EXECUTION EXHIBIT 10
Published Deal CUSIP: ▇▇▇▇▇▇▇▇▇
Revolver Facility CUSIP: ▇▇▇▇▇▇▇▇▇
Term Facility CUSIP: ▇▇▇▇▇▇▇▇▇
FIFTH AMENDED AND RESTATED LOAN AGREEMENT
Dated as of October 3, 2006
among
MGM MIRAGE
as Borrower
and
MGM GRAND DETROIT, LLC
as Co-Borrower
The Lenders, Co-Documentation Agents and Syndication Agent herein named
and
BANK OF AMERICA, N.A.
as Administrative Agent
THE ROYAL BANK OF SCOTLAND PLC
as Syndication Agent
----------
BANC OF AMERICA SECURITIES LLC and THE ROYAL BANK OF SCOTLAND PLC
Joint Lead Arrangers
BANC OF AMERICA SECURITIES LLC, THE ROYAL BANK OF SCOTLAND PLC,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., CITIBANK NORTH AMERICA, INC.
and DEUTSCHE BANK SECURITIES INC.
Joint Book Managers
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TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS............................... 2
1.1 Defined Terms................................................... 2
1.2 Use of Defined Terms............................................ 28
1.3 Accounting Terms - Fiscal Periods............................... 28
1.4 Rounding........................................................ 28
1.5 Exhibits and Schedules.......................................... 28
1.6 Miscellaneous Terms............................................. 28
1.7 Letter of Credit Amounts........................................ 29
1.8 Exchange Rates; Currency Equivalents............................ 29
1.9 Additional Alternative Currencies............................... 29
1.10 Change of Currency.............................................. 30
ARTICLE 2 LOANS AND LETTERS OF CREDIT.................................... 31
2.1 Committed Loans-General......................................... 31
2.2 Base Rate Loans................................................. 33
2.3 LIBOR Loans..................................................... 33
2.4 Letters of Credit............................................... 33
2.5 Competitive Advances............................................ 40
2.6 Swing Line...................................................... 43
2.7 Co-Borrowers.................................................... 45
2.8 Voluntary Reduction of the Commitments.......................... 45
2.9 Optional Termination of Commitments............................. 46
2.10 Administrative Agent's Right to Assume Funds Available for
Advances........................................................ 46
2.11 Senior Indebtedness............................................. 46
2.12 Increased Commitments; Additional Lenders....................... 46
ARTICLE 3 PAYMENTS AND FEES.............................................. 48
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3.1 Principal and Interest.......................................... 48
3.2 Arrangement Fees................................................ 49
3.3 Upfront and Amendment Fees...................................... 49
3.4 Unused Fees..................................................... 49
3.5 Letter of Credit Fees........................................... 49
3.6 Agency Fees..................................................... 50
3.7 Increased Commitment Costs...................................... 50
3.8 LIBOR Costs and Related Matters................................. 51
3.9 Late Payments................................................... 54
3.10 Computation of Interest and Fees................................ 54
3.11 Non-Business Days............................................... 54
3.12 Manner and Treatment of Payments................................ 54
3.13 Funding Sources................................................. 56
3.14 Failure to Charge Not Subsequent Waiver......................... 56
3.15 Administrative Agent's Right to Assume Payments Will be Made.... 56
3.16 Fee Determination Detail........................................ 57
3.17 Survivability................................................... 57
ARTICLE 4 REPRESENTATIONS AND WARRANTIES................................. 57
4.1 Existence and Qualification; Power; Compliance With Laws........ 57
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations.......................................... 57
4.3 No Governmental Approvals Required.............................. 58
4.4 Subsidiaries.................................................... 58
4.5 Financial Statements............................................ 58
4.6 No Other Liabilities; No Material Adverse Changes............... 59
4.7 Public Utility Holding Company Act.............................. 59
4.8 Litigation...................................................... 59
4.9 Binding Obligations............................................. 59
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4.10 No Default...................................................... 59
4.11 ERISA........................................................... 59
4.12 Regulations T, U and X; Investment Company Act.................. 60
4.13 Disclosure...................................................... 60
4.14 Tax Liability................................................... 60
4.15 Projections..................................................... 60
4.16 Hazardous Materials............................................. 60
4.17 Solvency........................................................ 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............................................... 61
5.6 Keeping of Records and Books of Account......................... 62
5.7 Use of Proceeds................................................. 62
5.8 Guarantors...................................................... 62
ARTICLE 6 NEGATIVE COVENANTS............................................. 63
6.1 Mergers......................................................... 63
6.2 Hostile Acquisitions............................................ 63
6.3 Change in Nature of Business.................................... 63
6.4 Liens and Negative Pledges...................................... 63
6.5 Total Leverage Ratio............................................ 64
6.6 Interest Charge Coverage Ratio.................................. 64
6.7 Investments in Insurance Subsidiary............................. 65
ARTICLE 7 INFORMATION AND REPORTING REQUIREMENTS......................... 66
7.1 Financial and Business Information.............................. 66
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7.2 Compliance Certificates......................................... 68
ARTICLE 8 CONDITIONS..................................................... 69
8.1 Initial Advances on the Closing Date............................ 69
8.2 Any Increasing Advance.......................................... 71
8.3 Any Letter of Credit............................................ 71
ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT........... 72
9.1 Events of Default............................................... 72
9.2 Remedies Upon Event of Default.................................. 73
ARTICLE 10 THE ADMINISTRATIVE AGENT...................................... 76
10.1 Appointment and Authorization of Administrative Agent........... 76
10.2 Delegation of Duties............................................ 76
10.3 Liability of Administrative Agent............................... 76
10.4 Reliance by Administrative Agent................................ 77
10.5 Notice of Default............................................... 77
10.6 Credit Decision; Disclosure of Information by Administrative
Agent........................................................... 77
10.7 Indemnification of Administrative Agent......................... 78
10.8 Administrative Agent in its Individual Capacity................. 78
10.9 Successor Administrative Agent.................................. 78
10.10 Administrative Agent May File Proofs of Claim................... 79
10.11 Other Agents; Arrangers and Managers............................ 80
10.12 No Obligations of Borrower and the Co-Borrowers................. 80
ARTICLE 11 MISCELLANEOUS................................................. 81
11.1 Cumulative Remedies; No Waiver.................................. 81
11.2 Amendments; Consents............................................ 81
11.3 Attorney Costs, Expenses and Taxes.............................. 82
11.4 Nature of Lenders' Obligations.................................. 83
11.5 Survival of Representations and Warranties...................... 83
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11.6 Notices......................................................... 83
11.7 Execution of Loan Documents..................................... 85
11.8 Binding Effect; Assignment...................................... 85
11.9 Right of Setoff................................................. 89
11.10 Sharing of Setoffs.............................................. 89
11.11 Indemnification by Borrower and the Co-Borrowers................ 90
11.12 Nonliability of the Lenders; No Advisory or Fiduciary
Responsibility.................................................. 90
11.13 No Third Parties Benefited...................................... 92
11.14 Confidentiality................................................. 92
11.15 Further Assurances.............................................. 92
11.16 Integration..................................................... 92
11.17 Governing Law................................................... 93
11.18 Severability of Provisions...................................... 93
11.19 Headings........................................................ 93
11.20 Time of the Essence............................................. 93
11.21 Foreign Lenders and Participants................................ 93
11.22 Gaming Boards................................................... 95
11.23 Termination..................................................... 95
11.24 Removal of a Lender............................................. 95
11.25 Joint and Several............................................... 95
11.26 Non-Involvement of Tracinda..................................... 96
11.27 Payments Set Aside.............................................. 96
11.28 Waiver of Right to Trial by Jury................................ 96
11.29 Purported Oral Amendments....................................... 96
11.30 USA PATRIOT Act Notice.......................................... 97
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Exhibits
A - Assignment and Assumption Agreement
B - Assumption Agreement
C - Committed Revolving Note
D - Competitive Bid
E - Competitive Bid Request
F - Competitive Revolving Note
G - Compliance Certificate
H - Pricing Certificate
I - Request for Loan
J - Term Note
K - Joint Borrower Provisions
Schedules
1.1 Pro Rata Shares of the Commitments
4.0 Disclosure Schedule
11.6 Notice Addresses
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FIFTH AMENDED AND RESTATED LOAN AGREEMENT
Dated as of October 3, 2006
This Fifth Amended and Restated Loan Agreement ("Agreement") is entered
into by and among MGM MIRAGE, a Delaware corporation ("Borrower"), and MGM Grand
Detroit, LLC, a Delaware limited liability company ("Detroit"), as initial
Co-Borrower, the Lenders named in the signature pages of this Agreement, Banc of
America Securities LLC and The Royal Bank of Scotland PLC, as Joint Lead
Arrangers, Banc of America Securities LLC, The Royal Bank of Scotland PLC, ▇.▇.
▇▇▇▇▇▇ Securities Inc., Citibank North America, Inc. and Deutsche Bank
Securities Inc., as Joint Book Managers, The Royal Bank of Scotland PLC, as
Syndication Agent, Barclays Bank PLC, BNP Paribas, Citigroup USA Inc.,
Commerzbank AG, Deutsche Bank Trust Company Americas, JPMorgan Chase Bank, N.A.,
Sumitomo Mitsui Banking Corporation, UBS Securities LLC and Wachovia Bank,
National Association, as Co-Documentation Agents, Bank of Scotland, ▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, as Senior Managing Agents, Societe
Generale and U.S. Bank National Association, as Managing Agents, and Bank of
America, N.A., as Administrative Agent, with reference to the following facts:
A. Pursuant to the Existing Loan Agreement referred to herein, credit
facilities in the aggregate principal amount of $7,000,000,000 have been
provided to the Borrower and Detroit. These credit facilities have
consisted of a $5,500,000,000 revolving credit facility and $1,500,000,000
aggregate principal amount of term loans.
B. Borrower, Detroit, the Administrative Agent and the Lenders desire to
amend and restate the Existing Loan Agreement in its entirety by this
Agreement, and to provide, inter alia, for (i) new term loans in the
principal amount of $1,000,000,000 (increasing the aggregate principal
balance of the terms loans to $2,500,000,000), (ii) a corresponding
decrease in the amount of the revolving credit facility from $5,500,000,000
to $4,500,000,000, (iii) a reduction of the interest rates associated with
the credit facilities and (iv) an extension of the Maturity Date to the
date which is five years following the Closing Date and such other
modifications as are incorporated herein.
C. Concurrently with the execution hereof, certain of the lenders under the
Existing Loan Agreement will terminate their status as Lenders (the
"Exiting Lenders") and certain new Lenders signatory hereto will be
admitted.
D. Each outstanding Letter of Credit issued under the Existing Loan
Agreement (the "Existing Letters of Credit" as further defined herein) will
remain outstanding as a Letter of Credit hereunder. Pursuant to the
Existing Loan Agreement, letter of credit fees have been paid to each of
the Lenders thereunder in advance for the tenor of the Existing Letters of
Credit. Each Lender hereunder which was a party to the Existing Loan
Agreement acknowledges that the portion of such letter of credit fees which
relates to the unexpired tenor of the Existing Letters of Credit is to be
refunded by such Lender on the Closing Date, and may be netted from the
amounts otherwise payable to that Lender on the Closing Date.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, Borrower, Detroit, each Co-Borrower
which hereafter becomes a Party hereto pursuant to Section 2.7, and each of the
Creditors, hereby agree as follows:
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ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate Bid" means a Competitive Bid to provide Competitive
Advances on the basis of a fixed interest rate.
"Acquisition" means any transaction, or any series of related
transactions, by which Borrower or its Restricted Subsidiaries directly or
indirectly (i) acquire any going business or all or any material part of
the assets of any Person, or any division thereof, whether through purchase
of assets, merger or otherwise, or (ii) acquire (in one transaction or as
the most recent transaction in a series of transactions) control of at
least a majority in ordinary voting power of the securities of a
corporation which have ordinary voting power for the election of directors,
or (iii) acquire control of a majority ownership interest in any
partnership, joint venture, limited liability company or any other Person.
"Act" has the meaning set forth for that term in Section 11.30.
"Administrative Agent" means Bank of America, when acting in its
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on Schedule 11.6, or such other address as the
Administrative Agent hereafter may designate by written notice to Borrower
and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Advance" means any advance made or to be made by any Lender to
Borrower or any Co-Borrower as provided in Article 2, and includes each
Base Rate Advance, LIBOR Advance, Committed Advance, Competitive Advance
and Swing Line Advance.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the correlative
terms, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns, directly or
indirectly, 10% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation that has
more than 100 record holders of such securities, or 10% or more of the
partnership or other ownership interests of any other Person that has more
than 100 record holders of such interests, will be presumed (subject to
rebuttal by a preponderance of the evidence) to control such corporation,
partnership or other Person.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity
as the Administrative Agent and Bank of America Securities LLC as Joint
Lead Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
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"Agreement" means this Fifth Amended and Restated Loan Agreement,
either as originally executed, or as it may from time to time be
supplemented, modified, amended, restated or extended.
"Alternative Currency" means each of Euro, Sterling and Yen, and each
other currency (other than Dollars) that is approved in accordance with
Section 1.9.
"Alternative Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof in the
applicable Alternative Currency as determined by the Administrative Agent
or the relevant Issuing Lender, as the case may be, at such time on the
basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of such Alternative Currency with
Dollars.
"Applicable Rates" means, as of any date of determination, the
following percentages per annum, based upon the Pricing Level on that date:
LIBOR BASE UNUSED STANDBY LETTER OF
PRICING LEVEL MARGIN RATE MARGIN FEE RATE CREDIT FEE
------------- ------ ----------- -------- -----------------
I 0.375% 0.000% 0.100% 0.375%
II 0.625% 0.000% 0.150% 0.625%
III 0.875% 0.000% 0.150% 0.875%
IV 1.000% 0.000% 0.200% 1.000%
V 1.125% 0.125% 0.200% 1.125%
VI 1.250% 0.250% 0.200% 1.250%
VII 1.375% 0.375% 0.250% 1.375%
"Applicable Time" means, with respect to any borrowings and payments
in any Alternative Currency, the local time in the place of settlement for
such Alternative Currency as may be determined by the relevant Issuing
Lender, as the case may be, to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.
"Applicable Total Leverage Ratio" means, (a) as of the Closing Date,
and thereafter through the last day of the Pricing Period in which the
Closing Date occurs, the combined pro forma Total Leverage Ratio set forth
in the Certificate of Borrower delivered pursuant to Section 8.1(a)(xvi),
and (b), as of each subsequent date of determination, the Total Leverage
Ratio in effect as of the last day of the Fiscal Quarter ending most
recently prior to the first day of the related Pricing Period.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an Assignment and Assumption
agreement substantially in the form of Exhibit A.
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"Assumption Agreement" means each Assumption Agreement hereafter
executed by a Co-Borrower pursuant to Section 2.7, substantially in the
form of Exhibit B either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Bank of America" means Bank of America, N.A., its successors and
assigns.
"Base Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above
or below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Base Rate Advance" means an Advance made hereunder and specified to
be a Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be a
Base Rate Loan in accordance with Article 2.
"Base Rate Margin" means the applicable per annum percentage set forth
in the definition of "Applicable Rates".
"Borrower" means MGM MIRAGE, a Delaware corporation, its successors
and permitted assigns.
"Borrower Group EBITDA" means, for any fiscal period, the EBITDA of
Borrower and its Restricted Subsidiaries for that fiscal period.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or
are in fact closed in the State of New York or the state where the
Administrative Agent's Office is located and, if such day relates to any
LIBOR Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank Eurodollar Market.
"Capital Lease Obligations" means all monetary obligations of a Person
under any leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease.
"Cash" means, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP, consistently applied.
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"Cash Collateralize" has the meaning specified in Section 2.4(g).
"Cash Equivalents" means, when used in connection with any Person,
that Person's Investments in:
(a) Government Securities due within one year after the date of
the making of the Investment;
(b) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such
State or any public agency or instrumentality thereof given on the
date of such Investment a credit rating of at least Aa by Moody's or
AA by S&P in each case due within one year from the making of the
Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Bank or by
any bank incorporated under the Laws of the United States of America,
any State thereof or the District of Columbia and having on the date
of such Investment combined capital, surplus and undivided profits of
at least $250,000,000, or total assets of at least $5,000,000,000, in
each case due within one year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any branch or
office located in the United States of America of a bank incorporated
under the Laws of any jurisdiction outside the United States of
America having on the date of such Investment combined capital,
surplus and undivided profits of at least $500,000,000, or total
assets of at least $15,000,000,000, in each case due within one year
after the date of the making of the Investment;
(e) repurchase agreements covering Government Securities executed
by a broker or dealer registered under Section 15(b) of the Securities
Exchange Act of 1934, as amended, having on the date of the Investment
capital of at least $50,000,000, due within 90 days after the date of
the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of
record ownership of the Government Securities on the books of a
"primary dealer" in such Government Securities or on the books of such
registered broker or dealer, as soon as practicable after the making
of the Investment;
(f) readily marketable commercial paper or other debt securities
issued by corporations doing business in and incorporated under the
Laws of the United States of America or any State thereof or of any
corporation that is the holding company for a bank described in clause
(c) or (d) above given on the date of such Investment a credit rating
of at least P-1 by Moody's or A-1 by S&P, in each case due within one
year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any
State thereof (i) given on the date of such Investment a credit rating
of at least Aa by ▇▇▇▇▇'▇ Investors Service, Inc. and AA by S&P, in
each case having an investment period not exceeding 50 days or (ii) to
the
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extent that investors therein have the benefit of a standby letter of
credit issued by a Lender or a bank described in clauses (c) or (d)
above;
(h) a readily redeemable "money market mutual fund" sponsored by
a bank described in clause (c) or (d) hereof, or a registered broker
or dealer described in clause (e) hereof, that has and maintains an
investment policy limiting its investments primarily to instruments of
the types described in clauses (a) through (g) hereof and given on the
date of such Investment a credit rating of at least Aa by Moody's and
AA by S & P; and
(i) corporate notes or bonds having an original term to maturity
of not more than one year issued by a corporation incorporated under
the Laws of the United States of America or any State thereof, or a
participation interest therein; provided that any commercial paper
issued by such corporation is given on the date of such Investment a
credit rating of at least Aa by Moody's and AA by S&P.
"Cash Flow" means, for any period, and without duplication, the sum of
(a) Borrower Group EBITDA for that period, plus (b) Other Available EBITDA
for that period, plus (c) New Project Annualized EBITDA, provided that Cash
Flow shall be adjusted on a pro forma basis (i) in the case of any Material
Transaction which is a Disposition, to exclude for the entire period the
results of operation of any Person or assets which are the subject of such
Disposition, and (ii) in the case of any Material Transaction which is an
Acquisition, to include for the entire period the results of operation of
any Person or assets which are the subject of such Acquisition.
"Cash Interest Charges" means, for any period, that portion of
Interest Charges of Borrower and its Restricted Subsidiaries which are paid
or currently payable in Cash during that period excluding Interest Charges
in respect of:
(i) intercompany accounts; and
(ii) any other Indebtedness of Borrower or its Restricted Subsidiaries
for borrowed money (including debt securities issued by Borrower or any of
its Restricted Subsidiaries) to the extent that (A) the proceeds of such
Indebtedness are held by either the trustee or other representative for the
holders of such Indebtedness or a third party escrow agent pending
satisfaction or waiver of the conditions for the release of such proceeds
to Borrower or its Restricted Subsidiaries or to a third party, and (B)
such trustee, representative or escrow agent also holds the amount of any
Interest Charges which would otherwise be payable in Cash during that
period in respect of such Indebtedness;
provided, in each case, that if any Material Transaction occurs during that
period, Cash Interest Charges shall be adjusted on a pro forma basis (a) in
the case of any Material Transaction which is a Disposition, to exclude
Interest Charges associated with Funded Debt in an amount equal to the
consideration received by Borrower and its Restricted Subsidiaries in the
form of Cash and Cash Equivalents in connection with such Disposition, and
(b) in the case of any Material Transaction which is an Acquisition, to
increase Interest Charges by the amount of Interest Charges which would be
associated with Funded Debt in an amount equal to the consideration paid by
Borrower and its Restricted Subsidiaries in the form of Cash and Cash
Equivalents in connection with such Acquisition (in each case, for that
portion of the period occurring prior to the receipt of such consideration,
and at an interest rate which is equal to the blended interest rate payable
by Borrower in respect of Indebtedness during the relevant period (as
reasonably determined by Borrower)).
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"Change in Control" means (a) any transaction or series of related
transactions in which any Unrelated Person or two or more Unrelated Persons
acting in concert acquire beneficial ownership (within the meaning of Rule
13d-3(a)(1) under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of 25% or more of the outstanding common stock of
Borrower or (b) during any period of 24 consecutive months, individuals who
at the beginning of such period constituted the board of directors of
Borrower (together with any new or replacement directors whose election by
the board of directors, or whose nomination for election, was approved by a
vote of at least a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for reelection was previously so approved) cease for any reason
to constitute a majority of the directors then in office, provided,
however, that no Change in Control shall exist for so long as Tracinda
Corporation, a Nevada corporation, and its Affiliates continue to be the
beneficial owner of 25% or more of the common stock of Borrower and no
other Person is the owner of more of the common stock of Borrower than
Tracinda Corporation and its Affiliates.
"Closing Date" means the time and Business Day on which the conditions
set forth in Section 8.1 are satisfied or waived. The Administrative Agent
shall notify Borrower and the Creditors of the date that is the Closing
Date.
"Co-Borrowers" means, collectively, Detroit and each other Guarantor
which is hereafter designated as a Co-Borrower pursuant to Section 2.7.
"Co-Documentation Agents" means the Persons identified in the preamble
of this Agreement as such.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"Commercial Letter of Credit" means each Letter of Credit issued to
support the purchase of goods by Borrower or any Co-Borrower which is
determined to be a commercial letter of credit by the relevant Issuing
Lender.
"Commitments" means, collectively, the Revolving Commitment and the
Term Commitment.
"Committed Advances" means an Advance by a Lender as a ratable part of
a Committed Loan pursuant to such Lender's Pro Rata Share of the applicable
Commitment.
"Committed Loan" means a Loan consisting of ratable Advances by the
Lenders pursuant to their respective Pro Rata Shares of the relevant
Commitment.
"Committed Revolving Note" means each promissory note made by Borrower
and each Co-Borrower to a Lender evidencing the Committed Advances made by
that Lender under its Pro Rata Share of the Revolving Commitment,
substantially in the form of Exhibit C, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed,
extended or supplanted.
"Competitive Advance" means an Advance made to Borrower or any
Co-Borrower under the Revolving Commitment by any Lender not determined by
that Lender's Pro Rata Share of the Revolving Commitment pursuant to
Section 2.5.
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"Competitive Bid" means (a) a written bid to provide a Competitive
Advance substantially in the form of Exhibit D, signed by a Responsible
Official of a Lender and properly completed to provide all information
required to be included therein or (b) at the election of any Lender, a
telephonic bid by that Lender to provide a Competitive Advance which, if so
made, shall be made by a Responsible Official of that Lender and deemed to
have been made incorporating the substance of Exhibit D, and shall promptly
be confirmed by a written Competitive Bid.
"Competitive Bid Request" means (a) a written request submitted by
Borrower or any Co-Borrower to the Administrative Agent to provide a
Competitive Bid, substantially in the form of Exhibit E, signed by a
Responsible Official of Borrower and any relevant Co-Borrower and properly
completed to provide all information required to be included therein or (b)
at the election of Borrower, a telephonic request by Borrower to the
Administrative Agent to provide a Competitive Bid which, if so made, shall
be made by a Responsible Official of Borrower and deemed to have been made
incorporating the substance of Exhibit E, and shall promptly be confirmed
by a written Competitive Bid Request.
"Competitive Revolving Note" means each promissory note made by
Borrower and each Co-Borrower to a Lender evidencing the Competitive
Advances made under the Revolving Commitment by that Lender, substantially
in the form of Exhibit F, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit G, properly completed and signed by a Senior Officer of Borrower
and each Co-Borrower.
"Consolidated Net Tangible Assets" means, as of each date of
determination, the total amount of assets of Borrower and its Subsidiaries,
after deducting therefrom (a) all current liabilities of Borrower and its
Subsidiaries (excluding (i) the current portion of long-term Indebtedness,
(ii) inter-company liabilities, and (iii) any liabilities which are by
their terms renewable or extendable at the option of the obligor thereon to
a time more than twelve months from the time as of which the amount thereof
is being computed), and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles of
Borrower and its Subsidiaries, all as set forth on the latest consolidated
balance sheet of Borrower prepared in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
outstanding security issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or
any of its Property is bound.
"Creditors" means, collectively, the Administrative Agent, the Issuing
Lenders, the Swing Line Lenders, each Lender and, where the context
requires, any one or more of them.
"Debt Rating" means, as of any date of determination, the credit
rating assigned to the credit facilities provided hereunder whether senior
secured or senior unsecured (or, if the facilities hereunder are not rated,
the corporate rating assigned to Borrower's most senior indebtedness), by a
nationally recognized credit reporting agency selected by Borrower,
reasonably approved by the Administrative Agent, and not objected to by the
Requisite Lenders within five Business Days following notice of such
designation.
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"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Default Rate" means the interest rate prescribed in Section 3.9.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations, or participations
in Swing Line Loans required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"Deposit Account" means separate accounts located at Bank of America
as to Borrower and each Co-Borrower designated by Borrower or such
Co-Borrower with the reasonable approval of the Administrative Agent.
"Designated Market" means, with respect to any LIBOR Loan, (a) the
London Eurodollar Market, (b) if prime banks in the London Eurodollar
Market are at the relevant time not accepting deposits of Dollars or if the
Administrative Agent determines in good faith that the London Eurodollar
Market does not represent at the relevant time the effective pricing to the
Lenders for deposits of Dollars in the London Eurodollar Market, the Cayman
Islands Eurodollar Market or (c) if prime banks in the Cayman Islands
Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that the
Cayman Islands Eurodollar Market does not represent at the relevant time
the effective pricing to the Lenders for deposits of Dollars in the Cayman
Islands Eurodollar Market, such other Eurodollar Market as may from time to
time be selected by the Administrative Agent with the approval of Borrower,
the Co-Borrowers and the Requisite Lenders. The Administrative Agent will
endeavor to provide prompt notice to Borrower and the Co-Borrowers of any
change in the location of the Designated Market.
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
company, its successors and permitted assigns.
"Disclosure Schedule" means the Disclosure Schedule attached to this
Agreement as Schedule 4.0.
"Disposition" means the sale, transfer or other disposition, in one
transaction or any series of related transactions, of any asset.
"Disqualification" means, with respect to any Creditor:
(a) the failure of that Person timely to file pursuant to
applicable Gaming Laws (i) any application requested of that Person by
any Gaming Board in connection with any licensing required of that
Person as a lender to Borrower or a Co-Borrower or
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(ii) any required application or other papers in connection with
determination of the suitability of that Person as a lender to
Borrower or a Co-Borrower;
(b) the withdrawal by that Person (except where requested or
permitted by the Gaming Board) of any such application or other
required papers; or
(c) any final determination by a Gaming Board pursuant to
applicable Gaming Laws (i) that such Person is "unsuitable" as a
lender to Borrower or a Co-Borrower, (ii) that such Person shall be
"disqualified" as a lender to Borrower or a Co-Borrower or (iii)
denying the issuance to that Person of any license required under
applicable Gaming Laws to be held by all lenders to Borrower or any
Co-Borrower.
"Distribution" means, with respect to any shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement, redemption, purchase or
other acquisition for Cash or for Property (other than capital stock, or
any warrants or options to purchase an equity security or other security of
such Person) by such Person of any such security, (b) the declaration or
(without duplication) payment by such Person of any dividend in Cash or in
Property (other than capital stock, or any warrants or options to purchase
an equity security or other security of such Person) on or with respect to
any such security, (c) any Investment by such Person in the holder of 5% or
more of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property (other than capital stock, or any warrants or
options to purchase an equity security or other security of such Person) by
such Person constituting a distribution under applicable Laws with respect
to such security.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the relevant Issuing
Lender, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the
purchase of Dollars with such Alternative Currency.
"Dollars" or "$" means United States dollars.
"EBITDA" means, with respect to any fiscal period and with respect to
any Person, the sum of (a) Net Income of such Person for that period, plus
(b) any extraordinary loss reflected in such Net Income and, without
duplication, any loss associated with the early retirement of Indebtedness,
minus (c) any extraordinary gain reflected in such Net Income, plus (d)
Interest Charges of such Person for that period, plus (e) the aggregate
amount of federal, state and local taxes on or measured by income of such
Person for that period (whether or not payable during that period) plus (f)
depreciation, amortization and all non-recurring and/or other non-Cash
expenses to the extent deducted in arriving at Net Income for that period,
plus (g) expenses classified as "pre-opening and start-up expenses" on the
applicable financial statements of that Person for that fiscal period, plus
(h) minority interest, in each case as determined in accordance with GAAP.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, and (ii) unless an Event
of Default has occurred and is continuing, Borrower (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, each "Eligible Assignee" (A) shall not be Borrower or any of
Borrower's Affiliates or
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Subsidiaries, (B) shall be exempt from withholding of tax on interest and
shall deliver the documents related thereto pursuant to Section 11.21, and
(iii) to the extent required under applicable Gaming Laws, shall not be the
subject of a Disqualification.
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the
Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency.
"Enhanced LIBOR Margin" means, for any period, the sum of (i) the
LIBOR Margin then in effect plus (ii) such interest rate margin as the
Requisite Lenders specify is necessary to adjust LIBOR to a rate which
represents the effective pricing to such Lenders for deposits of Dollars in
the Designated Market in the relevant amount for the applicable Interest
Period and which adequately and fairly reflects the cost to such Lenders of
making the applicable LIBOR Advances.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
any regulations issued pursuant thereto, as amended or replaced and as in
effect from time to time.
"ERISA Affiliate" means, with respect to any Person, any other Person
(or any trade or business, whether or not incorporated) that is under
common control with that Person within the meaning of Section 414 of the
Code.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurodollar Market" means a regular established market located outside
the United States of America by and among banks for the solicitation, offer
and acceptance of Dollar deposits in such banks.
"Event of Default" shall have the meaning provided in Section 9.1.
"Existing Letters of Credit" means the letters of credit issued under
the Existing Loan Agreement and outstanding as of the Closing Date.
"Existing Loan Agreement" means the Fourth Amended and Restated Loan
Agreement dated as of November 22, 2004 among Borrower, Detroit, as
Co-Borrower, the lenders referred to therein, and the Administrative Agent,
as heretofore amended.
"Existing Subordinated Obligations" means, collectively (a) Borrower's
$710,000,000 9 3/4% senior subordinated notes due 2007, issued pursuant to
the Indenture dated as of May 31, 2000 between Borrower (under its former
name, MGM Grand, Inc.) and The Bank of New York, as Trustee, (b) Borrower's
$400,000,000 8 3/8% senior subordinated notes due 2011 issued pursuant to
the Indenture dated as of January 23, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Trust Company of New York (to which The Bank of New York is now
successor in interest), as Trustee, (c) Mandalay's $500,000,000 10.25%
senior subordinated notes due 2007 issued pursuant to the Indenture dated
as of July 24, 2000 between Mandalay and The Bank of New York, as Trustee,
of which $492,233,000 remains outstanding (d) Mandalay's $300,000,000
9.375% senior subordinated notes due 2010 issued pursuant to the Indenture
dated December 20,
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2001 between Mandalay and The Bank of New York, as Trustee, of which
$297,556,000 remains outstanding and (e) the $150,000,000 Senior
Subordinated Notes of Mandalay issued pursuant to the Indenture dated July
21, 1993 between Mandalay (under its former name, Circus Circus
Enterprises, Inc.) and First Interstate Bank of Nevada, N.A. (to which
▇▇▇▇▇ Fargo Bank, N.A., is now successor in interest), as Trustee.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank on the
Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting,
subject to Section 1.3, of the three calendar month periods ending on each
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting, subject to
Section 1.3, of the twelve month period ending on each December 31.
"Foreign Lender" has the meaning specified in Section 11.21(a)(i).
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Funded Debt" means, as of any date of determination, the sum (without
duplication) of: (a) all principal Indebtedness of Borrower and its
Restricted Subsidiaries for borrowed money (including debt securities
issued by Borrower or any of its Restricted Subsidiaries) on that date
(other than any such Indebtedness to the extent (x) it has been legally or
contractually defeased, (y) it is the subject of a deposit in Cash or Cash
Equivalents for the purpose of defeasing the same in accordance with its
terms or (z) the proceeds thereof are held by the trustee or other
representative for the holders of such Indebtedness or any third party
escrow agent pending satisfaction or waiver of the conditions for the
release of such proceeds to Borrower or its Restricted Subsidiaries or to a
third party), plus (b) the aggregate amount of all Capital Lease
Obligations of Borrower and its Restricted Subsidiaries on that date, plus
(c) all Guaranty Obligations issued by Borrower and its Restricted
Subsidiaries, provided that the amount of any Guaranty Obligation or letter
of credit shall be deemed to be zero unless and until (i) in the case of
Guaranty Obligations in respect of letters of credit, a drawing is made
with respect thereto, and (ii) in the case of any other Guaranty
Obligations, demand for payment is made with respect thereto, minus (d) the
balance as of that date of escrow deposits received in respect of advance
sales of residential units or other components of the Borrower's
development projects, including Project CityCenter.
"GAAP" means, as of any date of determination, accounting principles
(a) set forth as generally accepted in then currently effective Opinions of
the Accounting Principles Board of the American Institute of Certified
Public Accountants, (b) set forth as generally accepted in then
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currently effective statements of the Financial Accounting Standards Board
or (c) that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith,
means that the accounting principles applied are consistent in all material
respects with those applied at prior dates or for prior periods.
"Gaming Board" means, collectively, (a) the Nevada Gaming Commission,
(b) the Nevada State Gaming Control Board, (c) the New Jersey Casino
Control Commission, (d) the New Jersey Division of Gaming Enforcement, (e)
the Mississippi Gaming Commission, (f) the Michigan Gaming Control Board,
(g) the Illinois Gaming Board, and (h) any other Governmental Agency
(including Governmental Agencies associated with foreign governments) that
holds regulatory, licensing or permit authority over gambling, gaming or
casino activities conducted by Borrower, any Co-Borrower or any Restricted
Subsidiary within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling, gaming
or casino activities conducted by Borrower and its Subsidiaries within its
jurisdiction, in each case to the extent applicable to Borrower and its
Restricted Subsidiaries.
"Government Securities" means readily marketable (a) direct full faith
and credit obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or corporation owned,
controlled or sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of the
United States of America.
"Governmental Agency" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal of competent jurisdiction.
"Granting Lender" has the meaning set forth in Section 11.8(h).
"Guarantors" means, collectively, each Restricted Subsidiary of
Borrower which exists as of the Closing Date, other than Detroit and Nevada
Landing Partnership, and each other Restricted Subsidiary of Borrower which
hereafter becomes a Guarantor pursuant to Section 5.8, provided that any
Guarantor which is sold or otherwise transferred in a Disposition may be
released from the Guaranty in accordance with this Agreement.
"Guaranty" means each of the continuing guaranties of the Obligations
executed and delivered by the Guarantors on the Closing Date, substantially
in the form of the Subsidiary Guaranty executed in connection with the
Existing Loan Agreement.
"Guaranty Obligation" means, as to any Person (without duplication),
any (a) guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person to
an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person, whether
direct, indirect or contingent, including any purchase or repurchase
agreement covering such obligation or any collateral security therefor, any
agreement to provide funds (by means of loans, capital contributions or
otherwise) to such other Person, any agreement to support the solvency or
level of any balance sheet or income statement item of such other Person or
any "keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such
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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.
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., or
as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or as "friable asbestos" pursuant to the Toxic
Substances Control Act, 15 U.S.C. Section 2601, et seq., in each case as
such Laws are amended from time to time.
"Hazardous Materials Laws" means all Laws governing the treatment,
transportation or disposal of Hazardous Materials applicable to any of the
Real Property.
"Honor Date" has the meaning set forth for that term in Section
2.4(c)(i).
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred purchase
price of Property (excluding trade and other accounts payable in the
ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation for any such indebtedness, (b)
indebtedness of such Person of the nature described in clause (a) that is
non-recourse to the credit of such Person but is secured by assets of such
Person, to the extent of the value of such assets, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising under
bankers' acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (e) any direct or contingent
obligations of such Person under letters of credit issued for the account
of such Person, and (f) any net obligations of such Person under Swap
Agreements in respect of interest rate hedging arrangements.
"Indemnified Liabilities" has the meaning set forth in Section 11.11.
"Indemnitees" has the meaning set forth in Section 11.11.
"Insurance Subsidiary" means MGMM Insurance Company, a Vermont
corporation, which is a captive insurance company approved by the Vermont
Department of Banking, Insurance, Securities and Health Care Administration
engaging primarily in the business of facilitating and providing insurance
coverage and claims services for Borrower, Co-Borrowers and their
Subsidiaries.
"Interest Charge Coverage Ratio" means, as of the last day of each
Fiscal Quarter, the ratio of (a) Cash Flow for the twelve month period
ending on that date, to (b) Cash Interest Charges for the same period.
"Interest Charges" means, for any Person, as of the last day of any
fiscal period, the sum of (a) all interest, fees, charges and related
expenses paid or payable (without duplication) for that fiscal period by
that Person to a lender in connection with borrowed money (including any
obligations for fees, charges and related expenses payable to the issuer of
any letter of credit) or the deferred purchase price of assets that are
considered "interest expense" under GAAP, plus (b) the portion of rent paid
or payable (without duplication) for that fiscal period by that Person
under Capital Lease Obligations that should be treated as interest in
accordance with Financial Accounting Standards Board Statement No. 13.
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"Interest Differential" means, with respect to any prepayment of a
LIBOR Loan on a day other than the last day of the applicable Interest
Period and with respect to any failure to borrow a LIBOR Loan on the date
or in the amount specified in any Request for Loan, (a) LIBOR payable (or,
with respect to a failure to borrow, LIBOR which would have been payable)
with respect to the LIBOR Loan minus (b) LIBOR on, or as near as
practicable to, the date of the prepayment or failure to borrow for a LIBOR
Loan with an Interest Period commencing on such date and ending on the last
day of the Interest Period of the LIBOR Loan so prepaid or which would have
been borrowed on such date.
"Interest Period" means, as to each LIBOR Loan, a period of one week,
or of 1, 2, 3, 6 or 9 months (or, to the extent not promptly objected to by
any Lender following notice thereof by the Administrative Agent, any other
period) as designated by Borrower; provided that (a) the first day of each
Interest Period must be a Business Day, (b) any Interest Period that would
otherwise end on a day that is not a Business Day shall be extended to the
next succeeding Business Day, unless such Business Day falls in the next
calendar month, in which case the Interest Period shall end on the next
preceding Business Day, and (c) no Interest Period may extend beyond the
Maturity Date.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of
a loan, advance creating a debt, capital contribution, guaranty or other
debt or equity participation or interest in any other Person, including any
partnership and joint venture interests of such Person. The amount of any
Investment shall be the amount actually invested (minus any return of
capital with respect to such Investment which has actually been received in
Cash or Cash Equivalents or has been converted into Cash or Cash
Equivalents), without adjustment for subsequent increases or decreases in
the value of such Investment.
"Investment Grade" means that the Debt Rating assigned is a rating
which, as reasonably determined by the Administrative Agent, would be the
lowest rating granted by the relevant credit rating agency which is
generally treated as "investment grade" in the ratings regime of that
credit rating agency.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking
Law & Practice (or such later version thereof as may be in effect at the
time of issuance).
"Issuer Documents" means with respect to any Letter of Credit issued
by an Issuing Lender, the Letter of Credit Application and any other
document, agreement or instrument entered into by Borrower (or any
Subsidiary), and that Issuing Lender or in favor of that Issuing Lender and
relating to any such Letter of Credit.
"Issuing Lender" means, (a) initially, Bank of America, N.A. in its
capacity as an issuer of Letters of Credit hereunder, and (b) up to two
additional willing Lenders designated from time to time by Borrower by a
writing addressed to the Administrative Agent as Issuing Lenders hereunder.
"L/C Advance" means, with respect to each Lender, such Lender's
funding of its participation in any L/C Borrowing in accordance with its
Pro Rata Share of the Revolving Commitment.
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"L/C Borrowing" means an extension of credit resulting from a drawing
under a Letter of Credit which has not been reimbursed on the date when
made or refinanced as a Loan.
"L/C Obligations" means, as at any date of determination, the Dollar
Equivalent of the aggregate amount available to be drawn under all
outstanding Letters of Credit plus the Dollar Equivalent of the aggregate
of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with
Section 1.7. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount
may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be "outstanding" in the
amount so remaining available to be drawn.
"Laws" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lead Arrangers" means Banc of America Securities LLC and The Royal
Bank of Scotland PLC, in their capacities as joint lead arrangers of the
credit facilities described herein.
"Lender" means each lender whose name is set forth in the signature
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 11.8 (and, to the extent party to a
Related Swap Agreement, any Affiliate of a Lender).
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such in such Lender's Administrative
Questionnaire, or such other office or offices as a Lender may from time to
time notify Borrower and the Administrative Agent.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to
time in use by the relevant Issuing Lender.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Usage" means, as of any date of determination, the
Dollar Equivalent of the aggregate undrawn face amount of outstanding
Letters of Credit plus the Dollar Equivalent of the aggregate amount of all
Unreimbursed Amounts, including all L/C Borrowings.
"Letters of Credit" means any of the Standby Letters of Credit or
Commercial Letters of Credit issued by the Issuing Lenders under the
Revolving Commitment pursuant to Section 2.4, including the Existing
Letters of Credit, either as originally issued or as the same may be
supplemented, modified, amended, renewed, extended or supplanted.
"LIBOR" means, for any Interest Period with respect to a LIBOR Loan,
the rate per annum equal to the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period,
for Dollar deposits (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the "LIBOR Rate" for such
Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate
W02-WEST:LAR\400019853.8
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at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the LIBOR Loan being
made, continued or converted by Bank of America and with a term equivalent
to such Interest Period would be offered by Bank of America's London Branch
to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"LIBOR Advance" means an Advance made hereunder and specified to be a
LIBOR Advance in accordance with Article 2.
"LIBOR Lending Office" means, as to each Lender, its office or branch
so designated by written notice to Borrower and the Administrative Agent as
its LIBOR Lending Office. If no LIBOR Lending Office is designated by a
Lender, its LIBOR Lending Office shall be its office at its address for
purposes of notices hereunder.
"LIBOR Loan" means a Loan made hereunder and specified to be a LIBOR
Loan in accordance with Article 2.
"LIBOR Margin" means the applicable per annum percentage set forth in
the definition of "Applicable Rates".
"LIBOR Margin Bid" means a Competitive Bid to provide a Competitive
Advance on the basis of a margin over LIBOR.
"License Revocation" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, supervisor or similar
official with respect to, any casino, gambling or gaming license issued by
any Gaming Board covering any casino or gaming facility.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance or lien of any
kind, whether voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any agreement to grant any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature of a security interest, and/or the filing of or
agreement to give any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature of a
security interest) under the Uniform Commercial Code or comparable Law of
any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time by the
Lenders pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Swing Line Documents, the Guaranty, each Request for Loan, each Competitive
Bid Request, each Letter of Credit Application, each Pricing Certificate,
each Compliance Certificate, any Related Swap Agreement and any other
agreements of any type or nature hereafter executed and delivered by
Borrower or any of its Restricted Subsidiaries to the Administrative Agent
or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may
from time to time be supplemented, modified, amended, restated, extended or
supplanted.
"Mandalay" means Mandalay Resort Group, a Nevada corporation.
W02-WEST:LAR\400019853.8
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"Margin Stock" means "margin stock" as such term is defined in
Regulations U and X of the Federal Reserve Board.
"Material Adverse Effect" means any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan Document,
(b) is or could reasonably be expected to be material and adverse to the
condition or prospects (financial or otherwise), assets, business or
operations of Borrower and its Restricted Subsidiaries, taken as a whole,
or (c) materially impairs or could reasonably be expected to materially
impair the ability of Borrower or Guarantors (taken as a whole) to perform
the Obligations.
"Material Transaction" means (a) each Acquisition made by Borrower or
any of its Restricted Subsidiaries pursuant to which the aggregate
consideration paid by them (whether in Cash or other Property, or by means
of the assumption of any liabilities) is in excess of $500,000,000, and (b)
each Disposition made by Borrower or any of its Restricted Subsidiaries
following the Closing Date pursuant to which the aggregate consideration
received by them (whether in Cash or other Property, or by means of the
assumption of any liabilities) is in excess of $500,000,000.
"Maturity Date" means the fifth anniversary of the Closing Date.
"Maximum Competitive Advance" means, with respect to any Competitive
Bid made by a Lender, the amount set forth therein as the maximum
Competitive Advance which that Lender is willing to make in response to the
related Competitive Bid Request.
"Maximum Competitive Outstandings Amount" means, as of each date of
determination, one half of the then effective amount of the Revolving
Commitment.
"MGM Grand Detroit II" means MGM Grand Detroit II, LLC, a Delaware
limited liability company, and its successors.
"Mirage" means Mirage Resorts, Incorporated, a Nevada corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contribute or are obligated to contribute.
"Negative Pledge" means a Contractual Obligation that contains a
covenant binding on Borrower or any of its Restricted Subsidiaries that
prohibits Liens on any of its or their Property, other than (a) any such
covenant contained in a Contractual Obligation granting a Lien permitted
under Section 6.4 which affects only the Property that is the subject of
such permitted Lien and (b) any such covenant that does not apply to Liens
securing the Obligations or any indebtedness which is used, directly or
indirectly, to refinance the Obligations.
"Net Income" means, with respect to any fiscal period and with respect
to any Person, the net income of that Person from continuing operations for
that period, determined in accordance with GAAP, consistently applied.
W02-WEST:LAR\400019853.8
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"Nevada Landing Partnership" means Nevada Landing Partnership, an
Illinois general partnership. Nevada Landing Partnership is the Person
through which Borrower holds its 50% joint venture interest in the Grand
Victoria Casino Elgin in Elgin, Illinois.
"New Project" means, in respect of each period for which Cash Flow is
determined, each free-standing hotel, casino or other development having an
aggregate cost in excess of $250,000,000, which has been completed by
Borrower and its Restricted Subsidiaries during such period, irrespective
of when the project was commenced.
"New Project Annualized EBITDA" means, as of each date of
determination which occurs during the one year period following the opening
of any New Project for business, the EBITDA associated with that New
Project for the fiscal period following such opening, annualized on the
following basis:
(a) where the period from the opening is less than one full
Fiscal Quarter, such EBITDA times four; and
(b) where the period from the opening is one full Fiscal Quarter
or more, such EBITDA annualized on a straight-line basis.
"Non-Control Subsidiaries" means each Subsidiary of Borrower in
respect of which Borrower and its other Subsidiaries do not have the
collective right to elect a majority of the board of directors or other
equivalent governing body, or otherwise lack the power to direct the
management of such Subsidiary which is identified as such by Borrower in a
notice to the Administrative Agent. Each Non-Control Subsidiary existing as
of the Closing Date is listed on the Disclosure Schedule as such.
"Notes" means, collectively, the Competitive Revolving Notes, the
Committed Revolving Notes and the Term Notes.
"Obligations" means all present and future obligations of every kind
or nature of Borrower, the Co-Borrowers or the Guarantors at any time and
from time to time owed to the Administrative Agent, the Issuing Lenders,
the Swing Line Lenders or the Lenders or any one or more of them, under any
one or more of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment, and
including interest that accrues after the commencement of any proceeding
under any Debtor Relief Law by or against Borrower or a Restricted
Subsidiary of Borrower, whether or not allowed as a claim in such
proceeding.
"Opinions" means the favorable written legal opinions of (a)
Christensen, Miller, Fink, Jacobs, ▇▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇▇, LLP, counsel
to Borrower, (b) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Nevada counsel to Borrower, (c)
Fox Rothschild LLP, New Jersey counsel to Borrower, (d) Butler, Snow,
O'Mara, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC, Mississippi counsel to Borrower, (e)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, Michigan counsel to Borrower, and (f) ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, Illinois counsel to Borrower, together with copies of all factual
certificates and legal opinions upon which such counsel has relied.
"Other Available EBITDA" means, for any fiscal period, without
duplication that portion of the EBITDA of any Unrestricted Subsidiaries for
that fiscal period to the extent that the same may be distributed in Cash
to Borrower and its Restricted Subsidiaries during that fiscal period in
accordance with applicable Law and subject to any Contractual Obligations
(including credit
W02-WEST:LAR\400019853.8
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documents) which are binding upon such Unrestricted Subsidiaries or their
respective Properties (whether or not so distributed).
"Outstanding Obligations" means, as of each date of determination, and
giving effect to the making of any such credit accommodations requested on
that date, the sum of (i) the aggregate principal amount of the outstanding
Committed Loans, plus (ii) the aggregate principal amount of the
outstanding Competitive Advances, plus (iii) the Swing Line Outstandings,
plus (iv) the Letter of Credit Usage.
"Participating Member State" means each state so described in any EMU
Legislation.
"Party" means any Person other than the Creditors which now or
hereafter is a party to any of the Loan Documents.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
which is subject to Title IV of ERISA and is maintained by Borrower or any
of its Subsidiaries or to which Borrower or any of its Subsidiaries
contributes or has an obligation to contribute.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction on or maintenance of
Property; or Liens incident to construction on or maintenance of
Property now or hereafter filed of record for which adequate reserves
have been set aside (or deposits made pursuant to applicable Law) and
which are being contested in good faith by appropriate proceedings and
have not proceeded to judgment, provided that, by reason of nonpayment
of the obligations secured by such Liens, no such Property is subject
to a material risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not yet
past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by
such Liens, no such Property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair market value
or use of the Property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements for
the purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting Property, facilities, or equipment which in the aggregate do
not materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be
expected to be held;
(e) easements, exceptions, reservations, or other agreements for
the purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or
W02-WEST:LAR\400019853.8
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impair the fair market value or use of such Property for the purposes
for which it is or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses (a) or
(b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good
faith, provided that, if delinquent, adequate reserves have been set
aside with respect thereto and, by reason of nonpayment, no Property
is subject to a material risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is
or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements covering
Property entered into in the ordinary course of business of the Person
owning such Property;
(l) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including
Liens of judgments thereunder which are not currently dischargeable;
(m) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary
course of business to which Borrower or a Restricted Subsidiary of
Borrower is a party as lessee, provided the aggregate value of all
such pledges and deposits in connection with any such lease does not
at any time exceed 20% of the annual fixed rentals payable under such
lease;
(n) Liens consisting of deposits of Property to secure bids made
with respect to, or performance of, contracts (other than contracts
creating or evidencing an extension of credit to the depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure statutory
obligations of Borrower or a Restricted Subsidiary of Borrower;
W02-WEST:LAR\400019853.8
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(q) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds in proceedings to which
Borrower or a Restricted Subsidiary of Borrower is a party;
(r) Liens created by or resulting from any litigation or legal
proceeding involving Borrower or a Restricted Subsidiary of Borrower
in the ordinary course of its business which is currently being
contested in good faith by appropriate proceedings, provided that
adequate reserves have been set aside by Borrower or the relevant
Restricted Subsidiary and no material Property is subject to a
material risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary course of
business but not in connection with an extension of credit, which do
not in the aggregate, when taken together with all other Liens,
materially impair the value or use of the Property of Borrower and the
Restricted Subsidiaries of Borrower, taken as a whole.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Pricing Certificate" means a certificate substantially in the form of
Exhibit H, properly completed and signed by a Senior Officer of Borrower
and each Co-Borrower.
"Pricing Level" means, as of each date of determination, the pricing
level set forth below opposite (a) the Applicable Total Leverage Ratio, or
(b) at such times when the Debt Rating is Investment Grade or Superior
Investment Grade, the Debt Rating, provided that if the Applicable Total
Leverage Ratio and the Debt Rating are at different Pricing Levels, then
the Pricing Level which yields the lowest LIBOR Margin shall apply:
Pricing Criteria
Pricing Level Applicable Total Leverage Ratio Debt Rating
------------- ------------------------------- -----------
I Less than 3.50 to 1.00 Superior Investment
Grade
II Equal to or greater than 3.50 to 1.00 but Investment Grade
less than 4.00 to 1.00
III Equal to or greater than 4.00 to 1.00 but N/A
less than 4.50 to 1.00
IV Equal to or greater than 4.50 to 1.00 but N/A
less than 5.00 to 1.00
V Equal to or greater than 5.00 to 1.00 but N/A
less than 5.50 to 1.00
VI Equal to or greater than 5.50 to 1.00 but N/A
less than 6.00 to 1.00
VII Equal to or greater than 6.00 to 1.00 N/A
W02-WEST:LAR\400019853.8
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"Pricing Period" means each period commencing on the date of delivery
of each Pricing Certificate and ending on the date immediately preceding
the delivery of the next Pricing Certificate.
"Pro Rata Share" means, with respect to each Lender, the percentage of
the relevant Commitment, the Loans (except for Competitive Advances)
thereunder (and in the case of the Revolving Commitment, the Letters of
Credit and the Swing Line Advances) held by that Lender (or by a SPC for
which that Lender is the Granting Lender). As of the Closing Date, the Pro
Rata Shares of the Commitments held by each Lender are set forth on
Schedule 1.1 hereto. The percentage Pro Rata Shares of each Lender in the
Commitments is subject to adjustment pursuant to any Assignment Agreement
executed in accordance with Section 11.8.
"Project CityCenter" means the project being developed on property
adjacent to the Bellagio Hotel and Casino, which includes, among other
things, a ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ resort, two non-gaming boutique hotels, retail
shops, dining and entertainment venues, and residential space consisting of
luxury condominiums and condominium-hotel units in multiple towers.
"Projections" means the financial projections for Borrower and its
Subsidiaries distributed to the Lenders as part of the Confidential
Offering Memorandum dated September, 2006.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quarterly Payment Date" means the last Business Day of each December,
March, June and September following the date of this Agreement.
"Real Property" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by Borrower or any
of its Restricted Subsidiaries.
"Regulations T, U and X" means Regulations T, U and X, as at any time
amended, of the Board of Governors of the Federal Reserve System, or any
other regulations in substance substituted therefor.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"Related Swap Agreement" means a Swap Agreement between Borrower and a
Lender or an Affiliate of a Lender.
"Request for Loan" means a written request for a Loan substantially in
the form of Exhibit I, signed by a Responsible Official of Borrower or a
Co-Borrower, on its behalf, and properly completed to provide all
information required to be included therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
W02-WEST:LAR\400019853.8
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"Requisite Lenders" means (a) as of any date of determination if the
Commitments are then in effect, Lenders having Pro Rata Shares of the
Commitments which are, in the aggregate, a majority of the Pro Rata Shares
of the Commitments then in effect, and (b) as of any date of determination
if the Commitments have then been terminated and there are then any
Obligations outstanding, Lenders or other creditors holding a majority of
the Outstanding Obligations; provided that the Pro Rata Shares of the
Commitments of, and the portion of the Outstanding Obligations held or
deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Requisite Lenders.
"Responsible Official" means when used with reference to any Person,
any officer or manager of such Person, general partner of such Person,
officer of a corporate or limited liability company general partner of such
Person, officer of a corporate or limited liability company general partner
of a partnership that is a general partner of such Person, or any other
responsible official thereof duly acting on behalf thereof. The Lenders
shall be entitled to conclusively rely upon any document or certificate
that is signed or executed by a Responsible Official of Borrower, or any of
its Restricted Subsidiaries as having been authorized by all necessary
corporate, limited liability company, partnership and/or other action on
the part of Borrower or such Restricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary of Borrower other than:
(a) Subsidiaries formed under the Laws of foreign nations whose
only tangible assets are located in foreign nations, and pure holding
companies for such foreign Subsidiaries owning as their sole asset the
stock or other securities and obligations thereof;
(b) MGM Grand Detroit II and the Insurance Subsidiary;
(c) Non-Control Subsidiaries; and
(d) any Subsidiary of Borrower formed or acquired after the date
of this Agreement that is designated as an Unrestricted Subsidiary in
writing by Borrower to the Administrative Agent, but only so long as
such Subsidiary of Borrower does not, and is not required to,
guarantee or otherwise be liable for any of the Senior Indebtedness.
"Revaluation Date" means, with respect to any Letter of Credit, each
of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of
any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of
any payment by the relevant Issuing Lender under any Letter of Credit
denominated in an Alternative Currency, and (iv) such additional dates as
the Administrative Agent or the relevant Issuing Lender shall determine or
the Requisite Lenders shall require.
"Revolving Commitment" means $4,500,000,000, subject to any decrease
in the amount thereof pursuant to Sections 2.8, 2.9 or 11.24 or any
increase in the amount thereof pursuant to Section 2.12.
"Revolving Lender" means each Lender having a Pro Rata Share of the
Revolving Loans, the Letters of Credit, the Swing Line Loans and the
Revolving Commitment.
W02-WEST:LAR\400019853.8
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"Revolving Loans" means the aggregate of the Advances made at any one
time by the Revolving Lenders under the Revolving Commitment.
"S&P" means Standard & Poor's Ratings Services, a division of McGraw
Hill Companies, Inc., and any successor thereto.
"Senior Indebtedness" means each issue, item or class of Indebtedness
of Borrower or any of its Restricted Subsidiaries which is in the principal
amount of $50,000,000 or more and which is not a Subordinated Obligation.
"Senior Officer" means the (a) chief executive officer or manager, (b)
president, (c) executive vice president, (d) senior vice president, (e)
chief financial officer, (f) treasurer, (g) assistant treasurer, (h)
secretary or (i) assistant secretary of Borrower or any of its Restricted
Subsidiaries.
"Solvent" means, as to any Person, that (a) the sum of the assets of
such Person, both at a fair valuation and at a present fair saleable value,
exceeds its liabilities, including its probable liability in respect of
contingent liabilities, (b) such Person will have sufficient capital with
which to conduct its business as presently conducted and as proposed to be
conducted and (c) such Person has not incurred debts, and does not intend
to incur debts, beyond its ability to pay such debts as they mature.
"SPC" means, as to each Lender, one or more special purpose funding
vehicles maintained or established by that Lender.
"Special Eurodollar Circumstance" means the application or adoption
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Lender or its LIBOR Lending Office with any request or directive (whether
or not having the force of Law) of any such Governmental Agency, central
bank or comparable authority, or the existence or occurrence of
circumstances affecting the Designated Market generally that are beyond the
reasonable control of the Lenders.
"Spot Rate" for a currency means the rate determined by the
Administrative Agent or the relevant Issuing Lender, as applicable, to be
the rate quoted by the Person acting in such capacity as the spot rate for
the purchase by such Person of such currency with another currency through
its principal foreign exchange trading office at approximately 11:00 a.m.
on the date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that the Administrative Agent or the
relevant Issuing Lender may obtain such spot rate from another financial
institution designated by the Administrative Agent or the relevant Issuing
Lender if the Person acting in such capacity does not have as of the date
of determination a spot buying rate for any such currency; and provided
further that the relevant Issuing Lender may use such spot rate quoted on
the date as of which the foreign exchange computation is made in the case
of any Letter of Credit denominated in an Alternative Currency.
"Standby Letter of Credit" means each Letter of Credit that is not a
Commercial Letter of Credit.
"Standby Letter of Credit Fee" means the applicable per annum
percentage set forth in the definition of "Applicable Rates".
W02-WEST:LAR\400019853.8
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"Sterling" and "L" mean the lawful currency of the United Kingdom.
"Subordinated Obligations" means, collectively, the Existing
Subordinated Obligations and any future class of Indebtedness of Borrower
or any of its Subsidiaries which is subject to subordination in right of
payment to the Obligations pursuant to subordination provisions which are
(a) reasonably consistent with those contained in the Existing Subordinated
Obligations, or (b) otherwise reasonably consistent with then prevailing
market standards for public issuances of subordinated indebtedness.
"Subsidiary" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in either case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a majority
of the securities having ordinary voting power for the election of
directors or other governing body (other than securities having such power
only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority of the
partnership or other ownership interests are at the time beneficially owned
by such Person and/or one or more of its Subsidiaries.
For the avoidance of doubt, and only by way of example, as of the
Closing Date, Marina District Development Holding Co., LLC, a New Jersey
limited liability company, the 100% owner of Marina District Development
Company, LLC, a New Jersey limited liability company doing business as "The
Borgata," is only 50% owned by Borrower and therefore is not a Subsidiary
of Borrower.
"Superior Investment Grade" means that the Debt Rating assigned is a
rating which, as reasonably determined by the Administrative Agent, would
be a rating which is higher than the minimum Investment Grade rating in the
ratings regime of that credit rating agency.
"Supported Subsidiary" means, collectively, (a) each Restricted
Subsidiary and (b) each Unrestricted Subsidiary in support of which
Borrower and its Restricted Subsidiaries have provided any guarantee,
keep-well, make-well or similar creditor assurance in respect of (i)
Indebtedness which is in an aggregate principal amount which is in excess
of $25,000,000, or (ii) any other obligations which may result in a demand
upon Borrower and its Restricted Subsidiaries which is in excess of
$25,000,000.
"Swap Agreement" means a written agreement between Borrower and one or
more financial institutions providing for (a) "swap", "cap", "collar" or
other interest rate protection with respect to any Indebtedness, or (b) any
currency hedging arrangements.
"Swing Line" means the revolving lines of credit established by the
Swing Line Lenders in favor of Borrower and the Co-Borrowers pursuant to
Section 2.6.
"Swing Line Documents" means the promissory note and any other
documents executed by Borrower and each Co-Borrower in favor of the Swing
Line Lenders in connection with the Swing Line.
"Swing Line Lenders" means (a) initially, Bank of America and U.S.
Bank National Association, and (b) hereafter such willing additional or
replacement Swing Line Lenders as may be designated by Borrower in a
writing addressed to the Administrative Agent from time to time
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from amongst the Lenders, provided that not more than three Lenders shall
be Swing Line Lenders at any time.
"Swing Line Loans" and "Swing Line Advances" mean loans made by a
Swing Line Lender to Borrower or the Co-Borrowers pursuant to Section 2.6.
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal Indebtedness of Borrower and the Co-Borrowers on all
Swing Line Loans then outstanding.
"Term Commitment" means $2,500,000,000, subject to any decrease in the
amount thereof pursuant to Sections 2.8, 2.9 or 11.24 or any increase in
the amount thereof pursuant to Section 2.12.
"Term Lender" means each Lender having a Pro Rata Share of the Term
Loans and the Term Commitment.
"Term Loans" means the aggregate of the Advances made at any one time
by the Term Lenders under the Term Commitment.
"Term Note" means each promissory note made by Borrower and each
Co-Borrower to a Lender evidencing the Advances made by that Lender under
its Pro Rata Share of the Term Commitment, substantially in the form of
Exhibit J, either as originally executed or as the same may from time to
time be supplemented, modified, amended, renewed, extended or supplanted.
"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).
"Total Leverage Ratio" means, as of any date, the ratio of (a) Funded
Debt as of that date, to (b) Cash Flow for the twelve month period then
ended.
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or Advance,
or a LIBOR Loan or Advance.
"Unreimbursed Amount" has the meaning set forth in Section 2.4(c)(i).
"Unrelated Person" means any Person other than (i) an employee stock
ownership plan or other employee benefit plan covering the employees of
Borrower and its Subsidiaries or (ii) an Affiliate of any Person or group
of related Persons which as of the date of this Agreement is the beneficial
owner of 25% or more (in the aggregate) of the outstanding common stock of
Borrower.
"Unrestricted Subsidiary" means each Subsidiary of Borrower which is
not a Restricted Subsidiary.
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"Unused Fee" has the meaning set forth in Section 3.4.
"Unused Fee Rate" means the applicable per annum percentage set forth
in the definition of "Applicable Rates".
"Yen" and "Y" mean the lawful currency of Japan.
1.2 Use of Defined Terms. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms - Fiscal Periods. All accounting terms not
specifically defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, except as
otherwise specifically prescribed herein. In the event that GAAP or Borrower's
Fiscal Year or Fiscal Quarters change during the term of this Agreement such
that the covenants contained in Sections 6.5 and 6.6 would then be calculated
for different periods, in a different manner or with different components, (a)
Borrower, the Co-Borrowers and the Lenders agree to amend this Agreement in such
respects as are necessary to conform those covenants as criteria for evaluating
Borrower's financial condition to substantially the same criteria as were
effective prior to such change in Fiscal Year, Fiscal Quarters or in GAAP and
(b) Borrower and the Co-Borrowers shall be deemed to be in compliance with the
covenants contained in the aforesaid Sections if and to the extent that Borrower
and the Co-Borrowers would have been in compliance therewith for the
pre-existing fiscal periods and under GAAP as in effect immediately prior to
such change, but shall have the obligation to deliver each of the materials
described in Article 7 to the Creditors, on the dates therein specified, with
financial data presented for its pre-existing fiscal periods and in a manner
which conforms with GAAP as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by
Borrower and the Co-Borrowers pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 Miscellaneous Terms. With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
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(d) The term "including" is by way of example and not limitation.
(e) The term "or" is not exclusive.
(f) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic
form.
(g) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word "through"
means "to and including."
1.7 Letter of Credit Amounts. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
1.8 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent or the relevant Issuing Lender, as
applicable, shall determine the Spot Rates as of each Revaluation Date to be
used for calculating Dollar Equivalent amounts of Letters of Credit and L/C
Obligations denominated in Alternative Currencies. Such Spot Rates shall become
effective as of such Revaluation Date and shall be the Spot Rates employed in
converting any amounts between the applicable currencies until the next
Revaluation Date to occur. Except for purposes of financial statements delivered
by Parties hereunder or calculating financial covenants hereunder or except as
otherwise provided herein, the applicable amount of any currency (other than
Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent
amount as so determined by the Administrative Agent or the relevant Issuing
Lender, as applicable.
(b) Wherever in this Agreement in connection with the issuance,
amendment or extension of a Letter of Credit, an amount, such as a required
minimum or maximum amount, is expressed in Dollars, but such Letter of Credit is
denominated in an Alternative Currency, such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the Administrative Agent or the relevant Issuing Lender, as the
case may be.
1.9 Additional Alternative Currencies.
(a) The Borrower or any Co-Borrower may from time to time request that
Letters of Credit be issued in a currency other than those specifically listed
in the definition of "Alternative Currency;" provided that such requested
currency is a lawful currency (other than Dollars) that is readily available and
freely transferable and convertible into Dollars. In the case of any such
request, such request shall be subject to the approval of the Administrative
Agent and the relevant Issuing Lender.
(b) Any such request shall be made to the Administrative Agent and the
relevant Issuing Lender not later than 11:00 a.m. Las Vegas time 20 Business
Days prior to the date of the desired issuance of the Letter of Credit (or such
other time or date as may be agreed by the Administrative Agent and the relevant
Issuing Lender in their sole discretion). The relevant Issuing Lender shall
notify the
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Administrative Agent, not later than 11:00 a.m. Las Vegas time 10 Business Days
after receipt of such request whether it consents, in its sole discretion, to
the issuance of Letters of Credit, as the case may be, in such requested
currency.
(c) Any failure by the relevant Issuing Lender to respond to such
request within the time period specified in the preceding sentence shall be
deemed to be a refusal by such Issuing Lender to permit Letters of Credit to be
issued in such requested currency. If the Administrative Agent and the relevant
Issuing Lender consent to the issuance of Letters of Credit in such requested
currency, the Administrative Agent shall so notify the Borrower or relevant
Co-Borrower and such currency shall thereupon be deemed to be an Alternative
Currency hereunder for purposes of any Letter of Credit issuances by such
Issuing Lender. If the Administrative Agent shall fail to obtain consent to any
request for an additional currency under this Section 1.9, the Administrative
Agent shall promptly so notify the Borrower or relevant Co-Borrower.
1.10 Change of Currency.
(a) Each obligation of the Borrower or any Co-Borrower to make a
payment denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the date hereof
shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
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ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 Committed Loans-General.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the Business Day
immediately prior to the Maturity Date, each Revolving Lender shall, pro rata
according to that Revolving Lender's Pro Rata Share of the then applicable
Revolving Commitment, make Committed Advances to Borrower or to any Co-Borrower
under the Revolving Commitment in Dollars in such amounts as Borrower or any
Co-Borrower may request that (i) do not result in the sum of the aggregate
outstanding principal amount of Competitive Advances and Revolving Loans plus
the Letters of Credit Usage plus the Swing Line Outstandings (after giving
effect to any concurrent payment thereof with the proceeds of such Advances)
exceeding the then effective Revolving Commitment, and (ii) in the case of
Committed Advances made to a Co-Borrower, are directly used to finance the
development, construction or operation of hotel/casino properties owned by that
Co-Borrower. Subject to the limitations set forth herein, the Committed Advances
by each Revolving Lender under its Pro Rata Share of the Revolving Commitment
may be prepaid without premium or penalty. The Administrative Agent shall
promptly provide Borrower or the relevant Co-Borrower with a written report
allocating the Obligations under the Revolving Commitment if requested by
Borrower or such Co-Borrower.
(b) Subject to the terms and conditions set forth in this Agreement,
on the Closing Date, each Term Lender shall make an Advance to Borrower or to
any Co-Borrower under the Term Commitment in Dollars in the full amount of that
Term Lender's Pro Rata Share of the Term Commitment. Thereafter, through the
Business Day immediately prior to the Maturity Date, each Term Lender shall
refinance its outstanding Advances, pro rata according to that Term Lender's Pro
Rata Share of the then applicable Term Commitment, in such amounts as Borrower
or the relevant Co-Borrower may request that do not result in the aggregate
outstanding principal amount of Term Loans being in excess of the then effective
Term Commitment. No Term Loan which is repaid (rather than refinanced with the
making of new Term Loans) may be reborrowed. Subject to the limitations set
forth herein, the Advances by each Term Lender under its Pro Rata Share of the
Term Commitment may be prepaid without premium or penalty.
(c) Subject to the next sentence, each Loan consisting of Committed
Advances shall be made pursuant to a Request for Loan which shall specify the
requested (i) date of such Loan, (ii) type of Loan, (iii) amount of such Loan,
(iv) in the case of a LIBOR Loan, the Interest Period for such Loan, and (v)
whether the Loan is requested under the Term Commitment or the Revolving
Commitment. Unless the Administrative Agent, in its sole and absolute
discretion, has notified Borrower or the relevant Co-Borrower to the contrary, a
Loan consisting of Committed Advances may be requested by telephone by a
Responsible Official of Borrower or the relevant Co-Borrower, in which case
Borrower or the relevant Co-Borrower shall confirm such request by promptly
delivering a Request for Loan in person or by telecopier conforming to the
preceding sentence to the Administrative Agent. The Administrative Agent shall
incur no liability whatsoever hereunder in acting upon any telephonic request
purportedly made by a Responsible Official of Borrower or the relevant
Co-Borrower, and Borrower and the Co-Borrowers hereby agree to indemnify each
Creditor from any loss, cost, expense or liability as a result of so acting.
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(d) Promptly following receipt of a Request for Loan in respect of a
Revolving Loan, the Administrative Agent shall notify each Revolving Lender by
telephone or telecopier (and if by telephone, promptly confirmed by telecopier)
of the date and type of the Revolving Loan, any applicable Interest Period, and
that Revolving Lender's Pro Rata Share of the Loan.
(e) Not later than 11:00 a.m., Las Vegas time, on the date specified
for any Committed Loan (which must be a Business Day), each Lender having a Pro
Rata Share of the relevant Commitment shall make its Pro Rata Share of the
Committed Loan in immediately available funds available to the Administrative
Agent at the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 8, all Committed Advances shall be
credited on that date in immediately available funds to the Deposit Account for
Borrower or that Co-Borrower.
(f) Unless the Requisite Lenders otherwise consent, each Committed
Loan shall be in an integral multiple of $1,000,000 which is not less than
$5,000,000.
(g) Upon the request of any Revolving Lender made through the
Administrative Agent, the Borrower and Co-Borrowers shall execute and deliver to
such Revolving Lender (through the Administrative Agent) a Committed Revolving
Note which shall evidence that Revolving Lender's Committed Advances under the
Revolving Commitment. Upon the request of any Term Lender made through the
Administrative Agent, the Borrower shall execute and deliver to such Term Lender
(through the Administrative Agent) a Term Note which shall evidence that Term
Lender's Committed Advances under the Term Commitment.
(h) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(i) If no Request for Loan (or telephonic request for Loan referred to
in the second sentence of Section 2.1(c), if applicable) has been made within
the requisite notice periods set forth in Section 2.2 or 2.3 prior to the end of
the Interest Period for any LIBOR Loan, then on the last day of such Interest
Period, such LIBOR Loan shall be automatically converted into a Base Rate Loan
in the same amount.
(j) If a Loan is to be made on the same date that another Loan is due
and payable:
(i) the Lenders shall make available to the Administrative Agent
(or the Administrative Agent shall make available to the Lenders) the net
amount of funds giving effect to both such Loans and the effect for
purposes of this Agreement shall be the same as if separate transfers of
funds had been made with respect to each such Loan; and
(ii) in the case where the same Party is the primary borrower of
both such Loans, Borrower or the relevant Co-Borrower shall make available
to the Administrative Agent (or the Administrative Agent shall make
available to such Party) the net amount of funds giving effect to both such
Loans and the effect for purposes of this Agreement shall be the same as if
separate transfers of funds had been made with respect to each such Loan.
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2.2 Base Rate Loans. Each request by Borrower or any Co-Borrower for a
Base Rate Loan shall be made pursuant to a Request for Loan (or telephonic or
other request for loan referred to in the second sentence of Section 2.1(c), if
applicable) received by the Administrative Agent, at the Administrative Agent's
Office, not later than 10:00 a.m., Las Vegas time, on the date (which must be a
Business Day) of the requested Base Rate Loan. All Committed Loans shall
constitute Base Rate Loans unless properly designated as a LIBOR Loan pursuant
to Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower or any Co-Borrower for a LIBOR Loan
(including any conversion or continuation thereof) shall be made pursuant
to a Request for Loan (or telephonic or other request for Loan referred to
in the second sentence of Section 2.1(c), if applicable) received by the
Administrative Agent, at the Administrative Agent's Office, not later than
10:00 a.m., Las Vegas time, at least three Business Days before the first
day of the applicable Interest Period.
(b) On the date which is two Business Days before the first day
of the applicable Interest Period, the Administrative Agent shall confirm
its determination of the applicable LIBOR (which determination shall be
conclusive in the absence of manifest error) and promptly shall give notice
of the same to Borrower and any relevant Co-Borrowers and the Lenders by
telephone or telecopier (and if by telephone, promptly confirmed by
telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than twenty-five LIBOR Loans shall be
outstanding at any one time.
(d) No LIBOR Loan may be requested during the continuation of a
Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund any
LIBOR Advance in the Designated Market.
2.4 Letters of Credit.
(a) Letter of Credit Subfacility. Concurrently with the
effectiveness of this Agreement each of the Existing Letters of Credit
shall be deemed issued and outstanding hereunder, and each of the Lenders
having a share in the Revolving Commitment shall be deemed to have
purchased a participation, in accordance with its Pro Rata Share of the
Revolving Commitment, in the Existing Letters of Credit. Subject to the
terms and conditions of this Agreement (including Section 8.3), Borrower or
any Co-Borrower may request from time to time during the period from the
Closing Date through the day prior to the Letter of Credit Expiration Date
that the Issuing Lenders, in reliance upon the agreements of the other
Lenders set forth in this Section 2.4, issue Letters of Credit in Dollars
or in one or more Alternative Currencies for the account of Borrower or the
relevant Co-Borrower, and each Issuing Lender agrees to issue for the
account of Borrower or the relevant Co-Borrower one or more Letters of
Credit in Dollars or in one or more Alternative Currencies and to amend
Letters of Credit previously issued by it in accordance with clause (b)
below, provided that (i) Borrower or the relevant Co-Borrower shall not
request that any Issuing Lender issue any Letter of Credit if, after giving
effect to such issuance, the aggregate outstanding principal amount of
Committed Advances and Competitive Advances plus the Letter of Credit Usage
plus the Swing Line Outstandings exceeds the Revolving Commitment, (ii) in
no event shall any Issuing Lender issue any Letter of Credit having an
expiration date after the Maturity Date, (iii) Borrower or the relevant
Co-Borrower
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shall not request any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $250,000,000 or any limit
established by Law after the Closing Date on the relevant Issuing Lender's
ability to issue the requested Letter of Credit at any time, and (iv) prior
to the issuance of any Letter of Credit the relevant Issuing Lender shall
request confirmation by telephone from the Administrative Agent that such
Letter of Credit may be issued and shall have received electronic
confirmation from the Administrative Agent to that effect. Letters of
Credit may be denominated in Dollars or in an Alternative Currency as
requested by Borrower (the currency shall be deemed to be Dollars unless
specifically requested by Borrower), provided that in respect of any Letter
of Credit issued in an Alternative Currency, (i) the Administrative Agent
shall be entitled to ▇▇▇▇ to market the exposure associated with such
Letters of Credit at such time intervals, and using such methods, as the
Administrative Agent may determine in its discretion, and (ii) all fees
payable in respect of such Letters of Credit shall continue to be payable
in Dollars. Notwithstanding the foregoing, the Issuing Lenders shall not be
obligated to issue any Letter of Credit if, (A) on or prior to the Business
Day immediately preceding the issuance thereof any Revolving Lender has
notified the Administrative Agent or the Issuing Lenders in writing that
the conditions set forth in Section 8.3 have not been satisfied with
respect to the issuance of such Letter of Credit, (B) any order, judgment
or decree of any Governmental Agency or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Lenders from issuing such Letter
of Credit, or any Law applicable to the Issuing Lenders or any request or
directive (whether or not having the force of law) from any Governmental
Agency with jurisdiction over the Issuing Lenders shall prohibit, or
request that the Issuing Lenders refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose
upon the Issuing Lenders with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Lenders
are not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon the Issuing Lenders any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which the relevant
Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it, (C) the issuance of such
Letter of Credit would violate one or more policies of the relevant Issuing
Lender, (D) the relevant Issuing Lender does not as of the issuance date of
such requested Letter of Credit issue Letters of Credit in the requested
currency, or (E) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all of the Lenders
have approved such expiry date.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of Borrower or any Co-Borrower delivered
to the relevant Issuing Lender (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Official of Borrower or the
relevant Co-Borrower. Each Letter of Credit Application submitted by
Borrower (or any Co-Borrower) shall be deemed to be a representation
and warranty that the conditions specified in Section 8.3 have been
satisfied on and as of the date of the issuance of the Letter of
Credit requested thereby. Such Letter of Credit Application must be
received by the relevant Issuing Lender and the Administrative Agent
not later than 1:00 p.m., Las Vegas time, at least three Business Days
(or such later date and time as the relevant Issuing Lender may agree
in a particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of
a request for an initial issuance of a Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to
the relevant Issuing Lender: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the
amount and currency thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary
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in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the relevant Issuing Lender
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the relevant Issuing Lender
(W) the Letter of Credit to be amended; (X) the proposed date of
amendment thereof (which shall be a Business Day); (Y) the nature of
the proposed amendment; and (Z) such other matters as the relevant
Issuing Lender may require. Additionally, Borrower (or the applicable
Co-Borrower) shall furnish to the relevant Issuing Lender and the
Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the relevant Issuing Lender or the
Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit
Application, the relevant Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit
Application from Borrower or the relevant Co-Borrower and, if not, the
relevant Issuing Lender will provide the Administrative Agent with a
copy thereof. Upon receipt by the relevant Issuing Lender of
confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then,
subject to the terms and conditions hereof, the relevant Issuing
Lender shall, on the requested date, issue a Letter of Credit for the
account of Borrower or the relevant Co-Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance
with the relevant Issuing Lender's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the relevant Issuing Lender a
risk participation in such Letter of Credit in an amount equal to the
product of such Lender's Pro Rata Share of the Revolving Commitment
times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising Lender with respect
thereto or to the beneficiary thereof, the relevant Issuing Lender
will also deliver to Borrower or the relevant Co-Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit
or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the
relevant Issuing Lender shall notify Borrower or the relevant
Co-Borrower and the Administrative Agent thereof. In the case of a
Letter of Credit denominated in an Alternative Currency, the Borrower
or the relevant Co-Borrower shall reimburse the relevant Issuing
Lender in such Alternative Currency, unless (A) the relevant Issuing
Lender (at its option) shall have specified in such notice that it
will require reimbursement in Dollars, or (B) in the absence of any
such requirement for reimbursement in Dollars, the Borrower or the
relevant Co-Borrower shall have notified the relevant Issuing Lender
promptly following receipt of the notice of drawing that the Borrower
or the relevant Co-Borrower will reimburse the relevant Issuing Lender
in Dollars. In the case of any such reimbursement in Dollars of a
drawing under a Letter of Credit denominated in an Alternative
Currency, the relevant Issuing Lender shall notify the Borrower or the
relevant Co-Borrower of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof.
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Not later than 11:00 a.m., Las Vegas time on the date of any payment
by the relevant Issuing Lender under a Letter of Credit to be
reimbursed in Dollars, or the Applicable Time on the date of any
payment by the relevant Issuing Lender under a Letter of Credit to be
reimbursed in an Alternative Currency (each such date, an "Honor
Date"), Borrower or the relevant Co-Borrower shall reimburse the
relevant Issuing Lender through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency. If
Borrower or the relevant Co-Borrower fails to so reimburse that
Issuing Lender by such time, the Administrative Agent shall promptly
notify each Revolving Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the "Unreimbursed Amount"), and the amount of
such Revolving Lender's Pro Rata Share thereof. In such event,
Borrower shall be deemed to have requested a Base Rate Loan under the
Revolving Commitment to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.1(f) for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the
Revolving Commitment and the conditions set forth in Section 8.2
(other than the delivery of a Request for Loan). Any notice given by
an Issuing Lender or the Administrative Agent pursuant to this Section
2.4(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender (including the Lender acting as
Issuing Lender) shall upon any notice pursuant to Section 2.4(c)(i)
make funds available, in Dollars, to the Administrative Agent for the
account of that Issuing Lender at the Administrative Agent's Office in
an amount equal to its Pro Rata Share of the Unreimbursed Amount not
later than 1:00 p.m., Las Vegas time, on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.4(c)(iii), each Revolving Lender that so makes
funds available shall be deemed to have made a Committed Advance to
Borrower or the relevant Co-Borrower in such amount. The
Administrative Agent shall remit the funds so received to that Issuing
Lender in Dollars.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Base Rate Loan because the conditions set forth
in Section 8.2 cannot be satisfied or for any other reason, Borrower
or the relevant Co-Borrower shall be deemed to have incurred from the
relevant Issuing Lender an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Lender's
payment to the Administrative Agent for the account of the relevant
Issuing Lender pursuant to Section 2.4(c)(ii) shall be deemed payment
in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Revolving Lender in satisfaction
of its participation obligation under this Section 2.4.
(iv) Until each Revolving Lender funds its Committed Advance
or L/C Advance pursuant to this Section 2.4(c) to reimburse the
relevant Issuing Lender for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Lender's Pro Rata Share
of such amount shall be solely for the account of the relevant Issuing
Lender.
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(v) Each Revolving Lender's obligation to make Committed
Advances or L/C Advances to reimburse the relevant Issuing Lender for
amounts drawn under Letters of Credit, as contemplated by this Section
2.4(c), shall be absolute and unconditional and shall not be affected
by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may
have against the relevant Issuing Lender, Borrower, any Co-Borrower or
any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender's obligation to make Committed
Advances pursuant to this Section 2.4(c) is subject to the conditions
set forth in Section 8.2 (other than delivery by Borrower or any
Co-Borrower of a Request for Loan). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of Borrower or the
relevant Co-Borrower to reimburse the relevant Issuing Lender for the
amount of any payment made by that Issuing Lender under any Letter of
Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to the
Administrative Agent for the account of an Issuing Lender any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.4(c) by the time specified in Section
2.4(c)(ii), that Issuing Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to that Issuing Lender at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the relevant
Issuing Lender submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after any Issuing Lender has made a payment
under any Letter of Credit and has received from any Revolving Lender
such Revolving Lender's L/C Advance in respect of such payment in
accordance with Section 2.4(c), if the Administrative Agent receives
for the account of that Issuing Lender any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from
Borrower, or the relevant Co-Borrower or otherwise, including proceeds
of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Revolving Lender its Pro
Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving
Lender's L/C Advance was outstanding) in Dollars and in the same funds
as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the relevant Issuing Lender pursuant to Section
2.4(c)(i) is required to be returned under any of the circumstances
described in Section 11.27 (including pursuant to any settlement
entered into by that Issuing Lender in its discretion), each Revolving
Lender shall pay to the Administrative Agent for the account of the
relevant Issuing Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Revolving Lender,
at a rate per annum equal to the Federal Funds Rate from time to time
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in effect. The obligations of the Revolving Lenders under this clause
shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of Borrower and the
Co-Borrowers to reimburse the Issuing Lenders for each drawing under
Letters of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances, including the
following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that Borrower or the relevant Co-Borrower may
have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the Issuing Lenders or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under such Letter of Credit;
(iv) any payment by the relevant Issuing Lender under such
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of Credit; or
any payment made by the relevant Issuing Lender under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in
the availability of the relevant Alternative Currency to the Borrower
or the relevant Co-Borrower or in the relevant currency markets
generally; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, Borrower or the relevant Co-Borrower.
Borrower or the relevant Co-Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with Borrower's or the relevant
Co-Borrower's instructions or other irregularity, Borrower or the relevant
Co-Borrower will immediately notify the relevant Issuing Lender. Borrower
or the relevant Co-Borrower shall be conclusively deemed to have waived any
such claim against the relevant Issuing Lender and its correspondents
unless such notice is given as aforesaid.
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(f) Role of Issuing Lenders. Each Lender, Borrower and each of
the Co-Borrowers agree that, in paying any drawing under a Letter of
Credit, the Issuing Lenders shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. None of the Issuing Lenders, any
Agent-Related Person nor any of the respective correspondents, participants
or assignees of the Issuing Lenders shall be liable to any Lender for (i)
any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Requisite Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application. Borrower and the relevant
Co-Borrower hereby assume all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude Borrower's or the relevant Co-Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the Issuing Lenders, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees
of the Issuing Lenders, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.4(e); provided,
however, that anything in such clauses to the contrary notwithstanding,
Borrower or the relevant Co-Borrower may have a claim against the relevant
Issuing Lender, and that Issuing Lender may be liable to Borrower or the
relevant Co-Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by Borrower or
the relevant Co-Borrower which such Borrower or such Co-Borrower proves
were caused by that Issuing Lender's willful misconduct or gross negligence
or that Issuing Lender's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter
of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Lenders may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the Issuing Lenders shall not be
responsible for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative
Agent, (i) if the relevant Issuing Lender has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in
an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,
any L/C Obligation remains outstanding, Borrower or the relevant
Co-Borrower shall immediately Cash Collateralize the then outstanding
amount of the Letter of Credit Usage (in an amount equal to such
outstanding amount determined as of the date of such L/C Borrowing or the
Letter of Credit Expiration Date, as the case may be). In addition, the
Administrative Agent may, at any time and from time to time after the
initial deposit of Cash Collateral, request that additional Cash Collateral
be provided in order to protect against the results of exchange rate
fluctuations. For purposes hereof, "Cash Collateralize" means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the
relevant Issuing Lender and the Revolving Lenders, as collateral for the
then outstanding amount of the Letter of Credit Usage, Cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the relevant Issuing Lender
(which documents are hereby consented to by the Revolving Lenders).
Derivatives of such term have corresponding meanings. The Borrower and
Co-Borrowers hereby grant to the Administrative Agent, for the benefit of
the Issuing Lenders and the Lenders, a security interest in all such cash,
deposit accounts and all
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balances therein and all proceeds of the foregoing. Any Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
Bank of America.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by an Issuing Lender and Borrower or the relevant Co-Borrower when a
Letter of Credit is issued, (i) the Rules of the "International Standby
Practices 1998" published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance) shall apply to each Standby Letter of Credit, and (ii) the Rules
of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each Commercial Letter of Credit.
(i) Conflict with Letter of Credit Application. In the event of
any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
(j) Fees for Modifications. The issuance of any supplement,
modification, amendment, renewal, or extension to or of any Letter of
Credit shall be treated in all respects the same as the issuance of a new
Letter of Credit, except that the issuance fees payable to Bank of America
as an Issuing Lender shall be payable as set forth in the letter agreement
referred to in Section 3.5.
2.5 Competitive Advances.
(a) Subject to the terms and conditions hereof, at any time and
from time to time from the Closing Date through and including the Maturity
Date, each Revolving Lender may in its sole and absolute discretion make
Competitive Advances to Borrower or to any Co-Borrower in Dollars pursuant
to Competitive Bids accepted by Borrower or the relevant Co-Borrower in
such principal amounts as Borrower or the relevant Co-Borrower may request
pursuant to a Competitive Bid Request that do not result in the aggregate
outstanding principal amount of Competitive Advances being in excess of the
Maximum Competitive Outstandings Amount, provided that after giving effect
to the making of each Competitive Advance, the sum of the aggregate
outstanding principal amount of Competitive Advances and Revolving Loans
plus the Letters of Credit Usage plus the Swing Line Outstandings shall not
exceed the then effective Revolving Commitment. Each Competitive Advance
made to a Co-Borrower shall be directly used to finance and/or refinance
the development, construction or operation of hotel/casino properties owned
by that Co-Borrower. No Competitive Advance made by any Revolving Lender
shall relieve that Revolving Lender of its Pro Rata Share of the undrawn
Revolving Commitment.
(b) Borrower or the relevant Co-Borrower shall request
Competitive Advances by submitting Competitive Bid Requests to the
Administrative Agent, which specify the relevant date, amount and maturity
of the proposed Competitive Advance and whether the Competitive Bid
requested is an Absolute Rate Bid or a LIBOR Margin Bid, or both. Borrower
and each Co-Borrower may submit telephonic requests for Competitive
Advances. Any Competitive Bid Request made by telephone shall promptly be
confirmed by the delivery to Administrative Agent in person or by
telecopier of a written Competitive Bid Request. The Administrative Agent
shall incur no liability whatsoever hereunder in acting upon any telephonic
Competitive Bid Request purportedly made by a Responsible Official of
Borrower or Co-Borrower, each of which hereby agrees to indemnify the
Administrative Agent from any loss, cost, expense or liability as a result
of so acting. The Competitive Bid Request must be received by the
Administrative Agent not later than 10:00 a.m., Las Vegas time, on a
Business Day that is
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at least one Business Day prior to the date of the proposed Competitive
Advance if an Absolute Rate Bid is requested; if a LIBOR Margin Bid is
requested, it must be received by the Administrative Agent four Business
Days prior to the date of the proposed Competitive Advance.
(c) Unless the Administrative Agent otherwise agrees, in its sole
and absolute discretion, no Competitive Bid Request may be submitted within
the five Business Day period following submission of another Competitive
Bid Request.
(d) Each Competitive Bid Request must be made for a Competitive
Advance of at least $10,000,000 and shall be in an integral multiple of
$1,000,000.
(e) No Competitive Bid Request shall be made for a Competitive
Advance with a maturity of less than 7 days or more than 180 days, with a
maturity date subsequent to the Maturity Date, or for a maturity which ends
on a day other than a Business Day.
(f) The Administrative Agent shall, promptly after receipt of a
Competitive Bid Request, notify the Revolving Lenders thereof by telephone
and provide the Revolving Lenders a copy thereof by telecopier. Any
Revolving Lender may, by written notice to the Administrative Agent (with a
copy to Borrower and the Co-Borrowers), advise the Administrative Agent
that it elects not to be so notified of Competitive Bid Requests, in which
case the Administrative Agent shall not notify such Revolving Lender of the
Competitive Bid Request.
(g) Each Revolving Lender receiving a Competitive Bid Request
may, in its sole and absolute discretion, make or not make a Competitive
Bid responsive to the Competitive Bid Request. Each Competitive Bid shall
be submitted to the Administrative Agent not later than 7:30 a.m. (or, in
the case of the Revolving Lender which is also the Administrative Agent,
not later than 7:15 a.m.) Las Vegas time, in the case of a LIBOR Margin
Bid, on the date which is three Business Days prior to the requested
Competitive Advance and, in the case of an Absolute Rate Bid, on the date
of the requested Competitive Advance. Any Competitive Bid received by the
Administrative Agent after 7:30 a.m. (or 7:15 a.m. in the case of the
Revolving Lender which is also the Administrative Agent) on such date shall
be disregarded for purposes of this Agreement. Any Competitive Bid made by
telephone shall promptly be confirmed by the delivery to the Administrative
Agent in person or by telecopier of a written Competitive Bid. The
Administrative Agent shall incur no liability whatsoever hereunder in
acting upon any telephonic Competitive Bid purportedly made by a
Responsible Official of a Revolving Lender, each of which hereby agrees to
indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting with respect to that Revolving Lender.
(h) Each Competitive Bid shall specify the fixed interest rate or
the margin over LIBOR, as applicable, for the offered Maximum Competitive
Advance set forth in the Competitive Bid. The Maximum Competitive Advance
offered by a Revolving Lender in a Competitive Bid may be less than the
Competitive Advance requested by Borrower or the relevant Co-Borrower in
the Competitive Bid Request, but, if so, shall be an integral multiple of
$1,000,000. Any Competitive Bid which offers an interest rate other than a
fixed interest rate or a margin over LIBOR, is in a form other than set
forth in Exhibit D or which otherwise contains any term, condition or
provision not contained in the Competitive Bid Request shall be disregarded
for purposes of this Agreement. A Competitive Bid once submitted to the
Administrative Agent shall be irrevocable until 10:00 a.m., Las Vegas time,
in the case of a LIBOR Margin Bid, on the date which is three Business Days
prior to the requested Competitive Advance and, in the case of an Absolute
Rate Bid, on the date of the proposed Competitive
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Advance set forth in the related Competitive Bid Request, and shall expire
by its terms at such time unless accepted by Borrower or the relevant
Co-Borrower prior thereto.
(i) Promptly after 7:30 a.m., Las Vegas time, in the case of a
LIBOR Margin Bid, on the date which is three Business Days prior to the
date of the proposed Competitive Advance and, in the case of an Absolute
Rate Bid, on the date of the proposed Competitive Advance, the
Administrative Agent shall notify Borrower or the relevant Co-Borrower of
the names of the Revolving Lenders providing Competitive Bids to the
Administrative Agent at or before 7:30 a.m. on that date (or 7:15 a.m. in
the case of the Revolving Lender which is also the Administrative Agent)
and the Maximum Competitive Advance and fixed interest rate or margin over
LIBOR set forth by each such Revolving Lender in its Competitive Bid. The
Administrative Agent shall promptly confirm such notification in writing
delivered in person or by telecopier to Borrower or the relevant
Co-Borrower.
(j) Borrower or the relevant Co-Borrower may, in its sole and
absolute discretion, reject any or all of the Competitive Bids. If Borrower
or the relevant Co-Borrower accepts any Competitive Bid, the following
shall apply: (a) Borrower or the relevant Co-Borrower must accept all
Absolute Rate Bids at all lower fixed interest rates before accepting any
portion of an Absolute Rate Bid at a higher fixed interest rate, (b)
Borrower or the relevant Co-Borrower must accept all LIBOR Margin Bids at
all lower margins over LIBOR before accepting any portion of a LIBOR Margin
Bid at a higher margin over LIBOR, (c) if two or more Revolving Lenders
have submitted a Competitive Bid at the same fixed interest rate or margin,
then Borrower or the relevant Co-Borrower must accept either all of such
Competitive Bids or accept such Competitive Bids in the same proportion as
the Maximum Competitive Advance of each Revolving Lender bears to the
aggregate Maximum Competitive Advances of all such Revolving Lenders, and
(d) Borrower and the Co-Borrower may not accept Competitive Bids for an
aggregate amount in excess of the requested Competitive Advance set forth
in the Competitive Bid Request. Borrower or the relevant Co-Borrower must
accept (i) each LIBOR Margin Bid prior to 10:00 a.m., Las Vegas time on the
date which is three Business Days prior to the requested Competitive
Advance and (ii) each Absolute Rate Bid prior to 10:00 a.m., Las Vegas time
on the date of the requested Competitive Advance or shall be deemed to have
rejected the offered Competitive Advances. Acceptance of a Competitive Bid
by Borrower or a Co-Borrower shall be irrevocable upon communication
thereof to the Administrative Agent. The Administrative Agent shall
promptly notify each of the Revolving Lenders whose Competitive Bid has
been accepted by Borrower or the relevant Co-Borrower by telephone, which
notification shall promptly be confirmed in writing delivered in person or
by telecopier to such Revolving Lenders.
(k) In the case of LIBOR Margin Bids, the Administrative Agent
shall determine LIBOR on the date which is two Business Days prior to the
date of the proposed Competitive Advance, and shall promptly thereafter
notify Borrower or the relevant Co-Borrower and the Revolving Lenders whose
Competitive Bids were accepted by Borrower or the relevant Co-Borrower of
such LIBOR.
(l) A Revolving Lender whose Competitive Bid has been accepted
shall make the Competitive Advance in accordance with the Competitive Bid
Request and with its Competitive Bid, subject to the applicable conditions
set forth in this Agreement by making funds immediately available to the
Administrative Agent at the Administrative Agent's Office in the amount of
such Competitive Advance not later than 12:00 noon Las Vegas time, on the
date set forth in the Competitive Bid Request. The Administrative Agent
shall then promptly credit the Competitive Advance in immediately available
funds to the relevant Deposit Account.
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(m) The Administrative Agent shall notify Borrower and the
Revolving Lenders promptly after any Competitive Advance is made of the
amounts and maturity of such Competitive Advances and the identity of the
Revolving Lenders making such Competitive Advances.
(n) Upon the request of any Revolving Lender made through the
Administrative Agent, the Borrower shall execute and deliver to such
Revolving Lender (through the Administrative Agent) a Competitive Revolving
Note which shall evidence that Revolving Lender's Competitive Advances.
2.6 Swing Line.
(a) Subject to the terms and conditions set forth herein, from
the Closing Date through the day prior to the Maturity Date, the Swing Line
Lenders shall make Swing Line Loans to Borrower and each of the
Co-Borrowers in such amounts as they may request which do not result in the
sum of the aggregate outstanding principal amount of Competitive Advances
and Revolving Loans plus the Letters of Credit Usage plus the Swing Line
Outstandings exceeding the then effective Revolving Commitment (as in
effect on the date of the making of the related Swing Line Loan), provided
that:
(i) after giving effect to each Swing Line Loan, the
aggregate principal amount of the Swing Line Outstandings shall not
exceed $150,000,000;
(ii) no Swing Line Lender shall be obligated to permit the
aggregate principal amount of the Swing Line Outstanding owed to that
Swing Line Lender to exceed any limit set forth in the Swing Line
Documents executed in favor of that Swing Line Lender;
(iii) without the consent of all of the Lenders, no Swing
Line Loan may be made during the continuation of an Event of Default;
(iv) prior to the making of the initial Swing Line Loan by
the relevant Swing Line Lender, the Borrower or the relevant
Co-Borrower shall have provided the relevant Swing Line Lender with a
note or other Swing Line Documents in form and substance reasonably
satisfactory to that Swing Line Lender; and
(v) the relevant Swing Line Lender has not given at least
twenty-four hours prior notice to Borrower that availability under the
Swing Line is suspended or terminated. Borrower and the Co-Borrowers
may borrow, repay and reborrow under this Section.
Unless notified to the contrary by the Administrative Agent, borrowings
under the Swing Line may be made in amounts which are integral multiples of
$100,000 upon telephonic request by a Responsible Official of Borrower or
the relevant Co-Borrower made to the Administrative Agent (and to the
relevant Swing Line Lender, if the Swing Line Lender is not Bank of
America) not later than 1:00 p.m., Las Vegas time, on the Business Day of
the requested borrowing (which telephonic request shall be promptly
confirmed in writing by telecopier), provided that if the requested Swing
Line Loan is to be credited to an account which is not with the Swing Line
Lender, the request must be submitted by 11:30 a.m., Las Vegas time.
Promptly after receipt of such a request for borrowing, the Administrative
Agent shall provide telephonic verification to the relevant Swing Line
Lender that, after giving effect to such request, the sum of the aggregate
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outstanding principal amount of Competitive Advances and Revolving Loans
plus the Letters of Credit Usage plus the Swing Line Outstandings will not
exceed the then effective Revolving Commitment (and such verification shall
be promptly confirmed in writing by telecopier or by email). Unless
notified to the contrary by the relevant Swing Line Lender, each repayment
of a Swing Line Loan shall be in an amount which is an integral multiple of
$100,000. If Borrower or the relevant Co-Borrower instructs a Swing Line
Lender to debit its demand deposit account at that Swing Line Lender in the
amount of any payment with respect to a Swing Line Loan, or that Swing Line
Lender otherwise receives repayment, after 3:00 p.m., Las Vegas time, on a
Business Day, such payment shall be deemed received on the next Business
Day. Each Swing Line Lender shall promptly notify the Administrative Agent
of the Swing Line Outstandings each time there is a change therein or if it
suspends or terminates availability under its Swing Line.
(b) Swing Line Loans shall bear interest at a rate per annum
agreed to from time to time by Borrower and the relevant Swing Line Lender.
Interest shall be payable on such dates, as may be specified by the
relevant Swing Line Lender and in any event on the Maturity Date. Each
Swing Line Lender shall be responsible for invoicing Borrower or the
relevant Co-Borrower for such interest on Swing Line Loans made by it.
Interest payable on each Swing Line Loan is solely for the account of the
Swing Line Lender making that Swing Line Loan (subject to clause (d)
below).
(c) A Swing Line Loan shall be payable within five Business Days
after demand made by the relevant Swing Line Lender and in any event on the
Maturity Date or any earlier date when all other Obligations are due.
(d) Upon the making of a Swing Line Loan in accordance with
Section 2.6(a), each Revolving Lender shall be deemed to have purchased
from the relevant Swing Line Lender a participation therein in an amount
equal to that Lender's Pro Rata Share of the Revolving Commitment times the
amount of the Swing Line Loan. Upon demand made by the relevant Swing Line
Lender through the Administrative Agent, each Revolving Lender shall,
according to its Pro Rata Share of the Revolving Commitment, promptly
provide to such Swing Line Lender its purchase price therefor in an amount
equal to its participation therein. The obligation of each Revolving Lender
to so provide its purchase price to a Swing Line Lender shall be absolute
and unconditional (subject only to the making of a demand upon that
Revolving Lender by such Swing Line Lender) and shall not be affected by
the occurrence of a Default or Event of Default; provided that no Revolving
Lender shall be obligated to purchase its Pro Rata Share under the
Revolving Commitment of (i) Swing Line Loans to the extent that the
aggregate Swing Line Outstandings are in excess of $150,000,000 or to the
extent that the sum of the aggregate outstanding principal amount of
Competitive Advances and Revolving Loans plus the Letters of Credit Usage
plus the Swing Line Outstandings exceeds the Revolving Commitment (as in
effect on the date of the making of the related Swing Line Loan) and (ii)
any Swing Line Loan made (absent the consent of all of the Revolving
Lenders) at any time when the applicable conditions set forth in Section
8.2 have not been satisfied. Each Revolving Lender that has provided to a
Swing Line Lender the purchase price due for its participation in Swing
Line Loans shall thereupon acquire a pro rata participation, to the extent
of such payment, in the claim of such Swing Line Lender against Borrower
and the Co-Borrowers for principal and interest and shall share, in
accordance with that pro rata participation, in any principal payment made
by Borrower or the Co-Borrowers with respect to such claim and in any
interest payment made by Borrower or the Co-Borrowers (but only with
respect to periods subsequent to the date such Revolving Lender paid the
Swing Line Lender its purchase price) with respect to such claim.
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(e) Upon any demand for payment of the Swing Line Outstandings by
a Swing Line Lender (unless Borrower or the relevant Co-Borrower has made
other arrangements acceptable to such Swing Line Lender to reduce the Swing
Line Outstandings to $0), Borrower or the relevant Co-Borrower shall
request a Committed Loan pursuant to Section 2.1(a) sufficient to repay all
Swing Line Outstandings to that Swing Line Lender (and, for this purpose,
Section 2.1(f) shall not apply). In each case, the Administrative Agent
shall automatically provide the respective Committed Advances made by each
Revolving Lender to the relevant Swing Line Lender (which such Swing Line
Lender shall then apply to the Swing Line Outstandings). In the event that
Borrower and the Co-Borrowers fail to request a Committed Loan within the
time specified by Section 2.2 on any such date, the Administrative Agent
may, but is not required to, without notice to or the consent of Borrower
or the Co-Borrowers, cause Committed Advances to be made by the Revolving
Lenders under the Revolving Commitment in amounts which are sufficient to
reduce the Swing Line Outstandings as required above. The conditions
precedent set forth in Article 8 shall not apply to Committed Advances to
be made by the Revolving Lenders pursuant to the three preceding sentences
but the Revolving Lenders shall not be obligated to make such Committed
Advances to the extent that the conditions set forth in Section 2.6(a)(i),
(ii) and (iii) were not satisfied as to any Swing Line Loan which is part
of such Swing Line Outstandings. The proceeds of such Committed Advances
shall be paid directly to the Swing Line Lender for application to the
Swing Line Outstandings.
2.7 Co-Borrowers. Detroit is hereby designated as a direct Co-Borrower
under this Agreement, with the right to request Loans, Swing Line Loans and
Letters of Credit through the Administrative Agent directly from the Lenders,
the Swing Line Lenders and the Issuing Lenders, subject to the terms and
conditions set forth herein. From time to time following the Closing Date and
upon such prior notice as reasonably requested by Administrative Agent, Borrower
may designate one or more Guarantors which are United States domestic Persons to
be additional joint and several direct Co-Borrowers hereunder by written request
to the Administrative Agent accompanied by (a) an executed Assumption Agreement
and appropriate Notes executed by the designated Guarantor, (b) a certificate of
good standing of the designated Guarantor in the jurisdiction of its
incorporation or organization, (c) a certified resolution authorizing the
execution and delivery of the Assumption Agreement and such Notes, (d) a written
consent to the Assumption Agreement executed by each other Guarantor, (e)
appropriate written legal opinions similar to the Opinions with respect to the
Co-Borrower and the Assumption Agreement and (f) such documentation and other
evidence as is reasonably requested by the Administrative Agent or any Lender in
order for the Administrative Agent or such Lender to carry out and be satisfied
it has complied with the results of all necessary "know your customer" or other
similar checks under the Act and under similar regulations. The Administrative
Agent shall promptly notify the Lenders of such request, together with copies of
such of the foregoing as any Lender may request and the designated Guarantor
shall become a Co-Borrower hereunder. Notwithstanding the other provisions of
this Section 2.7, (a) each Loan and Letter of Credit made hereunder to Detroit
or any other Co-Borrower shall be used solely and directly to finance and/or
refinance the development, construction or operation of hotel/casino properties
owned by that Co-Borrower, and (b) the liability of Detroit is limited to that
portion of the Obligations which are actually borrowed or received by Detroit.
2.8 Voluntary Reduction of the Commitments. Borrower and the
Co-Borrowers shall have the right, at any time and from time to time, without
penalty or charge, upon at least three Business Days' prior written notice by a
Responsible Official of Borrower and the Co-Borrowers to the Administrative
Agent, voluntarily to reduce, permanently and irrevocably, in aggregate
principal amounts in an integral multiple of $1,000,000 (but in the case of
assignments of Pro Rata Shares of the Revolving Commitment, not less than
$5,000,000), or to terminate, all or a portion of the then undisbursed portion
of either of the Commitments; provided that (a) the Revolving Commitment may not
be so reduced below an amount equal to the sum of (i) the aggregate outstanding
principal amount of
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Competitive Advances and Revolving Loans, plus (ii) the Letters of Credit Usage
plus (iii) the Swing Line Outstandings, and (b) concurrently with each reduction
of the Term Commitment, the Term Loans shall be prepaid in the same amount. The
Administrative Agent shall promptly notify the Lenders of any reduction or
termination of the Commitments under this Section.
2.9 Optional Termination of Commitments. Following the occurrence of a
Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect to terminate the Commitments during the sixty day period
immediately subsequent to the later of (a) such occurrence or (b) the earlier of
(i) receipt of written notice to the Administrative Agent of the Change in
Control from Borrower and the Co-Borrowers, or (ii) if no such notice has been
received by the Administrative Agent, the date upon which the Administrative
Agent has actual knowledge thereof. In the event that the Lenders elect to so
terminate the Commitments, the Commitments shall be terminated effective on the
date which is sixty days subsequent to written notice from the Administrative
Agent to Borrower and the Co-Borrowers thereof.
2.10 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m., Las Vegas time, on the Business Day of the proposed
funding by the Administrative Agent of any Loan that such Lender does not intend
to make available to the Administrative Agent such Lender's portion of the total
amount of such Loan, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of the Loan
and the Administrative Agent may, in reliance upon such assumption, make
available to Borrower or the relevant Co-Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower or a Co-Borrower based
on such assumption and such corresponding amount is not in fact made available
to the Administrative Agent by such Lender, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent promptly shall
notify Borrower or that Co-Borrower who shall pay such corresponding amount to
the Administrative Agent. The Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Administrative Agent to Borrower or the Co-Borrowers to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to the daily Federal Funds Rate. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its share of the Commitments
or to prejudice any rights which the Administrative Agent, Borrower or any
Co-Borrower may have against any Lender as a result of any default by such
Lender hereunder.
2.11 Senior Indebtedness. The Obligations shall be and hereby are
designated as "Senior Indebtedness" and "Senior Obligations" of Borrower and its
Restricted Subsidiaries with respect to all Subordinated Obligations, and
Borrower shall promptly provide to the trustee or other representative of the
holders of each class of Subordinated Obligations any certificate, designation
or other writing which is required by the terms of the indenture or other
instrument evidencing any Subordinated Obligations to so designate the
Obligations.
2.12 Increased Commitments; Additional Lenders.
(a) Provided there exists no Default or Event of Default, from
time to time following the Closing Date, Borrower and the Co-Borrowers may,
from time to time, request one or more increases to the aggregate amount of
the Commitments in accordance with this Section. The aggregate principal
amount of the increases to the Commitments made pursuant to this Section
(the amount of any such increase, the "Increased Commitments") shall not
exceed the equivalent, determined as of the date of such increase, of
$1,000,000,000. Borrower and the Co-
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Borrowers may request that any such increase consist of increases to the
Revolving Commitment or the Term Commitment or a combination thereof.
Borrower and the Co-Borrowers shall provide at least 7 days' notice to the
Administrative Agent (or such shorter prior notice as the Administrative
Agent may agree to accept) of any request to increase the Commitments.
Borrower and the Co-Borrowers may designate any Lender (with the consent of
such Lender, which may be given or withheld in its sole discretion) or
another Person that qualifies as an Eligible Assignee (which may be, but
need not be, one or more of the existing Lenders) which at the time agrees
to (i) in the case of any such designated Lender that is an existing
Lender, increase its Pro Rata Share of the Commitments and (ii) in the case
of any other such Person (an "Additional Lender"), become a party to this
Agreement.
(b) An increase in the aggregate amount of the Commitments
pursuant to this Section 2.12 shall become effective upon the receipt by
the Administrative Agent of an agreement in form and substance satisfactory
to the Administrative Agent signed by Borrower and the Co-Borrowers, by
each Additional Lender and by each other Lender whose share of the
Commitments is to be increased, setting forth the new Pro Rata Share of the
Commitments of such Lenders and setting forth the agreement of each
Additional Lender to become a party to this Agreement and to be bound by
all the terms and provisions hereof, together with such evidence of
appropriate corporate authorization on the part of Borrower and the
Co-Borrowers with respect to the Increased Commitments, such reaffirmations
of the Loan Documents, such opinions of counsel to Borrower and the
Co-Borrowers with respect to the Increased Commitments and such other
assurances, certificates, documents or consents as the Administrative Agent
may reasonably request.
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ARTICLE 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue principal
and interest at the Default Rate to the fullest extent permitted by
applicable Laws.
(b) Interest accrued on each Base Rate Loan on each Quarterly
Payment Date shall be due and payable on that day. Except as otherwise
provided in Section 3.9, the unpaid principal amount of any Base Rate Loan
shall bear interest at a fluctuating rate per annum equal to the Base Rate
plus the applicable Base Rate Margin. Each change in the interest rate
under this Section 3.1(b) due to a change in the Base Rate shall take
effect simultaneously with the corresponding change in the Base Rate.
(c) Interest accrued on each LIBOR Loan which is for a term of
three months or less shall be due and payable on the last day of the
related Interest Period. Interest accrued on each other LIBOR Loan shall be
due and payable on the date which is three months after the date such LIBOR
Loan was made (and, every three months thereafter through the last day of
the Interest Period) and on the last day of the related Interest Period.
Except as otherwise provided in Section 3.9, the unpaid principal amount of
any LIBOR Loan shall bear interest at a rate per annum equal to LIBOR for
that LIBOR Loan plus the applicable LIBOR Margin.
(d) Interest accrued on each Competitive Advance shall be due and
payable on the maturity date of the Competitive Advance. Except as
otherwise provided in Section 3.9, the unpaid principal amount of each
Competitive Advance shall bear interest at the fixed interest rate or the
margin over LIBOR specified in the related Competitive Bid.
(e) If not sooner paid, the principal Indebtedness under the
Commitments shall be payable as follows:
(i) the amount, if any, by which the Obligations outstanding
(including, without limitation, obligations with respect to
Competitive Advances) under the Revolving Commitment at any time
exceed the then applicable Revolving Commitment, shall be payable
immediately;
(ii) the principal amount of each Competitive Advance shall
be payable on the maturity date specified in the related Competitive
Bid; and
(iii) the principal Indebtedness under the Commitments shall
in any event be payable on the Maturity Date.
(f) The Loans and Advances made hereunder 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 3.1(f), (i) any partial prepayment shall be
not less than $5,000,000, or in integral multiples of $1,000,000 which are
in excess of $5,000,000, (ii) the Administrative Agent shall have received
written notice of any
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prepayment by 9:00 a.m., Las Vegas time, on the Business Day prior to the
date of prepayment (which must be a Business Day) in the case of a Base
Rate Loan, and, in the case of a LIBOR Loan, three Business Days before the
date of prepayment, which notice shall identify the date and amount of the
prepayment and the Loan(s) being prepaid, (iii) each prepayment of
principal on any LIBOR Loan shall be accompanied by payment of interest
accrued to the date of payment on the amount of principal paid and (iv) any
payment or prepayment of all or any part of any LIBOR Loan on a day other
than the last day of the applicable Interest Period shall be subject to
Section 3.8(e). Promptly following receipt of a notice of prepayment under
clause (ii) above, the Administrative Agent shall notify each Lender by
telephone or telecopier (and if by telephone, promptly confirmed by
telecopier) of the date and amount thereof.
(g) No Competitive Advance may be prepaid without the prior
written consent of the Lender making such Competitive Advance.
3.2 Arrangement Fees. On the Closing Date, Borrower shall pay to the
Lead Arrangers fees in the amounts heretofore agreed upon by letter agreements
between Borrower and the Lead Arrangers. These fees are for the services of the
Lead Arrangers in arranging the credit facilities under this Agreement and are
fully earned when paid and are nonrefundable.
3.3 Upfront and Amendment Fees. On the Closing Date, Borrower shall
pay to the Administrative Agent, for the account of each Lender, upfront and/or
amendment fees in an amount as set forth in a written confirmation delivered to
that Lender by the Lead Arrangers. Such upfront and/or amendment fees are for
the credit facilities committed to by each Lender under this Agreement and are
fully earned when paid. The upfront and/or amendment fees paid to each Lender
are solely for its own account and are nonrefundable
3.4 Unused Fees. From the Closing Date, Borrower and the Co-Borrowers
shall pay to the Administrative Agent, for the ratable accounts of the Revolving
Lenders pro rata according to their Pro Rata Shares of the Revolving Commitment,
an unused fee equal to the Unused Fee Rate in effect from time to time times the
difference between (i) the principal amount of the Revolving Commitment, and
(ii) the aggregate principal amount of the Obligations outstanding from time to
time under the Revolving Commitment (including the Letters of Credit), other
than the Swing Line Outstandings and other than the aggregate principal amount
of Competitive Advances outstanding (the "Unused Fee"). The Unused Fees shall be
payable quarterly in arrears on each Quarterly Payment Date, on the Maturity
Date and upon the date of any partial reduction or termination of the Revolving
Commitment pursuant to Sections 2.8, 2.9 or 11.24.
3.5 Letter of Credit Fees. With respect to each Letter of Credit,
Borrower and the Co-Borrowers shall pay the following fees:
(a) concurrently with the issuance of each Standby Letter of
Credit, any letter of credit issuance fee agreed to between Borrower, the
relevant Co-Borrower and the relevant Issuing Lender, which fee shall be
for the sole account of that Issuing Lender (in the case of Bank of
America, as an Issuing Lender, in the amount set forth in a letter
agreement between Borrower and Bank of America);
(b) to the Administrative Agent for the ratable account of the
Revolving Lenders in accordance with their Pro Rata Shares of the Revolving
Commitment, in Dollars, a standby letter of credit fee in an amount equal
to the applicable Standby Letter of Credit Fee per annum times the Dollar
Equivalent of the daily amount available to be drawn under such Standby
Letter of Credit (the amount available to be drawn on such Letter of Credit
shall be determined in
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accordance with Section 1.7), which standby letter of credit fee shall be
(i) due and payable on each Quarterly Payment Date, commencing with the
first such date to occur after the issuance of such Standby Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand
and (ii) computed on a quarterly basis in arrears provided that if there is
any change in the Standby Letter of Credit Fee during any quarter, the
daily amount available to be drawn under each Standby Letter of Credit
shall be computed and multiplied by the Standby Letter of Credit Fee
separately for each period during such quarter that such Standby Letter of
Credit Fee was in effect; and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Commercial Letter of Credit, to the relevant Issuing
Lender for the sole account of that Issuing Lender, issuance, negotiation,
drawing and amendment fees in the amounts set forth from time to time as
that Issuing Lender's published scheduled fees for such services.
Pursuant to the Existing Loan Agreement, letter of credit fees have been
paid thereunder to each of the Lenders thereunder in advance for the tenor
of the Existing Letters of Credit. Each Lender hereunder which was a party
to the Existing Loan Agreement agrees to remit to the Borrower on the
Closing Date the portion of the letter of credit fees paid to it under the
Existing Loan Agreement which relates to the unexpired tenor of the
Existing Letters of Credit (which amount may be netted from the amounts
otherwise payable to that Lender on the Closing Date). Each Existing
Letters of Credit will remain outstanding as a Letter of Credit hereunder.
No issuance fee shall be payable to the Issuing Lender in respect of the
Existing Letters of Credit, however Letter of Credit fees shall commence to
accrue with respect to the Existing Letters of Credit on the Closing Date
in the manner set forth above. Each of the fees payable with respect to
Letters of Credit under this Section is earned when due and is
nonrefundable.
3.6 Agency Fees. On April 25, 2007, and annually thereafter on each
April 25, Borrower and the Co-Borrowers shall pay to the Administrative Agent an
agency fee in such amounts as heretofore agreed upon by letter agreement between
Borrower and Bank of America and Banc of America Securities LLC. The agency fee
is for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall determine in good
faith that the introduction after the Closing Date of any applicable law, rule,
regulation or guideline regarding capital adequacy, or any change therein or any
change in the interpretation or administration thereof by any central bank or
other Governmental Agency charged with the interpretation or administration
thereof, or compliance by such Lender (or its LIBOR Lending Office) or any
corporation controlling the Lender, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of Law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten Business
Days after demand of such Lender, Borrower and the Co-Borrowers shall pay to
such Lender, from time to time as specified in good faith by such Lender,
additional amounts sufficient to compensate such Lender in light of such
circumstances, to the extent reasonably allocable to such obligations under this
Agreement, provided that Borrower and the Co-Borrowers shall not be obligated to
pay any such amount which arose prior to the date which is ninety days preceding
the date of such demand or is attributable to periods prior to the date which is
ninety days preceding the date of such demand. Each Lender's determination of
such amounts shall be conclusive in the absence of manifest
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error. Any request for compensation by a Lender under this Section shall set
forth the basis upon which it has been determined that such an amount is due
from Borrower and the Co-Borrowers, a calculation of the amount due, and a
certification that the corresponding costs or diminished rate of return on
capital have been incurred or sustained by the Lender. If Borrower and the
Co-Borrowers become obligated to pay a material amount under this Section to any
Lender, that Lender will be subject to removal in accordance with Section 11.24;
provided that Borrower and the Co-Borrowers shall have paid such amount to that
Lender and that Borrower and the Co-Borrowers, within the thirty day period
following the date of such payment, shall have notified that Lender in writing
of their intent to so remove the Lender.
3.8 LIBOR Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (including any emergency,
supplemental or other reserve) with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known
as "eurocurrency liabilities") of that Lender, Borrower or the relevant
Co-Borrower shall pay that Lender within five Business Days after demand
all amounts necessary to compensate such Lender (determined as though such
Lender's LIBOR Lending Office had funded 100% of its LIBOR Advance in the
Designated Market) in respect of the imposition of such reserve
requirements. The Lender's determination of such amount shall be conclusive
in the absence of manifest error.
(b) If, after the Closing Date, the existence or occurrence of
any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to
any tax, duty or other charge or cost with respect to any LIBOR
Advance, any of its Notes evidencing LIBOR Advances or its obligation
to make LIBOR Advances, or shall change the basis of taxation of
payments to any Lender attributable to the principal of or interest on
any LIBOR Advance or any other amounts due under this Agreement in
respect of any LIBOR Advance, any of its Notes evidencing LIBOR
Advances or its obligation to make LIBOR Advances, excluding (i) taxes
imposed on or measured in whole or in part by its overall net income,
gross income or gross receipts, (ii) franchise taxes imposed by (A)
any jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or LIBOR Lending Office or
(B) any jurisdiction (or political subdivision thereof) in which it is
"doing business," and (iii) any withholding taxes or other taxes based
on gross income imposed by the United States of America for any period
with respect to which it has failed to provide Borrower or the
relevant Co-Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then available under
applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the Closing Date (including any
reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against
assets of, deposits with or for the account of, or credit extended by,
any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office
or the Designated Market any other condition affecting any LIBOR
Advance, any of its Notes evidencing LIBOR Advances, its obligation to
make LIBOR Advances or this Agreement, or shall otherwise affect any
of the same;
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and the result of any of the foregoing, as determined in good faith by such
Lender, increases the cost to such Lender or its LIBOR Lending Office of
making or maintaining any LIBOR Advance or in respect of any LIBOR Advance,
any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR
Advances or reduces the amount of any sum received or receivable by such
Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any
of its Notes evidencing LIBOR Advances or its obligation to make LIBOR
Advances (assuming such Lender's LIBOR Lending Office had funded 100% of
its LIBOR Advance in the Designated Market), then, within five Business
Days after demand by such Lender (with a copy to the Administrative Agent),
Borrower and the Co-Borrowers shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction (determined as though such Lender's LIBOR Lending Office had
funded 100% of its LIBOR Advance in the Designated Market). A statement of
any Lender claiming compensation under this clause (b) and setting forth in
reasonable detail the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Closing Date, the existence or occurrence of
any Special Eurodollar Circumstance shall, in the good faith opinion of any
Lender, make it unlawful or impossible for such Lender or its LIBOR Lending
Office to make, maintain or fund its portion of any LIBOR Advance or
materially restrict the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the Designated Market, or to determine or
charge interest rates based upon LIBOR, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make LIBOR Advances
shall be suspended for the duration of such illegality or impossibility and
the Administrative Agent forthwith shall give notice thereof to the other
Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the
outstanding principal amount of such Lender's LIBOR Advances, together with
accrued interest thereon, automatically shall be converted to Base Rate
Advances on either (1) the last day of the Interest Period(s) applicable to
such LIBOR Advances if such Lender may lawfully continue to maintain and
fund such LIBOR Advances to such day(s) or (2) immediately if such Lender
may not lawfully continue to fund and maintain such LIBOR Advances to such
day(s), provided that in such event the conversion shall not be subject to
payment of a prepayment fee under clause (e) of this Section. Each Lender
agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any
event occurring after the Closing Date of which it has actual knowledge,
which will cause that Lender to notify the Administrative Agent under this
Section, and agrees to designate a different LIBOR Lending Office if such
designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons set
forth above, to make, maintain or fund its portion of any LIBOR Loan or
Advance, such Lender shall fund such amount as a Base Rate Advance for the
same period of time, and such amount shall be treated in all respects as a
Base Rate Advance. Any Lender whose obligation to make LIBOR Advances has
been suspended under this Section shall promptly notify the Administrative
Agent and Borrower of the cessation of the Special Eurodollar Circumstance
which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Market generally that
are beyond the reasonable control of the Lenders, deposits in Dollars
(in the applicable amounts) are not being offered to any Lender in the
Designated Market for the applicable Interest Period; or
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(ii) the Requisite Lenders advise the Administrative Agent
that LIBOR as determined by the Administrative Agent (i) does not
represent the effective pricing to such Lenders for deposits in
Dollars in the Designated Market in the relevant amount for the
applicable Interest Period, or (ii) will not adequately and fairly
reflect the cost to such Lenders of making the applicable LIBOR
Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower or the relevant Co-Borrower and the Lenders, whereupon until the
Administrative Agent notifies Borrower or the relevant Co-Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligation of the Lenders to make any future LIBOR Advances shall be
suspended unless (but only if clause (2) above is the basis for such
suspension) Borrower and each Co-Borrower notify the Administrative Agent
in writing that they elect to pay the Enhanced LIBOR Margin with respect to
all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than
as the result of a conversion required under clause (c) of this Section) on
a day other than the last day in the applicable Interest Period (whether
voluntarily, involuntarily, by reason of acceleration, or otherwise), or
upon the failure of Borrower or any Co-Borrower (for a reason other than
the failure of a Lender to make an Advance) to borrow on the date or in the
amount specified for a LIBOR Advance in any Request for Loan or Competitive
Bid Request, or upon the failure of Borrower or any Co-Borrower to prepay a
LIBOR Loan or Advance on the date specified in a notice of prepayment
delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower
and the Co-Borrowers shall pay to the appropriate Lender within 10 Business
Days after demand a prepayment fee, failure to borrow fee or failure to
prepay fee, as the case may be (determined as though 100% of that Lender's
LIBOR Advance had been funded in the Designated Market), equal to the sum
of:
(i) the principal amount of the LIBOR Advance prepaid or not
borrowed or prepaid, as the case may be, times (the number of days
from and including the date of prepayment or failure to borrow or
prepay, as applicable, to but excluding the last day in the applicable
Interest Period divided by 360) times the applicable Interest
Differential (provided that the product of the foregoing formula must
be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee, failure to
borrow fee or failure to prepay fee payable under this Section shall be
conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower
and the Co-Borrowers of any event of which it has actual knowledge,
occurring after the Closing Date, which will entitle such Lender to
compensation pursuant to clause (a) or clause (b) of this Section, and
agrees to designate a different LIBOR Lending Office if such designation
will avoid the need for or reduce the amount of such compensation and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender
under this Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrower and the Co-Borrowers, a
calculation of the amount due, and a certification that the corresponding
costs have been incurred by the Lender.
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(g) If any Lender claims compensation or is excused from making
or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at
least four Business Days' prior notice to the Administrative Agent and
such Lender and upon payment in full of the amounts provided for in
this Section through the date of such payment plus any prepayment fee
(subject to clause (c) of this Section) required by clause (e) of this
Section, pay in full the affected LIBOR Advances of such Lender or
request that such LIBOR Advances be converted to Base Rate Advances;
and
(ii) In the case where Borrower and the Co-Borrowers become
obligated to pay a material amount under this Section to any Lender,
that Lender will be subject to removal in accordance with Section
11.24; provided that Borrower and the Co-Borrowers shall have paid
such amount to that Lender and that Borrower and the Co-Borrowers,
within the thirty day period following the date of such payment, shall
have notified that Lender in writing of their intent to so remove the
Lender.
3.9 Late Payments. If any installment of principal or interest or any
fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
rate otherwise payable with respect thereto plus 2% per annum (or, in the case
of any Obligations which do not bear stated interest, at the rate then otherwise
applicable to Base Rate Loans plus 2% per annum), to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be compounded monthly, on the
last day of each calendar month, to the fullest extent permitted by applicable
Laws.
3.10 Computation of Interest and Fees. Computation of interest on Base
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed; computation of interest on
LIBOR Loans, Competitive Advances and all fees under this Agreement shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed. Borrower and the Co-Borrowers acknowledge that such latter calculation
method will result in a higher yield to the Lenders than a method based on a
year of 365 or 366 days. Interest shall accrue on each Loan for the day on which
the Loan is made; interest shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid. Any Loan that is repaid
on the same day on which it is made shall bear interest for one day.
Notwithstanding anything in this Agreement to the contrary, interest in excess
of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.11 Non-Business Days. If any payment to be made by Borrower, any of
the Co-Borrowers or any other Party under any Loan Document shall come due on a
day other than a Business Day, payment shall instead be considered due on the
next succeeding Business Day and the extension of time shall be reflected in
computing interest and fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to Sections
3.7, 3.8, 11.3 and 11.11) or on the Notes or under any other Loan Document
shall be made to the Administrative Agent, at the Administrative Agent's
Office, for the account of each of the Lenders or the Administrative Agent,
as the case may be, in immediately available funds not later than 12:00
noon, Las Vegas time (other than payments with respect to Swing Line Loans,
which
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must be paid directly to the relevant Swing Line Lender and received by
3:00 p.m., Las Vegas time), on the day of payment (which must be a Business
Day). All payments received after such time, on any Business Day, shall be
deemed received on the next succeeding Business Day. The amount of all
payments received by the Administrative Agent for the account of each
Lender shall be immediately paid by the Administrative Agent to the
applicable Lender in immediately available funds and, if such payment was
received by the Administrative Agent by 12:00 noon, Las Vegas time, on a
Business Day and not so made available to the account of a Lender on that
Business Day, the Administrative Agent shall reimburse that Lender for the
cost to such Lender of funding the amount of such payment at the Federal
Funds Rate. All payments shall be made in lawful money of the United States
of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each Lender
comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record
(which may be in tangible or electronic or other intangible form) of
Advances made by it and payments received by it with respect to each such
Advances and such record shall, as against Borrower and the Co-Borrowers,
be presumptive evidence of the amounts owing. Notwithstanding the foregoing
sentence, the failure by any Lender to keep such a record shall not affect
Borrower's and the Co-Borrowers' joint and several obligations to pay the
Obligations.
(d) Each payment of any amount payable by Borrower or any other
Party under this Agreement or any other Loan Document shall be made free
and clear of, and without reduction by reason of, any taxes, assessments or
other charges imposed by any Governmental Agency, central bank or
comparable authority, excluding (i) taxes imposed on or measured in whole
or in part by overall net income, gross income or gross receipts, (ii)
franchise taxes imposed on any Lender by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal
office or LIBOR Lending Office or (B) any jurisdiction (or political
subdivision thereof) in which it is "doing business," (iii) any withholding
taxes or other taxes based on gross income imposed by the United States of
America that are not attributable to any change in any Law or the
interpretation or administration of any Law by any Governmental Agency and
(iv) any withholding tax or other taxes based on gross income imposed by
the United States of America for any period with respect to which it has
failed to provide Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then available under applicable
Laws (all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrower or any
other Party is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender under
this Agreement, they shall (i) make such deduction or withholding and pay
the same to the relevant Governmental Agency and (ii) pay such additional
amount to that Lender as is necessary to result in that Lender's receiving
a net after-Tax amount equal to the amount to which that Lender would have
been entitled under this Agreement absent such deduction or withholding. If
and when receipt of such payment results in an excess payment or credit to
that Lender on account of such Taxes, that Lender shall promptly refund
such excess to Borrower or the relevant Party. If Borrower or any such
Party becomes obligated to pay a material amount under this Section to any
Lender, that Lender will be subject to removal in accordance with Section
11.24; provided that Borrower or the relevant Party shall have paid such
amount to that Lender and that Borrower and the Co-Borrowers, within the
thirty day period following the date of such payment, shall have notified
that Lender in writing of their intent to so remove the Lender.
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(e) All payments to be made by Borrower or any Co-Borrower shall
be made without conditions or deduction for any counterclaim, defense,
recoupment or setoff.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner, provided that each Lender which is not a bank under
the laws of the United States or any state thereof severally represents and
warrants that it has obtained the funds for its Advances in compliance with
applicable Laws and that the making of its Advances will not constitute
"prohibited transactions" as such term is defined in ERISA.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest at the Default Rate), fee, cost or other amount payable
under any Loan Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a waiver of the
Administrative Agent's or such Lender's right to require full payment of any
interest (including interest at the Default Rate), fee, cost or other amount
payable under any Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made.
Unless Borrower, any Co-Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that Borrower, such Co-Borrower or such Lender,
as the case may be, will not make such payment, the Administrative Agent may
assume that Borrower, such Co-Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(a) if Borrower or any Co-Borrower failed to make such payment,
each Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect of
each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds at the Federal
Funds Rate from time to time in effect; and
(b) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
Borrower or any Co-Borrower to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per annum equal
to the Federal Funds Rate from time to time in effect. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute
such Lender's Advance included in the applicable Loan. If such Lender does
not pay such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon Borrower
or the Co-Borrowers, if applicable, and Borrower or the Co-Borrowers, if
applicable, shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Advance. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill
its Pro Rata Share of the Commitments or to prejudice any rights which the
Administrative Agent, Borrower or any Co-Borrower may have against any
Lender as a result of any default by such Lender hereunder.
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A notice of the Administrative Agent to any Lender, any Co-Borrower or Borrower
with respect to any amount owing under this Section 3.15 shall be conclusive,
absent manifest error.
3.16 Fee Determination Detail. The Administrative Agent and any Lender
shall provide reasonable detail to Borrower and the Co-Borrowers regarding the
manner in which the amount of any payment to the Creditors, or that Lender,
under Article 3 has been determined, concurrently with demand for such payment.
3.17 Survivability. All of Borrower's and the Co-Borrowers'
obligations under Sections 3.7 and 3.8 shall survive for ninety days following
the date on which the Commitments are terminated, all Obligations hereunder are
fully paid and all Letters of Credit have expired.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower and each Co-Borrower represents and warrants to the Lenders
on the Closing Date that, except as set forth in the Disclosure Schedule:
4.1 Existence and Qualification; Power; Compliance With Laws. Borrower
is a corporation duly incorporated, validly existing and in good standing under
the Laws of Delaware. Detroit is a limited liability company duly formed,
validly existing and in good standing under the Laws of Delaware. Borrower and
each Co-Borrower are each duly qualified or registered to transact business and
are in good standing in each other jurisdiction in which the conduct of their
business or the ownership or leasing of their Properties makes such
qualification or registration necessary, except where the failure so to qualify
or register and to be in good standing would not constitute a Material Adverse
Effect. Borrower and each Co-Borrower have all requisite corporate or other
organizational power and authority to conduct their business, to own and lease
their Properties and to execute and deliver each Loan Document to which each is
a Party and to perform the Obligations, except where the failure to have such
power and authority would not constitute a Material Adverse Effect. All
outstanding shares of the capital stock of Borrower are duly authorized, validly
issued, fully paid and non-assessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws. All
the equity interests in each Co-Borrower are duly authorized, validly issued,
fully paid and non assessable, and no holder thereof has any enforceable right
of rescission under any applicable state or federal securities Laws. Borrower
and each Co-Borrower are in compliance with all Requirements of Law applicable
to its business as at present conducted, has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business as at present conducted, except where the failure so
to comply, file, register, qualify or obtain exemptions would not constitute a
Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations. The execution, delivery and performance by Borrower,
each Co-Borrower and each Guarantor of the Loan Documents to which it is a Party
have been duly authorized by all necessary corporate or other organizational
action, and do not and will not:
(a) Require any consent or approval not heretofore obtained of
any member, partner, director, stockholder, security holder or creditor of
such party;
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(b) Violate or conflict with any provision of such party's
charter, articles of incorporation, operating agreement or bylaws, as
applicable;
(c) Result in or require the creation or imposition of any Lien
upon or with respect to any Property of Borrower and its Restricted
Subsidiaries, other than Liens permitted by Section 6.4; or
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in the Disclosure Schedule;
and neither Borrower, the Co-Borrowers nor any Guarantor is in violation of, or
default under, any Requirement of Law or Contractual Obligation, or any
indenture, loan or credit agreement, in any respect that constitutes a Material
Adverse Effect.
4.3 No Governmental Approvals Required. Except as obtained or made on
or prior to the Closing Date, no authorization, consent, approval, order,
license or permit from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by Borrower and its
Restricted Subsidiaries of the Loan Documents to which it is a Party.
4.4 Subsidiaries.
(a) As of the Closing Date, the Disclosure Schedule correctly
sets forth the names, form of legal entity, ownership and jurisdictions of
organization of all Subsidiaries of Borrower. Except as described in the
Disclosure Schedule, Borrower does not own any capital stock, equity
interest or debt security which is convertible, or exchangeable, for
capital stock or equity interests in any Person as of the Closing Date.
(b) As of the Closing Date, each Restricted Subsidiary of
Borrower is duly organized, validly existing and in good standing under the
Laws of its jurisdiction of organization, is duly qualified or registered
to transact business and is in good standing as such in each jurisdiction
in which the conduct of its business or the ownership or leasing of its
Properties makes such qualification or registration necessary, and has all
requisite corporate or other organizational power and authority to conduct
its business and to own and lease its Properties, except where the failure
to qualify or register, to be in good standing or to have such power and
authority would not constitute a Material Adverse Effect.
(c) As of the Closing Date, each Restricted Subsidiary of
Borrower is in compliance with all Requirements of Law applicable to its
business as at present conducted, has obtained all authorizations,
consents, approvals, orders, licenses, and permits from, and has
accomplished all filings, registrations, and qualifications with, or
obtained exemptions from any of the foregoing from, any Governmental Agency
that are necessary for the transaction of its business as at present
conducted, except where the failure to so comply, file, register, qualify
or obtain exemptions would not constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the Administrative
Agent for distribution to the Lenders (a) the audited consolidated financial
statements of Borrower and its Subsidiaries for the Fiscal Year ended December
31, 2005, and (b) unaudited financial statements of Borrower and its
Subsidiaries as of the Fiscal Quarter ended June 30, 2006. The financial
statements described above fairly present in all material respects the financial
condition, results of operations and
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changes in financial position of Borrower and its Subsidiaries as of such dates
and for such periods in conformity with GAAP, consistently applied (except, in
the case of the financial statements described in (b), for the absence of
certain footnotes and other informational disclosures customarily omitted from
interim financial statements).
4.6 No Other Liabilities; No Material Adverse Changes. Borrower and
its Subsidiaries do not have any material liability or material contingent
liability required under GAAP to be reflected or disclosed and not reflected or
disclosed in the financial statements described in Section 4.5(a), other than
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since December 31, 2005.
4.7 Public Utility Holding Company Act. Neither Borrower nor any of
its Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
4.8 Litigation. There are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower and the
Co-Borrowers, threatened against or affecting Borrower or any of its Restricted
Subsidiaries or any Property of any of them before any Governmental Agency which
(a) if determined adversely, could reasonably be expected to have a Material
Adverse Effect, or (b) in any manner draw into question the validity or
enforceability of the Loan Documents in a manner which is materially adverse to
the interests of the Lenders.
4.9 Binding Obligations. Each of the Loan Documents to which Borrower
or any of its Restricted Subsidiaries is a Party will, when executed and
delivered by such Party, constitute the legal, valid and binding obligation of
such Party, enforceable against such Party in accordance with its terms, except
as enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.10 No Default. No event has occurred and is continuing that is a
Default or Event of Default.
4.11 ERISA
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance
could reasonably be expected to have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that could reasonably be expected to have a
Material Adverse Effect; and
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(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect.
(b) Neither Borrower nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that
could reasonably be expected to have a Material Adverse Effect.
4.12 Regulations T, U and X; Investment Company Act. Borrower is not
engaged and will not engage in, principally or as one of its important
activities, in the business of purchasing or carrying any Margin Stock in
violation of Regulations T, U and X. Neither Borrower nor any of its
Subsidiaries is or is required to be registered as an "investment company" under
the Investment Company Act of 1940.
4.13 Disclosure. No written statement made by a Senior Officer of
Borrower, any Co-Borrower or any Guarantor to the Administrative Agent or any
Lender in connection with this Agreement, or in connection with any Loan, as of
the date thereof contained any untrue statement of a material fact or omitted a
material fact necessary to make the statement made not misleading in light of
all the circumstances existing at the date the statement was made; provided
that, with respect to the Projections, Borrower only makes the representations
set forth in Section 4.15.
4.14 Tax Liability. Borrower and its Subsidiaries have filed all
material tax returns which are required to be filed, and have paid, or made
provision for the payment of, all material taxes with respect to the periods,
Property or transactions covered by said returns, or pursuant to any assessment
received by Borrower or its Subsidiaries, except such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained, and so long as no
material Property of Borrower or any of its Subsidiaries is in jeopardy of being
seized, levied upon or forfeited.
4.15 Projections. As of the date of the preparation of the
Projections, to the best knowledge of Borrower and the Co-Borrowers, the
assumptions set forth in the Projections were reasonable and consistent with
each other and with all facts known to Borrower and its Subsidiaries as of that
date, and the Projections were reasonably based on such assumptions. As of the
Closing Date, no fact or circumstance has come to the attention of the Borrower
since the preparation of the Projections which is in material conflict with the
assumptions set forth in the Projections. Nothing in this Section shall be
construed as a representation or covenant that the Projections in fact will be
achieved. The Creditors acknowledge that the Projections are forward-looking
statements and that actual financial results for Borrower and its Subsidiaries
could differ materially from those set forth in the Projections.
4.16 Hazardous Materials. To the best knowledge of Borrower and the
Co-Borrowers, no condition exists that violates any Hazardous Material Law
affecting any Real Property except for such violations that would not
individually or in the aggregate have a Material Adverse Effect.
4.17 Solvency. Giving effect to the incurrence of the Obligations and
the Guaranty and the refinancing of the Existing Loan Agreement, on the Closing
Date, Borrower and its Restricted Subsidiaries, considered as a single
integrated financial enterprise, are Solvent.
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ARTICLE 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of either
Commitment remains in force, Borrower shall, and shall cause each of its
Restricted Subsidiaries to, and each Co-Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
5.1 Preservation of Existence. Preserve and maintain their respective
existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business except (a) where the
failure to so preserve and maintain the existence of any Restricted Subsidiary
of Borrower and such authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations would not constitute a
Material Adverse Effect, and (b) that a merger permitted by Section 6.1 or a
Disposition shall not constitute a violation of this covenant; and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect.
5.2 Maintenance of Properties. Maintain, preserve and protect all of
their respective material Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties, except that the failure to maintain, preserve and
protect a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrower and its Restricted Subsidiaries,
taken as a whole, shall not constitute a violation of this covenant.
5.3 Maintenance of Insurance. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which Borrower and its Restricted Subsidiaries operate.
5.4 Compliance With Laws. Comply, within the time period, if any,
given for such compliance by the relevant Governmental Agency with enforcement
authority, with all Requirements of Law (including Hazardous Materials Laws,
ERISA, federal tax laws and Gaming Laws) noncompliance with which constitutes a
Material Adverse Effect, except that Borrower and its Restricted Subsidiaries
need not comply with a Requirement of Law then being contested by any of them in
good faith by appropriate proceedings.
5.5 Inspection Rights. Upon reasonable notice, at any time during
regular business hours and as often as reasonably requested (but not so as to
materially interfere with the business of Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Lender, or any authorized employee, agent
or representative thereof, to examine, audit and make copies and abstracts from
the records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, managers, key
employees or accountants and, upon request, furnish promptly to the
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Administrative Agent or any Lender true copies of all financial information made
available to the board of directors or audit committee of the board of directors
of Borrower.
5.6 Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions in conformity with GAAP,
consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over
Borrower or any of its Subsidiaries.
5.7 Use of Proceeds. Use the proceeds of Loans (a) on the Closing
Date, to refinance Loans under the Existing Loan Agreement and pay associated
transactional fees and expenses, (b) to finance capital expenditures (including
without limitation those associated with Project CityCenter), (c) to finance
design, development and construction expenses associated with Acquisitions and
Investments not prohibited under Article 6 hereof and (d) for other general
corporate purposes.
5.8 Guarantors. (a) Promptly apply for, and thereafter diligently
pursue, all required approvals of the Illinois Gaming Board to the execution of
the Guaranty by Nevada Landing Partnership, and, upon the receipt of such
approvals, cause Nevada Landing Partnership to execute and deliver the Guaranty;
and (b) cause each other Person which hereafter becomes a Restricted Subsidiary
of Borrower to promptly execute and deliver to the Administrative Agent a
Guaranty.
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ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of either
Commitment remains in force, Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, and each Co-Borrower shall not unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 Mergers. Merge or consolidate with or into any Person, except:
(a) mergers and consolidations of a Restricted Subsidiary of
Borrower into Borrower or another Restricted Subsidiary of Borrower;
(b) mergers and consolidations with a Person to effect a mere
change in the State or form of organization of Borrower;
(c) mergers with any Person which if acquired by Borrower or its
other Restricted Subsidiaries pursuant to Investments not prohibited
hereby, would be Restricted Subsidiaries, provided that the financial
condition of Borrower and its Subsidiaries are not adversely affected
thereby and Borrower and its Subsidiaries execute such amendments to the
Loan Documents as may be requested by the Administrative Agent to reflect
such change; and
(d) other mergers provided that the terms of Section 6.2 are not
violated thereby, provided that giving pro forma effect to such mergers as
of the last day of the then most recently ended Fiscal Quarter, Borrower is
in compliance with Sections 6.5 and 6.6.
6.2 Hostile Acquisitions. Use the proceeds of any Loan in connection
with the acquisition of part or all of a voting interest of five percent or more
in any corporation or other business entity if such acquisition is opposed by
the board of directors or other equivalent governing body of such corporation or
business entity.
6.3 Change in Nature of Business. Make any material change in the
nature of the business of Borrower and its Subsidiaries, taken as a whole.
6.4 Liens and Negative Pledges. Create, incur, assume or suffer to
exist any Lien or Negative Pledge of any nature upon or with respect to any of
its Properties, or engage in any sale and leaseback transaction with respect to
any of its Properties, whether now owned or hereafter acquired, except:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges in favor of the Administrative
Agent securing the Obligations under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in the Disclosure Schedule and any renewals/extensions or
amendments thereof, provided that the obligations secured or benefited
thereby are not increased;
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(d) Liens on Property acquired by Borrower or any of its
Restricted Subsidiaries after the Closing Date that are in existence at the
time of such acquisition and are not created in contemplation of such
acquisition, and Negative Pledges relating to the Property so acquired;
(e) purchase money Liens securing Indebtedness and Capital Lease
Obligations in an aggregate principal amount not to exceed $250,000,000
(including any refinancings thereof);
(f) any Lien or Negative Pledge created by an agreement or
instrument entered into by Borrower or a Restricted Subsidiary of Borrower
in the ordinary course of its business which consists of a restriction on
the assignability, transfer or hypothecation of such agreement or
instrument;
(g) Liens granted on the stock, partnership or other equity
interests in a Person which is not a Restricted Subsidiary owned by
Borrower or any if its Restricted Subsidiaries, which are granted solely to
secure Indebtedness of that Person;
(h) Liens securing any Senior Indebtedness provided that the
Obligations are secured equally, ratably and on a pari passu basis with
such Senior Indebtedness, and Negative Pledges in favor of any Senior
Indebtedness provided such Negative Pledges do not prohibit the granting of
Liens to secure the Obligations (but which may require the granting of
concurrent equal, ratable and pari passu Liens in favor of such Senior
Indebtedness); and
(i) Liens not otherwise permitted by the foregoing clauses of
this Section encumbering assets of Borrower and its Restricted Subsidiaries
having an aggregate fair market value, as of the date of the incurrence of
such Liens, which is not in excess of 10% of Consolidated Net Tangible
Assets determined as of the then most recently ended Fiscal Quarter;
provided that this Section shall not be effective to prohibit the Liens or
Negative Pledges with respect to securities issued by any gaming licensee to the
extent that appropriate approvals of this covenant have not been obtained under
applicable Gaming Laws.
6.5 Total Leverage Ratio. Permit the Total Leverage Ratio, as of the
last day of any Fiscal Quarter described below, to be greater than the ratio set
forth below opposite that Fiscal Quarter:
Maximum Total
Leverage Ratio
--------------
Fiscal Quarters ending from 9/30/06
through 9/30/09 6.50:1.00
Fiscal Quarters ending from 12/31/09
through 3/31/10 6.00:1.00
Fiscal Quarters ending on 6/30/10 and
thereafter 5.50:1.00.
6.6 Interest Charge Coverage Ratio. Permit the Interest Charge
Coverage Ratio as of the last day of each Fiscal Quarter ending on 9/30/06 and
thereafter to be less than 2.00:1:00.
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6.7 Investments in Insurance Subsidiary. Make Investments in the
Insurance Subsidiary in an amount exceeding $150,000,000 in the aggregate.
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ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance remains
unpaid, or any Letter of Credit remains outstanding or any other Obligation
remains unpaid, or any portion of either Commitment remains in force, Borrower
and each Co-Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Lenders) otherwise consents, at Borrower's and the
Co-Borrowers' sole expense, deliver to the Administrative Agent for distribution
by it to the Lenders:
(a) As soon as practicable, and in any event within 60 days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
Fiscal Year), the consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the consolidated
statement of operations for such Fiscal Quarter, and its statement of cash
flows for the portion of the Fiscal Year ended with such Fiscal Quarter,
all in reasonable detail;
(b) As soon as practicable, and in any event within 45 days after
the end of each Fiscal Quarter, a Pricing Certificate setting forth a
preliminary calculation of the Total Leverage Ratio as of the last day of
such Fiscal Quarter, and providing reasonable detail as to the calculation
thereof, which calculations shall be based on the preliminary unaudited
financial statements of Borrower for such Fiscal Quarter, and as soon as
practicable thereafter, in the event of any material variance in the actual
calculation of the Total Leverage Ratio from such preliminary calculation,
a revised Pricing Certificate setting forth the actual calculation thereof;
(c) As soon as practicable, and in any event within 105 days
after the end of each Fiscal Year, (i) the consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of operations, shareholders' equity and cash flows,
in each case of Borrower and its Subsidiaries for such Fiscal Year, in each
case as at the end of and for the Fiscal Year, all in reasonable detail.
Such financial statements shall be prepared in accordance with GAAP,
consistently applied, and such consolidated balance sheet and consolidated
statements shall be accompanied by a report of one of the four largest
public accounting firms in the United States of America or other
independent public accountants of recognized standing selected by Borrower
and reasonably satisfactory to the Requisite Lenders, which report shall be
prepared in accordance with generally accepted auditing standards as at
such date, and shall not be subject to any qualifications or exceptions as
to the scope of the audit nor to any other qualification or exception
determined by the Requisite Lenders in their good faith business judgment
to be adverse to the interests of the Lenders. Such accountants' report
shall be accompanied by a certificate stating that, in making the
examination pursuant to generally accepted auditing standards necessary for
the certification of such financial statements and such report, such
accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants have
reviewed Borrower's financial calculations as at the end of such Fiscal
Year (which shall accompany such certificate) under Sections 6.5 and 6.6,
have read such Sections (including the definitions of all defined terms
used therein) and that nothing has come to the attention of such
accountants in the course of such examination that would cause them to
believe that the same were not calculated by Borrower in the manner
prescribed by this Agreement;
(d) As soon as practicable, and in any event within 90 days after
the commencement of each Fiscal Year, a budget and projection by Fiscal
Quarter for that Fiscal
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Year and by Fiscal Year for the next two succeeding Fiscal Years, including
for the first such Fiscal Year, projected consolidated balance sheets,
statements of operations and statements of cash flow and, for the second
and third such Fiscal Years, projected consolidated condensed balance
sheets and statements of operations and cash flows, of Borrower and its
Subsidiaries, all in reasonable detail;
(e) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which Borrower may
file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, and not otherwise required to be delivered to the Lenders pursuant
to other provisions of this Section;
(f) Promptly after request by the Administrative Agent or any
Lender, copies of the Nevada "Regulation 6.090 Report" and "6A Report";
(g) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrower or any of its Subsidiaries with any Governmental Agency (other
than any report regarding Tracinda Corporation or individuals associated
with Tracinda Corporation, Borrower and its Subsidiaries and their
confidential business or financial information);
(h) As soon as practicable, and in any event within five Business
Days after a Senior Officer of Borrower becomes aware of the existence of
any condition or event which constitutes a Default or Event of Default,
telephonic notice specifying the nature and period of existence thereof,
and, no more than three Business Days after such telephonic notice, written
notice again specifying the nature and period of existence thereof and
specifying what action Borrower or its Subsidiaries are taking or propose
to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower or any Co-Borrower
becoming aware of any litigation, governmental investigation or proceeding
(including any litigation, governmental investigation or proceeding by or
subject to decision by any Gaming Board) that is pending (i) against
Borrower or any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect, (ii) in respect of any material
Indebtedness of Borrower or any of its Subsidiaries, or (iii) with respect
to the Loan Documents, notice of the same;
(j) Promptly following any Senior Officer of Borrower or any
Co-Borrower becoming aware of any change in the Debt Rating assigned hereto
written notice of such change if the same will result in a revision to the
Pricing Level by providing a revised Pricing Certificate setting forth the
revised Debt Rating; and
(k) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through the
Administrative Agent) or the Requisite Lenders.
Each of Borrower and each Co-Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Lead Arrangers will make available to the
Lenders and the Issuing Lenders materials and/or information provided by or on
behalf of Borrower hereunder (collectively, "Borrower Materials") by posting
Borrower Materials on IntraLinks or another similar electronic system (the
"Platform") and (b) certain of the Lenders may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material
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non-public information with respect to Borrower or its securities) (each, a
"Public Lender"). Borrower hereby agrees that (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," Borrower shall be deemed to have authorized the Administrative Agent,
the Lead Arrangers, the Issuing Lenders and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to Borrower or its
securities for purposes of United States Federal and state securities laws; (y)
all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the
Administrative Agent and the Lead Arrangers shall treat any Borrower Materials
that are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not designated "Public Investor."
7.2 Compliance Certificates. So long as any Advance remains unpaid, or
any Letter of Credit remains outstanding or any other Obligation remains unpaid
or unperformed, or any portion of either Commitment remains outstanding,
Borrower and the Co-Borrowers shall, at their sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders concurrently with the
financial statements required pursuant to Sections 7.1(a) and 7.1(c), Compliance
Certificates signed by a Senior Officer of Borrower and each Co-Borrower.
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ARTICLE 8
CONDITIONS
8.1 Initial Advances on the Closing Date. The obligation of each
Lender to make the initial Advance to be made by it on the Closing Date, is
subject to the following conditions precedent, each of which shall be satisfied
prior to the making of the initial Advances (unless all of the Lenders, in their
sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following
unless the Administrative Agent otherwise agrees or directs):
(i) Committed Revolving Notes executed by Borrower and
Detroit in favor of each Revolving Lender which has requested such a
note prior to the Closing Date, each in a principal amount equal to
that Revolving Lender's Pro Rata Share of the Revolving Commitment;
(ii) Term Notes executed by Borrower and Detroit in favor of
each Term Lender which has requested such a note prior to the Closing
Date, each in a principal amount equal to that Term Lender's Pro Rata
Share of the Term Commitment;
(iii) Competitive Revolving Notes executed by Borrower and
Detroit in favor of each Lender having a Pro Rata Share of the
Revolving Commitment which has requested such a note prior to the
Closing Date in a principal amount equal to $2,250,000,000;
(iv) with respect to Borrower, Detroit, and each of their
Restricted Subsidiaries, such documentation as the Administrative
Agent may reasonably require to establish their respective due
organization, valid existence and good standing, their qualification
to engage in business in each material jurisdiction in which they are
engaged in business or required to be so qualified, including (if
applicable) certified copies of their respective organizational papers
and amendments thereto, bylaws, certificates of good standing and/or
qualification to engage in business and tax clearance certificates;
(v) the Assistant Secretary of Borrower, Detroit and their
respective Restricted Subsidiaries shall have delivered to the
Administrative Agent a certificate attaching copies of the resolutions
adopted by Borrower, Detroit and their respective Restricted
Subsidiaries authorizing the execution and delivery of this Agreement,
the other Loan Documents and the other transactions contemplated
hereby;
(vi) the Assistant Secretary of Borrower, Detroit and their
respective Restricted Subsidiaries shall have delivered to the
Administrative Agent an incumbency certificate setting forth the
identity, authority and capacity of each Responsible Official thereof
authorized to act on its behalf, certificates of corporate or other
organizational resolutions, Certificates of Responsible Officials, and
the like;
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(vii) the Guaranty executed by each of the Restricted
Subsidiaries of Borrower other than Nevada Landing Partnership;
(viii) a certificate of insurance issued by Borrower's
insurance carrier or agent demonstrating that Borrower and its
Restricted Subsidiaries maintain the insurance coverages required by
Section 5.3;
(ix) the Opinions (except that the delivery of an opinion
from special Illinois counsel may be deferred until all required
approvals of the Illinois Gaming Board to the issuance of a Guaranty
by Nevada Landing Partnership have been obtained);
(x) a Request for Loan and a Letter of Credit Application in
compliance with Article 2;
(xi) a completed Pricing Certificate;
(xii) the letter agreement described in Sections 3.2, 3.5
and 3.6;
(xiii) such assurances as the Administrative Agent deems
appropriate that the relevant Gaming Boards have approved the
transactions contemplated by the Loan Documents to the extent that
such approval is required by applicable Gaming Laws;
(xiv) a Certificate signed by a Senior Officer of Borrower
and Detroit certifying that the conditions specified in Section 8.1(c)
and (d) have been satisfied; and
(xv) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) The fees payable on the Closing Date pursuant to Article 3
shall have been paid.
(c) The representations and warranties of Borrower and the
Co-Borrowers contained in Article 4 shall be true and correct.
(d) Borrower, each Co-Borrower and any other Parties shall be in
compliance with all the terms and provisions of the Loan Documents, and
giving effect to the initial Advance, no Default or Event of Default shall
have occurred and be continuing.
(e) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to
the Administrative Agent.
Each Lender party to the Existing Loan Agreement acknowledges that certain
Letter of Credit Fees paid to it under the Existing Loan Agreement will be
netted from amounts payable to it on the Closing Date in the manner contemplated
by Section 3.5. Without limiting the generality of the provisions of Section
10.4, for purposes of determining compliance with the conditions specified in
this Section 8.1, unless the Administrative Agent shall have received notice
from the Requisite Lenders prior to the proposed Closing Date specifying their
objection to the manner in which any condition precedent is proposed to be
satisfied, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required under this Section 8.1.
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It is acknowledged that effective upon the Closing Date, the lending commitments
of the lenders under the Existing Loan Agreement shall be terminated and that
the Existing Loan Agreement shall be amended and restated in its entirety
hereby.
8.2 Any Increasing Advance. The obligation of each Lender to make any
Advance, and the obligation of the Issuing Lenders to issue Letters of Credit,
which would result in an increase in the outstanding principal amount of the
Outstanding Obligations owed to that Lender, is subject to the following
conditions precedent (unless the Requisite Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) except (i) for representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a result
of a change which is permitted by this Agreement or (ii) as disclosed by
Borrower and the Co-Borrowers and approved in writing by the Requisite
Lenders, the representations and warranties contained in Article 4 (other
than Sections 4.4(a), 4.6 and 4.16) shall be true and correct on and as of
the date of the Advance as though made on that date;
(b) the Administrative Agent shall have timely received a Request
for Loan or Competitive Bid Request in compliance with Article 2 (or
telephonic or other request for Loan referred to in the second sentence of
Section 2.1(c), if applicable) or the relevant Issuing Lender shall have
received a Letter of Credit Application, as the case may be, in compliance
with Article 2; and
(c) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Lenders reasonably may require.
8.3 Any Letter of Credit. The obligation of the Issuing Lenders to
issue any Letter of Credit, and the obligation of the other Lenders to
participate therein, are subject to the conditions precedent that (a) the
conditions set forth in Section 8.2 have been satisfied and (b) Borrower shall
have certified that, giving effect to the issuance of the requested Letter of
Credit, the Letter of Credit Usage shall not exceed any limitations set forth in
this Agreement.
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ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or more
of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an "Event of Default" so long as such
event is continuous and has not been waived in accordance with Section 11.2:
(a) Borrower or the Co-Borrowers fail to pay any principal on any
of the Advances made hereunder or any L/C Borrowing or any portion thereof,
on the date when due; or
(b) Borrower or the Co-Borrowers fail to pay any interest on any
of the Advances made hereunder, or any fees under Sections 3.4, 3.5 or 3.6,
or any portion thereof, within five Business Days after the date when due;
or fail to pay any other fee or amount payable to the Lenders under any
Loan Document, or any portion thereof, within five Business Days after
demand therefor; or
(c) Borrower or the Co-Borrowers fail to comply with any of the
covenants contained in Article 6, other than the covenant contained in
Section 6.3; or
(d) Borrower, any of its Restricted Subsidiaries or any other
Party fails to perform or observe any other covenant or agreement (not
specified in clause (a), (b) or (c) above) contained in any Loan Document
on its part to be performed or observed within (i) ten Business Days after
the giving of notice by the Administrative Agent on behalf of the Requisite
Lenders of such Default or (ii) if the nature of the covenant or agreement
is such that the violation can be cured, thirty Business Days after the
giving of such notice so long as Borrower and the Co-Borrowers diligently
pursue in good faith the cure or correction of such violation continuously
during such period; or
(e) Any representation or warranty of Borrower or any of its
Restricted Subsidiaries or any other Party made in any Loan Document, or in
any certificate or other writing delivered by Borrower or such Restricted
Subsidiary or Party pursuant to any Loan Document, proves to have been
incorrect when made or reaffirmed in any respect that is materially adverse
to the interests of the Lenders; or
(f) Borrower or any of its Supported Subsidiaries (i) fails to
pay the principal, or any principal installment, of any present or future
Indebtedness of $250,000,000 or more, or any guaranty of present or future
Indebtedness of $250,000,000 or more, on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) fails
to perform or observe any other term, covenant or agreement on its part to
be performed or observed, or suffers any event of default to occur, in
connection with any present or future Indebtedness of $250,000,000 or more,
or of any guaranty of present or future Indebtedness of $250,000,000 or
more, if as a result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or their behalf) has the right to
declare such Indebtedness due before the date on which it otherwise would
become due or the right to require Borrower or any of its Supported
Subsidiaries to redeem or purchase, or offer to redeem or purchase, all or
any portion of such Indebtedness; or
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(g) Any Loan Document, at any time after its execution and
delivery and for any reason other than (i) as expressly permitted
hereunder, (ii) the agreement or action (or omission to act) of the
Administrative Agent or any of the Lenders, or (iii) satisfaction in full
of all the Obligations, ceases to be in full force and effect and, in the
reasonable judgment of the Requisite Lenders, such circumstance is
materially adverse to the interests of the Lenders; or is declared by a
court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the reasonable
opinion of the Requisite Lenders, is materially adverse to the interests of
the Lenders; or Borrower or any of its Restricted Subsidiaries denies in
writing that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(h) A final judgment against Borrower or any of its Supported
Subsidiaries is entered for the payment of money in excess of $100,000,000
and, absent procurement of a stay of execution, such judgment remains
unsatisfied for thirty calendar days after the date of entry of judgment,
or in any event later than five days prior to the date of any proposed sale
thereunder; or any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the
Property of any such Person and is not released, vacated or fully bonded
within thirty calendar days after its issue or levy; or
(i) Borrower or any of its Supported Subsidiaries institutes or
consents to the institution of any proceeding under a Debtor Relief Law
relating to it or to all or any material part of its Property, or is unable
or admits in writing its inability to pay its debts as they mature, or
makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all
or any material part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for ninety calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to all
or any part of its Property is instituted without the consent of that
Person and continues undismissed or unstayed for ninety calendar days; or
(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
Restricted Subsidiaries is determined to have a material "accumulated
funding deficiency" as that term is defined in Section 302 of ERISA and the
result is a Material Adverse Effect; or
(l) The occurrence of a License Revocation that continues for
fifteen consecutive calendar days with respect to gaming operations at any
gaming facility accounting for ten percent or more of the consolidated
total assets or consolidated gross revenues of Borrower and its Restricted
Subsidiaries.
9.2 Remedies Upon Event of Default. Without limiting any other rights
or remedies of the Creditors provided for elsewhere in this Agreement, or the
other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default other than an Event of Default described in Section 9.1(i):
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(i) the Commitments to make Advances, the obligation of the
Issuing Lenders to issue Letters of Credit, the obligation of the
Swing Line Lender to make Swing Line Loans and all other obligations
of the Creditors and all rights of Borrower, the Co-Borrowers and any
other Parties under the Loan Documents shall be suspended without
notice to or demand upon Borrower or any Co-Borrower, which are
expressly waived by Borrower and the Co-Borrowers, except that all of
the Lenders or the Requisite Lenders (as the case may be, in
accordance with Section 11.2) may waive an Event of Default or,
without waiving, determine, upon terms and conditions satisfactory to
the Lenders or Requisite Lenders, as the case may be, to reinstate the
Commitments and such other obligations and rights and make further
Advances, and cause the Issuing Lenders to issue further Letters of
Credit which waiver or determination shall apply equally to, and shall
be binding upon, all the Lenders;
(ii) the Issuing Lenders may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by Borrower and the Co-Borrowers of an amount equal
to the aggregate amount of all outstanding Letters of Credit to be
held by the Issuing Lenders in an interest-bearing cash collateral
account as collateral for the Letters of Credit; and
(iii) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid principal of
all Advances made hereunder, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents to be forthwith
due and payable, whereupon the same shall become and be forthwith due
and payable, without protest, presentment, notice of dishonor, demand
or further notice of any kind, all of which are expressly waived by
Borrower and each Co-Borrower.
(b) Upon the occurrence, and during the continuance, of any Event
of Default described in Section 9.1(i):
(i) the Commitments to make Advances, the obligation of the
Issuing Lenders to issue Letters of Credit, the obligation of the
Swing Line Lender to make Swing Line Loans and all other obligations
of the Creditors and all rights of Borrower, the Co-Borrowers and any
other Parties under the Loan Documents shall terminate without notice
to or demand upon Borrower or any Co-Borrower, which are expressly
waived by Borrower and the Co-Borrowers, except that all of the
Lenders may waive the Event of Default or, without waiving, determine,
upon terms and conditions satisfactory to all the Lenders, to
reinstate the Commitments and such other obligations and rights and
make further Advances and to cause the Issuing Lenders to issue
further Letters of Credit, which determination shall apply equally to,
and shall be binding upon, all the Lenders;
(ii) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and payable to
the Issuing Lenders without notice to or demand upon Borrower or any
Co-Borrower, which are expressly waived by Borrower and the
Co-Borrowers, to be held by the Issuing Lenders in an interest-bearing
account as collateral for the Letters of Credit; and
(iii) the unpaid principal of all Advances made hereunder,
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,
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demand or further notice of any kind, all of which are expressly
waived by Borrower and the Co-Borrowers.
(c) Upon the occurrence, and during the continuance, of any Event
of Default, the Creditors, or any of them, without notice to (except as
expressly provided for in any Loan Document) or demand upon Borrower or any
Co-Borrower, which are expressly waived by Borrower and the Co-Borrowers
(except as to notices expressly provided for in any Loan Document), may
proceed (but only with the consent of the Requisite Lenders) to protect,
exercise and enforce their rights and remedies under the Loan Documents
against Borrower, the Co-Borrowers and any other Party and such other
rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Creditors' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole discretion, and all payments received by the Creditors, or
any of them, shall be applied first to the costs and expenses (including
Attorney Costs) of the Creditors, and thereafter paid pro rata to the
Lenders in the same proportions that the aggregate Obligations owed to each
Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all the Lenders, without priority or preference
among the Lenders. Regardless of how each Lender may treat payments for the
purpose of its own accounting, for the purpose of computing the Obligations
hereunder and under the Notes, payments shall be applied first, to the
costs and expenses of the Creditors, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan Documents to and
including the date of such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each of the Loan
Documents), third, to the payment of all other amounts (including principal
and fees) then owing to the Creditors under the Loan Documents, and fourth
to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit. Amounts due to a Lender
under a Related Swap Agreement shall be considered a principal amount for
purposes of the preceding sentence. Amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause fourth
above shall be applied to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set
forth above. No application of payments will cure any Event of Default, or
prevent acceleration, or continued acceleration, of amounts payable under
the Loan Documents, or prevent the exercise, or continued exercise, of
rights or remedies of the Lenders hereunder or thereunder or at Law or in
equity.
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ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere herein or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting
parties.
(b) Each of the Issuing Lenders shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and each Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in
this Article 10 with respect to any acts taken or omissions suffered by
that Issuing Lender in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for letters
of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article 10 and in the definition of
"Agent-Related Person" includes the Issuing Lenders with respect to such
acts or omissions, and (ii) as additionally provided herein with respect to
the Issuing Lenders.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
10.3 Liability of Administrative Agent. No Agent-Related Person shall
(a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Party or any other party to any Loan Document to perform its obligations
hereunder or
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thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Party
or any Affiliate thereof.
10.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to any Party), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Requisite Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Requisite Lenders (or such greater number of Lenders as may
be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all
the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 8.1, unless the Administrative Agent shall have
received notice from the Requisite Lenders prior to the proposed Closing
Date specifying its objection to the manner in which any condition
precedent is proposed to be satisfied, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required under Section
8.1.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Requisite
Lenders in accordance with Article 9; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
10.6 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own
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appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Parties and
their respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to Borrower, Co-Borrower and the
other Parties hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower and the other Parties. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
10.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Party and without limiting the obligation of any Party to do so),
pro rata, and hold harmless each Agent-Related Person from and against any and
all Indemnified Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Requisite
Lenders (or, if required by Section 11.2, all of the Lenders) shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
10.8 Administrative Agent in its Individual Capacity. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the Issuing Lenders hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Party or its Affiliates (including information that
may be subject to confidentiality obligations in favor of such Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
Administrative Agent or the Issuing Lenders, and the terms "Lender" and
"Lenders" include Bank of America in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of
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America shall also constitute its resignation as an Issuing Lender and Swing
Line Lender. The Administrative Agent shall, in connection with any such
resignation, make appropriate arrangements to ensure that, to the extent that it
then holds any capital stock or other equity securities of any Person which is a
gaming licensee as collateral for the Obligations, that any transfer of
possession of such pledged securities to any successor is in full compliance
with the requirements of all relevant Gaming Boards. If the Administrative Agent
resigns under this Agreement, the Requisite Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be consented to by Borrower at all times other than
during the existence of an Event of Default (which consent of Borrower shall not
be unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, Issuing Lender
and Swing Line Lender and the respective terms "Administrative Agent," "Issuing
Lender" and "Swing Line Lender" shall mean such successor administrative agent,
Letter of Credit issuer and Swing Line Lender, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated and the retiring Issuing Lender's and Swing Line Lender's rights,
powers and duties as such shall be terminated, without any other or further act
or deed on the part of such retiring Issuing Lender or Swing Line Lender or any
other Lender, other than the obligation of the successor Issuing Lender to issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or to make other arrangements satisfactory to the
retiring Issuing Lender to effectively assume the obligations of the retiring
Issuing Lender with respect to such Letters of Credit. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article 10 and Sections 11.3 and 11.11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Article 3 and Section 11.3) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Article 3 and Section 11.3. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
10.11 Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger", "co-arranger", "senior managing
agent" or "managing agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
10.12 No Obligations of Borrower and the Co-Borrowers. Nothing
contained in this Article 10 shall be deemed to impose upon Borrower or any
Co-Borrower any obligation in respect of the due and punctual performance by the
Administrative Agent of its obligations to the Lenders under any provision of
this Agreement, and Borrower and the Co-Borrowers shall have no liability to the
Administrative Agent or any of the Lenders in respect of any failure by the
Administrative Agent or any Lender to perform any of its obligations to the
Creditors under this Agreement. Without limiting the generality of the
foregoing, where any provision of this Agreement relating to the payment of any
amounts due and owing under the Loan Documents provides that such payments shall
be made by Borrower or the Co-Borrowers to the Administrative Agent for the
account of the Lenders, Borrower's and the Co-Borrowers' obligations to the
Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
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ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges
and remedies of the Creditors provided herein or in any Note or other Loan
Document are cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the part of the
Administrative Agent or any Lender in exercising any right, power, privilege or
remedy may be, or may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other or
further exercise of the same or any other right, power, privilege or remedy. The
terms and conditions of Article 8 hereof are inserted for the sole benefit of
the Creditors; the same may be waived in whole or in part, with or without terms
or conditions, in respect of any Loan or Letter of Credit without prejudicing
the Administrative Agent's or the Lenders' rights to assert them in whole or in
part in respect of any other Loan.
11.2 Amendments; Consents. Each amendment, modification, supplement,
extension, termination, waiver, approval and consent under this Agreement and
the other Loan Documents shall be subject to the terms of all applicable Laws,
including Gaming Laws. No amendment, modification, supplement, extension,
termination or waiver of any provision of this Agreement or any other Loan
Document, no approval or consent thereunder, and no consent to any departure by
Borrower, the Co-Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the approval
of Requisite Lenders (and, in the case of any amendment, modification or
supplement of or to any Loan Document to which Borrower or any of its
Subsidiaries is a Party, signed by each such Party, and, in the case of any
amendment, modification or supplement to Article 10, signed by the
Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of all the Lenders
(or such of the Lenders as are required pursuant to the following clauses of
this Section), no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) Without the consent of each affected Lender, (i) to reduce
the principal of, or the amount of principal, principal prepayments or the
rate of interest payable on, any Advance, or (ii) to increase the amount of
the Commitments or the Pro Rata Share of any Lender or (iii) to reduce the
amount of any Unused Fee payable to any Revolving Lender, or any other fee
or amount payable to any Lender under the Loan Documents or (iv) to waive
an Event of Default consisting of the failure of Borrower or the
Co-Borrowers to pay when due principal, interest or any Unused Fee or other
fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Advance
or any installment of any Unused Fee, or to extend the term of either of
the Commitments;
(c) To permit the term of any Letter of Credit to exceed one year
(provided that this shall not be construed to prohibit the provision of
automatic renewal clauses in Letters of Credit issued hereunder) or extend
beyond the Maturity Date;
(d) To release any Subsidiary from its obligations in respect of
its Guaranty, provided that if no Default or Event of Default exists, the
Administrative Agent may without the consent of any Lender (and shall at
the request of Borrower) release any Subsidiary from its guaranty of the
Obligations concurrently with the Disposition of such Subsidiary or the
liquidation of such Subsidiary;
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(e) To amend the provisions of the definitions of "Requisite
Lenders" or "Maturity Date";
(f) To amend or waive Article 8, Section 6.2 or this Section; or
(g) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent
pursuant to this Section shall apply equally to, and shall be binding upon, all
of the Creditors. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Pro Rata Share of the Commitments of such
Lender may not be increased or extended without the consent of such Lender.
11.3 Attorney Costs, Expenses and Taxes.
(a) Borrower and the Co-Borrowers agree (a) to pay or reimburse
the Administrative Agent for all costs and expenses incurred in connection
with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not
the transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or the other Loan Documents
(including all such costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent
public accountants and other outside experts retained by the Administrative
Agent or any Lender. All amounts due under this Section 11.3 shall be
payable within five Business Days after demand therefor. The agreements in
this Section shall survive the termination of the Commitments and repayment
of all other Obligations.
(b) Borrower and the Co-Borrowers shall pay any and all
documentary and other taxes, excluding (1) taxes imposed on or measured in
whole or in part by overall net income, gross income or gross receipts and
franchise taxes imposed on any Lender by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal
office or LIBOR Lending Office or (B) any jurisdiction (or political
subdivision thereof) in which it is "doing business", (2) any withholding
taxes or other taxes based on gross income imposed by the United States of
America that are not attributable to any change in any Law or the
interpretation or administration of any Law by any Governmental Agency and
(3) any withholding tax or other taxes based on gross income imposed by the
United States of America for any period with respect to which it has failed
to provide Borrower with the appropriate form or forms required by Section
11.21, to the extent such forms are then required by applicable Laws, and
all costs, expenses, fees and charges payable or determined to be payable
in connection with the filing or recording of this Agreement, any other
Loan Document or any other instrument or writing to be delivered hereunder
or thereunder, or in connection with any transaction pursuant hereto or
thereto, and shall reimburse, hold harmless and indemnify on the terms set
forth in Section 11.11 the Creditors from and against any and all loss,
liability or legal or other expense
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with respect to or resulting from any delay in paying or failure to pay any
such tax, cost, expense, fee or charge or that any of them may suffer or
incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any Lender
under this Section shall bear interest from the second Business Day
following the date of demand for payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the Lenders
hereunder to make Loans and to fund participations in Letters of Credit and
Swing Line Loans are several and not joint. The failure of any Lender to make
any Loan or to fund any such participation on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to
so make its Loan or purchase its participation. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Creditors or any
of them pursuant hereto or thereto may, or may be deemed to, make the Lenders a
partnership, an association, a joint venture or other entity, either among
themselves or with Borrower, the Co-Borrowers or any Subsidiary of Borrower.
Each Lender's obligation to make any Advance pursuant hereto is several and not
joint or joint and several, and in the case of the initial Advance only is
conditioned upon the performance by all other Lenders of their obligations to
make initial Advances. A default by any Lender will not increase the Pro Rata
Share of any other Lender. Any Lender not in default may, if it desires, assume
in such proportion as the non-Defaulting Lenders agree the obligations of any
Lender in default, but is not obligated to do so. The Administrative Agent
agrees that it will use its best efforts either to induce the other Lenders to
assume the obligations of a Lender in default or to obtain another Lender,
reasonably satisfactory to Borrower and the Co-Borrowers, to replace such a
Lender in default.
11.5 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Letter of Credit, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.6 Notices.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to clause (c) below) electronic mail address, and all notices and
other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to Borrower, the Administrative Agent, the Issuing
Lenders or a Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person
on Schedule 11.6 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire
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or to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to
Borrower, the Administrative Agent, the Issuing Lenders and the Swing
Line Lenders.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by
or on behalf of the relevant party hereto; (B) if delivered by mail, four
Business Days after deposit in the mails, postage prepaid; (C) if delivered
by facsimile, when sent and receipt has been confirmed by telephone; and
(D) if delivered by electronic mail (which form of delivery is subject to
the provisions of clause (c) below), when delivered; provided, however,
that notices and other communications to the Administrative Agent, the
Issuing Lenders and the Swing Line Lenders pursuant to Article 2 shall not
be effective until actually received by such Person. In no event shall a
voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have
the same force and effect as manually-signed originals and shall be binding
on all Parties, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as
provided in Section 7.1, and to distribute Loan Documents for execution by
the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon
any notices (including telephonic requests for Loans and Swing Line Loans)
that, in the reasonable judgment of the Administrative Agent and the
Lenders, are purportedly given by or on behalf of Borrower or any
Co-Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Borrower and the
Co-Borrowers shall jointly and severally indemnify each Agent-Related
Person and each Lender from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice that, in the
reasonable judgment of such Agent-Related Person, is purportedly given by
or on behalf of Borrower or any Co-Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to
such recording.
(e) Notice to Borrower is Notice to Co-Borrowers. Borrower and
the Co-Borrower expressly agree that the credit facilities provided
hereunder are being provided for the joint convenience of Borrower and its
Restricted Subsidiaries, including the Co-Borrowers, and that it is
expected that Borrower shall administer the Advances and Letters of Credit
on behalf of itself and the Co-Borrowers. Accordingly, Borrower and the
Co-Borrowers agree that any notice provided to Borrower hereunder shall be
deemed to constitute the same notice to the Co-Borrowers, without the
requirement that separate notices be provided to the Co-Borrowers.
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11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party followed by prompt transmission of an original
signature. The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts hereof or
thereof, as the case may be, have been executed by all the parties hereto or
thereto.
11.8 Binding Effect; Assignment.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that neither Borrower nor any other
Party may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except for the following (any other
attempted assignment or transfer by any party hereto shall be null and
void):
(i) to an Eligible Assignee in accordance with the
provisions of clause (b) of this Section;
(ii) by way of participation in accordance with the
provisions of clause (d) of this Section;
(iii) by way of pledge or assignment of a security interest
subject to the restrictions of clause (f) of this Section; or
(iv) to an SPC in accordance with the provisions of clause
(h) of this Section.
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent
provided in clause (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Lenders and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement. Each Lender
represents that it is not acquiring its Notes with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (subject to any requirement that disposition of its Notes must be
within the control of such Lender).
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Pro Rata Share of the
Commitments and the Loans (including for purposes of this clause (b),
participations in L/C Obligations and in Swing Line Loans) at the time
owing to it); provided that any such assignment shall be subject to the
following conditions:
(i) in the case of an assignment of the entire remaining
amount of the assigning Lender's Pro Rata Share of the relevant
Commitment and the related Loans
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at the time owing to it or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned;
(ii) in any case not described in subsection (b)(i) of this
Section, the aggregate amount of the Pro Rata Share of the relevant
Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitments are not then in effect, the
principal outstanding balance of the related Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less
than, with respect to (A) the Revolving Commitment or Revolving Loans,
$5,000,000 and (B) the Term Commitments or Term Loans, $1,000,000,
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Borrower and each Co-Borrower
otherwise consents (each such consent not to be unreasonably withheld
or delayed); provided, however, that concurrent assignments to members
of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum
amount has been met;
(iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the Pro
Rata Share of the Commitments assigned, except that this clause (iii)
shall not (A) apply to the Swing Line Lender's rights and obligations
in respect of Swing Line Loans or (B) prohibit any Lender from
assigning all or a portion of its rights and obligations among
separate Commitments on a non-pro rata basis;
(iv) the consent of the Administrative Agent (such consent
not to be unreasonably withheld) shall be required for assignments of
any Pro Rata Share of the Revolving Commitment if such assignment is
to a Person that is not a Revolving Lender with a Pro Rata Share of
the Revolving Commitment, an Affiliate of such Revolving Lender or an
Approved Fund with respect to such Revolving Lender; and
(v) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500, provided, however,
that the Administrative Agent may, in its sole discretion, elect to
waive such processing and recordation fee in the case of any
assignment, and the Eligible Assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to clause (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.7, 3.8 and 11.11 with respect to facts and
circumstances occurring prior to the effective date of such assignment.
Upon request, Borrower (at its expense)
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shall execute and deliver a Note under the relevant Commitment to the
assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this clause
shall be treated for purposes of this Agreement as a sale by such Lender of
a participation in such rights and obligations in accordance with clause
(d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as
an agent of Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and Borrower,
the Co-Borrowers, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by
each of Borrower, each Co-Borrower and the Issuing Lenders at any
reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender wishing to
consult with other Lenders in connection therewith may request and receive
from the Administrative Agent a copy of the Register.
(d) Any Lender may at any time, without the consent of, or notice
to, Borrower, any Co-Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or Borrower or
any of Borrower's Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of that Lender's rights and/or obligations under this
Agreement (including all or a portion of any of its Pro Rata Shares of the
Commitments and/or the Loans (including that Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) that
Lender's obligations under this Agreement shall remain unchanged, (ii) that
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) Borrower, the Administrative
Agent, the Lenders and the Issuing Lenders shall continue to deal solely
and directly with that Lender in connection with that Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification
described in Section 11.2 requiring the consent of that Lender and which
also affects such Participant. Subject to clause (e) of this Section,
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.7 and 3.8 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to clause (b) of this Section.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.7 or 3.8 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.12(d) unless Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of Borrower,
to comply with Section 11.21 as though it were a Lender.
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(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
(g) The words "execution," "signed," "signature," and words of
like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to an SPC the option to provide
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan, and (ii)
if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make
such payment to the Administrative Agent as is required under Section 2.10.
Each party hereto hereby agrees that (i) neither the grant to any SPC nor
the exercise by any SPC of such option shall increase the costs or expenses
or otherwise increase or change the obligations of Borrower under this
Agreement (including its obligations under Sections 3.7 and 3.8), (ii) no
SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment,
waiver or other modification of any provision of any Loan Document, remain
the lender of record hereunder. The making of a Loan by an SPC hereunder
shall utilize the Pro Rata Share of the relevant Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting
Lender. In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior debt of any SPC, it will
not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained herein, any SPC
may (i) with notice to, but without prior consent of Borrower and the
Administrative Agent and with the payment of a processing fee of $3,500
(which processing fee may be waived by the Administrative Agent in its sole
discretion), assign all or any portion of its right to receive payment with
respect to any Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any
surety or contingent obligation or credit or liquidity enhancement to such
SPC.
(i) Resignation as Issuing Lender or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Pro Rata Shares of the
Commitments and Loans pursuant to clause (b) above, Bank of America may,
upon 30 days' notice to Borrower and the Lenders, concurrently resign as an
Issuing Lender and a Swing Line Lender. In the event of any such
resignation as Issuing
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Lender and Swing Line Lender, Borrower shall be entitled to appoint from
among the Lenders a replacement Issuing Lender or Swing Line Lender
hereunder; provided, however, that no failure by Borrower to appoint any
such successor shall affect the resignation of Bank of America as Issuing
Lender or Swing Line Lender, as the case may be. If Bank of America resigns
as an Issuing Lender, it shall retain all the rights and obligations of an
Issuing Lender hereunder with respect to all Letters of Credit issued by it
and outstanding as of the effective date of its resignation as Issuing
Lender and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.4(c)). If Bank of America
resigns as a Swing Line Lender, it shall retain all the rights of the Swing
Line Lender provided for hereunder with respect to Swing Line Loans made by
it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.6(e).
(j) Notwithstanding anything in this Section to the contrary, the
rights of the Lenders to make assignments of, and grant participations in,
their Pro Rata Shares of the Commitments shall be subject to the approval
of any Gaming Board, to the extent required by applicable Gaming Laws, and
to compliance with applicable securities laws, if any.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under Article 9 of
the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrower, the Co-Borrowers and/or any of their Property in its
possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, any Co-Borrower, or otherwise, receives payment of the
Obligations held by it that is ratably more than any other Lender, through any
means, receives in payment of the Obligations held by that Lender, then, subject
to applicable Laws: (a) the Lender exercising the right of setoff, banker's lien
or counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Lender a participation
in the Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Lenders
share any payment obtained in respect of the Obligations ratably in accordance
with each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrower, any Co-Borrower or any Person claiming
through or succeeding to the rights of Borrower or a Co-Borrower, the purchase
of a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased. Borrower and each
Co-Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in an Obligation so purchased may exercise any
and all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of the
Obligation purchased.
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11.11 Indemnification by Borrower and the Co-Borrowers. Whether or not
the transactions contemplated hereby are consummated, Borrower and each
Co-Borrower jointly and severally shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, settlements,
costs, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising out of or in
connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by any Issuing Lender to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit) or (c) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect, consequential, special or punitive damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All
amounts due under this Section 11.11 shall be payable within 10 Business Days
after demand therefor. The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
11.12 Nonliability of the Lenders; No Advisory or Fiduciary
Responsibility. Borrower and each Co-Borrower acknowledges and agrees that:
(a) Any inspections of any Property of Borrower and its
Subsidiaries made by or through the Creditors are for purposes of
administration of the Loans and Letters of Credit only and Borrower and its
Affiliates are not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower or its Subsidiaries); neither
the Administrative Agent nor the Lenders undertake or assume any
responsibility or duty to Borrower or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform Borrower or its Affiliates
of any matter in connection with their Property or the operations of
Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Creditors in connection with such matters is
solely for the protection of the Creditors and neither Borrower, the
Co-Borrowers nor any other Person is entitled to rely thereon;
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Creditors pursuant to the Loan
Documents, neither the Administrative Agent nor the Lenders shall be deemed
to have warranted or represented the sufficiency, legality, effectiveness
or legal effect of the same, or of any term, provision or condition
thereof, and such
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acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Creditors;
(c) (i) the credit facilities provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of
any other Loan Document) are an arm's-length commercial transaction between
the Borrower, Co-Borrowers and their respective Affiliates, on the one
hand, and the Administrative Agent and the Lead Arrangers, on the other
hand, and each of the Borrower and Co-Borrowers is capable of evaluating
and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction,
the Administrative Agent, the Lead Arrangers and the Lenders each is and
has been acting solely as a principal and is not the financial advisor,
agent or fiduciary, for the Borrower, Co-Borrowers or any of their
respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) none of the Administrative Agent, any Lead Arranger or any
Lender has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Borrower or any Co-Borrower with respect to
any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the
Administrative Agent, any Lead Arranger or any Lender has advised or is
currently advising the Borrower, Co-Borrowers or any of their respective
Affiliates on other matters) and none of the Administrative Agent, any Lead
Arranger or any Lender has any obligation to the Borrower, Co-Borrowers or
any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and
in the other Loan Documents; (iv) the relationship between Borrower and the
Co-Borrowers and the Creditors is, and shall at all times remain, solely
that of borrowers and lenders; neither the Administrative Agent nor the
Lenders shall under any circumstance be construed to be partners or joint
venturers of Borrower or its Affiliates; neither the Administrative Agent
nor the Lenders shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary or other "special"
relationship with Borrower or its Affiliates, or to owe any fiduciary duty
to Borrower or its Affiliates; (v) the Administrative Agent and the Lead
Arrangers and their respective Affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the
Borrower, Co-Borrowers and their respective Affiliates, and neither the
Administrative Agent nor any Lead Arranger has any obligation to disclose
any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (vi) the Administrative Agent and the Lead Arrangers have
not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any
other Loan Document) and each of the Borrower and Co-Borrowers has
consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate. Each of the Borrower and Co-Borrowers
hereby waives and releases, to the fullest extent permitted by law, any
claims that it may have against the Administrative Agent and the Lead
Arrangers with respect to any breach or alleged breach of agency or
fiduciary duty; and
(d) The Creditors shall not be responsible or liable to any
Person for any loss, damage, liability or claim of any kind relating to
injury or death to Persons or damage to Property caused by the actions,
inaction or negligence of Borrower and/or its Affiliates and Borrower and
the Co-Borrowers hereby indemnify and hold the Creditors harmless on the
terms set forth in Section 11.11 from any such loss, damage, liability or
claim.
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11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Co-Borrowers and the Creditors in connection with the Loans, and
is made for the sole benefit of Borrower, the Co-Borrowers, the Creditors, and
the Creditors' successors and assigns. Except as provided in Sections 11.8,
11.11, and 11.26 no other Person shall have any rights of any nature hereunder
or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any confidential
information that it may receive from Borrower and the Co-Borrowers pursuant to
this Agreement in confidence, except for disclosure: (a) to other Creditors (or,
subject to appropriate confidentiality restrictions, Affiliates of any
Creditor); (b) to legal counsel and accountants for Borrower and the
Co-Borrowers or any Lender; (c) to other professional advisors to Borrower and
the Co-Borrowers or any Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially similar to this
Section; (d) to regulatory officials having jurisdiction over that Lender; (e)
to any Gaming Board having regulatory jurisdiction over Borrower or its
Subsidiaries, provided that each Lender agrees to use its best efforts to notify
Borrower and the Co-Borrowers of any such disclosure unless prohibited by
applicable Laws; (f) as required by Law or legal process or in connection with
any legal proceeding to which that Lender and Borrower or any of its
Subsidiaries are adverse parties; and (g) to another financial institution in
connection with a disposition or proposed disposition to that financial
institution of all or part of that Lender's interests hereunder or a
participation interest in its Notes, provided that the recipient has accepted
such information subject to a confidentiality agreement substantially similar to
this Section. For purposes of the foregoing, "confidential information" shall
mean any information respecting Borrower or its Subsidiaries reasonably
considered by Borrower to be confidential, other than (i) information previously
filed with any Governmental Agency and available to the public, (ii) information
previously published in any public medium from a source other than, directly or
indirectly, that Lender, and (iii) information previously disclosed by Borrower
or its Subsidiaries to any Person not associated with Borrower without a
confidentiality agreement or obligation substantially similar to this Section.
Notwithstanding anything herein to the contrary, "confidential information"
shall not include, and the Administrative Agent and each Lender may disclose
without limitation of any kind, any information with respect to the "tax
treatment" and "tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby. Nothing in this Section shall be construed to
create or give rise to any fiduciary duty on the part of the Creditors to
Borrower or any other Party.
11.15 Further Assurances. Borrower and its Subsidiaries shall, at
their expense and without expense to the Lenders or the Administrative Agent,
do, execute and deliver such further acts and documents as the Requisite Lenders
or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, the other Loan Documents and the
letter agreements referred to in Sections 3.2, 3.5 and 3.6, comprise the
complete and integrated agreements of the parties on the subject matter hereof
and supersedes all prior agreements, written or oral, on the subject matter
hereof. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control and govern; provided that the inclusion of supplemental rights or
remedies in favor of the Creditors in any other Loan Document shall
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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. Each Loan Document shall be governed by, and
construed and enforced in accordance with, the local Laws of Nevada.
11.18 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants.
(a) Tax Forms.
(i) Each Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender")
shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such
Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by
Borrower pursuant to this Agreement) or IRS Form W-8ECI or any
successor thereto (relating to all payments to be made to such Foreign
Lender by Borrower pursuant to this Agreement) or such other evidence
satisfactory to Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of
the Code. Thereafter and from time to time, each such Foreign Lender
shall (A) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence
as is satisfactory to Borrower and the Administrative Agent of any
available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by
Borrower pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction, and (C) take
such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
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(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such
Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other times as
may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by
such Lender as set forth above, to establish the portion of any such
sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor
thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is
not acting for its own account with respect to a portion of any such
sums payable to such Lender.
(iii) Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.12(d) (A) with respect to
any taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.21(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 11.21(a); provided that if such Lender
shall have satisfied the requirement of this Section 11.21(a) on the
date such Lender became a Lender or ceased to act for its own account
with respect to any payment under any of the Loan Documents, nothing
in this Section 11.21(a) shall relieve Borrower of its obligation to
pay any amounts pursuant to Section 3.12(d) in the event that, as a
result of any change in any applicable law, treaty or governmental
rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at
a subsequent date establishing the fact that such Lender or other
Person for the account of which such Lender receives any sums payable
under any of the Loan Documents is not subject to withholding or is
subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any
payment under any of the Loan Documents with respect to which Borrower
is not required to pay additional amounts under this Section 11.21(a).
(b) Form W-9. Upon the request of the Administrative Agent, each
Lender that is a "United States person" within the meaning of Section
7701(a)(30) of the Code shall deliver to the Administrative Agent two duly
signed completed copies of IRS Form W-9. If such Lender fails to deliver
such forms, then the Administrative Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) Withholding. If any Governmental Agency asserts that the
Administrative Agent did not properly withhold or backup withhold, as the
case may be, any tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Administrative Agent
therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, and costs and expenses (including Attorney Costs) of the
Administrative Agent. The
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obligation of the Lenders under this Section shall survive the termination
of the Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
11.22 Gaming Boards. The Administrative Agent and each of the Lenders
agree to cooperate with all Gaming Boards in connection with the administration
of their regulatory jurisdiction over Borrower and its Subsidiaries, including
the provision of such documents or other information as may be requested by any
such Gaming Board relating to Borrower or any of its Subsidiaries or to the Loan
Documents.
11.23 Termination. Upon (a) the expiration or termination of the
Commitments, (b) the full and final payment in Cash of the Loans, all interest
and fees with respect thereto, (c) the reimbursement of all draws under Letters
of Credit and the payment of all fees with respect thereto, (d) the expiration
of all Letters of Credit or the deposit of Cash collateral with the relevant
Issuing Lenders in the effective face amount thereof, (e) the payment of all
amounts then demanded by any Lender or indemnitee under Sections 3.7, 3.8 and
11.11 and (f) the payment of all other amounts then due under the Loan
Documents, the Administrative Agent is hereby authorized by the Lenders to, and
the Administrative Agent shall, upon the request of Borrower and the
Co-Borrowers, execute and deliver to Borrower and the Co-Borrowers discharges
from further compliance with the covenants contained in Articles 5, 6, and 7.
11.24 Removal of a Lender. Borrower and the Co-Borrowers shall have
the right to remove a Lender as a party to this Agreement in accordance with
this Section (a) under the circumstances set forth in Sections 3.7, 3.8(g) and
3.12(d) and (b) if such Lender is the subject of a Disqualification. If Borrower
and the Co-Borrowers are entitled to remove a Lender pursuant to this Section
either:
(x) Upon notice from Borrower and the Co-Borrowers, the Lender being
removed shall execute and deliver a Assignment Agreement covering that
Lender's Pro Rata Share in favor of one or more Eligible Assignees
designated by Borrower and the Co-Borrowers (and acceptable to the
Administrative Agent, which acceptance shall not be unreasonably
delayed or withheld), subject to (i) payment of a purchase price by
such Eligible Assignee equal to all principal and accrued interest,
fees and other amounts payable to such Lender under this Agreement
through the date of assignment and (ii) the written release of the
Issuing Lenders and the Swing Line Lenders of such Lender's
obligations under Sections 2.4(c) and 2.6(d) or delivery by such
Eligible Assignee of such appropriate assurances and indemnities
(which may include letters of credit) as such Lender may reasonably
require with respect to its participation interest in any Letters of
Credit then outstanding or any Swing Line Outstandings; or
(y) Borrower and the Co-Borrowers may reduce the Commitments pursuant
to Section 2.9 (and, for this purpose, the numerical requirements of
such Section shall not apply) by an amount equal to that Lender's Pro
Rata Share, pay and provide to such Lender the amounts, assurances and
indemnities described in subclauses (i) and (ii) of clause (x) above
and release such Lender from its Pro Rata Share.
11.25 Joint and Several. Borrower and each of the Co-Borrowers shall
be obligated for all of the Obligations on a joint and several basis,
notwithstanding which of them may have directly received the proceeds of any
particular Loan or Advance or the benefit of a particular Letter of Credit,
provided that, anything to the contrary herein notwithstanding (including
Exhibit K), the liability of Detroit, including, without limitation, Detroit's
liability with respect to Indemnified Liabilities pursuant to Section 11.11,
shall be limited to that portion of the Obligations which are actually borrowed
or received by Detroit. Borrower and each of the Co-Borrowers acknowledge and
agree that, for purposes of the
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Loan Documents, Borrower, the Co-Borrowers and the Guarantors constitute a
single integrated financial enterprise and that each receives a benefit from the
availability of credit under this Agreement. Borrower and the Co-Borrowers each
waive all defenses arising under the Laws of suretyship, to the extent such Laws
are applicable, in connection with their joint and several obligations under
this Agreement. Without limiting the foregoing, Borrower and each of the
Co-Borrowers agree to the Joint Borrower Provisions set forth in Exhibit K,
incorporated by this reference.
11.26 Non-Involvement of Tracinda. The parties hereto acknowledge that
neither ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ nor Tracinda Corporation, individually or collectively,
is a party to this Agreement or any of the other Loan Documents executed on the
Closing Date. Accordingly, the parties hereto hereby agree that in the event (i)
there is any alleged breach or default by any Party under this Agreement or any
such Loan Document, or (ii) any party hereto has any claim arising from or
relating to any such Loan Document, no party hereto, nor any party claiming
through it (to the extent permitted by applicable Law), shall commence any
proceedings or otherwise seek to impose any liability whatsoever against ▇▇.
▇▇▇▇▇▇▇▇▇ or Tracinda Corporation by reason of such alleged breach, default or
claim.
11.27 Payments Set Aside. To the extent that any payment by or on
behalf of Borrower or any Co-Borrower is made to the Administrative Agent or any
Lender, or the Administrative Agent or any Lender exercises its right of
set-off, and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
11.28 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.29 Purported Oral Amendments. BORROWER AND EACH CO-BORROWER
EXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY
BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2.
BORROWER AND EACH CO-BORROWER AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF
DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY LENDER THAT DOES NOT COMPLY
WITH SECTION 11.2 TO EFFECT AN
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AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS.
11.30 USA PATRIOT Act Notice. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies Borrower and each Co-Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies Borrower and each Co-Borrower,
which information includes the name and address of Borrower and each Co-Borrower
and other information that will allow such Lender or the Administrative Agent,
as applicable, to identify Borrower and each Co-Borrower in accordance with the
Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
MGM MIRAGE,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice
President-Assistant General Counsel
and Assistant Secretary
MGM GRAND DETROIT, LLC
By: MGM Grand Detroit, Inc., Managing
Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant
Secretary
MGM MIRAGE FIFTH AMENDED AND RESTATED
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BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: ASSISTANT VICE PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice
President
MGM MIRAGE FIFTH AMENDED AND RESTATED
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THE ROYAL BANK OF SCOTLAND plc,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: MANAGING DIRECTOR
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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CITICORP USA, INC., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: MANAGING DIRECTOR
GLOBAL TECHNOLOGY
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: DIRECTOR
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: MANAGING DIRECTOR
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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BARCLAYS BANK PLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: DIRECTOR
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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BNP PARIBAS, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇
------------------------------------
Title: MANAGING DIRECTOR VICE PRESIDENT
-----------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ G. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: G. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
----------------------------------
Title: VICE PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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UBS LOAN FINANCE LLC, as a Lender
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: ASSOCIATE DIRECTOR
BANKING PRODUCTS
---------------------------------
By: /S/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: ASSOCIATE DIRECTOR
BANKING PRODUCTS
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: JOINT GENERAL MANAGER
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By: /s/ CHRISTIAN JAGENBERG
------------------------------------
Name: CHRISTIAN JAGENBERG
----------------------------------
Title: SVP & MANAGER
---------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Title: SVP
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
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BANK OF SCOTLAND, as a Lender
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: FIRST VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Lender
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Lender
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: SENIOR VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
SOCIETE GENERALE, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
MIZUHO CORPORATE BANK, LTD., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: DEPUTY GENERAL MANAGER
---------------------------------
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CAJA DE AHORROS DEL MEDITERRANEO, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLUCH
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: JEFE DE PRESTAMOS SINDICADOS
---------------------------------
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▇▇▇▇▇ FARGO BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: AVP
---------------------------------
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COMERICA BANK, as a Lender
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: ASSISTANT VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
UNITED OVERSEAS BANK LIMITED,
LOS ANGELES AGENCY, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: FVP & GENERAL MANAGER
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: MANAGING DIRECTOR
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: SENIOR VICE PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
EMIGRANT BANK, as a Lender
By: /s/ TUJU ▇. ▇▇▇▇▇▇
------------------------------------
Name: TUJU ▇. ▇▇▇▇▇▇
----------------------------------
Title: SENIOR VICE PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED
W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
SOVEREIGN BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as a Lender
By: /s/ TANK HUSSAIN
------------------------------------
Name: TANK HUSSAIN
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH, as a Lender
By: /S/ ▇▇▇▇▇▇▇▇ WEIZINGER
------------------------------------
Name: ▇▇▇▇▇▇▇▇ WEIZINGER
----------------------------------
Title: DIRECTOR
---------------------------------
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: DIRECTOR
---------------------------------
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UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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W02-WEST:LAR\400019853.8 LOAN AGREEMENT SIGNATURE PAGE
LASALLE BANK MIDWEST N.A. f/k/a STANDARD
FEDERAL BANK N.A., as a Lender
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: ASSISTANT VICE PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
UBS AG, STAMFORD BRANCH, as a Lender
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: ASSOCIATE DIRECTOR
BANKING PRODUCTS
---------------------------------
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: ASSOCIATE DIRECTOR
BANKING PRODUCTS
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
▇▇▇ ▇▇▇ COMMERCIAL BANK LTD., as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇
----------------------------------
Title: VP & GENERAL MANAGER
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
THE PEOPLES BANK, BILOXI, MISSISSIPPI,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
TAIWAN BUSINESS BANK, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇
----------------------------------
Title: VP & GENERAL MANAGER
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
CITY NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, C.F.A.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, C.F.A.
----------------------------------
Title: VICE PRESIDENT
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
EXCEL BANK MINNESOTA
EXCEL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: SVP
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
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KOREA DEVELOPMENT BANK, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇ ▇▇▇
----------------------------------
Title: GENERAL MANAGER
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
LAND BANK OF TAIWAN, as a Lender
By: /s/ ▇▇▇▇▇ ▇.▇. LEU
------------------------------------
Name: ▇▇▇▇▇ ▇.▇. LEU
----------------------------------
Title: VP & GENERAL MANAGER
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK, as a Lender
By: /s/ WEN-▇▇▇ ▇▇▇▇
------------------------------------
Name: WEN-▇▇▇ ▇▇▇▇
----------------------------------
Title: VP & GENERAL MANAGER
---------------------------------
MGM MIRAGE FIFTH AMENDED AND RESTATED LOAN
W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
TAIWAN COOPERATIVE BANK, as a Lender
By: /s/ ▇▇ ▇▇▇▇▇ HO
------------------------------------
Name: ▇▇ ▇▇▇▇▇ HO
----------------------------------
Title: VICE PRESIDENT & GENERAL MANAGER
(LOS ANGELES BRANCH)
---------------------------------
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W02-WEST:LAR\400019853.8 AGREEMENT SIGNATURE PAGE
SCHEDULE 1.1
Pro Rata Shares of the Commitments
REVOLVING TERM
COMMITMENT COMMITMENT TOTAL
LENDER ALLOCATION ALLOCATION ALLOCATION
------ --------------- --------------- --------------
1 Bank of America, N.A. $423,642,857.14 $220,357,142.86 $ 644,000,000
2 The Royal Bank of Scotland plc $423,642,857.14 $220,357,142.86 $ 644,000,000
3 Citicorp USA, Inc. $327,214,285.71 $181,785,714.29 $ 509,000,000
4 Deutsche Bank Trust Company Americas $327,214,285.71 $181,785,714.29 $ 509,000,000
5 JPMorgan Chase Bank, N.A. $327,214,285.71 $181,785,714.29 $ 509,000,000
6 Barclays Bank plc $298,928,571.43 $166,071,428.57 $ 465,000,000
7 BNP Paribas $298,928,571.43 $166,071,428.57 $ 465,000,000
8 Wachovia Bank, National Association $298,928,571.43 $166,071,428.57 $ 465,000,000
9 UBS Loan Finance LLC $279,642,857.14 $155,357,142.86 $ 435,000,000
11 Sumitomo Mitsui Banking Corporation $257,142,857.14 $142,857,142.86 $ 400,000,000
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ and Grand
Cayman Branches $208,928,571.43 $116,071,428.57 $ 325,000,000
13 Bank of Scotland $128,571,428.57 $ 71,428,571.43 $ 200,000,000
13 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $112,500,000.00 $ 62,500,000.00 $ 175,000,000
14 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. $112,500,000.00 $ 62,500,000.00 $ 175,000,000
15 U.S. Bank National Association $ 80,357,142.86 $ 44,642,857.14 $ 125,000,000
16 Societe Generale $ 70,714,285.71 $ 39,285,714.29 $ 110,000,000
17 Mizuho Corporate Bank, Ltd. $ 67,500,000.00 $ 37,500,000.00 $ 105,000,000
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ $ 64,285,714.29 $ 35,714,285.71 $ 100,000,000
19 ▇▇▇▇▇ Fargo Bank, N.A. $ 64,285,714.29 $ 35,714,285.71 $ 100,000,000
20 Comerica Bank $ 51,428,571.43 $ 28,571,428.57 $ 80,000,000
21 United Overseas Bank Limited, Los
Angeles Agency $ 48,214,285.71 $ 26,785,714.29 $ 75,000,000
▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ $ 32,142,857.14 $ 17,857,142.86 $ 50,000,000
W02-WEST:LAR\400019853.8
-1-
REVOLVING TERM
COMMITMENT COMMITMENT TOTAL
LENDER ALLOCATION ALLOCATION ALLOCATION
------ --------------- --------------- --------------
23 KeyBank National Association $ 32,142,857.14 $ 17,857,142.86 $ 50,000,000
24 Emigrant Bank $ 22,500,000.00 $ 12,500,000.00 $ 35,000,000
25 Sovereign Bank $ 22,500,000.00 $ 12,500,000.00 $ 35,000,000
26 The Bank of Tokyo-Mitsubishi UFJ, Ltd. $ 19,285,714.29 $ 10,714,285.71 $ 30,000,000
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇ Branch $ 16,071,428.57 $ 8,928,571.43 $ 25,000,000
28 Union Bank of California, N.A $ 16,071,428.57 $ 8,928,571.43 $ 25,000,000
29 LaSalle Bank Midwest N.A. f/k/a $ 12,857,142.86 $ 7,142,857.14 $ 20,000,000
Standard Federal Bank N.A
30 UBS AG, Stamford Branch $ 0 $ 20,000,000.00 $ 20,000,000
31 ▇▇▇ ▇▇▇ Commercial Bank Ltd. $ 9,642,857.14 $ 5,357,142.86 $ 15,000,000
32 The Peoples Bank, Biloxi, Mississippi $ 9,642,857.14 $ 5,357,142.86 $ 15,000,000
33 Taiwan Business Bank $ 9,642,857.14 $ 5,357,142.86 $ 15,000,000
34 City National Bank $ 6,428,571.43 $ 3,571,428.57 $ 10,000,000
35 ▇▇▇▇▇ ▇▇▇ Commercial Bank $ 6,428,571.43 $ 3,571,428.57 $ 10,000,000
36 Land Bank of Taiwan $ 6,428,571.43 $ 3,571,428.57 $ 10,000,000
37 Taiwan Cooperative Bank $ 6,428,571.43 $ 3,571,428.57 $ 10,000,000
38 Excel Bank $ 0 $ 5,000,000.00 $ 5,000,000
39 Korea Development Bank $ 0 $ 5,000,000.00 $ 5,000,000
--------------- --------------- --------------
GRAND TOTAL $ 4,500,000,000 $ 2,500,000,000 $7,000,000,000
=============== =============== ==============
W02-WEST:LAR\400019853.8
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SCHEDULE 4.0
Disclosure Schedule
W02-WEST:LAR\400019853.8
-1-
SCHEDULE 11.6
Notice Addresses
Address for Borrower, Co-Borrower and each Restricted Subsidiary:
MGM MIRAGE
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President, Chief Financial Officer and Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
MGM MIRAGE
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Secretary
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Administrative Agent, Issuing Lender and Swing Line Lender:
Bank of America, N.A.
Agency Management
Mail Code: TX1-492-14-11
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
Gaming and Leisure Industries Group
Banc of America Securities, LLC
Mail Code: CA9-193-24-03
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
W02-WEST:LAR\400019853.8
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