constitutes a
Material Adverse Effect, except that Borrower and the
Significant Subsidiaries need not comply with a Requirement of
Law then being contested by any of them in good faith by
appropriate proceedings.
5.5 Inspection Rights. Borrower shall, and shall
cause each of its Subsidiaries to, upon reasonable notice, at
any time during regular business hours and as often as
requested (but not so as to materially interfere with the
business of Borrower or any of its Subsidiaries or the
performance by any officer of his or her responsibilities),
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 the Restricted
Subsidiaries with any of their officers, key employees or
accountants. The rights of the Administrative Agent and the
Banks under this Section shall be exercised at the sole expense
of the Administrative Agent and the Banks, unless an Event of
Default has occurred and remains continuing (in which case such
expenses shall be for the account of Borrower in accordance
with Section 11.3).
5.6 Keeping of Records and Books of Account.
Borrower shall, and shall cause each of its Subsidiaries to,
keep proper records and books of account reflecting all
financial transactions in conformity with Generally Accepted
Accounting Principles, consistently applied, and in material
conformity with all applicable requirements of any Governmental
Agency having regulatory jurisdiction over Borrower or any of
its Subsidiaries.
5.7 Use of Proceeds. Borrower shall use the
proceeds of Loans for working capital and general corporate
purposes of Borrower and its Subsidiaries, including but not
limited to (a) refinancing all outstanding obligations under
the Existing Loan Agreement, (b) support for the issuance of
commercial paper by Borrower, (c) funding the development and
construction of Bellagio and Beau Rivage, (d) funding of New
Ventures, and (e) funding of Investments and Acquisitions.
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Article 6
NEGATIVE COVENANTS
------------------
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, Borrower shall not, and shall not
permit any of the Restricted Subsidiaries to, 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 Disposition of Core Assets. Make any sale, transfer
or other disposition of any Core Asset, whether now owned or
hereafter acquired, provided, however, that this Section shall
not apply to prohibit such a disposition to the extent necessary
to prevent a License Revocation if (a) no Default or Event of
Default then exists which is not curable by such disposition or
results from any such disposition, (b) Borrower has notified the
Administrative Agent in writing of the necessity to invoke this
proviso at least ten (10) Banking Days (or such shorter period as
may be necessary in order to comply with a regulation or order of
the relevant Gaming Board) in advance and (c) the Net Cash
Proceeds from such disposition are paid to the Administrative
Agent for the account of the Banks promptly after receipt and
applied to reduce the principal outstanding under the Committed
Advance Notes (first, to Alternate Base Rate Loans and thereafter
to Eurodollar Rate Loans, shortest Eurodollar Periods first), and
provided further that nothing in this Section shall apply to
restrict the disposition of any of the equity securities of any
Person that holds, directly or indirectly through a holding
company or otherwise, a license under any Gaming Law to the
extent such restriction is unlawful under that Gaming Law.
6.2 Mergers. Merge or consolidate Borrower with or into
any Person, except where either (a) Borrower is the surviving
entity or (b) the surviving entity is a corporation organized
under the Laws of a State of the United States of America or the
District of Columbia and, as of the date of such merger or
consolidation, expressly assumes, by an appropriate instrument,
the Obligations of Borrower; provided that (i) giving effect
thereto on a pro-forma basis, no Default or Event of Default
exists or would result therefrom and (ii) as a result thereof, no
Change in Control has occurred.
6.3 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.
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6.4 Change in Nature of Business. Make any material
change in the general nature of the business of Borrower and its
Subsidiaries, taken as a whole; provided that the acquisition of
an ownership interest in one or more New Ventures shall not be
construed to violate this covenant.
6.5 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 their respective Properties, or engage in
any sale and leaseback transaction with respect to any of their
respective 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;
(d) any Lien or Negative Pledge on shares of any
equity security or any warrant or option to purchase an
equity security or any security which is convertible into,
or exchangeable for, an equity security issued by Borrower
or any Restricted Subsidiary that holds, directly or
indirectly through a holding company or otherwise, a license
under any Gaming Law provided that this clause (d) shall
apply only so long as such Gaming Law provides that the
creation of any restriction on the disposition of any of
such securities shall not be effective or shall not be
effective without the approval of the relevant Gaming Board
and, if such Gaming Law at any time ceases to so provide,
then this clause (d) shall be of no further effect; and
provided further that if at any time Borrower creates or
suffers to exist a Lien or Negative Pledge covering such
securities in favor of the holder of any other Indebtedness,
it will (subject to any approval required under applicable
Gaming Laws) concurrently grant a pari passu Lien or
Negative Pledge likewise covering such securities in favor
of the Administrative Agent for the benefit of the Banks;
(e) Liens and Negative Pledges on Property acquired
by Borrower or any of the Restricted Subsidiaries (whether
the acquisition was of the Property itself or of the
securities of the Person which owns the Property) that were
in existence at the time of the acquisition of such Property
and were not created in contemplation of such acquisition;
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(f) Liens securing Indebtedness incurred to finance
the acquisition or construction of capital assets that are
limited to the capital assets acquired or constructed
(whether such Indebtedness was incurred prior to or at the
time of such acquisition or construction, or within twelve
months thereafter);
(g) Liens and Negative Pledges created by an
agreement or instrument entered into by Borrower or a
Restricted Subsidiary in the ordinary course of its business
which consists of a restriction on the assignability,
transfer or hypothecation of such agreement or instrument;
(h) Liens and Negative Pledges on any direct or
indirect ownership interest of Borrower or any Restricted
Subsidiary in Victoria Partners or Monte Carlo;
(i) Liens arising in the ordinary course of business
of Borrower and the Restricted Subsidiaries that do not
(i) secure Indebtedness of Borrower or any Restricted
Subsidiary, (ii) secure any single obligation of Borrower or
a Restricted Subsidiary in excess of $50,000,000 and
(iii) when aggregated with all other Liens permitted by this
Section 6.5(i), materially impair the value of the assets
subject to such Liens or the ability of Borrower and the
Restricted Subsidiaries to conduct their businesses;
(j) Negative Pledges benefiting debt securities of
Borrower or any of the Restricted Subsidiaries that are in
substance the same in all material respects as the Negative
Pledge benefiting the Senior Notes, or which are less
beneficial to such debt securities than the Negative Pledge
benefiting the Senior Notes;
(k) Negative Pledges benefiting debt securities of
Borrower or any of the Restricted Subsidiaries that are more
beneficial to such debt securities than the Negative Pledge
benefiting the Senior Notes, provided that concurrently with
the granting of any such Negative Pledge, Borrower shall be
deemed to have granted a co-extensive and ratable Negative
Pledge to the Administrative Agent and the Banks for the
benefit of the Obligations (without derogation of the
Negative Pledge contained in this Section 6.5), and Borrower
and any affected Restricted Subsidiary shall promptly
execute and deliver any instruments, documents or agreements
reasonably requested by the Administrative Agent to confirm
the granting of such a coextensive and ratable Negative
Pledge;
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(l) Liens and Negative Pledges not described in
clauses (a) through (k) above that secure or benefit
Indebtedness of Borrower or any Restricted Subsidiary, and
sale and leaseback transactions entered into by Borrower or
the Restricted Subsidiaries, which, when added to all
outstanding Indebtedness so secured or benefitted as
permitted by this Section 6.5(l), does not exceed an amount
equal to ten percent (10%) of Tangible Net Worth as of the
last day of the Fiscal Quarter immediately preceding the
incurrence of the most recent such Indebtedness (with the
understanding that, solely for the purpose of determining
compliance with this clause (l), the Attributable Value of
each such sale and leaseback transaction shall be treated as
Indebtedness); and
(m) Liens securing, Negative Pledges relating to,
and sale and leaseback transactions which are, renewals,
extensions, refinancings or amendments of transactions
described in clauses (a) through (l) above; provided that
(i) the obligations secured or benefited thereby are not
increased (other than to cover associated transactional
expenses), and (ii) the Property affected thereby is not
increased;
provided, that this Section shall not apply to prohibit the
creation of a Lien or Negative Pledge to the extent necessary to
prevent a License Revocation if (A) no Default or Event of
Default then exists which is not curable by creation of the Lien
or Negative Pledge and (B) Borrower has notified the
Administrative Agent in writing of the necessity to invoke this
proviso at least ten (10) Banking Days (or such shorter period as
may be necessary in order to comply with a regulation or order of
the relevant Gaming Board) in advance.
6.6 Leverage Ratio. Permit the Leverage Ratio, as of the
last day of any Fiscal Quarter ending during a period described
below, to be greater than the ratio set forth opposite that
period:
Period Ratio
-------------------------------------- -------------
Closing Date through December 31, 1997 4.00 to 1.00
January 1, 1998 through December 31, 1998 5.00 to 1.00
January 1, 1999 and thereafter 4.00 to 1.00
6.7 Restricted Expenditures. Prior to the Bellagio
Opening Date, make any Restricted Expenditure if to do so would
result in the aggregate Restricted Expenditures made on and after
January 1, 1997 exceeding the Restricted Expenditure Basket.
6.8 Commercial Paper. Permit the Commercial Paper
Outstandings to exceed $1,000,000,000 at any time.
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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 other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains in force,
Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Banks) otherwise consents, at
Borrower's sole expense, deliver to the Administrative Agent for
distribution by it to the Banks one (1) copy (or, in the case of
any document which is commercially printed and bound, 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
balance sheet of Borrower and its Subsidiaries as at the end
of such Fiscal Quarter, the consolidated statement of
operations for such Fiscal Quarter, and its statement of
cash flows for the portion of the Fiscal Year ended with
such Fiscal Quarter, all in reasonable detail. Such
financial statements shall be certified by a Senior Officer
of Borrower as fairly presenting the financial condition,
results of operations and cash flows of Borrower and its
Subsidiaries in accordance with Generally Accepted
Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods,
subject only to normal year-end accruals and audit
adjustments;
(b) As soon as practicable, and in any event within
105 days after the end of each Fiscal Year the consolidated
balance sheet of Borrower and its Subsidiaries as at the end
of such Fiscal Year and the consolidated statements of
operations, stockholders' equity and cash flows, in each
case of Borrower and its Subsidiaries for such Fiscal Year.
Such financial statements shall be prepared in accordance
with Generally Accepted Accounting Principles, consistently
applied, and such consolidated balance sheet and ▇▇▇▇▇▇▇-
dated statements shall be accompanied by a report of
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
-69-
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 6.6 and 6.7, 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;
(c) 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
generally, and copies of all annual, periodic and special
reports and registration statements (other than the exhibits
thereto) 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 7.1;
(d) 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 the Restricted
Subsidiaries with any Governmental Agency;
(e) Promptly upon a Senior Officer becoming aware,
and in any event within ten (10) Banking Days after becoming
aware, of the occurrence of any (i) "reportable event" (as
such term is defined in Section 4043 of ERISA) or
(ii) "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) in
connection with any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature thereof,
and, no more than five (5) Banking Days after such
telephonic notice, written notice again specifying the
nature thereof and specifying what action Borrower or any of
the Restricted Subsidiaries is taking or proposes to take
with respect thereto, and, when known, any action taken by
the Internal Revenue Service with respect thereto;
(f) As soon as practicable, and in any event within
three (3) Banking Days after a Senior Officer becomes aware
of the existence of any condition or event which constitutes
a 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 any of its
Restricted Subsidiaries are taking or propose to take with
respect thereto;
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(g) On each day upon which Borrower issues
commercial paper, a Certificate of a Responsible Official,
in a form and in detail reasonably acceptable to the
Administrative Agent, setting forth the amount of commercial
paper so issued and the maturity date thereof and, giving
effect thereto, the aggregate principal amount of the
Commercial Paper Outstandings;
(h) Within three Banking Days of Borrower's
receiving notice of any change in the Senior Debt Rating,
written notice of such change;
(i) Prior to March 1 of each year, a calculation of
the Leverage Ratio as of the last day of the immediately
preceding Fiscal Year, and of any resulting Incremental
Margin, certified as true and correct by a Senior Officer of
Borrower; and
(j) Such other 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 other Obligation remains unpaid or unper-
formed, or any portion of the Commitment remains outstanding,
Borrower shall, at Borrower's sole expense, deliver to the
Administrative Agent for distribution by it to the Banks con-
currently with the financial statements required pursuant to
Sections 7.1(a) and 7.1(b), one (1) original Compliance
Certificate signed by a Senior Officer.
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Article 8
CONDITIONS; EFFECT OF CLOSING DATE
----------------------------------
8.1 Initial Advances, Etc.. The obligation of each Bank
to make the initial Advance to be made by it, or the obligation
of the Issuing Bank to issue the initial Letter of Credit (as
applicable), is subject to the following conditions precedent,
each of which shall be satisfied prior to the making of the
initial Advances or issuance of the initial Letter of Credit
(unless all of the Banks, in their sole and absolute discretion,
shall agree otherwise):
(a) The Documentation 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
Documentation Agent and its legal counsel (unless otherwise
specified or, in the case of the date of any of the
following, unless the Documentation Agent otherwise agrees
or directs):
(1) at least one (1) executed counterpart of
this Agreement, together with arrangements satis-
factory to the Documentation Agent for additional
executed counterparts, sufficient in number for
distribution to the Banks and Borrower;
(2) Committed Advance Notes executed by
Borrower in favor of each Bank, each in a
principal amount equal to that Bank's Pro Rata
Share of the Commitment;
(3) Competitive Advance Notes executed by
Borrower in favor of each Bank, each in the
principal amount of $750,000,000;
(4) Such documentation as the Documentation
Agent may require to establish the due organiza-
tion, valid existence and good standing of
Borrower, its qualification to engage in business
in each material jurisdiction in which it is
engaged in business or required to be so
qualified, its authority to execute, deliver and
perform the Loan Documents, the identity,
authority and capacity of each Responsible
Official thereof authorized to act on its behalf,
including certified copies of its articles of
incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing
and/or qualification to engage in business,
certificates of corporate resolutions, incumbency
certificates, Certificates of Responsible
Officials, and the like;
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(5) the Opinions of Counsel;
(6) the executed Termination Agreement;
(7) the executed Exit Agreement;
(8) the executed Negative Pledge Termination
Agreement;
(9) a Certificate of a Responsible Official
signed by a Senior Officer of Borrower certifying
that the conditions specified in Sections 8.1(g)
and 8.1(h) have been satisfied; and
(10) such other assurances, certificates, docu-
ments, consents or opinions as the Documentation
Agent reasonably may require.
(b) The arrangement fees payable pursuant to
Section 3.2 shall have been paid.
(c) The participation/extension fees payable
pursuant to Section 3.3 shall have been paid.
(d) The agency fees payable on the Closing Date
pursuant to Section 3.6 shall have been paid.
(e) All amounts (principal, interest and fees)
payable to the Banks under the Existing Loan Agreement shall
have been paid.
(f) The reasonable costs and expenses of the Agents
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.
(g) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(h) Borrower shall be in compliance with all the
terms and provisions of the Loan Documents, and giving
effect to the initial Advances (or initial Letter of Credit,
as applicable) no Default or Event of Default shall have
occurred and be continuing.
(i) All legal matters relating to the Loan Documents
shall be satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ &
Hampton, LLP, special counsel to the Administrative Agent
and the Documentation Agent.
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8.2 Any Increasing Advance, Etc. The obligation of each
Bank to make any Advance which would increase the principal
amount outstanding under the Notes, and the obligation of the
Issuing Bank to issue a Letter of Credit, is subject to the
following conditions precedent:
(a) except (i) for representations and warranties
which expressly speak as of a particular date or are no
longer true and correct as a result of a change which is
permitted by this Agreement or (ii) as disclosed by Borrower
and approved in writing by the Requisite Banks, the
representations and warranties contained in Article 4 (other
than Sections 4.4, 4.6, 4.7, 4.8, 4.9, 4.16 and 4.18) shall
be true and correct on and as of the date of the Advance as
though made on that date;
(b) the Administrative Agent shall have timely
received a Request for Loan in compliance with Article 2 (or
telephonic or other request for Loan referred to in the
second sentence of Section 2.1(b), if applicable) or the
Issuing Bank shall have received a Request for Letter of
Credit, as the case may be, in compliance with Article 2;
and
(c) the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent,
such other assurances, certificates, documents or consents
related to the foregoing as the Administrative Agent or
Requisite Banks reasonably may require.
8.3 Any Advance. The obligation of each Bank to make any
Advance (other than an Alternate Base Rate Advance with respect
to an Alternate Base Rate Loan which, if made, would not increase
the outstanding principal Indebtedness evidenced by the Notes) is
subject to the conditions precedent that (a) the representations
and warranties contained in Sections 4.1, 4.2, 4.3, 4.10, 4.11
(but only with respect to Events of Default) and 4.13 shall be
true and correct in all material respects on the date of such
Advance as though made on that date except as disclosed by
Borrower and approved in writing by the Requisite Banks, and
(b) except as provided for in Section 2.1(g), the Administrative
Agent shall have timely received a Request for Loan in compliance
with Article 2 (or telephonic or other request for Loan referred
to in the second sentence of Section 2.1(b), if applicable).
8.4 Effect of the Closing Date. The Exit Agreement shall
be deemed to be effective concurrently with the Closing Date, and
upon such effectiveness, each Exiting Bank shall no longer be
deemed to be a party to the Existing Loan Agreement and the other
Loan Documents thereunder for any purpose. Each Bank, the
Administrative Agent and Borrower shall, on the Closing Date,
make such payments through the Administrative Agent as are
necessary (giving effect to any Loan requested by Borrower on the
Closing Date) to result in each Bank having the Pro Rata Share of
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any outstanding Indebtedness under this Agreement as is set forth
on Schedule 1.1 hereto. On the Closing Date, the Notes and the
Subsidiary Guaranty under the Existing Loan Agreement shall be
cancelled and terminated, and each Bank shall promptly thereafter
return its Notes under the Existing Loan Agreement to Borrower
marked "cancelled".
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
----------------------------------------------------
9.1 Events of Default. The existence or occurrence of
any one or more of the following events, whatever the reason
therefor and under any circumstances whatsoever, shall constitute
an Event of Default:
(a) Borrower fails to pay any principal on any of
the Notes, or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under 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 fails to comply with any of the
covenants contained in Article 6 (other than Sections 6.3
and 6.4); or
(d) Borrower fails to comply with Section 7.1(f) in
any respect that is materially adverse to the interests of
the Banks; or
(e) Borrower 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
ten (10) Banking Days after the giving of notice by the
Administrative Agent on behalf of the Requisite Banks of
such Default; or
(f) Any representation or warranty of Borrower or
any other Party made in any Loan Document, or in any
certificate or other writing delivered by Borrower or such
other 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 the Restricted Subsidiaries
(i) fails to pay the principal, or any principal
installment, of any present or future Indebtedness for
borrowed money of $50,000,000 or more, or any guaranty of
present or future Indebtedness for borrowed money of
$50,000,000 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 to occur, in
connection with any present or future Indebtedness for bor-
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rowed money of $50,000,000 or more, or of any guaranty of
present or future Indebtedness for borrowed money of
$50,000,000 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 immediate right to
declare such Indebtedness due before the date on which it
otherwise would become due; or
(h) A final judgment against Borrower or any of the
Restricted Subsidiaries is entered for the payment of money
in excess of $50,000,000 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) calendar 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
(i) Borrower or any of the Significant 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 sixty
(60) calendar days; or any proceeding under a Debtor Relief
Law relating to any such Person or to all or any part of its
Property is instituted without the consent of that Person
and continues undismissed or unstayed for sixty (60)
calendar days; or
(j) 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
(k) Any Pension Plan maintained by Borrower or any
of its ERISA Affiliates 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
(l) The occurrence of a License Revocation that
continues for thirty (30) consecutive calendar days with
respect to gaming operations at any gaming facility
accounting for five percent (5%) or more of the consolidated
total assets or consolidated gross revenues of Borrower and
its Subsidiaries.
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9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Agent or the Banks
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(i):
(1) the Commitment to make Advances, the
obligation of the Issuing Bank to issue Letters of
Credit and all other obligations of the
Administrative Agent or the Banks and all rights
of Borrower and any other Parties under the Loan
Documents shall be suspended without notice to or
demand upon Borrower, which are expressly waived
by Borrower, except that all of the 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 make further Advances, 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 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 Notes, all interest accrued and
unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be
forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly
waived by Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(i):
(1) the Commitment to make Advances, the
obligation of the Issuing Bank to issue Letters of
Credit and all other obligations of the
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Administrative Agent or the Banks and all rights
of Borrower and any other Parties under the Loan
Documents shall terminate without notice to or
demand upon Borrower, which are expressly waived
by Borrower, except that all 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
make further Advances, 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, which
are expressly waived by Borrower, 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.
(c) Upon the occurrence of any Event of Default, the
Banks and the Administrative Agent, or any of them, without
notice to (except as expressly provided for in any Loan
Document) or demand upon Borrower, which are expressly
waived by Borrower (except as to notices expressly provided
for in any Loan Document), may proceed (but only with the
consent of the Requisite Banks) to protect, exercise and
enforce their rights and remedies under the Loan Documents
against Borrower and any other Party and such other rights
and remedies as are provided by Law or equity.
(d) The order and manner in which the Banks' rights
and remedies are to be exercised shall be determined by the
Requisite Banks in their sole discretion, and all payments
received by the Administrative Agent and the Banks, or any
of them, shall be applied first to the costs and expenses
(including reasonable attorneys' fees and disbursements and
the reasonably allocated costs of attorneys employed by the
Administrative Agent or by any Bank) of the Administrative
Agent and of the Banks, 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.
Regardless of how each Bank may treat payments for the
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purpose of its own accounting, for the purpose of computing
Borrower's Obligations hereunder and under the Notes,
payments shall be applied first, to the costs and expenses
of the Administrative Agent and the Banks, as set forth
above, second, to the payment of accrued and unpaid interest
due under any Loan Documents to and including the date of
such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each
of the Loan Documents), and third, to the payment of all
other amounts (including principal and fees) then owing to
the Administrative Agent or the Banks under the Loan
Documents. No application of payments will cure any Event
of Default, or prevent acceleration, or continued accel-
eration, 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 AGENTS
-----------
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 Agents and their Affiliates. Bank of America (and
each successor Administrative Agent) and ▇▇▇▇▇▇ Guaranty (as
Documentation Agent) have the same rights and powers under the
Loan Documents as any other Banks and may exercise the same as
though they were not the Administrative Agent and the
Documentation Agent. The term "Bank" or "Banks" includes Bank of
America and ▇▇▇▇▇▇ Guaranty in their individual capacities. Bank
of America (and each successor Administrative Agent), ▇▇▇▇▇▇
Guaranty, and their 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 they were
not the Administrative Agent and the Documentation Agent and
without any duty to account therefor to the Banks. Bank of
America (and each successor Administrative Agent) and ▇▇▇▇▇▇
Guaranty need not account to any other Bank for any monies which
they receive for reimbursement of their costs and expenses as
Administrative Agent and Documentation Agent hereunder, or for
any monies received by them in their capacity as a Bank
hereunder. Neither Agent shall be deemed to hold a fiduciary
relationship with any Bank and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against the Agents.
10.3 Proportionate Interest in any Collateral. The
Administrative Agent shall hold any items of any collateral or
interests therein received or held by the Administrative Agent on
behalf of all the Banks in accordance with the Loan Documents.
Subject to the Agents' and the Banks' rights to reimbursement for
their costs and expenses hereunder (including reasonable
attorneys' fees and disbursements and other professional services
and the reasonably allocated costs of attorneys employed by the
Agents or a Bank) and subject to the application of payments in
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accordance with Section 9.2(d), each Bank shall have an interest
in the Banks' interest in any such collateral or interests
therein in the same proportion that the aggregate Obligations
owed such Bank under the Loan Documents bears to the aggregate
Obligations owed under the Loan Documents to all the Banks,
without priority or preference among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it
has, independently and without reliance upon the Agents, any
other Bank or the directors, officers, agents, employees or
attorneys of the Agents or of any other Bank, and instead in
reliance upon information supplied to it by or on behalf of
Borrower 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
Agents, any other Bank or the directors, officers, agents,
employees or attorneys of the Agents or of any other Bank, con-
tinue to make its own independent credit analyses and decisions
in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
------------------------------
(a) Absent actual knowledge of the Administrative
Agent of the existence of a Default, the Administrative
Agent may assume that no Default has occurred and is
continuing, unless the Administrative Agent has received
notice from Borrower stating the nature of the Default or
has received notice from a 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 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 would
result, in the reasonable judgment of the Administrative
Agent, in substantial risk of liability to the
Administrative Agent.
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(d) If the Administrative Agent has received a
notice specified in clause (a), the Administrative Agent
shall immediately give notice thereof to the 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 would
result, in the reasonable judgment of the Administrative
Agent, in substantial 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 Agents Neither of the Agents nor any of
their directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross
negligence or willful misconduct. Without limitation on the
foregoing, the Agents and their directors, officers, agents,
employees and attorneys:
(a) May treat the payee of any Note as the holder
thereof until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to
the Administrative Agent, signed by the payee, and the
$2,500 fee referred to in Section 11.8, and may treat each
Bank as the owner of that Bank's interest in the Obligations
for all purposes of this Agreement until the Administrative
Agent receives notice of the assignment or transfer thereof,
in form satisfactory to the Administrative Agent, signed by
that 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 profes-
sionals 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.
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(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) Except to the extent expressly set forth in the
Loan Documents, shall have no duty to ask or inquire as to
the performance or observance by Borrower or its
Subsidiaries of any of the terms, conditions or covenants of
any of the Loan Documents or to inspect any collateral for
the Obligations, 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 for the
Obligations.
(f) Will not incur any liability by acting or not
acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or
writing believed by it to be genuine and signed or sent by
the proper party or parties.
(g) Will not incur any liability for any arithmeti-
cal 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, without limitation, 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 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 accor-
dance with its Pro Rata Share of the Commitment (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 or suspended),
indemnify and hold the Agents and their respective 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 Agents) that may be imposed on,
incurred by or asserted against it or them in any way relating to
or arising out of the Loan Documents (other than losses incurred
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by reason of the failure of Borrower to pay the Indebtedness
represented by the Notes) or any action taken or not taken by
either of them as Agents thereunder, except such as result from
their own gross negligence or willful misconduct, provided that
the indemnification provided to the Documentation Agent under
this Section shall not extend to any of the foregoing which
relate to transactions which occur after the Closing Date.
Without limitation on the foregoing, each Bank shall reimburse
the Agents upon demand for that Bank's Pro Rata Share of any
out-of-pocket cost or expense incurred by (a) the Documentation
Agent in connection with the negotiation, preparation, execution
and delivery of the Loan Documents executed on the Closing Date,
and (b) 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 is required by
Section 11.3 to pay that cost or expense but fails to do so upon
demand. Nothing in this Section 10.7 shall entitle the Agents to
recover any amount from the Banks which is duplicative of any
amount which is recovered from Borrower or any of its
Subsidiaries.
10.8 Successor Administrative Agent. The Administrative
Agent may, and at the request of Borrower or the Requisite Banks
shall, resign as Administrative Agent upon thirty (30) days'
notice to the Banks and Borrower. If the Administrative Agent
resigns as Administrative Agent either voluntarily or at the
request of the Requisite Banks, 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). If the Administrative Agent resigns at the request of
Borrower, Borrower shall appoint ▇▇▇▇▇▇ Guaranty, Canadian
Imperial Bank of Commerce or Societe Generale as successor
Administrative Agent. 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 (except for liabilities incurred
prior thereto) 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
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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 No Obligations of Borrower. Nothing contained in
this Article 10 shall be deemed to impose upon Borrower any
obligation in respect of the due and punctual performance by the
Agents of their obligations to the Banks under any provision of
this Agreement, and Borrower shall have no liability to the
Agents or any of the Banks in respect of any failure by the
Agents or any Bank to perform any of their obligations to the
Agents or the Banks under this Agreement. Without limiting the
generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing
under the Loan Documents provides that such payments shall be
made by Borrower to the Administrative Agent for the account of
the Banks, Borrower's 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 Administrative Agent and the Banks
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 Administrative Agent and the
Banks; 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. No amendment, modification,
supplement, extension, termination or waiver of any provision of
this Agreement or any other Loan Document, no approval or consent
thereunder, and no consent to any departure by the Borrower or
any other Party therefrom, may in any event be effective unless
in writing signed by the Administrative Agent with the written
approval of Requisite Banks (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which
Borrower is a Party, signed by Borrower and, in the case of any
amendment, modification or supplement to Article 10, signed by
the Administrative Agent), and then only in the specific instance
and for the specific purpose given; and, without the approval in
writing of all the Banks, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) Except as contemplated by Section 2.6, to amend
or modify the principal of, or the amount of principal,
principal prepayments or the rate of interest payable on,
any Note, or the amount of the Commitment or the Pro Rata
Share of any Bank or the amount of any commitment fees
payable to any Bank, or the rate at which any other fee or
amount is payable to any Bank under the Loan Documents or to
waive an Event of Default consisting of the failure of
Borrower to pay when due principal, interest or any
commitment fee;
(b) To postpone any 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
(except as contemplated by Section 2.9);
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(c) To amend the provisions of the definition of
"Requisite Banks", Articles 8 or 9 or this Section 11.2; or
(d) To amend any provision of this Agreement that
expressly requires the consent or approval of all the Banks.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section 11.2 shall apply equally to, and
shall be binding upon, all the Banks and the Agents.
11.3 Costs, Expenses and Taxes. Borrower shall pay within
five (5) Banking Days after demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the Administrative
Agent and the Documentation Agent in connection with the
negotiation, preparation, syndication, execution and delivery of
the Loan Documents which are executed and delivered on the
Closing Date. Borrower shall likewise so pay the reasonable
costs and expenses of the Administrative Agent in connection with
the negotiation, preparation, execution and delivery of any
amendment or waiver with respect to the Loan Documents. Borrower
shall also pay on demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent and the
Banks 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 coun-
sel (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 bank-
ruptcy or insolvency proceedings of Borrower or any Subsidiary
thereof. Such costs and expenses shall also include, in the case
of any amendment or waiver of any Loan Document requested by
Borrower, the administrative costs of the Administrative Agent
reasonably attributable thereto. Borrower shall pay any and all
documentary and other taxes, excluding, in the case of each Bank,
the Agents and each Eligible Assignee, and any Affiliate or
Eurodollar Lending Office thereof, (i) taxes imposed on or
measured in whole or in part by its overall net income, gross
income or gross receipts or capital and franchise taxes imposed
on it 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" (unless it
would not be doing business in such jurisdiction (or political
subdivision thereof) absent the transactions contemplated
hereby), (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America (other than
withholding taxes and taxes based on gross income resulting from
or attributable to any change in any law, rule or regulation or
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any change in the interpretation or administration of any law,
rule or regulation by any Governmental Agency) or (iii) any
withholding taxes or other taxes based on gross income imposed by
the United States of America for any period with respect to which
it has failed to provide Borrower with the appropriate form or
forms required by Section 11.21, to the extent such forms are
then required by applicable Laws, and all costs, expenses, fees
and charges payable or determined to be payable in connection
with the filing or recording of this Agreement, any other Loan
Document or any other instrument or writing to be delivered here-
under or thereunder, or in connection with any transaction pur-
suant hereto or thereto, and shall reimburse, hold harmless and
indemnify the Administrative Agent and the Banks 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 11.3 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 Administrative Agent or the Banks 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 Borrower 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 the Commitment attributable to
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, 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, notwith-
standing any investigation made by the Administrative Agent or
any Bank or on their behalf.
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11.6 Notices. Except as otherwise expressly provided in
the Loan Documents, all notices, requests, demands, directions
and other communications provided for hereunder or under any
other Loan Document must be in writing and must be mailed,
telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on
the signature pages of this Agreement or other applicable Loan
Document or, as to any party to any Loan Document, at any other
address as may be designated by it in a written notice sent to
all other parties to such Loan Document in accordance with this
Section 11.6. Except as otherwise expressly provided in any Loan
Document, if any notice, request, demand, direction or other
communication required or permitted by any Loan Document is given
by mail it will be effective on the earlier of receipt or the
third calendar day after deposit in the United States mail with
first class or airmail postage prepaid; if given by 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. 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 is a Party will be binding upon and inure to
the benefit of Borrower, the Agents, each of the Banks, and
their respective successors and assigns, except that, except
as permitted in Section 6.2, Borrower may not assign its
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 Notes
with a view to the distribution thereof within the meaning
of the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Notes must be within
the control of such Bank). Any Bank may at any time pledge
its Notes 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.
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(b) From time to time following the Closing Date,
each Bank may assign to one or more Eligible Assignees all
or any portion of its Pro Rata Share of the Commitment;
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 (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment
shall be evidenced by a Commitment Assignment and
Acceptance, 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 of the Commitment equivalent to less
than $10,000,000, and (iv) the effective date of any such
assignment shall be as specified in the Commitment
Assignment and Acceptance, but not earlier than the date
which is five (5) Banking Days after the date the
Administrative Agent has received the Commitment Assignment
and Acceptance. Upon the effective date of such Commitment
Assignment and Acceptance, the Eligible Assignee named
therein shall be a Bank for all purposes of this Agreement,
with the Pro Rata Share of the Commitment therein set forth
and, to the extent of such Pro Rata Share, the assigning
Bank shall be released from its further obligations under
this Agreement. Borrower agrees that it shall execute and
deliver (against delivery by the assigning Bank to Borrower
of its Notes) to such assignee Bank, Notes evidencing that
assignee Bank's Pro Rata Share of the Commitment, and to the
assigning Bank, Notes evidencing the remaining balance Pro
Rata Share retained by the assigning Bank.
(c) By executing and delivering a Commitment
Assignment and Acceptance, 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 of the Commitment
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 the performance by Borrower of the Obligations;
(iii) it has received a copy of this Agreement, together
with copies of the most recent financial statements
delivered pursuant to Section 7.1 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment
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Assignment and Acceptance; (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 Commitment
Assignment and Acceptance delivered to it. After receipt of
a completed Commitment Assignment and Acceptance executed by
any Bank and an Eligible Assignee, and receipt of an
assignment fee of $2,500 from such 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.
(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 of the Commitment; 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 does not exceed the cost which Borrower would have
incurred in respect of such Bank absent the participation,
(iv) Borrower, 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 of the Commitment as it then exists and shall not
restrict an increase in the Commitment, or in the granting
Bank's Pro Rata Share of the Commitment, so long as the
amount of the participation interest is not affected thereby
and (vi) the consent of the holder of such participation
interest shall not be required for amendments or waivers of
provisions of the Loan Documents other than those which
(A) extend the Maturity Date (except as contemplated by
Section 2.9) 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 or (D) change the definition
of "Requisite Banks".
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(f) Notwithstanding anything in this Section 11.8 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.
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 main-
tained with it by Borrower and/or any Property of Borrower 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, 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 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 or any
Person claiming through or succeeding to the rights of Borrower,
the purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of the
recovery, but without interest. Each Bank that purchases a
participation in the Obligations pursuant to this Section 11.10
shall from and after the purchase have the right to give all
notices, requests, demands, directions and other communications
under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing
Bank were the original owner of the Obligations purchased.
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.
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11.11 Indemnity by Borrower. Borrower agrees to
indemnify, save and hold harmless the Agents, the Co-Arrangers,
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 Affiliates or any of its officers,
directors or stockholders relating to the Commitment, the use or
contemplated use of proceeds of any Loan, or the relationship of
Borrower and the Banks under this Agreement; (b) any adminis-
trative or investigative proceeding by any Governmental Agency
arising out of or related to a claim, demand, action or cause of
action described in clause (a) above; and (c) any and all
liabilities, losses, costs or expenses (including reasonable
attorneys' fees and the reasonably allocated costs of attorneys
employed by any Indemnitee and disbursements of such attorneys
and other professional services) that any Indemnitee suffers or
incurs as a result of the assertion of any foregoing claim,
demand, action or cause of action; provided that no Indemnitee
shall be entitled to indemnification for any loss caused by its
own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand,
action or cause of action is asserted against any Indemnitee,
such Indemnitee shall promptly notify Borrower, but the failure
to so promptly notify Borrower shall not affect Borrower's
obligations under this Section unless such failure materially
prejudices Borrower's right to participate in the contest of such
claim, demand, action or cause of action, as hereinafter
provided. Such Indemnitee may (and shall, if requested by
Borrower in writing) contest the validity, applicability and
amount of such claim, demand, action or cause of action and shall
permit Borrower to participate in such contest. Any Indemnitee
that proposes to settle or compromise any claim or proceeding for
which Borrower may be liable for payment of indemnity hereunder
shall give Borrower written notice of the terms of such proposed
settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrower's
prior consent (which shall not be unreasonably withheld or
delayed). In connection with any claim, demand, action or cause
of action covered by this Section 11.11 against more than one
Indemnitee, all such Indemnitees shall be represented by the same
legal counsel (which may be a law firm engaged by the Indemnitees
or attorneys employed by an Indemnitee or a combination of the
foregoing) selected by the Indemnitees and reasonably acceptable
to Borrower; provided, that if such legal counsel determines in
good faith that representing all such Indemnitees would or could
result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counter-
claim 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
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shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to
Borrower, with all such legal counsel using reasonable efforts to
avoid unnecessary duplication of effort by counsel for all
Indemnitees; and further provided that the Administrative Agent
(as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm
or attorneys employed by the Administrative Agent or a
combination of the foregoing). Any obligation or liability of
Borrower to any Indemnitee under this Section 11.11 shall survive
the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other
Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrower acknowl-
edges and agrees that:
(a) Any inspections of any Property of Borrower and
its Subsidiaries made by or through the Agents or the Banks
are for purposes of administration of the Loan only and
Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to
be observed, performed, fulfilled or given to the Agents or
the Banks pursuant to the Loan Documents, neither the Agents
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 Agents or the Banks;
(c) The relationship between Borrower and the Agents
and the Banks is, and shall at all times remain, solely that
of a borrower and lenders; neither the Agents nor the Banks
shall under any circumstance be construed to be partners or
joint venturers of Borrower or its Affiliates; neither the
Agents nor the Banks shall under any circumstance be deemed
to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or its Affiliates, or
to owe any fiduciary duty to Borrower or its Affiliates;
neither the Agents 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 connec-
tion 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 Agents or the Banks in connection with such matters
is solely for the protection of the Agents and the Banks and
neither Borrower nor any other Person is entitled to rely
thereon; and
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(d) The Agents and the Banks shall not be respon-
sible or liable to any Person for any loss, damage, lia-
bility or claim of any kind relating to injury or death to
Persons or damage to Property caused by the actions,
inaction or negligence of Borrower and/or its Affiliates and
Borrower hereby indemnifies and holds the Agents and the
Banks harmless 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 Agents and the
Banks in connection with the Loans, and is made for the sole
benefit of Borrower, the Agents and the Banks, and their
respective successors and permitted 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
pursuant to this Agreement in confidence, except for disclosure:
(a) to other Banks; (b) to any Affiliate of that Bank, (c) to
legal counsel and accountants for Borrower or any Bank; (d) to
other professional advisors to Borrower or any Bank, provided
that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section
11.14; (e) to regulatory officials having jurisdiction over that
Bank; (f) 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 of any such disclosure
unless prohibited by applicable Laws; (g) as required by Law or
legal process or in connection with any legal proceeding to which
that Bank and Borrower are adverse parties; and (h) 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 participation interest in
its Note, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially
similar to this Section 11.14. 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 to any Person
not associated with Borrower which, in the reasonable belief of
that Bank, was not subject to a confidentiality agreement or
obligation substantially similar to this Section 11.14. Nothing
in this Section shall be construed to create or give rise to any
fiduciary duty on the part of the Administrative Agent or the
Banks to Borrower.
11.15 Further Assurances. Borrower and the Restricted
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 any Bank or the Administrative
Agent from time to time reasonably requires for the assuring and
confirming unto the Banks or the Administrative Agent of the
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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 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 Docu-
ment, the provisions of this Agreement shall control and govern;
provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Banks 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 con-
venience of reference only and are not part of this Agreement or
the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of
the Loan Documents.
11.21 Foreign Banks and Participants. Each Bank, and
each holder of a participation interest herein, that is
incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America or any State
thereof or the District of Columbia shall deliver to Borrower
(with a copy to the Administrative Agent), 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
Person and entitling it to a complete exemption from withholding
on all payments to be made to such Person by Borrower pursuant to
this Agreement) or Form 4224 (relating to all payments to be made
to such Person by the Borrower pursuant to this Agreement) of the
United States Internal Revenue Service or such other evidence
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(including, if reasonably necessary, Form W-9) satisfactory to
Borrower and the Administrative Agent that no withholding under
the federal income tax laws is required with respect to such
Person. Thereafter and from time to time, each such Person shall
(a) promptly submit to Borrower (with a copy to the
Administrative Agent), such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is
satisfactory to Borrower and the Administrative Agent of any
available exemption from, United States withholding taxes in
respect of all payments to be made to such Person by Borrower
pursuant to this Agreement and (b) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment
of such 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 make any
deduction or withholding for taxes from amounts payable to such
Person.
11.22 Hazardous Material Indemnity. Borrower hereby
agrees to indemnify, hold harmless and defend (by counsel
reasonably satisfactory to the Administrative Agent) the
Administrative Agent and each of the Banks and their respective
directors, officers, employees, agents, successors and assigns
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 but not
limited to 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), 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 or any of its predecessors in
title, whether prior to or during the term of this Agreement, and
whether by Borrower or any predecessor in title or any employees,
agents, contractors or subcontractors of Borrower or any
predecessor in title, or any third persons at any time occupying
or present on any Real Property, 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
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by the Administrative Agent or the Banks. Borrower hereby
acknowledges and agrees that, notwithstanding any other provision
of this Agreement or any of the other Loan Documents to the
contrary, the obligations of Borrower under this Section shall be
unlimited corporate obligations of Borrower and shall not be
secured by any deed of trust or mortgage on any Real Property.
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 The Existing Loan Agreement. The parties hereto
agree that the Existing Loan Agreement is amended and restated in
its entirety by this Agreement. Borrower shall have no further
right to request loans, letters of credit or other credit
accommodations under the Existing Loan Agreement, but rather
shall be entitled to the credit accommodations described herein,
subject to the terms and conditions of this Agreement and the
other Loan Documents. Each party to this Agreement hereby
consents to the execution, delivery and performance of the
Termination Agreement, the Exit Agreement and the Negative Pledge
Termination Agreement.
11.25 Removal of a Bank. As provided in Sections 2.9,
3.7 and 3.8, Borrower shall have the right to remove a Bank as a
party to this Agreement if such Bank refuses to consent to an
extension of the Maturity Date made pursuant to Section 2.9 or if
such Bank is paid a material amount by Borrower pursuant to
Section 3.7 or Section 3.8. Upon notice from Borrower, such Bank
shall execute and deliver a Commitment Assignment and Acceptance
covering that Bank's Pro Rata Share of the Commitment in favor of
such Eligible Assignee as Borrower may designate, subject to
(i) payment in full by such Eligible Assignee of all principal,
interest and fees owing to such Bank through the date of
assignment and (ii) 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. Alternatively,
Borrower may reduce the Commitment pursuant to Section 2.7 (and,
for this purpose, the numerical requirements of such Section
shall not apply) by an amount equal to that Bank's Pro Rata Share
of the Commitment, pay and provide to such Bank the amounts,
assurances and indemnities described in (i) and (ii) above and
release such Bank from its Pro Rata Share of the Commitment.
11.26 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
-99-
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.
11.27 Purported Oral Amendments. BORROWER EXPRESSLY
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY
ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF
WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES
WITH SECTION 11.2. BORROWER AGREES THAT IT 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, 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.
MIRAGE RESORTS, INCORPORATED
By: ▇▇▇▇▇▇ ▇. ▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇, Chief Financial Officer
Address for notices:
Mirage Resorts, Incorporated
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
Chief Financial Officer and Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Mirage Resorts, Incorporated
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇.▇▇▇▇▇, Esq., General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-100-
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent and as a Bank
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Address:
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10260
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Address:
Bank of America National Trust and Savings
Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-101-
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank
By: ▇▇▇ ▇▇▇▇▇▇▇
_______________________________________
▇▇▇ ▇▇▇▇▇▇▇, 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: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE, as a Co-Arranger and
a Bank
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Address:
Societe Generale
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-102-
CANADIAN IMPERIAL BANK OF COMMERCE, as
a Bank
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Managing Director,
CIBC Wood Gundy Securities Corp.,
AS AGENT
Address:
Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY, as a Co-Agent and
a Bank
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-103-
THE BANK OF NEW YORK, as a Co-Agent and
a Bank
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
Address:
The Bank of New York
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA, as a Co-Agent
and a Bank
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Relationship Manager
Address:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES
BRANCH, as a Co-Agent and Bank
By: CHRISTIAN JAGENBERG
_______________________________________
Christian Jagenberg, Senior Vice
President and Manager
By: ▇▇▇▇▇ ▇▇▇▇▇
_______________________________________
▇▇▇▇▇ ▇▇▇▇▇, Assistant Treasurer
Address:
Commerzbank AG, Los Angeles Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-104-
CREDIT LYONNAIS LOS ANGELES BRANCH, as a
Co-Agent and Bank
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Address:
Credit Lyonnais Los Angeles Branch
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as a Co-Agent and
a Bank
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Deputy General Manager
Address:
The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-105-
PNC BANK, NATIONAL ASSOCIATION, as a Co-Agent
and Bank
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Address:
PNC Bank, National Association
Corporate Banking Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
AND CAYMAN ISLAND BRANCHES, as a Co-Agent and
a Bank
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President, Credit Department
By: ▇.▇. ▇▇▇▇▇▇
_______________________________________
▇.▇. ▇▇▇▇▇▇
Associate
Address:
Westdeutsche Landesbank Girozentrale New
York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Westdeutsche Landesbank Girozentrale, Los
Angeles Representative ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-106-
BANQUE NATIONALE DE PARIS, as a Bank
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
and Manager
By: ▇▇▇▇▇▇ ▇▇
_______________________________________
▇▇▇▇▇▇ ▇▇, Vice President
Address:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST SECURITY BANK, N.A., as a Bank
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Address:
First Security Bank, N.A.
Corporate Banking Division
▇.▇. ▇▇▇ ▇▇▇▇▇ (84130)
15 East ▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET BANK, N.A., as a Bank
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
Address:
Fleet Bank, N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-107-
THE FUJI BANK, LIMITED, LOS ANGELES AGENCY,
as a Bank
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Joint General Manager
Address:
The Fuji Bank Limited, Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS
ANGELES AGENCY, as a Bank
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice
President and Senior Manager
Address:
The Industrial Bank of Japan, Limited
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUBISHI TRUST AND BANKING CORPORATION,
LOS ANGELES AGENCY, as a Bank
By: YASUSHI SATOMI, SR.
_______________________________________
Yasushi Satomi, Sr., Vice President
and Chief Manager
Address:
The Mitsubishi Trust and Banking Corporation
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-108-
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH,
as a Bank
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Address:
The Sanwa Bank, Limited, Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇-▇)
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
UNION BANK OF CALIFORNIA, N.A., as a Bank
By: B. ▇▇▇▇ ▇▇▇▇▇
_______________________________________
B. ▇▇▇▇ ▇▇▇▇▇, Assistant Vice President
Address:
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
UNITED STATES NATIONAL BANK OF OREGON,
as a Bank
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, Assistant Vice President
Address:
United States National Bank of Oregon
National Corporate Banking Division
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-109-
THE DAI-ICHI KANGYO BANK, LIMITED, LOS
ANGELES AGENCY, as a Bank
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice
President and Joint General Manager
Address:
The Dai-Ichi Kangyo Bank, Limited,
Los Angeles Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
HIBERNIA NATIONAL BANK, as a Bank
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Senior Vice
President
Address:
Hibernia National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
KEYBANK, N.A., as a Bank
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President
Address:
KeyBank, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-110-
THE NIPPON CREDIT BANK, LTD., LOS ANGELES
AGENCY, as a Bank
By: ▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇ ▇▇▇▇▇▇▇▇, Vice President and Manager
Address:
The Nippon Credit Bank, Ltd.
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO BANK, LIMITED, as a Bank
By: ▇▇▇▇▇▇ ▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇▇▇▇, General Manager
Address:
The Sumitomo Bank, Limited
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO TRUST & BANKING CO., LTD.,
LOS ANGELES AGENCY, as a Bank
By: ▇▇▇▇▇▇▇ ▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇, Vice President and Manager
Address:
The Sumitomo Trust & Banking Co., Ltd.
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-111-
THE TOKAI BANK, LIMITED, LOS ANGELES AGENCY,
as a Bank
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Assisant General Manager
Address:
The Tokai Bank, Limited
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Poebus Hon
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WHITNEY NATIONAL BANK, as a Bank
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇
_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇, Assistant Vice
President
Address:
Whitney National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE YASUDA TRUST & BANKING CO., LTD.,
as a Bank
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, Deputy General Manager
Address:
Yasuda Trust & Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-112-
BANK OF SCOTLAND, as a Bank
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Address:
Bank of Scotland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of Scotland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST HAWAIIAN BANK, as a Bank
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Vice President
Address:
First Hawaiian Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-113-