EXHIBIT 10.3
EXECUTION
TERM LOAN AGREEMENT
Dated as of April 7, 2000
among
MGM GRAND, INC.,
as Borrower
MGM GRAND ATLANTIC CITY, INC.
and
MGM GRAND DETROIT, LLC
as Co-Borrowers
The Banks, Syndication Agent, Documentation Agents and Co-Documentation
Agents herein named
and
BANK OF AMERICA, N. A.
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
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Page
Article 1
DEFINITIONS AND ACCOUNTING TERMS ................................. 1
1.1 Defined Terms ................................................ 1
1.2 Use of Defined Terms ......................................... 26
1.3 Accounting Terms -Fiscal Periods.............................. 26
1.4 Rounding...................................................... 26
1.5 Exhibits and Schedules ....................................... 26
1.6 Miscellaneous Terms .......................................... 26
Article 2
LOANS ............................................................ 27
2.1 Loans-General ................................................ 27
2.2 Base Rate Loans .............................................. 28
2.3 Eurodollar Rate Loans ........................................ 28
2.4 [Reserved].................................................... 29
2.5 [Reserved].................................................... 29
2.6 [Reserved].................................................... 29
2.7 Co-Borrowers ................................................. 29
2.8 Voluntary Reduction of Commitment ............................ 29
2.9 Optional Termination of Commitment............................ 29
2.10 Mandatory Prepayments of the Facility........................ 29
2.11 Administrative Agent's Right to Assume Funds Available
for Advances................................................. 30
2.12 Release and Reattachment of Collateral....................... 30
2.13 Senior Indebtedness ......................................... 31
Article 3
PAYMENTS AND FEES ................................................ 32
3.1 Principal and Interest ....................................... 32
3.2 Lead Arranger's Fees ......................................... 33
3.3 Upfront Fees ................................................. 33
3.4 Ticking Fee. ................................................. 33
3.5 [Reserved].................................................... 34
3.6 Agency Fees .................................................. 34
3.7 Increased Commitment Costs ................................... 34
3.8 Eurodollar Costs and Related Matters ......................... 35
3.9 Late Payments ................................................ 38
3.10 Computation of Interest and Fees ............................ 38
3.11 Non-Banking Days ............................................ 39
3.12 Manner and Treatment of Payments ............................ 39
3.13 Funding Sources ............................................. 40
3.14 Failure to Charge Not Subsequent Waiver ..................... 40
3.15 Administrative Agent's Right to Assume Payments Will be
Made by Borrower and the Co-Borrowers.....................40
3.16 Fee Determination Detail .................................... 41
3.17 Survivability ............................................... 41
Article 4
REPRESENTATIONS AND WARRANTIES.. ................................. 42
4.1 Existence and Qualification; Power; Compliance With Laws...... 42
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations................................42
4.3 No Governmental Approvals Required ........................... 43
4.4 Subsidiaries ................................................. 43
4.5 Financial Statements ......................................... 44
4.6 No Other Liabilities; No Material Adverse Changes ............ 44
4.7 Title to Property ............................................ 44
4.8 Intangible Assets ............................................ 44
4.9 Public Utility Holding Company Act............................ 45
4.10 Litigation .................................................. 45
4.11 Binding Obligations ......................................... 45
4.12 No Default .................................................. 45
4.13 ERISA ....................................................... 45
4.14 Regulations T, U and X; Investment Company Act .............. 46
4.15 Disclosure .................................................. 46
4.16 Tax Liability ............................................... 46
4.17 Projections ................................................. 46
4.18 Hazardous Materials ......................................... 46
4.19 No Default Under Old Loan Agreement ......................... 47
4.20 Mirage Merger Effective ..................................... 47
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)........................................... 48
5.1 Preservation of Existence .................................... 48
5.2 Maintenance of Properties .................................... 48
5.3 Maintenance of Insurance...................................... 48
5.4 Compliance With Laws.......................................... 48
5.5 Inspection Rights............................................. 48
5.6 Keeping of Records and Books of Account ...................... 49
5.7 Use of Proceeds .............................................. 49
5.8 New Restricted Subsidiaries .................................. 49
5.9 Hazardous Materials Laws ..................................... 49
Article 6
NEGATIVE COVENANTS ............................................... 50
6.1 Payment of Subordinated Obligations .......................... 50
6.2 Disposition of Property....................................... 50
6.3 Mergers....................................................... 50
6.4 Hostile Acquisitions ......................................... 51
6.5 ERISA ........................................................ 51
6.6 Change in Nature of Business ................................. 51
6.7 Liens and Negative Pledges.................................... 51
6.8 Leverage Ratio................................................ 52
6.9 Interest Charge Coverage Ratio ............................... 52
Article 7
INFORMATION AND REPORTING REQUIREMENTS ........................... 54
7.1 Financial and Business Information............................ 54
7.2 Compliance Certificates....................................... 57
Article 8
CONDITIONS ....................................................... 58
8.1 Initial Advances on the Closing Date.......................... 58
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT ............. 61
9.1 Events of Default ............................................ 61
9.2 Remedies Upon Event of Default ............................... 63
Article 10
THE ADMINISTRATIVE AGENT ......................................... 66
10.1 Appointment and Authorization ............................... 66
10.2 Administrative Agent and Affiliates.......................... 66
10.3 Proportionate Interest in any Collateral .................... 66
10.4 Banks'Credit Decisions ...................................... 66
10.5 Action by Administrative Agent .............................. 67
10.6 Liability of Administrative Agent ........................... 68
10.7 Indemnification.............................................. 69
10.8 Successor Administrative Agent............................... 69
10.9 Foreclosure on Collateral.................................... 70
10.10 Intercreditor Arrangements; Attornment Agreements........... 70
10.11 No Obligations of Borrower and the Co-Borrowers............. 70
Article 11
MISCELLANEOUS .................................................... 71
11.1 Cumulative Remedies; No Waiver............................... 71
11.2 Amendments; Consents......................................... 71
11.3 Costs, Expenses and Taxes ................................... 72
11.4 Nature of Banks'Obligations.................................. 73
11.5 Survival of Representations and Warranties .................. 73
11.6 Notices ..................................................... 73
11.7 Execution of Loan Documents ................................. 74
11.8 Binding Effect; Assignment................................... 74
11.9 Right of Setoff.............................................. 77
11.10 Sharing of Setoffs ......................................... 77
11.11 Indemnity by Borrower and the Co-Borrowers.................. 78
11.12 Nonliability of the Banks................................... 79
11.13 No Third Parties Benefitted ................................ 80
11.14 Confidentiality ............................................ 80
11.15 Further Assurances ......................................... 80
11.16 Integration................................................. 80
11.17 Governing Law .............................................. 81
11.18 Severability of Provisions ................................. 81
11.19 Headings ................................................... 81
11.20 Time of the Essence ........................................ 81
11.21 Foreign Banks and Participants.............................. 81
11.22 Hazardous Material Indemnity ............................... 82
11.23 Gaming Boards............................................... 83
11.24 Lien Releases............................................... 83
11.25 Termination; Release of Liens .............................. 83
11.26 Nevada Gaming Collateral ................................... 83
11.27 Removal of a Bank .......................................... 83
11.28 Joint and Several .......................................... 84
11.29 Non-Involvement of Tracinda................................. 84
11.30 Waiver of Right to Trial by Jury ........................... 84
11.31 Purported Oral Amendments .................................. 85
Exhibits
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A - Assignment Agreement
B - Assumption Agreement
C - Note
D - [Reserved]
E - [Reserved]
F - [Reserved]
G - Compliance Certificate
H - Pricing Certificate
I - Reserved
J - Request for Loan
K - Joint Borrower Provisions
Schedules
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4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens and Negative Pledges 4.10 Material Litigation
4.10 Material Litigation
4.17 Projections
4.18 Environmental Matters
TERM LOAN AGREEMENT
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Dated as of April 7, 2000
This Term Loan Agreement ("Agreement")is entered into by and among
MGM Grand, Inc., a Delaware corporation ("Borrower"), MGM Grand Atlantic City,
Inc., a New Jersey corporation ("Atlantic City")and MGM Grand Detroit, LLC, a
Delaware limited liability company ("Detroit"), as initial Co-Borrowers, each
Guarantor which may hereafter be designated as an additional Co-Borrower
pursuant to Section 2.7, each lender whose name is set forth on the signature
pages of this Agreement and each lender which may hereafter become a party to
this Agreement pursuant to Section 11.8 (collectively, the "Banks" and
individually, a "Bank"), CIBC World Markets, as Syndication Agent, Societe
Generale and Bankers Trust Company, as Documentation Agents, Citibank, N. A.,
Commerzbank AG, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp., Bank One, NA, The Bank of Nova
Scotia and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as Co-Documentation Agents, and
Bank of America, N. A., as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, Borrower, Atlantic City, Detroit, each Co-Borrower which hereafter
becomes a Party hereto pursuant to Section 2.7, and each of the Creditors,
covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
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transactions, by which Borrower or its Restricted Subsidiaries directly or
indirectly (i) acquire any going business or all or substantially all of
the assets of any Person, or any division thereof, whether through purchase
of assets, merger or otherwise, or (ii) acquire (in one transaction or as
the most recent transaction in a series of transactions)control of at least
a majority in ordinary voting power of the securities of a corporation
which have ordinary voting power for the election of directors, or (iii)
acquire control of a majority ownership interest in any partnership, joint
venture, limited liability company or any other Person.
"Administrative Agent" means Bank of America, when acting in its
--------------------
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
-----------------------------
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Banks.
"Advance" means any advance made or to be made by any Bank to
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Borrower or any Co-Borrower as provided in Article 2.
"Affiliate" means, as to any Person, any other Person which directly
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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
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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.
"Agreement" means this Term Loan Agreement, either as originally
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executed, or as it may from time to time be supplemented, modified,
amended, restated or extended.
"Assignment Agreement" means an Assignment Agreement substantially in
--------------------
the form of Exhibit A.
"Assumption Agreement" means each Assumption Agreement hereafter
--------------------
executed by a Co-Borrower pursuant to Section 2.7, substantially in the
form of Exhibit B either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Atlantic City" means MGM Grand Atlantic City, Inc., a New Jersey
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corporation, its successors and permitted assigns.
"Australia Companies" means, collectively, (a)MGM Grand Diamond,
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Inc., a Nevada corporation, (b) its wholly owned Subsidiary, MGM Grand
Australia Pty., Ltd., a corporation organized under the laws of the
Northern Territory of Australia, and (c) each Subsidiary of MGM Grand
Australia Pty., Ltd., their successors and permitted assigns.
"Average Quarterly Funded Debt" means, as of the last day of each
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Fiscal Quarter, the average of the principal amount of Funded Debt
outstanding on the last day of each of the three calendar months comprising
such Fiscal Quarter, provided that as of the first Fiscal Quarter ending
--------
following the Closing Date, only calendar months ending following the
Closing Date shall be considered in computing this average.
"Bank" means each lender whose name is set forth in the signature
----
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 11.8 (and to the extent a party to a
Related Swap Agreement, any Affiliate of a Bank).
"Bank of America" means Bank of America, N. A., its successors and
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assigns.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
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Friday, other than a day on which banks are authorized or required to be
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closed in California, Nevada or New York.
"Base Rate" means, as of any date of determination, the rate per
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annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
higher of (a) the Prime Rate in effect on such date and (b) the Federal
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Funds Rate in effect on such date plus 1/2 of 1% (50 basis points).
"Base Rate Advance" means an Advance made hereunder and specified to
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be a Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be a
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Base Rate Loan in accordance with Article 2.
"Base Rate Margin" means, as of each date of determination, the rate
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set forth below (expressed in basis points) opposite the Pricing Level then
in effect.
Pricing Level Base Rate Margin
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I 0.0
II 0.0
III 25.0
IV 62.5
V 87.5
"Borrower" means MGM Grand, Inc., a Delaware corporation, its
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successors and permitted assigns.
"Borrower Group EBITDA" means, for any fiscal period, the EBITDA of
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Borrower and its Restricted Subsidiaries for that fiscal period.
"Capital Expenditure" means any expenditure for or related to fixed
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assets or purchased intangibles that is treated as a capital expenditure
under Generally Accepted Accounting Principles, including any amount which
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is required to be treated as an asset subject to a Capital Lease
Obligation.
"Capital Lease Obligations" means all monetary obligations of a
-------------------------
Person under any leasing or similar arrangement which, in accordance with
Generally Accepted Accounting Principles, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all monetary
----
and non-monetary items owned by that Person that are treated as cash in
accordance with Generally Accepted Accounting Principles, consistently
applied.
"Cash Equivalents" means, when used in connection with any Person,
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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
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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 extent that investors therein have the benefit of a standby letter
of credit issued by a Bank or a bank described in clauses (c) or
(d) above;
(h) a readily redeemable "money market mutual fund" sponsored by
a bank described in clause (c) or (d) hereof, or a registered broker
or dealer described in clause (e) hereof, that has and maintains an
investment policy limiting its investments primarily to instruments of
the types described in clauses (a) through (g) hereof and given on the
date of such Investment a credit rating of at least Aa by Moody's and
AA by S&P; and
(i) corporate notes or bonds having an original term to maturity
of not more than one year issued by a corporation incorporated under
the Laws of the United States of America or any State thereof, or a
participation interest therein; provided that any commercial paper
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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, (a)
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Borrower Group EBITDA for that period, plus (b) Other Available EBITDA for
----
that period.
"Cash Interest Charges" means, for any Person and for any period, that
---------------------
portion of Interest Charges of that Person which are paid or currently
payable in Cash during that period excluding intercompany accounts.
"Certificate of a Responsible Official" means a certificate signed by
-------------------------------------
a Responsible Official of the Person providing the certificate.
"Change in Control" means (a) any transaction or series of related
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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,
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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 Banking Day on which the conditions
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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, Atlantic City, Detroit and each
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other Guarantor which is hereafter designated as a Co-Borrower pursuant to
Section 2.7.
"Co-Documentation Agents" have the meanings set forth in the Preamble
-----------------------
to this Agreement. The Co-Documentation Agents shall have no duties under
this Agreement or the Loan Documents other than those arising in their
capacity as a Bank.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
----
and as in effect from time to time.
"Collateral Event" means the occurrence of (a) any reduction in the
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credit rating assigned by S&P to any MGM Senior Notes (or, if S&P does not
rate the MGM Senior Notes, its corporate rating of Borrower) to an
unsecured credit rating which is below BBB- or (b) any reduction in the
--
credit rating assigned by Moody's to any MGM Senior Notes (or, if Moody's
does not rate the MGM Senior Notes, its corporate rating of Borrower)to an
unsecured credit rating which is below Baa3, in either case to the extent
that the same requires the granting of any Lien to the trustees for or
holders of any MGM Senior Notes in any Property of Borrower or any of its
Subsidiaries.
"Collateral Release" has the meaning set forth for that term in
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Section 2.12.
"Commitment" means, subject to any decrease in the amount thereof
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pursuant to Sections 2.8, 2.9 or 11.27, $1,300,000,000.
"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.
"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, each Bank
---------
and, where the context requires, any one or more of them.
"Debt Rating" means, as of any date of determination, the credit
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ratings assigned by Moody's and S&P to the credit facilities provided
hereunder whether senior secured or senior unsecured (or, if the facilities
hereunder are not rated, the corporate rating assigned by Moody's and S&P
to Borrower's most senior indebtedness), provided however that (a)i f the
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credit facilities hereunder receive a split-rating and the rating
differential is one level, the higher of the two ratings will apply, and
(b) if such the credit facilities hereunder are "split-rated" and the
ratings differential is more than one level, the highest intermediate
rating shall be used.
"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
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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.
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"Deposit Account" means the following accounts located at Bank of
---------------
America, Nevada ABA #▇▇▇▇▇▇▇▇▇ (a) as to Borrower, account no. 990063133
with Bank of America, (b) as to Atlantic City, account no. 990112948 with
Bank of America, (c) as to Detroit, account no. 990126617 with Bank of
America, and (d)as to each other Co-Borrower, a deposit account to be
maintained by that Co-Borrower with Bank of America designated by such Co-
Borrower with the reasonable approval of the Administrative Agent.
"Designated Eurodollar Market" means, with respect to any Eurodollar
----------------------------
Rate Loan, (a) the London Eurodollar Market, (b) if prime banks in the
London Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that the
London Eurodollar Market does not represent at the relevant time the
effective pricing to the Banks for deposits of Dollars in the London
Eurodollar Market, the Cayman Islands Eurodollar Market or (c) if prime
banks in the Cayman Islands Eurodollar Market are at the relevant time not
accepting deposits of Dollars or if the Administrative Agent determines in
good faith that the Cayman Islands Eurodollar Market does not represent at
the relevant time the effective pricing to the Banks for deposits of
Dollars in the Cayman Islands Eurodollar Market, such other Eurodollar
Market as may from time to time be selected by the Administrative Agent
with the approval of Borrower, the Co-Borrowers and the Requisite Banks.
The Administrative Agent will endeavor to provide prompt notice to Borrower
and the Co-Borrowers of any change in the location of the Designated
Eurodollar Market.
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
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company which is the proposed owner of the Detroit Project, its successors
and permitted assigns.
"Detroit Operating Agreement" means the Operating Agreement of MGM
---------------------------
Grand Detroit, LLC dated as of July 7, 1997 between MGM Grand Detroit,
Inc., a Delaware corporation which is a wholly-owned Subsidiary of
Borrower, and Partners Detroit, L. L. C., a Michigan limited liability
company, as in effect on the date of this Agreement.
"Detroit Project" means the proposed, design, development and
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construction, by Borrower and its Restricted Subsidiaries (whether
individually, through Detroit, or in concert with one or more partners or
joint venturers)of a permanent hotel, casino and entertainment complex in
Detroit, Michigan or its environs (in addition to the currently operating
temporary casino located at ▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇).
"Detroit Temporary" means MGM Grand Detroit II, LLC, a Delaware
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limited liability company, and its successors.
"Disposition" means the voluntary sale, transfer or other
-----------
disposition, in one transaction or any series of related transactions, of
any asset.
"Disqualification" means, with respect to any Bank or any holder of
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Subordinated Obligations:
(a) the failure of that Person timely to file pursuant to
applicable Gaming Laws (i) any application requested of that Person by
any Gaming Board in connection with any licensing required of that
Person as a lender to Borrower or a Co-Borrower or (ii) any required
application or other papers in connection with determination of the
suitability of that Person as a lender to Borrower or a Co-Borrower;
(b) the withdrawal by that Person (except where requested or
------
permitted by the Gaming Board)of any such application or other
required papers; or
(c) any final determination by a Gaming Board pursuant to
applicable Gaming Laws (i) that such Person is "unsuitable" as a
lender to Borrower or a Co-Borrower, (ii) that such Person shall be
"disqualified" as a lender to Borrower or a Co-Borrower or (iii)
denying the issuance to that Person of any license required under
applicable Gaming Laws to be held by all lenders to Borrower or any
Co-Borrower.
"Distribution" means, with respect to any shares of capital stock or
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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.
"Documentation Agents" have the meanings set forth in the Preamble to
--------------------
this Agreement. The Documentation Agents shall have no duties under this
Agreement or the Loan Documents other than those arising in their capacity
as a Bank.
"Dollars" or "$" means United States dollars.
------- -
"EBITDA" means, with respect to any fiscal period and with respect to
------
any Person, the sum of (a) Net Income of such Person for that period, plus
--- -- ----
(b) any extraordinary loss reflected in such Net Income, minus (c) any
-----
extraordinary gain reflected in such Net Income, plus (d) Interest Charges
----
of such Person for that period, plus (e) the aggregate amount of federal,
----
state and local taxes on or measured by income of such Person for that
period (whether or not payable during that period) 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 expenses" on the applicable financial
statements of that Person for that fiscal period, in each case as
determined in accordance with Generally Accepted Accounting Principles.
"Eligible Assignee" means (a) another Bank, (b) with respect to any
-----------------
Bank, any Affiliate of that Bank having combined capital and surplus of
$100,000,000 or more, (c) any commercial bank having a combined capital and
surplus of $100,000,000 or more, (d) any insurance company engaged in the
business of writing insurance which (i) has a net worth of $200,000,000 or
more, (ii) is engaged in the business of lending money and extending credit
under credit facilities substantially similar to those extended under this
Agreement and (iii) is operationally and procedurally able to meet the
obligations of a Bank hereunder to the same degree as a commercial bank and
(e) any other financial institution (including a mutual fund or other fund)
---------
having total assets of $250,000,000 or more which meets the requirements
set forth in subclauses (ii) and (iii) of clause (d) above; provided that
--------
each Eligible Assignee must either (a) be organized under the Laws of the
United States of America, any State thereof or the District of Columbia or
(b) be organized under the Laws of the Cayman Islands or any country which
is a member of the Organization for Economic Cooperation and Development,
or a political subdivision of such a country, and (i) act hereunder through
a branch, agency or funding office located in the United States of America,
(ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21, and (iii) to the
extent required under applicable Gaming Laws, each Eligible Assignee must
not be the subject of a Disqualification.
"Enhanced Eurodollar Margin" means, for any period, the sum of (i) the
-------------------------- ---
Eurodollar Margin then in effect plus (ii) such interest rate margin as the
----
Requisite Banks specify is necessary to adjust the Eurodollar Rate to a
rate which represents the effective pricing to such Banks for deposits of
Dollars in the Designated Eurodollar Market in the relevant amount for the
applicable Eurodollar Period and which adequately and fairly reflects the
cost to such Banks of making the applicable Eurodollar Rate Advances.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
-----
any regulations issued pursuant thereto, as amended or replaced and as in
effect from time to time.
"ERISA Affiliate" means, with respect to any Person, any other Person
---------------
(or any trade or business, whether or not incorporated) that is under
common control with that Person within the meaning of Section 414 of the
Code.
"Eurodollar Banking Day" means any Banking Day on which dealings in
----------------------
Dollar deposits are conducted by and among Banks in the Designated
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Bank, its office or
-------------------------
branch so designated by written notice to Borrower and the Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is
designated by a Bank, its Eurodollar Lending Office shall be its office at
its address for purposes of notices hereunder.
"Eurodollar Margin" means, as of each date of determination, the rate
-----------------
set forth below (expressed in basis points) opposite the Pricing Level then
in effect.
Pricing Level Eurodollar Margin
------------- -----------------
I 75.0
II 100.0
III 125.0
IV 162.5
V 187.5
"Eurodollar Market" means a regular established market located outside
-----------------
the United States of America by and among banks for the solicitation, offer
and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as defined in
----------------------
Regulation D or any comparable regulation of any Governmental Agency having
jurisdiction over any Bank.
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the period
-----------------
commencing on the date specified by Borrower or a Co-Borrower pursuant to
Section 2.1(b) and ending 1, 2, 3 or 6 months (or, with the written consent
of all of the Banks, any other period) thereafter, as specified by Borrower
or a Co-Borrower in the applicable Request for Loan; provided that:
--------
(a) The first day of any Eurodollar Period shall be a Eurodollar
Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day that
is not a Eurodollar Banking Day shall be extended to the next
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day
falls in another calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking Day; and
(c) No Eurodollar Period shall extend beyond the Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate Loan, the
---------------
interest rate per annum (rounded upward, if necessary, to the next 1/100 of
1%) at which deposits in Dollars are offered by Bank of America to prime
banks in the Designated Eurodollar Market at or about 11:00 a.m. local time
in the Designated Eurodollar Market, two Eurodollar Banking Days before the
first day of the applicable Eurodollar Period in an aggregate amount
approximately equal to the amount of the Advance made by Bank of America
with respect to such Eurodollar Rate Loan and for a period of time
comparable to the number of days in the applicable Eurodollar Period.
"Eurodollar Rate Advance" means an Advance made hereunder and
-----------------------
specified to be a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and specified to be
--------------------
a Eurodollar Rate Loan in accordance with Article 2.
"Event of Default" shall have the meaning provided in Section 9.1.
----------------
"Federal Funds Rate" means, as of any date of determination, the rate
------------------
set forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including
any such successor, "H.15(519)") for such date opposite the caption
"Federal Funds (Effective)". If for any relevant date such rate is not yet
published in H.15(519), the rate for such date will be the rate set forth
in the daily statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including any such
successor, the "Composite 3:30 p.m. Quotation") for such date under the
caption "Federal Funds Effective Rate". If on any relevant date the
appropriate rate for such date is not yet published in either H.15(519) or
the Composite 3:30 p.m. Quotations, the rate for such date will be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York City time) on that date by each
of three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent. For purposes of this Agreement, any
change in the Base Rate due to a change in the Federal Funds Rate shall be
effective as of the opening of business on the effective date of such
change.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting,
--------------
subject to Section 1.3, of the three calendar month periods ending on each
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting, subject to
-----------
Section 1.3, of the twelve month period ending on each December 31.
"Funded Debt" means, as of any date of determination, the sum (without
----------- ---
duplication) of (a) all principal Indebtedness of Borrower and its
Restricted Subsidiaries for borrowed money (including debt securities
---------
issued by Borrower or any of its Restricted Subsidiaries) on that date
(other than any such Indebtedness to the extent it has been legally or
------ ----
contractually defeased or is the subject of a deposit in Cash or Cash
Equivalents for the purpose of defeasing the same in accordance with its
terms), plus (b) the aggregate amount of all Capital Lease Obligations of
----
Borrower and its Restricted Subsidiaries on that date, plus (c) obligations
----
in respect of letters of credit or other similar instruments which support
Indebtedness of the type described in clause (a) (except as limited by the
definition of Indebtedness), to the extent of the amount drawable under
such letters of credit or similar instruments, provided that no Guaranty
--------
Obligation by Borrower or its Restricted Subsidiaries of the Indebtedness
of another Person shall be deemed to be Funded Debt except to the extent
that Generally Accepted Accounting Principles require that Guaranty
Obligation to be set forth on Borrower's consolidated balance sheet (and
not merely as a footnote) as the exposure of Borrower and its Subsidiaries
with respect thereto.
"Gaming Board" means, collectively, (a) the Nevada Gaming Commission,
------------
(b) the Nevada State Gaming Control Board, (c) the New Jersey Casino
Control Commission, (d) the New Jersey Division of Gaming Enforcement, (e)
the Mississippi Gaming Commission, (f) the Michigan Gaming Control Board,
and (g) any other Governmental Agency that holds regulatory, licensing or
permit authority over gambling, gaming or casino activities conducted by
Borrower, any Co-Borrower or any Restricted Subsidiary within its
jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board
-----------
possesses regulatory, licensing or permit authority over gambling, gaming
or casino activities conducted by Borrower and its Restricted Subsidiaries
within its jurisdiction.
"Generally Accepted Accounting Principles" means, as of any date of
----------------------------------------
determination, accounting principles (a) set forth as generally accepted in
then currently effective Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) set forth as
generally accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then approved by such other
entity as may be approved by a significant segment of the accounting
profession in the United States of America. The term "consistently
------------
applied," as used in connection therewith, means that the accounting
-------
principles applied are consistent in all material respects with those
applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full faith
---------------------
and credit obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or corporation owned,
controlled or sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of the
United States of America.
"Governmental Agency" means (a) any international, foreign, federal,
-------------------
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal of competent jurisdiction.
"Guarantors" means, collectively, Las Vegas, Atlantic City, Mirage,
----------
New York, MGM Grand Monorail, Inc., each other Restricted Subsidiary of
Borrower which exists as of the Closing Date (after giving effect to the
Mirage Merger Agreement), and each other Restricted Subsidiary of Borrower
which hereafter becomes a Guarantor pursuant to Section 5.8, provided that
--------
any Guarantor which is sold or otherwise transferred in a Disposition
permitted by Section 6.2 may be released from the Guaranty in accordance
with Section 11.2(d)(iii).
"Guaranty" means each of the continuing guaranties of the Obligations
--------
(or, in the case of Detroit, of the portion of the Obligations which are
used, directly or indirectly, to finance the design, development,
construction or operation of the Detroit Project or which are actually
borrowed or received by Detroit) executed and delivered by the Guarantors
on the Closing Date (in the case of Mirage and its Restricted Subsidiaries,
immediately following the consummation of the Mirage Merger Agreement),
substantially in the form of the Subsidiary Guaranty executed in connection
with the Old 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 obligee against loss with
respect to any obligation of such other Person; provided, however, that the
-----------------
term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of
any Guaranty Obligation in respect of Indebtedness shall be deemed to be an
amount equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty Obligation is limited by its terms to a
lesser amount, in which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith. The amount of
any other Guaranty Obligation shall be deemed to be zero unless and until
the amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes thereto) of
Borrower and its Subsidiaries.
"Hazardous Materials" means substances defined as "hazardous
-------------------
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. (S) 9601 et seq., or as
"hazardous", "toxic" or "pollutant" substances or as "solid waste" pursuant
to the Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901, et seq., or
as "friable asbestos" pursuant to the Toxic Substances Control Act, 15
U.S.C. (S) 2601 et seq., in each case as such Laws are amended from time to
time.
"Hazardous Materials Laws" means all Laws governing the treatment,
------------------------
transportation or disposal of Hazardous Materials applicable to any of the
Real Property.
"Indebtedness" means, as to any Person (without duplication), (a)
------------
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, provided that letters of credit and other
--------
similar instruments in an aggregate amount not to exceed $150,000,000 shall
be excluded from Indebtedness of that Person for so long as the same have
not been drawn upon and (f) any net obligations of such Person under Swap
Agreements.
"Intangible Assets" means assets that are considered intangible assets
-----------------
under Generally Accepted Accounting Principles, including customer lists,
---------
goodwill, computer software, copyrights, trade names, trademarks and
patents.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
-----------------------
of February 6, 1998 among PNC Bank, National Association, as trustee, U.S.
Trust Company of California, N.A., as trustee (in each case for the MGM
Senior Notes) and the Administrative Agent (acting under the Old Loan
Agreement).
"Interest Charge Coverage Ratio" means, as of the last day of each
------------------------------
Fiscal Quarter, the ratio of:
(a) Cash Flow; to
(b) Cash Interest Charges of Borrower and its Restricted Subsidiaries;
in each case for the four Fiscal Quarter period then ended (or, in the case
of the first four Fiscal Quarters ending following the Closing Date, for
the period since the Closing Date then ended), provided that:
--------
(i) if as of any date of determination of the Interest Charge
Coverage Ratio, the Closing Date has occurred two full calendar
months or more prior to such date, then the Interest Charge
Coverage Ratio for that date (and only for that date) shall be
computed on the basis of the combined consolidated results of
operations of Borrower and Mirage for the period since the
Closing Date, annualized on a straight line basis; or
(ii) if as of any date of determination, the Closing Date has occurred
less than two full calendar months prior to such date, then the
Interest Charge Coverage Ratio for that date (and only for that
date) shall be computed on the basis of the pro forma combined
--- -----
consolidated results of operations of Borrower and Mirage for the
Fiscal Quarter ending on that date (multiplied by four), after
----------
(X) reduction of Cash Interest Charges by an amount equal to the
annual interest associated with assumed debt reductions of
$250,000,000, (Y) giving effect in the calculation of Cash Flow
to $125,000,000 in annual savings anticipated as a result of the
merger of Borrower and Mirage and (Z) adding back, to the extent
deducted in arriving at Net Income, the actual costs to
Borrower and Mirage of the transactions contemplated by the
Mirage Merger Agreement.
"Interest Charges" means, for any Person, as of the last day of any
----------------
fiscal period, the sum of (a) all interest, fees, charges and related
------
expenses paid or payable (without duplication) for that fiscal period by
that Person to a lender in connection with borrowed money (including any
---------
obligations for fees, charges and related expenses payable to the issuer of
any letter of credit) or the deferred purchase price of assets that are
considered "interest expense" under Generally Accepted Accounting
Principles, plus (b) the portion of rent paid or payable (without
----
duplication) for that fiscal period by that Person under Capital Lease
Obligations that should be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"Interest Differential" means, with respect to any prepayment of a
---------------------
Eurodollar Rate Loan on a day other than the last day of the applicable
Eurodollar Period and with respect to any failure to borrow a Eurodollar
Rate Loan on the date or in the amount specified in any Request for Loan,
(a) the Eurodollar Rate payable (or, with respect to a failure to borrow,
the Eurodollar Rate which would have been payable) with respect to the
Eurodollar Rate Loan minus (b) the Eurodollar Rate on, or as near as
-----
practicable to, the date of the prepayment or failure to borrow for a
Eurodollar Rate Loan with an Eurodollar Period commencing on such date and
ending on the last day of the Eurodollar Period of the Eurodollar Rate Loan
so prepaid or which would have been borrowed on such date.
"Investment" means, when used in connection with any Person, any
----------
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of
a loan, advance creating a debt, capital contribution, guaranty or other
debt or equity participation or interest in any other Person, including any
---------
partnership and joint venture interests of such Person. The amount of any
Investment shall be the amount actually invested (minus any return of
-----
capital with respect to such Investment which has actually been received in
Cash or Cash Equivalents or has been converted into Cash or Cash
Equivalents), without adjustment for subsequent increases or decreases in
the value of such Investment.
"Las Vegas" means MGM Grand Hotel, Inc., a Nevada corporation which is
---------
the owner of the MGM Grand Hotel and Casino in Las Vegas, Nevada, its
successors and permitted assigns.
"Laws" means, collectively, all international, foreign, federal, state
----
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lead Arranger" means Banc of America Securities, LLC.
-------------
"Leverage Ratio" means, as of the last day of each Fiscal Quarter, the
--------------
ratio of (a) Average Quarterly Funded Debt as of that date to (b) Cash Flow
----- -- --
for the four Fiscal Quarter period then ended, provided that:
-------- ----
(i) to the extent that any portion of such four Fiscal Quarter period
includes periods prior to the Closing Date, Cash Flow shall
instead be computed on the basis of the results of operations
during the period from the Closing Date to that date, annualized
on a straight line basis;
(ii) if as of any date of determination of the Leverage Ratio, the
Closing Date has occurred two full calendar months or more prior
to such date, then Cash Flow for that date (and only for that
date) shall be computed on the basis of the combined consolidated
results of operations of Borrower and Mirage for the period since
the Closing Date, annualized on a straight line basis; or
(iii) if as of any date of determination, the Closing Date has
occurred less than two full calendar months prior to such date,
then the Leverage Ratio for that date (and only for that date)
shall be computed on the basis of the pro forma combined
--- -----
consolidated results of operations of Borrower and Mirage for the
Fiscal Quarter ending on that date (multiplied by four), after
----------
(X) reduction of Average Quarterly Funded Debt by anticipated
asset sales following the Closing Date in the amount of
$250,000,000 (without duplication on any relevant date as to any
such asset sales which have then occurred), (Y) giving effect in
the calculation of Cash Flow to $125,000,000 in annual savings
anticipated as a result of the merger of Borrower and Mirage and
(Z) adding back, to the extent deducted in arriving at Net
Income, the actual costs to Borrower and Mirage of the
transactions contemplated by the Mirage Merger Agreement.
"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
----
Banks pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
--------------
Guaranty, the Intercreditor Agreement, each Request for Loan, 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 Bank in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may
from time to time be supplemented, modified, amended, restated, extended or
supplanted.
"Maintenance Capital Expenditure" means a Capital Expenditure for the
-------------------------------
maintenance, repair, restoration or refurbishment of tangible Property, but
excluding any Capital Expenditures which adds to or further improves any
---------
such Property.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U.
"Material Adverse Effect" means any set of circumstances or events
-----------------------
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan Document,
(b) is or could reasonably be expected to be material and adverse to the
business or condition (financial or otherwise) of Borrower and its
Subsidiaries, taken as a whole and with a view to the totality of
circumstances then existing with respect to Borrower and its Subsidiaries,
provided that it is understood that this clause (b) shall not be deemed to
--------
expand the obligations of Borrower under any express covenants set forth
herein, but is rather understood to describe a set of circumstances or
events which, although not the subject of a specific covenant, are material
and adverse in the manner described above, or (c) materially impairs or
could reasonably be expected to materially impair the ability of Borrower
or Guarantors (taken as a whole) to perform the Obligations.
"Maturity Date" means April 6, 2001.
-------------
"MGM Grand - Atlantic City" means the proposed MGM Grand Hotel and
-------------------------
Casino in Atlantic City, New Jersey. The MGM Grand - Atlantic City project
may be the result of new construction or of the redevelopment of existing
hotel/casino properties.
"MGM Grand Monorail, Inc." means MGM Grand Monorail, Inc., a Nevada
------------------------
corporation, its successors and permitted assigns.
"MGM Senior Notes" means Borrower's aggregate principal $500,000,000
----------------
Senior Notes issued pursuant to (a) the Indenture dated as of February 2,
1998 between Borrower and PNC Bank, National Association, and (b) the
Indenture dated as of February 6, 1998 between Borrower and U.S. Trust
Company of California, N.A.
"Mirage" means Mirage Resorts, Incorporated, a Nevada corporation.
------
"Mirage Loan Agreement" means the Amended and Restated Loan Agreement
---------------------
dated as of March 7, 1997 among Mirage, the lenders therein named, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, and Bank of
America, as Administrative Agent, as amended and in effect on the date
hereof.
"Mirage Merger Agreement" means the Agreement and Plan of Merger dated
-----------------------
March 6, 2000 among Borrower, Mirage and MGMGMR Acquisition, Inc., a
wholly-owned Subsidiary of Borrower, as amended, supplemented or otherwise
modified as of the Closing Date, and as the same may thereafter be further
amended (unless the Requisite Banks have reasonably objected to any such
amendment).
"Mirage Senior Notes" means, collectively, the notes issued pursuant
-------------------
to (a) the Indenture dated October 15, 1996 between Mirage and Firstar Bank
Minnesota, N.A., as trustee, (b) the Indenture dated August 1, 1997 between
Mirage and First Security Bank, National Association, as trustee, and (c)
the Indenture dated February 4, 1998 between Mirage and PNC Bank, National
Association, as trustee.
"Monorail" means The MGM Grand - Bally's Monorail Limited Liability
--------
Company, a Nevada limited liability company, its successors and assigns.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"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 6.7 which affects only the Property that is the subject of
such permitted Lien and (b) any such covenant that does not apply to Liens
securing the Obligations or any indebtedness which is used, directly or
indirectly, to refinance the Obligations.
"Net Income" means, with respect to any fiscal period and with respect
----------
to any Person, the consolidated net income of that Person from continuing
operations for that period, determined in accordance with Generally
Accepted Accounting Principles, consistently applied.
"New York" means New York-New York Hotel & Casino LLC, a Nevada
--------
limited liability company, its successors and permitted assigns.
"Note" means each promissory note made by Borrower and each Co-
----
Borrower to a Bank evidencing Advances made by that Bank under its Pro Rata
Share of the Commitment, substantially in the form of Exhibit C, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"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 Banks or any one or
more of them, under any one or more of the Loan Documents, whether due or
to become due, matured or unmatured, liquidated or unliquidated, or
contingent or noncontingent, including obligations of performance as well
---------
as obligations of payment, and including interest that accrues after the
---------
commencement of any proceeding under any Debtor Relief Law by or against
Borrower or Affiliate of Borrower, whether or not allowed as a claim in
such proceeding.
"Old Loan Agreement" means the Amended and Restated Loan Agreement
------------------
dated July 17, 1997 among Borrower, Atlantic City, the lenders referred to
therein, and the Administrative Agent, as amended, to which Detroit is a
party as an additional Co-Borrower.
"Opinions" means the favorable written legal opinions of (a)
--------
Christensen, Miller, Fink, Jacobs, ▇▇▇▇▇▇, Weil and ▇▇▇▇▇▇▇, LLP, counsel
to Borrower, and (b) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Nevada counsel to Borrower,
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, a professional corporation, New Jersey counsel to
Borrower, (d) ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, Mississippi counsel to Borrower, and (e)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, Michigan counsel to Borrower, together with copies
of all factual certificates and legal opinions upon which such counsel has
relied.
"Other Available EBITDA" means, for any fiscal period, that portion of
----------------------
the EBITDA of (a) any Unrestricted Subsidiaries for that fiscal period, and
(b) any other joint venture or other Person in which Borrower or its
Restricted Subsidiaries have any Investment for that fiscal period, in each
case to the extent that the same may be distributed in Cash by that
Unrestricted Subsidiary to Borrower and its Restricted Subsidiaries during
that fiscal period in accordance with applicable Law and subject to any
Contractual Obligations (including without
limitation credit documents) which are binding upon such Unrestricted
Subsidiary or its Property (whether or not so distributed).
"Other Loan Agreements" means, collectively, (a) the $2,000,000,000
---------------------
Five Year Loan Agreement of even date herewith among Borrower, the Co-
Borrowers, the lenders referred to therein, and Bank of America, as
Administrative Agent, and (b) the $1,000,000,000 364-Day Loan Agreement
dated as of April 7, 2000 among Borrower, the Co-Borrowers, the lenders
referred to therein, and Bank of America, as Administrative Agent, in each
case, either as originally executed or as they may from time to time be
supplemented, modified, amended, restated or extended.
"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 the aggregate principal amount of the outstanding
---
Loans.
"Party" means any Person other than the Creditors which now or
-----
hereafter is a party to any of the Loan Documents.
"Pension Plan" means any "employee pension benefit plan" (as such term
------------
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
----------
which is subject to Title IV of ERISA and is maintained by Borrower or any
of its Subsidiaries or to which Borrower or any of its Subsidiaries
contributes or has an obligation to contribute.
"Permitted Encumbrances" means:
----------------------
(a) inchoate Liens incident to construction on or maintenance of
Property; or Liens incident to construction on or maintenance of
Property now or hereafter filed of record for which adequate reserves
have been set aside (or deposits made pursuant to applicable Law) and
which are being contested in good faith by appropriate proceedings and
have not proceeded to judgment, provided that, by reason of nonpayment
--------
of the obligations secured by such Liens, no such Property is subject
to a material risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not yet
past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by
--------
such Liens, no such Property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair market value
or use of the Property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements for
the purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting Property, facilities, or equipment which in the aggregate
do not materially burden or impair the fair market value or use of
such Property for the purposes for which it is or may reasonably be
expected to be held;
(e) easements, exceptions, reservations, or other agreements for
the purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or impair the fair
market value or use of such Property for the purposes for which it is
or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses (a) or
(b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good
faith, provided that, if delinquent, adequate reserves have been set
--------
aside with respect thereto and, by reason of nonpayment, no Property
is subject to a material risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is
or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements covering
Property entered into in the ordinary course of business of the Person
owning such Property;
(l) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including
Liens of judgments thereunder which are not currently dischargeable;
(m) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary
course of business to which Borrower or a Restricted Subsidiary of
Borrower is a party as lessee, provided the aggregate value of all
--------
such pledges and deposits in connection with any such lease does not
at any time exceed 20% of the annual fixed rentals payable under such
lease;
(n) Liens consisting of deposits of Property to secure bids made
with respect to, or performance of, contracts (other than contracts
----- ----
creating or evidencing an extension of credit to the depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure statutory
obligations of Borrower or a Restricted Subsidiary of Borrower;
(q) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds in proceedings to which
Borrower or a Restricted Subsidiary of Borrower is a party;
(r) Liens created by or resulting from any litigation or legal
proceeding involving Borrower or a Restricted Subsidiary of Borrower
in the ordinary course of its business which is currently being
contested in good faith by appropriate proceedings, provided that
--------
adequate reserves have been set aside by Borrower or the relevant
Restricted Subsidiary and no material Property is subject to a
material risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary course
of business but not in connection with an extension of credit, which
do not in the aggregate, when taken together with all other Liens,
materially impair the value or use of the Property of the Borrower and
the Restricted Subsidiaries of Borrower, taken as a whole.
"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 Debt Rating then in effect or (b) at
any time following August 15, 2000, the Leverage Ratio as of the last day
of the Fiscal Quarter ending approximately 45 days prior to the first day
of that Pricing Period, provided that if the Leverage Ratio and the Debt
--------
Rating, as so determined, are at different Pricing Levels, then the Pricing
Level which yields the lowest Eurodollar Margin shall apply:
Pricing Level Pricing Criteria
------------- -----------------------------------
Leverage Ratio Debt Rating
-------------- -----------
I Less than 2.75 to 1.00 At least BBB+ or Baa1
II Equal to or greater than BBB or Baa2
2.75 to 1.00 but less than
3.50 to 1.00
III Equal to or greater than BBB- or Baa3
3.50 to 1.00 but
less than 4.00 to 1.00
IV Equal to or greater than 4.00 BB+ or Ba1
to 1.00 but less than
4.50 to 1.00
V Equal to or greater than BB or Ba2 or lower
4.50 to 1.00
provided that in the event that the then prevailing Debt Ratings are "split
--------
ratings" and to the extent that the applicable Pricing Level is then based
upon the Debt Ratings, Borrower will receive the benefit of the higher Debt
Rating, unless the split is a "double split rating" (in which case the
------
intermediate Pricing Level will apply) or a "triple split rating" (in which
case the Pricing Level below that applicable to the higher Debt Rating will
apply).
"Pricing Period" means (a) the period commencing on the date hereof
--------------
and ending on August 16, 2000, and (b) the subsequent concurrent quarterly
periods of approximately 90 days each commencing on each November 16,
February 16, May 16 and August 16.
"Prime Rate" means the rate of interest publicly announced from time
----------
to time by Bank of America, as its "prime rate." It is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in the Prime 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.
"Principal Resort Casino Properties" means The MGM Grand Hotel and
----------------------------------
Casino, the Bellagio Hotel and Casino, and the Mirage Resort Hotel and
Casino.
"Pro Rata Share" means, with respect to each Bank, the percentage of
--------------
the Commitment and the Loans held by that Bank (or by a SPC for which that
Bank is the Granting Bank). As of the Closing Date, each Bank has been
informed by the Lead Arranger of the amount and percentage of its Pro Rata
Share. The percentage Pro Rata Share of each Bank (but without the consent
of that Bank not the dollar amount thereof) is subject to adjustment
pursuant to any Assignment Agreement executed in accordance with Section
11.8.
"Projections" means the financial projections for Borrower and its
-----------
Subsidiaries attached hereto as Schedule 4.17 prepared on behalf of
Borrower and heretofore distributed to the Banks.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Quarterly Payment Date" means each September 30, December 31, March
----------------------
31 and June 30.
"Real Property" means, as of any date of determination, all real
-------------
Property then or theretofore owned, leased or occupied by Borrower or any
of its Restricted Subsidiaries.
"Regulations D, T, U and X" means Regulations D, T, U and X, as at any
-------------------------
time amended, of the Board of Governors of the Federal Reserve System, or
any other regulations in substance substituted therefor.
"Related Swap Agreement" means a Swap Agreement between Borrower and a
----------------------
Bank or an Affiliate of a Bank (but, in the case of any such Affiliate,
only to the extent that the same expressly relates to the Obligations).
"Request for Loan" means a written request for a Loan substantially in
----------------
the form of Exhibit I, signed by a Responsible Official of Borrower or a
Co-Borrower, on its behalf, and properly completed to provide all
information required to be included therein.
"Requirement of Law" means, as to any Person, the articles or
------------------
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Banks" means (a) as of any date of determination if the
---------------
Commitment is then in effect, Banks having Pro Rata Shares which are, in
the aggregate, a majority of the Pro Rata Shares of the Commitment then in
effect and (b) as of any date of determination if the Commitment has then
been terminated and there are then any Obligations outstanding, Banks or
other creditors holding a majority of the Outstanding Obligations.
"Responsible Official" means (a) when used with reference to a Person
--------------------
other than an individual, any officer or manager of such Person, general
partner of such Person, officer of a corporate or limited liability company
general partner of such Person, officer of a corporate or limited liability
company general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on behalf
thereof, and (b) when used with reference to a Person who is an individual,
such Person, provided that for the purposes of this Agreement and the other
--------
Loan Documents, each Responsible Official of Borrower shall be deemed to
also be a Responsible Official of each Co-Borrower, and each Responsible
Official of a Co-Borrower shall also be deemed to be a Responsible Official
of Borrower and any other Co-Borrowers. The Banks shall be entitled to
conclusively rely upon any document or certificate that is signed or
executed by a Responsible Official of Borrower or any of its Restricted
Subsidiaries as having been authorized by all necessary corporate, limited
liability company, partnership and/or other action on the part of Borrower
or such Restricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary of Borrower other than
--------------------- -----
the Australia Companies, Detroit Temporary, Monorail, Subsidiaries formed
under the Laws of foreign nations whose only tangible assets are located in
foreign nations, and pure holding companies for such foreign Subsidiaries
(including without limitation MGM Grand South Africa, Inc., a Nevada
corporation) owning as their sole asset the stock or other securities and
obligations thereof. As of the Closing Date, Victoria Partners, a Nevada
general partnership, is 50% owned by Borrower, and is therefore not a
Subsidiary of Borrower.
"Senior Officer" means the (a) chief executive officer or manager, (b)
--------------
president, (c) executive vice president, (d) senior vice president, (e)
chief financial officer, (f) treasurer, (g) assistant treasurer, (h)
secretary, or (i) assistant secretary of Borrower or any Co-Borrower.
"Solvent" means, as to any Person, that (a) the sum of the assets of
-------
such Person, both at a fair valuation and at 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.
"South African Companies" mean MGM Grand South Africa PTY Ltd., a
-----------------------
South African corporation, and MGM South Africa, Inc., a Nevada
corporation.
"SPC" means, as to each Bank, one or more special purpose funding
---
vehicles maintained or established by that Bank.
"Special Eurodollar Circumstance" means the application or adoption
-------------------------------
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Bank or its Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental Agency,
central bank or comparable authority, or the existence or occurrence of
circumstances affecting the Designated Eurodollar Market generally that are
beyond the reasonable control of the Banks.
"Subordinated Obligations" means unsecured Indebtedness of Borrower
------------------------
(but not Indebtedness of any Subsidiary of Borrower), which:
(a) does not require amortization prior to the Maturity Date;
(b) is governed by agreements which contain no representations,
warranties, covenants, defaults and other provisions which are more
restrictive upon, or onerous to, Borrower and its Restricted
Subsidiaries than the provisions of the Loan Documents; and
(c) is subordinated in right of payment to the Obligations
pursuant to subordination provisions which are acceptable to the
Requisite Banks in the exercise of their sole discretion
provided that (i) Borrower shall provide the Banks with a form of indenture
--------
proposed to govern future Subordinated Obligations which has been
reasonably approved by the Administrative Agent and, unless the Requisite
Banks have objected to the form thereof within ten Banking Days following
the delivery thereof to the Banks, the provisions thereof shall be deemed
acceptable to the Banks in connection with any issuance of Subordinated
Obligations, and (ii) in the event that the terms of any proposed
Subordinated Obligations to be issued by Borrower deviate, in any material
respect, from the terms of the indenture referred to above, Borrower shall
provide to the Administrative Agent (and the Administrative Agent shall
promptly deliver to the Banks) a revised form of such indenture which, if
not objected to within five Banking
Days following the delivery thereof to the Banks, shall be deemed
acceptable to the Banks in connection with any issuance following such date
of Subordinated Obligations.
"Subsidiary" means, as of any date of determination and with respect
----------
to any Person, any corporation, limited liability company or partnership
(whether or not, in either case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a majority
of the securities having ordinary voting power for the election of
directors or other governing body (other than securities having such power
only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority of the
partnership or other ownership interests are at the time beneficially owned
by such Person and/or one or more of its Subsidiaries.
"Swap Agreement" means a written agreement between Borrower and one or
--------------
more financial institutions providing for "swap", "cap", "collar" or other
interest rate protection with respect to any Indebtedness.
"Syndication Agent" has the meaning set forth in the Preamble to this
-----------------
Agreement. The Syndication Agent shall have no duties under this Agreement
or the Loan Documents other than those arising in its capacity as a Bank.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw
---
Hill, Inc.).
"Ticking Fee Rate" means, as of each date of determination, the rate
----------------
set forth below (expressed in basis points) opposite the Pricing Level then
in effect.
Pricing Level Ticking Fee Rate
------------- ----------------
I 10.0
II 12.5
III 15.0
IV 20.0
V 25.0
"to the best knowledge of" means, when modifying a representation,
------------------------
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person other
than a natural Person, known by a Responsible Official of that Person)
making the representation, warranty or other statement, or with the
exercise of reasonable due diligence under the circumstances (in accordance
with the standard of what a reasonable Person in similar circumstances
would have done) would have been known by the Person (or, in the case of a
Person other than a natural Person, would have been known by a Responsible
Official of that Person).
"type", when used with respect to any Loan or Advance, means the
----
designation of whether such Loan or Advance is a Base Rate Loan or Advance,
or a Eurodollar Rate Loan or Advance.
"Unrelated Person" means any Person other than (i) an employee stock
---------------- ----- ----
ownership plan or other employee benefit plan covering the employees of
Borrower and its Subsidiaries or (ii) an Affiliate of any Person or group
of related Persons which as of the date of this Agreement is the beneficial
owner of 25% or more (in the aggregate) of the outstanding common stock of
Borrower.
"Unrestricted Subsidiary" means each Subsidiary of Borrower which is
-----------------------
not a Restricted Subsidiary. As of the date hereof, MGM Grand Detroit II,
LLC, The MGM Grand Bally's Monorail, LLC, the Australia Companies and South
African Companies are Unrestricted Subsidiaries.
1.2 Use of Defined Terms. Any defined term used in the plural
--------------------
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 Accounting Terms - Fiscal Periods. All accounting terms not
---------------------------------
specifically defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, Generally Accepted Accounting Principles applied on
a consistent basis, except as otherwise specifically prescribed herein. In the
------
event that Generally Accepted Accounting Principles or Borrower's Fiscal Year or
Fiscal Quarters change during the term of this Agreement such that the covenants
contained in Sections 6.8 and 6.9 would then be calculated for different
periods, in a different manner or with different components, (a) Borrower, the
Co-Borrowers and the Banks agree to amend this Agreement in such respects as are
necessary to conform those covenants as criteria for evaluating Borrower's
financial condition to substantially the same criteria as were effective prior
to such change in Fiscal Year, Fiscal Quarters or in Generally Accepted
Accounting Principles and (b) Borrower and the Co-Borrowers shall be deemed to
be in compliance with the covenants contained in the aforesaid Sections if and
to the extent that Borrower and the Co-Borrowers would have been in compliance
therewith for the pre-existing fiscal periods and under Generally Accepted
Accounting Principles as in effect immediately prior to such change, but shall
have the obligation to deliver each of the materials described in Article 7 to
the Creditors, on the dates therein specified, with financial data presented for
its pre-existing fiscal periods and in a manner which conforms with Generally
Accepted Accounting Principles as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by
--------
Borrower and the Co-Borrowers pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
----------------------
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 Miscellaneous Terms. In the Loan Documents, the term "or" is
-------------------
disjunctive; the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females; feminine terms
also apply to males. The term "including" is by way of example and not
limitation.
Article 2
LOANS
-----
2.1 Loans-General.
-------------
(a) Subject to the terms and conditions set forth in this
Agreement, on the Closing Date each Bank shall make a term Advance to
Borrower (and/or the Co-Borrowers, to the extent that the same are directly
used to finance the development, construction or operation of hotel/casino
properties owned by that Co-Borrower) in an amount equal to that Bank's Pro
Rata Share of the Commitment. Subject to the terms and conditions set
forth in this Agreement, at any time and from time to time from the Closing
Date through the Banking Day immediately prior to the Maturity Date, each
Bank shall, pro rata according to that Bank's Pro Rata Share of the then
applicable Commitment, make refinancing Advances to Borrower or to any such
Co-Borrower under the Commitment in such amounts as Borrower or any Co-
Borrower may request that do not result in the Outstanding Obligations
being in excess of the then effective Commitment. Subject to the
limitations set forth herein, the Advances by each Bank under its Pro Rata
Share of the Commitment may be prepaid without premium or penalty, however
-------
no Advance once repaid or prepaid may be reborrowed. The Administrative
---------- ---- ------ -- ----------- -------------
Agent shall promptly provide the Borrower with a written report allocating
the Obligations requested by Borrower and each Co-Borrower.
(b) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i) date
of such Loan, (ii) type of Loan, (iii) amount of such Loan, and (iv) in the
case of a Eurodollar Rate Loan, the Eurodollar Period for such Loan.
Unless the Administrative Agent, in its sole and absolute discretion, has
notified Borrower to the contrary, a Loan consisting of Advances may be
requested by telephone by a Responsible Official of Borrower or the
relevant Co-Borrower, in which case Borrower or the relevant Co-Borrower
shall confirm such request by promptly delivering a Request for Loan in
person or by telecopier conforming to the preceding sentence to the
Administrative Agent. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request purportedly made
by a Responsible Official of Borrower, and Borrower hereby agrees to
indemnify each Creditor from any loss, cost, expense or liability as a
result of so acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Bank by telephone or telecopier (and
if by telephone, promptly confirmed by telecopier) of the date and type of
the Loan, any applicable Eurodollar Period, and that Bank's Pro Rata Share
of the Loan. Not later than 11:00 a.m., California local time, on the date
specified for any Loan (which must be a Banking Day), each Bank shall make
its Pro Rata Share of the Loan in immediately available funds available to
the Administrative Agent at the Administrative Agent's Office. Upon
satisfaction or waiver of the applicable conditions set forth in Article 8,
all Advances shall be credited on that date in immediately available funds
to the Deposit Account for Borrower or that Co-Borrower.
(d) Unless the Requisite Banks otherwise consent, each Loan
shall be in an integral multiple of $1,000,000 which is not less than
$5,000,000.
(e) The Advances made by each Bank shall be evidenced by that
Bank's Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(b), if applicable) has
been made within the requisite notice periods set forth in Section 2.2 or
2.3 prior to the end of the Eurodollar Period for any Eurodollar Rate Loan,
then on the last day of such Eurodollar Period, such Eurodollar Rate Loan
shall be automatically converted into a Base Rate Loan in the same amount.
2.2 Base Rate Loans. Each request by Borrower or any Co-Borrower
---------------
for a Base Rate Loan shall be made pursuant to a Request for Loan (or telephonic
or other request for loan referred to in the second sentence of Section 2.1(b),
if applicable) received by the Administrative Agent, at the Administrative
Agent's Office, not later than 9:15 a.m. California local time, on the date
(which must be a Banking Day) of the requested Base Rate Loan. All Loans shall
constitute Base Rate Loans unless properly designated as a Eurodollar Rate Loan
pursuant to Section 2.3.
2.3 Eurodollar Rate Loans.
---------------------
(a) Each request by Borrower or any Co-Borrower for a Eurodollar
Rate Loan shall be made pursuant to a Request for Loan (or telephonic or
other request for Loan referred to in the second sentence of Section
2.1(b), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 10:00 a.m., California local
time, at least three Eurodollar Banking Days before the first day of the
applicable Eurodollar Period.
(b) On the date which is two Eurodollar Banking Days before the
first day of the applicable Eurodollar Period, the Administrative Agent
shall confirm its determination of the applicable Eurodollar Rate (which
determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to Borrower and any relevant Co-
Borrowers and the Banks by telephone or telecopier (and if by telephone,
promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Banks
otherwise consent, no more than ten Eurodollar Rate Loans shall be
outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank to fund any
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 [Reserved].
2.5 [Reserved].
2.6 [Reserved].
2.7 Co-Borrowers. Atlantic City and Detroit are each hereby
------------
designated as joint and several direct Co-Borrowers under this Agreement, with
the right to request Loans, subject to the terms and conditions set forth
herein, provided that (a) each Loan made hereunder to Atlantic City, Detroit or
-------- ----
any other Co-Borrower shall be used solely and directly to finance the
development, construction or operation of hotel/casino properties owned by that
Co-Borrower, and (b) the liability of Detroit is limited to that portion of the
Obligations which are used, directly or indirectly, to finance the design,
development, construction or operation of the Detroit Project or which are
actually borrowed or received by Detroit.
2.8 Voluntary Reduction of Commitment. 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 Banking Days' prior written notice by a
Responsible Official of Borrower and the Co-Borrowers to the Administrative
Agent, voluntarily to reduce, permanently and irrevocably, in aggregate
principal amounts in an integral multiple of $1,000,000 but not less than
$5,000,000, or to terminate, all or a portion of the then undisbursed portion of
the Commitment; provided that the Commitment may not be so reduced below an
--------
amount equal to the sum of the aggregate principal amount outstanding under the
--- --
Notes. The Administrative Agent shall promptly notify the Banks of any
reduction or termination of the Commitment under this Section.
2.9 Optional Termination of Commitment. Following the occurrence
----------------------------------
of a Change in Control, the Requisite Banks may in their sole and absolute
discretion elect to terminate the Commitment 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 Banks elect to so
terminate the Commitment, the Commitment 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 Mandatory Prepayments of the Facility. The Commitment shall
-------------------------------------
reduce, and Borrower and the relevant Co-Borrower shall immediately repay the
outstanding principal amount of the Obligations, in an amount equal to the net
cash proceeds (after deduction of all transactional expenses and the costs
associated with such offering) received by Borrower and its Restricted
Subsidiaries from each offering of their debt or equity securities following the
Closing Date.
2.11 Administrative Agent's Right to Assume Funds Available for
----------------------------------------------------------
Advances. Unless the Administrative Agent shall have been notified by any
--------
Bank no later than 10:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of the total amount of
such Loan, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such
assumption, make available to Borrower or the relevant Co-Borrower a
corresponding amount. If the Administrative Agent has made funds available to
Borrower or a Co-Borrower based on such assumption and such corresponding amount
is not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrower or that Co-Borrower who shall pay such
corresponding amount to the Administrative Agent. The Administrative Agent also
shall be entitled to recover from such Bank interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to Borrower or the Co-Borrowers to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to the daily Federal Funds Rate. Nothing herein shall be
deemed to relieve any Bank from its obligation to fulfill its share of the
Commitment or to prejudice any rights which the Administrative Agent, Borrower
or any Co-Borrower may have against any Bank as a result of any default by such
Bank hereunder.
2.12 Release and Reattachment of Collateral. (a) Each of the
--------------------------------------
Banks hereby consents to the release on the Closing Date of the Liens granted by
the Collateral Documents described in the Old Loan Agreement. The
Administrative Agent is hereby authorized and directed by each of the Banks to
execute and deliver to Borrower and its Subsidiaries all such termination
statements, mortgage releases, terminations of deeds of trust, terminations of
Liens, and other instruments, documents and agreements as may be necessary or
desirable, or which Borrower may reasonably request, to accomplish the purposes
of this Section or evidence the effects hereof.
(b) If a Collateral Event occurs and if either (x) the MGM Senior
Notes or the Mirage Senior Notes then require the granting of Liens in any
assets of Borrower or any of its Restricted Subsidiaries or (y) any such MGM
Senior Notes or Mirage Senior Notes are in fact granted any Liens by Borrower,
the Co-Borrowers or any of the Restricted Subsidiaries, then Borrower and the
Co-Borrowers shall, and shall cause each of the Restricted Subsidiaries to,
promptly and in any event within thirty days following the occurrence of such
Collateral Event and in any event not later than the granting of any Liens in
such collateral any MGM Senior Notes, the Mirage Senior Notes or any trustee
therefor, grant perfected Liens in the same collateral to secure the Obligations
(including any Related Swap Agreements) equally, ratably and on a pari passu
basis, provided that Borrower and the Restricted Subsidiaries shall not be
--------
obligated to provide Liens in any Property to the extent that Gaming Laws
prohibit the granting of Liens in such Property to the Administrative Agent and
the MGM Senior Notes unless and until all required approvals of Gaming Boards
thereto are obtained. In such event, Borrower shall, and shall cause each
Restricted Subsidiary to, use its best efforts to obtain all necessary consents
from the applicable Gaming Boards to grant a perfected Lien on such Property
securing the Obligations and, upon receipt of all consents needed to grant such
a perfected Lien, shall promptly take all action (or cause the Restricted
Subsidiaries to take all action) reasonably necessary in order to grant and
perfect such a Lien. The Liens granted pursuant to this clause (b) shall be (i)
equal, ratable and pari passu with any Liens securing the MGM Senior Notes, (ii)
granted concurrently with the granting of any Liens in favor of the MGM Senior
Notes or the Mirage Senior Notes (whichever first occurs), and (iii) granted
pursuant to instruments, documents and agreements which are reasonably
acceptable to the Administrative Agent and no less favorable to the
Administrative Agent and the other Creditors than those granted to the MGM
Senior Notes or the Mirage Senior Notes (whichever is most favorable to the
holders thereof). While each of the Liens contemplated by this clause (b) shall
be equal, ratable and pari passu in the manner described above, it is
---- -----
acknowledged that the same may subordinate to certain
prior Liens in favor of creditors other than the holders of the MGM Senior Notes
and the Mirage Senior Notes permitted pursuant to Section 6.7. In connection
with the granting of any such Liens, Borrower and its Restricted Subsidiaries
shall provide to the Administrative Agent (y) policies of title insurance on
customary terms and conditions, to the extent that policies of title insurance
on the corresponding Property are provided to the holders of the MGM Senior
Notes (and in an insured amount that bears the same proportion to the principal
amount of the Commitment as the insured amount in the policies provided to the
holders of the MGM Senior Notes bears to the aggregate amount of the MGM Senior
Notes), and (z) legal opinions and other assurances as the Administrative Agent
may reasonably request.
(c) If, following any Collateral Event, Borrower and its Restricted
Subsidiaries are then entitled to the release of all of the equal, ratable and
pari passu Liens described in clause (b) above securing the MGM Senior Notes and
---- -----
the Mirage Senior Notes, and provided that no Default or Event of Default has
--------
then occurred and remains continuing, Borrower and the Co-Borrowers may in their
sole discretion request that the Administrative Agent release any Liens securing
the Obligations in accordance with this clause (c). Borrower and the Co-
Borrowers shall submit any request under this Section in the form of a
Certificate, in form and substance acceptable to the Administrative Agent,
signed by a Senior Officer of Borrower and each Co-Borrower certifying that no
Default or Event of Default exists, together with a written consent to the
release of collateral executed by each Guarantor and such other supporting
information as the Administrative Agent may request, including evidence
reasonably satisfactory to the Administrative Agent that the Mirage Senior
Notes, the MGM Senior Notes and the creditors under the Other Loan Agreements
shall previously or concurrently release all Liens held by such creditors.
Promptly upon receipt of such a Certificate, the Administrative Agent shall
provide a copy thereof to the Banks and, unless the Requisite Banks contest the
accuracy thereof within five Banking Days, shall (i) execute and deliver to
Borrower and its Subsidiaries reconveyances and releases of such Liens, and (ii)
return to the Persons legally entitled thereto, all collateral pledged in
support of the Obligations, all at the sole expense of Borrower and the Co-
Borrowers (a "Collateral Release"), in each case subject to the requirement that
the Liens held by the Mirage Senior Notes, the MGM Senior Notes and the
creditors under the Other Loan Agreements are previously or concurrently
released. No Collateral Release shall constitute or be construed as a release
(or to require the release) of the Guaranty.
2.13 Senior Indebtedness. The Obligations shall be and hereby are
-------------------
designated as "Senior Indebtedness" with respect to all Subordinated Obligations
and all payments with respect to any Subordinated Obligations shall be subject
to Section 6.1.
Article 3
PAYMENTS AND FEES
-----------------
3.1 Principal and Interest.
----------------------
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue interest
at the Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on the first Banking
Day of each Fiscal Quarter shall be due and payable on that day. Except as
------
otherwise provided in Section 3.9, the unpaid principal amount of any Base
Rate Loan shall bear interest at a fluctuating rate per annum equal to the
Base Rate plus the applicable Base Rate Margin. Each change in the
----
interest rate under this Section 3.1(b) due to a change in the Base Rate
shall take effect simultaneously with the corresponding change in the Base
Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is for a
term of three months or less shall be due and payable on the last day of
the related Eurodollar Period. Interest accrued on each other Eurodollar
Rate Loan shall be due and payable on the date which is three months after
the date such Eurodollar Rate Loan was made (and, in the event that all of
the Banks have approved a Eurodollar Period of longer than six months,
every three months thereafter through the last day of the Eurodollar
Period) and on the last day of the related Eurodollar Period. Except as
------
otherwise provided in Section 3.9, the unpaid principal amount of any
Eurodollar Rate Loan shall bear interest at a rate per annum equal to the
Eurodollar Rate for that Eurodollar Rate Loan plus the applicable
----
Eurodollar Margin.
(d) [Reserved]
(e) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the amount, if any, by which the Outstanding
Obligations at any time exceed the then applicable Commitment, shall
be payable immediately;
(ii) the Outstanding Obligations shall be prepaid in the
amount of the net cash proceeds of any offering of the debt or equity
securities of Borrower and its Restricted Subsidiaries following the
Closing Date as required by Section 2.10; and
(iii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(f) The Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without premium or
penalty, except that with respect to any
------
voluntary prepayment under this Section 3.1(f), (i) any partial prepayment
shall be not less than $5,000,000, or in integral multiples of $1,000,000
which are in excess of $5,000,000, (ii) the Administrative Agent shall have
received written notice of any prepayment by 9:00 a.m., California local
time, on the Banking Day prior to the date of prepayment (which must be a
Banking Day) in the case of a Base Rate Loan, and, in the case of a
Eurodollar Rate Loan, three Banking Days before the date of prepayment,
which notice shall identify the date and amount of the prepayment and the
Loan(s) being prepaid, (iii) each prepayment of principal on any Eurodollar
Rate Loan shall be accompanied by payment of interest accrued to the date
of payment on the amount of principal paid and (iv) any payment or
prepayment of all or any part of any Eurodollar Rate Loan on a day other
than the last day of the applicable Eurodollar Period shall be subject to
Section 3.8(e). Promptly following receipt of a notice of prepayment under
clause (ii) above, the Administrative Agent shall notify each Bank by
telephone or telecopier (and if by telephone, promptly confirmed by
telecopier) of the date and amount thereof.
(g) [Reserved].
(h) Each payment of principal by Borrower or Co-Borrower
hereunder shall be applied ratably to the Advances made to Borrower or that
Co-Borrower which are then due and payable, provided that if the
--------
Obligations are then accelerated or have deemed to have been accelerated,
each payment of principal hereunder shall be applied ratably to the
outstanding Advances.
3.2 Lead Arranger's Fees. On the date hereof, Borrower shall pay
--------------------
to Lead Arranger through the Administrative Agent underwriting fees in the
amount heretofore agreed upon by letter agreement between Borrower and the Lead
Arranger. These fees are for the services of the Lead Arranger in arranging the
credit facilities under this Agreement and are fully earned when paid and are
nonrefundable.
3.3 Upfront Fees. On the date hereof, Borrower shall pay to the
------------
Administrative Agent, for the account of each Bank, upfront fees in an amount
equal to (a) that Bank's allocated Pro Rata Share of the Commitment times (b) a
-----
fee percentage based upon the amount of the offered commitment of that Bank to
the credit facilities described herein, as set forth in a written confirmation
delivered to that Bank by the Lead Arranger, provided that the fee percentage
--------
for Bank of America shall be as set forth in a letter agreement with Bank of
America. Such upfront fees are for the credit facilities committed by each Bank
under this Agreement and are fully earned when paid. The upfront fees paid to
each Bank are solely for its own account and are nonrefundable.
3.4 Ticking Fee. In the event that the Closing Date does not
-----------
occur prior to May 25, 2000, then, during the period between May 25, 2000 and
the Closing Date, Borrower and the Co-Borrowers shall pay to the Administrative
Agent, for the ratable accounts of the Banks pro rata according to their Pro
Rata Share, a ticking fee equal to (a) for the first 45 days in any such period,
one half of the Ticking Fee Rate in effect from time to time times the principal
-----
amount of the Commitment, and (b) for any subsequent portion of such period, the
full amount of the Ticking Fee Rate in effect from time to time times the
-----
principal amount of the Commitment. The ticking fees shall be payable quarterly
in arrears on each Quarterly Payment Date, on the Closing Date and upon the date
of any
partial reduction or termination of the Commitment prior to the Closing Date
pursuant to Sections 2.8, 2.9 or 11.27.
3.5 [Reserved].
3.6 Agency Fees. On the Closing Date and annually thereafter,
-----------
Borrower and the Co-Borrowers shall pay to the Administrative Agent an agency
fee in such amounts as heretofore agreed upon by letter agreement between
Borrower and Bank of America and the Lead Arranger. The agency fee is for the
services to be performed by the Administrative Agent in acting as Administrative
Agent and is fully earned on the date paid. The agency fee paid to the
Administrative Agent is solely for its own account and is nonrefundable.
3.7 Increased Commitment Costs. If any Bank shall determine in
--------------------------
good faith that the introduction after the Closing Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Bank (or its Eurodollar Lending
Office) or any corporation controlling the Bank, with any request, guideline or
directive regarding capital adequacy (whether or not having the force of Law) of
any such central bank or other authority, affects or would affect the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and such Bank's desired
return on capital) determines in good faith that the amount of such capital is
increased, or the rate of return on capital is reduced, as a consequence of its
obligations under this Agreement, then, within ten Banking Days after demand of
such Bank, Borrower and the Co-Borrowers shall pay to such Bank, from time to
time as specified in good faith by such Bank, additional amounts sufficient to
compensate such Bank in light of such circumstances, to the extent reasonably
allocable to such obligations under this Agreement, provided that Borrower and
--------
the Co-Borrowers shall not be obligated to pay any such amount which arose prior
to the date which is ninety 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 Bank's determination of such amounts shall be
conclusive in the absence of manifest error. Any request for compensation by a
Bank under this Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrower and the Co-Borrowers, a
calculation of the amount due, and a certification that the corresponding costs
or diminished rate of return on capital have been incurred or sustained by the
Bank. If Borrower and the Co-Borrowers become obligated to pay a material
amount under this Section to any Bank, that Bank will be subject to removal in
accordance with Section 11.27; provided that Borrower and the Co-Borrowers shall
--------
have paid such amount to that Bank and that Borrower and the Co-Borrowers,
within the thirty day period following the date of such payment, shall have
notified that Bank in writing of their intent to so remove the Bank.
3.8 Eurodollar Costs and Related Matters.
------------------------------------
(a) In the event that any Governmental Agency imposes on any
Bank any reserve or comparable requirement (including any emergency,
---------
supplemental or other reserve) with respect to the Eurodollar Obligations
of that Bank, Borrower or the relevant Co-Borrower shall pay that Bank
within five Banking Days after demand all amounts necessary to compensate
such Bank (determined as though such Bank's Eurodollar Lending Office had
funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
Market) in respect
of the imposition of such reserve requirements. The Bank's determination of
such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Bank or its Eurodollar Lending Office to
any tax, duty or other charge or cost with respect to any Eurodollar
Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or
its obligation to make Eurodollar Rate Advances, or shall change the
basis of taxation of payments to any Bank attributable to the
principal of or interest on any Eurodollar Rate Advance or any other
amounts due under this Agreement in respect of any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Advances or its
obligation to make Eurodollar Rate Advances, excluding (i) taxes
---------
imposed on or measured in whole or in part by its overall net income,
gross income or gross receipts, (ii) franchise taxes imposed by (A)
any jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business," and (iii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide Borrower
with the appropriate form or forms required by Section 11.21, to the
extent such forms are then available under applicable Laws;
(2) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including any
---------
reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against
assets of, deposits with or for the account of, or credit extended by,
any Bank or its Eurodollar Lending Office); or
(3) shall impose on any Bank or its Eurodollar Lending Office or
the Designated Eurodollar Market any other condition affecting any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Advances, its obligation to make Eurodollar Rate Advances or this
Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by such
Bank, increases the cost to such Bank or its Eurodollar Lending Office of
making or maintaining any Eurodollar Rate Advance or in respect of any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Advances or its obligation to make Eurodollar Rate Advances or reduces the
amount of any sum received or receivable by such Bank or its Eurodollar
Lending Office with respect to any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Advances or its obligation to make
Eurodollar Rate Advances (assuming such Bank's Eurodollar Lending Office
had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
Market), then, within five Banking Days after demand by such Bank (with a
copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay
to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction (determined as though such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in
the Designated Eurodollar Market). A statement of any Bank claiming
compensa-
tion under this subsection and setting forth in reasonable detail the
additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance shall, in the good faith opinion of any
Bank, make it unlawful or impossible for such Bank or its Eurodollar
Lending Office to make, maintain or fund its portion of any Eurodollar Rate
Advance or materially restrict the authority of such Bank to purchase or
sell, or to take deposits of, Dollars in the Designated Eurodollar Market,
or to determine or charge interest rates based upon the Eurodollar Rate,
and such Bank shall so notify the Administrative Agent, then such Bank's
obligation to make Eurodollar Rate Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative Agent
forthwith shall give notice thereof to the other Banks and Borrower. Upon
receipt of such notice, the outstanding principal amount of such Bank's
Eurodollar Rate Advances, together with accrued interest thereon,
automatically shall be converted to Base Rate Advances on either (1) the
last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Bank may lawfully continue to maintain and fund such
Eurodollar Rate Advances to such day(s) or (2) immediately if such Bank may
not lawfully continue to fund and maintain such Eurodollar Rate Advances to
such day(s), provided that in such event the conversion shall not be
--------
subject to payment of a prepayment fee under clause (e) of this Section.
Each Bank agrees to endeavor promptly to notify Borrower of any event of
which it has actual knowledge, occurring after the Closing Date, which will
cause that Bank to notify the Administrative Agent under this Section, and
agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for such notice and will not, in the good
faith judgment of such Bank, otherwise be materially disadvantageous to
such Bank. In the event that any Bank is unable, for the reasons set forth
above, to make, maintain or fund its portion of any Eurodollar Rate Loan or
Advance, such Bank shall fund such amount as a Base Rate Advance for the
same period of time, and such amount shall be treated in all respects as a
Base Rate Advance. Any Bank whose obligation to make Eurodollar Rate
Advances has been suspended under this Section shall promptly notify the
Administrative Agent and Borrower of the cessation of the Special
Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar Market
generally that are beyond the reasonable control of the Banks,
deposits in Dollars (in the applicable amounts) are not being offered
to any Bank in the Designated Eurodollar Market for the applicable
Eurodollar Period; or
(2) the Requisite Banks advise the Administrative Agent that the
Eurodollar Rate as determined by the Administrative Agent (i) does not
represent the effective pricing to such Banks for deposits in Dollars
in the Designated Eurodollar Market in the relevant amount for the
applicable Eurodollar Period, or (ii) will not adequately and fairly
reflect the cost to such Banks of making the applicable Eurodollar
Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Banks, whereupon until the Administrative Agent notifies
Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of the Banks to make any future Eurodollar Rate
Advances shall be suspended unless (but only if clause (2) above is the
------
basis for such suspension) Borrower and each Co-Borrower notify the
Administrative Agent in writing that they elect to pay the Enhanced
Eurodollar Margin with respect to all Eurodollar Rate Loans made during
such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance
(other than as the result of a conversion required under clause (c) of this
------ ----
Section) on a day other than the last day in the applicable Eurodollar
Period (whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower or any Co-Borrower (for a
reason other than the failure of a Bank to make an Advance) to borrow on
the date or in the amount specified for a Eurodollar Rate Advance in any
Request for Loan, or upon the failure of Borrower or any Co-Borrower to
prepay a Eurodollar Rate Loan or Advance on the date specified in a notice
of prepayment delivered to the Administrative Agent pursuant to Section
3.1(e), Borrower and the Co-Borrowers shall pay to the appropriate Bank
within ten Banking Days after demand a prepayment fee, failure to borrow
fee or failure to prepay fee, as the case may be (determined as though 100%
of that Bank's Eurodollar Rate Advance had been funded in the Designated
Eurodollar Market), equal to the sum of:
--- --
(1) the principal amount of the Eurodollar Rate Advance prepaid
or not borrowed or prepaid, as the case may be, times [the number of
-----
days from and including the date of prepayment or failure to borrow or
prepay, as applicable, to but excluding the last day in the applicable
Eurodollar Period], divided by 360, times the applicable Interest
---------- -----
Differential (provided that the product of the foregoing formula must
--------
be a positive number); plus
----
(2) all out-of-pocket expenses incurred by the Bank reasonably
attributable to such payment, prepayment or failure to borrow.
Each Bank's determination of the amount of any prepayment fee, failure to
borrow fee or failure to prepay fee payable under this Section shall be
conclusive in the absence of manifest error.
(f) Each Bank agrees to endeavor promptly to notify Borrower of
any event of which it has actual knowledge, occurring after the Closing
Date, which will entitle such Bank to compensation pursuant to clause (a)
or clause (b) of this Section, and agrees to designate a different
Eurodollar Lending Office if such designation will avoid the need for or
reduce the amount of such compensation and will not, in the good faith
judgment of such Bank, otherwise be materially disadvantageous to such
Bank. Any request for compensation by a Bank under this Section shall set
forth the basis upon which it has been determined that such an amount is
due from Borrower and the Co-Borrowers, a calculation of the amount due,
and a certification that the corresponding costs have been incurred by the
Bank.
(g) If any Bank claims compensation or is excused from making or
continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at
least four Eurodollar Banking Days' prior notice to the Administrative
Agent and such Bank and upon payment in full of the amounts provided
for in this Section through the date of such payment plus any
----
prepayment fee (subject to clause (c) of this Section) required by
clause (e) of this Section, pay in full the affected Eurodollar Rate
Advances of such Bank or request that such Eurodollar Rate Advances be
converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers
become obligated to pay a material amount under this Section to any
Bank, that Bank will be subject to removal in accordance with Section
11.27; provided that Borrower and the Co-Borrowers shall have paid
--------
such amount to that Bank and that Borrower and the Co-Borrowers,
within the thirty day period following the date of such payment, shall
have notified that Bank in writing of their intent to so remove the
Bank.
3.9 Late Payments. If any installment of principal or interest or
-------------
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Bank is not paid when due, it shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
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 Eurodollar Rate Loans and all fees under this Agreement shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed. Borrower and the Co-Borrowers acknowledge that such latter calculation
method will result in a higher yield to the Banks than a method based on a year
of 365 or 366 days. Interest shall accrue on each Loan for the day on which the
Loan is made; interest shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid. Any Loan that is repaid on
the same day on which it is made shall bear interest for one day.
Notwithstanding anything in this Agreement to the contrary, interest in excess
of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.11 Non-Banking Days. If any payment to be made by Borrower or
----------------
any other Party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.12 Manner and Treatment of Payments.
--------------------------------
(a) Each payment hereunder (except payments pursuant to Sections
------
3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under any other Loan
Document shall be made
to the Administrative Agent, at the Administrative Agent's Office, for the
account of each of the Banks or the Administrative Agent, as the case may
be, in immediately available funds not later than 12:00 noon, California
local time, on the day of payment (which must be a Banking Day). All
payments received after such time, on any Banking Day, shall be deemed
received on the next succeeding Banking Day. The amount of all payments
received by the Administrative Agent for the account of each Bank shall be
immediately paid by the Administrative Agent to the applicable Bank in
immediately available funds and, if such payment was received by the
Administrative Agent by 12:00 noon, California local time, on a Banking Day
and not so made available to the account of a Bank on that Banking Day, the
Administrative Agent shall reimburse that Bank for the cost to such Bank of
funding the amount of such payment at the Federal Funds Rate. All payments
shall be made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each Bank
comprising such Loan.
(c) Each Bank shall use its best efforts to keep a record (which
may be in tangible or electronic or other intangible form) of Advances made
by it and payments received by it with respect to each of its Notes and,
subject to Section 10.6(g), such record shall, as against Borrower and the
Co-Borrowers, be presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, the failure by any Bank to keep
such a record shall not affect Borrower's and the Co-Borrowers' joint and
several obligations to pay the Obligations.
(d) Each payment of any amount payable by Borrower or any other
Party under this Agreement or any other Loan Document shall be made free
and clear of, and without reduction by reason of, any taxes, assessments or
other charges imposed by any Governmental Agency, central bank or
comparable authority, excluding (i) taxes imposed on or measured in whole
---------
or in part by overall net income, gross income or gross receipts, (ii)
franchise taxes imposed on any Bank by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal
office or Eurodollar Lending Office or (B) any jurisdiction (or political
subdivision thereof) in which it is "doing business", (iii) any withholding
taxes or other taxes based on gross income imposed by the United States of
America that are not attributable to any change in any Law or the
interpretation or administration of any Law by any Governmental Agency and
(iv) any withholding tax or other taxes based on gross income imposed by
the United States of America for any period with respect to which it has
failed to provide Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then available under applicable
Laws (all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrower or any
other Party is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Bank under
this Agreement, they shall (i) make such deduction or withholding and pay
the same to the relevant Governmental Agency and (ii) pay such additional
amount to that Bank as is necessary to result in that Bank's receiving a
net after-Tax amount equal to the amount to which that Bank would have been
entitled under this Agreement absent such deduction or withholding. If and
when receipt of such payment results in an excess payment or credit to that
Bank on account of such Taxes, that Bank shall promptly refund such excess
to Borrower or the relevant Party. If Borrower or any such Party becomes
obligated to pay a material amount under this Section to any Bank, that
Bank will be subject to
removal in accordance with Section 11.27; provided that Borrower or the
--------
relevant Party shall have paid such amount to that Bank and that Borrower
and the Co-Borrowers, within the thirty day period following the date of
such payment, shall have notified that Bank in writing of their intent to
so remove the Bank.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Bank to obtain the funds for any Loan or Advance in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan or Advance in any particular
place or manner, provided that each Bank 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 Bank not to require payment of any interest
(including interest at the Default Rate), fee, cost or other amount payable
----------
under any Loan Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a waiver of the
Administrative Agent's or such Bank's right to require full payment of any
interest (including interest at the Default Rate), fee, cost or other amount
---------
payable under any Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made by
---------------------------------------------------------------
Borrower and the Co-Borrowers. Unless the Administrative Agent shall have
-----------------------------
been notified by Borrower and the Co-Borrowers prior to the date on which any
payment to be made by Borrower and the Co-Borrowers hereunder is due that
Borrower and the Co-Borrowers do not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that Borrower and the Co-
Borrowers have remitted such payment when so due and the Administrative Agent
may, in its discretion and in reliance upon such assumption, make available to
each Bank on such payment date an amount equal to such Bank's share of such
assumed payment. If Borrower and the Co-Borrowers have not in fact remitted such
payment to the Administrative Agent, each Bank shall forthwith on demand repay
to the Administrative Agent the amount of such assumed payment made available to
such Bank, together with interest thereon in respect of each day from and
including the date such amount was made available by the Administrative Agent to
such Bank to the date such amount is repaid to the Administrative Agent at the
Federal Funds Rate.
3.16 Fee Determination Detail. The Administrative Agent and any
------------------------
Bank shall provide reasonable detail to Borrower and the Co-Borrowers regarding
the manner in which the amount of any payment to the Creditors, or that Bank,
under Article 3 has been determined, concurrently with demand for such payment.
3.17 Survivability. All of Borrower's and the Co-Borrowers'
-------------
obligations under Sections 3.7 and 3.8 shall survive for ninety days following
the date on which the Commitment is terminated, all Obligations hereunder are
fully paid.
Article 4
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower and each Co-Borrower represents and warrants to the Banks on
the date hereof and as of the Closing Date that:
4.1 Existence and Qualification; Power; Compliance With Laws.
--------------------------------------------------------
Borrower is a corporation duly formed, validly existing and in good standing
under the Laws of Delaware. Each of the Guarantors is a corporation duly
formed, validly existing and in good standing under the Laws of its state of
formation. Borrower and each of the Guarantors are duly qualified or registered
to transact business and are in good standing in each other jurisdiction in
which the conduct of their business or the ownership or leasing of their
Properties makes such qualification or registration necessary, except where the
------
failure so to qualify or register and to be in good standing would not
constitute a Material Adverse Effect. Borrower and each Guarantor have all
requisite corporate or other organizational power and authority to conduct their
business, to own and lease their Properties and to execute and deliver each Loan
Document to which each is a Party and to perform the Obligations. All
outstanding shares of the capital stock of Borrower are duly authorized, validly
issued, fully paid and non-assessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws.
Borrower is in compliance with all Requirements of Law applicable to its
business as at present conducted, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business as at present conducted, except where the failure so to comply,
------
file, register, qualify or obtain exemptions does not constitute a Material
Adverse Effect.
4.2 Authority; Compliance With Other Agreements and Instruments and
---------------------------------------------------------------
Government Regulations. The execution, delivery and performance by Borrower,
----------------------
each Co-Borrower and each Guarantor of the Loan Documents to which it is a
Party, and the execution, delivery and performance of the Mirage Merger
Agreement by the parties thereto, 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 (except, in the case of Mirage and its Subsidiaries, as
otherwise contemplated by the Mirage Merger Agreement, each of which
consents and approvals will have been obtained as of the Closing Date);
(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 (after giving effect to the transfers of assets contemplated
by the Mirage Merger Agreement) other than certain rights of first refusal
and options to purchase Property now owned by Mirage and its Subsidiaries
which are contemplated by the Mirage Merger Agreement;
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in Schedule 4.3; and
(e) Result in a breach of or constitute a default under, or cause
or permit the acceleration of any obligation owed under, any indenture or
loan or credit agreement or any other Contractual Obligation to which such
party is a party or by which such party or any of its Property is bound or
affected (except for the acceleration and payment in cash therefor of
certain options to purchase equity securities of Mirage and the
acceleration of certain compensation obligations of former employees of
Mirage and other similar events which would not have a material adverse
effect upon Mirage and its Subsidiaries taken as a whole);
and neither Borrower, the Co-Borrowers nor any Guarantor is in violation of, or
default under, any Requirement of Law or Contractual Obligation, or any
indenture, loan or credit agreement described in Section 4.2(e), in any respect
that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as set forth in
---------------------------------- ------
Schedule 4.3 or previously obtained or made, no authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by
Borrower and its Restricted Subsidiaries of the Loan Documents to which it is a
Party. Except as set forth in Schedule 4.3, all authorizations from, or filings
------
with, any Governmental Agency described in Schedule 4.3 will be accomplished as
of the Closing Date. The Banks acknowledge that Atlantic City is not presently
required to hold any gaming licenses.
4.4 Subsidiaries.
------------
(a) Schedule 4.4 hereto correctly sets forth the names, form of
legal entity, ownership and jurisdictions of organization of all
Subsidiaries of Borrower. Except as described in Schedule 4.4, Borrower
does not own any capital stock, equity interest or debt security which is
convertible, or exchangeable, for capital stock or equity interests in any
Person. Unless otherwise indicated in Schedule 4.4, all of the outstanding
shares of capital stock, or all of the units of equity interest, as the
case may be, of each Subsidiary are owned of record and beneficially by
Borrower, there are no outstanding options, warrants or other rights to
purchase capital stock of any such Subsidiary, and all such shares or
equity interests so owned are duly authorized, validly issued, fully paid
and non-assessable, and were issued in compliance with all applicable state
and federal securities and other Laws, and are free and clear of all Liens,
except for Permitted Encumbrances.
------
(b) Each Restricted Subsidiary of Borrower is a business entity
duly formed, validly existing and in good standing under the Laws of its
jurisdiction of organization, is duly qualified to do business as a foreign
organization and is in good standing as such in each jurisdiction in which
the conduct of its business or the ownership or leasing of its Properties
makes such qualification necessary (except where the failure to be so duly
------
qualified and in good standing does not constitute a Material Adverse
Effect), and has all requisite power and authority to conduct its business
and to own and lease its Properties.
(c) Each Restricted Subsidiary of Borrower is in compliance with
all Requirements of Law applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from,
and each such Restricted Subsidiary has accomplished all filings,
registrations, and qualifications with, or obtained exemptions from any of
the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, except where the failure to be in such
------
compliance, obtain such authorizations, consents, approvals, orders,
licenses, and permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not constitute a Material
Adverse Effect.
4.5 Financial Statements. Borrower and the Co-Borrowers have
--------------------
furnished to the Banks (a) the audited consolidated and consolidating financial
statements of Borrower and its Subsidiaries for the Fiscal Year ended December
31, 1999, and (b) the audited consolidated financial statements of Mirage and
its Subsidiaries for the Fiscal Year ended December 31, 1999. The financial
statements described in clause (a) above fairly present in all material respects
the financial condition, results of operations and changes in financial position
of Borrower and its Subsidiaries as of such dates and for such periods in
conformity with Generally Accepted Accounting Principles, consistently applied.
To the best knowledge of Borrower, the financial statements described in clause
(b) above fairly present in all material respects, in conformity with generally
accepted accounting principles, the consolidated financial position of Mirage as
of the dates and for the periods therein stated.
4.6 No Other Liabilities; No Material Adverse Changes. Borrower
-------------------------------------------------
and its Subsidiaries do not have any material liability or material contingent
liability required under Generally Accepted Accounting Principles to be
reflected or disclosed and not reflected or disclosed in the financial
statements described in Section 4.5(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, 1999.
4.7 Title to Property. As of December 31, 1999, Borrower and its
-----------------
Subsidiaries have valid title to the Property reflected in the financial
statements described in Section 4.5(b), other than immaterial items of Property,
free and clear of all Liens, other than Permitted Encumbrances and Liens
----- ----
described in Schedule 4.7 or permitted by Section 6.7. As of the Closing Date,
and giving effect to the consummation of the Mirage Merger Agreement, Borrower
and its Subsidiaries shall have valid title to all material Property reflected
in the financial statements described in Section 4.5, other than (i) Property
not required to be conveyed to Borrower under the Mirage Merger Agreement, and
(ii) Property subsequently sold or disposed of by Borrower and its Subsidiaries
in the ordinary course of business, in each case free and clear of all Liens,
other than Permitted Encumbrances, and Liens described in Schedule 4.7 or
----- ----
permitted by Section 6.7.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or
-----------------
possess the right to use to the extent necessary in their businesses, all
material trademarks, trade names, copyrights, patents, patent rights, computer
software, licenses and other Intangible Assets that are used in the conduct of
their businesses, and no such Intangible Asset, to the best knowledge of
Borrower and the Co-Borrowers, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to the
extent that such conflict constitutes a Material Adverse Effect.
4.9 Public Utility Holding Company Act. Neither Borrower nor any
----------------------------------
of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to
---------- ------
subject matter and amount (subject to applicable deductibles and retentions) by
insurance as to which the insurance carrier has been notified and has not
asserted lack of subject matter coverage or reserved its right to do so, (b) any
matter, or series of related matters, involving a claim against Borrower or any
of its Subsidiaries of less than $75,000,000, (c) matters of an administrative
nature not involving a claim or charge against Borrower or any of its
Subsidiaries and (d) matters set forth in Schedule 4.10, there are no actions,
suits, proceedings or investigations pending as to which Borrower or any of its
Subsidiaries have been served or have received notice or, to the best knowledge
of Borrower and the Co-Borrowers, threatened against or affecting Borrower or
any of its Subsidiaries or any Property of any of them before any Governmental
Agency.
4.11 Binding Obligations. Each of the Loan Documents to which
-------------------
Borrower or any of its Restricted Subsidiaries is a Party will, when executed
and delivered by such Party, constitute the legal, valid and binding obligation
of such Party, enforceable against such Party in accordance with its terms,
except as enforcement may be limited by Debtor Relief Laws, Gaming Laws or
------
equitable principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing that is a
----------
Default or Event of Default.
4.13 ERISA.
-----
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material Adverse
Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043
of ERISA) has occurred that could reasonably be expected to have a
Material Adverse Effect; and
(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect.
(b) Neither Borrower nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that could
reasonably be expected to have a Material Adverse Effect.
4.14 Regulations T, U and X; Investment Company Act. The fair market
----------------------------------------------
value of the assets subject to the Negative Pledge contained in Section 6.7
(including the value of the capital stock of Mirage) is more than twice the
amount of the Outstanding Obligations. No part of the proceeds of any Loan
hereunder will be used to purchase or carry, or to extend credit to others for
the purpose of purchasing or carrying, any Margin Stock in violation of
Regulations T, U and X. Neither Borrower nor any of its Subsidiaries is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
4.15 Disclosure. No written statement made by a Senior Officer of
----------
Borrower, any Co-Borrower or any Guarantor to the Administrative Agent or any
Bank in connection with this Agreement, or in connection with any Loan, as of
the date thereof contained any untrue statement of a material fact or omitted a
material fact necessary to make the statement made not misleading in light of
all the circumstances existing at the date the statement was made.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
-------------
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
its Subsidiaries, except (a) such taxes, if any, as are being contested in good
------
faith by appropriate proceedings and as to which adequate reserves have been
established and maintained and (b) immaterial taxes so long as no material
Property of Borrower or any of its Subsidiaries is in jeopardy of being seized,
levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best knowledge of
-----------
Borrower and the Co-Borrowers, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to Borrower
and its Subsidiaries, and the Projections are reasonably based on such
assumptions. Nothing in this Section shall be construed as a representation or
covenant that the Projections in fact will be achieved. The Creditors
acknowledge that the Projections are forward-looking statements and that actual
financial results for Borrower and its Subsidiaries could differ materially from
those set forth in the Projections.
4.18 Hazardous Materials. Except as described in Schedule 4.18,
-------------------
(a) neither Borrower nor any of its Subsidiaries at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under the Real Property in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b)
to the best knowledge of Borrower and the Co-Borrowers, no condition exists that
violates any Hazardous Material Law affecting any Real Property except for such
violations that would not individually or in the aggregate have a Material
Adverse Effect, (c) no Real Property or any portion thereof is or has been
utilized by Borrower or any of its Subsidiaries as a site for the manufacture of
any Hazardous Materials and (d) to the extent that any Hazardous Materials are
used, generated or stored by Borrower or any of its Subsidiaries on any Real
Property, or transported to or from such Real Property by Borrower or any of its
Subsidiaries, such use, generation, storage and transportation are in compliance
in all material respects with all Hazardous Materials Laws.
4.19 No Default Under Old Loan Agreement. As of the Closing Date,
-----------------------------------
no Default or Event of Default has occurred and remains continuing under the Old
Loan Agreement.
4.20 Mirage Merger Effective. Prior to or concurrently with the
-----------------------
making of the initial Advances hereunder on the Closing Date, the transactions
contemplated by the Mirage Merger Agreement shall have been approved by all
relevant Gaming Boards having jurisdiction over such transactions (including
without limitation those of Nevada, New Jersey, Michigan and Mississippi).
Substantially concurrently with the making of such Advances, Mirage will be
acquired by MGMGMR Acquisition, Inc. in accordance with the Mirage Merger
Agreement and all applicable Laws. Giving effect to the consummation of the
Mirage Merger Agreement, the incurrence of the Obligations and the Guaranty, and
the refinancing of the Old Loan Agreement and the Mirage Loan Agreement, on the
Closing Date the Borrower and its Restricted Subsidiaries are Solvent.
Article 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS)
----------------------
So long as any Advance remains unpaid or any other Obligation remains
unpaid, or any portion of the Commitment remains in force, Borrower shall, and
shall cause each of its Restricted Subsidiaries to, and each Co-Borrower shall,
unless the Administrative Agent (with the written approval of the Requisite
Banks) otherwise consents:
5.1 Preservation of Existence. Preserve and maintain their
-------------------------
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business except (a) where the
------
failure to so preserve and maintain the existence of any Restricted Subsidiary
of Borrower and such authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations would not constitute a
Material Adverse Effect and (b) that a merger permitted by Section 6.3 shall not
constitute a violation of this covenant; and qualify and remain qualified to
transact business in each jurisdiction in which such qualification is necessary
in view of their respective business or the ownership or leasing of their
respective Properties except where the failure to so qualify or remain qualified
------
would not constitute a Material Adverse Effect.
5.2 Maintenance of Properties. Maintain, preserve and protect all
-------------------------
of their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain, preserve and protect
------
a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrower and its Restricted Subsidiaries,
taken as a whole, shall not constitute a violation of this covenant.
5.3 Maintenance of Insurance. Maintain liability, casualty and
------------------------
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrower and its Restricted
Subsidiaries operate.
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 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 Bank, or any authorized employee, agent
or representative thereof, to examine, audit and make copies and abstracts from
the records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any
of their officers, managers, key employees or accountants and, upon request,
furnish promptly to the Administrative Agent or any Bank true copies of all
financial information made available to the board of directors or audit
committee of the board of directors of Borrower.
5.6 Keeping of Records and Books of Account. Keep adequate records
---------------------------------------
and books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied, and in material
conformity with all applicable requirements of any Governmental Agency having
regulatory jurisdiction over Borrower or any of its Subsidiaries.
5.7 Use of Proceeds. Use the proceeds of Loans (a) on the Closing
---------------
Date, to pay a portion of the consideration payable to the former shareholders
of Mirage pursuant to the Mirage Merger Agreement, and to refinance the
obligations under the Mirage Loan Agreement, (b) to finance expenses associated
with the transactions contemplated herein and associated with the transactions
contemplated by the Mirage Merger Agreement, (c) to finance design, development
and construction expenses associated with Capital Expenditures, Acquisitions and
Investments permitted under Article 6 hereof, and (d) for other general
corporate purposes including the Acquisitions and Investments described herein.
5.8 New Restricted Subsidiaries. Cause any Person which hereafter
---------------------------
becomes a Restricted Subsidiary of Borrower to promptly (and in the case of
Mirage and its Subsidiaries, immediately following their acquisition pursuant to
the Mirage Merger Agreement on the Closing Date) execute and deliver to the
Administrative Agent a Guaranty (and, if a Collateral Event has occurred (and no
Collateral Release has subsequently occurred), security documents encumbering
its Property to the extent required by Sections 2.12 and 6.7).
5.9 Hazardous Materials Laws. Keep and maintain all Real Property
------------------------
and each portion thereof in compliance in all material respects with all
applicable Hazardous Materials Laws and promptly notify the Administrative Agent
in writing (attaching a copy of any pertinent written material) of (a) any and
all material enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against Borrower or its
Restricted Subsidiaries relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials and (c)
discovery by any Senior Officer of Borrower or any Co-Borrower of any material
occurrence or condition on Property adjoining or in the vicinity of such Real
Property that could reasonably be expected to cause such Real Property or any
part thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of such Real Property under any applicable Hazardous
Materials Laws.
Article 6
NEGATIVE COVENANTS
------------------
So long as any Advance remains unpaid or any other Obligation remains
unpaid, or any portion of the Commitment remains in force, Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, and each Co-Borrower
shall not unless the Administrative Agent (with the written approval of the
Requisite Banks or, if required by Section 11.2, of all of the Banks) otherwise
consents:
6.1 Payment of Subordinated Obligations. Pay any principal
-----------------------------------
(including sinking fund payments) or any other amount (other than scheduled
---------- ----- ----
interest payments) with respect to any Subordinated Obligation, or purchase or
redeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit
any monies, securities or other Property with any trustee or other Person to
provide assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation provided that:
-------- ----
(a) Borrower may make payments of scheduled interest on any
Subordinated Obligation in accordance with the subordination terms thereof;
and
(b) Borrower may redeem Subordinated Obligations held by Persons which
are subject to a Disqualification, provided that (i) no Default or Event of
-------- ----
Default then exists or would result therefrom, and (ii) after giving effect
to such redemption, Borrower is in pro forma compliance with the covenants
set forth in Sections 6.8 and 6.9.
6.2 Disposition of Property. Make any Disposition of any
-----------------------
Principal Resort Casino Properties, provided that leases and subleases of
--------
portions of a Principal Resort Casino Property in the ordinary course of
business and not involving their gaming or lodging operations shall not be
considered a Disposition thereof.
6.3 Mergers. Merge or consolidate with or into any Person, except
------- ------
(a) the merger of Mirage and MGMGMR Acquisition, Inc. contemplated by the Mirage
Merger Agreement and other mergers and consolidations of a Restricted Subsidiary
of Borrower into Borrower or another Restricted Subsidiary of Borrower, (b)
mergers and consolidations with a Person to effect a mere change in the State or
form of organization of Borrower, (c) mergers with any Person which if acquired
by Borrower or its other Restricted Subsidiaries pursuant to Investments
permitted hereby, would be Restricted Subsidiaries, provided that the financial
--------
condition of Borrower and its Subsidiaries are not adversely affected thereby
and Borrower and its Subsidiaries execute such amendments to the Loan Documents
as may be requested by the Administrative Agent to reflect such change, and (d)
mergers entered into in compliance with Section 6.3 with persons engaged
primarily in the same or a similar line of business as one or more lines of
business engaged in by Borrower and its Subsidiaries, provided that giving pro
-------- ----
forma effect to such mergers as of the last day of the then most recently ended
Fiscal Quarter, Borrower is in compliance with Sections 6.8 and 6.9.
6.4 Hostile Acquisitions. Directly or indirectly use the proceeds
--------------------
of any Loan in connection with the acquisition of part or all of a voting
interest of five percent
or more in any corporation or other business entity if such acquisition is
opposed by the board of directors or management of such corporation or business
entity.
6.5 ERISA. (a) At any time, permit any Pension Plan to (i) engage
-----
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code), (ii) fail to comply with ERISA or any other applicable Laws, (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.6 Change in Nature of Business. Make any material change in the
----------------------------
nature of the business of Borrower and its Subsidiaries, taken as a whole.
6.7 Liens and Negative Pledges. Create, incur, assume or suffer to
--------------------------
exist any Lien or Negative Pledge of any nature upon or with respect to any of
its Properties, or engage in any sale and leaseback transaction with respect to
any of its Properties, whether now owned or hereafter acquired, except:
------
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the date hereof and
disclosed in Schedule 4.7 and any renewals/extensions or amendments
thereof, provided that the obligations secured or benefitted thereby are
--------
not increased;
(d) Liens on Property acquired by Borrower or any of its
Restricted Subsidiaries after the Closing Date that are in existence at the
time of such acquisition and are not created in contemplation of such
acquisition;
(e) purchase money Liens securing Indebtedness and Capital Lease
Obligations in an aggregate principal amount not to exceed $100,000,000
(including any refinancings thereof);
(f) any Lien or Negative Pledge created by an agreement or
instrument entered into by Borrower or a Restricted Subsidiary of Borrower
in the ordinary course of its business which consists of a restriction on
the assignability, transfer or hypothecation of such agreement or
instrument; and
(g) If a Collateral Event occurs (and no Collateral Release has
subsequently occurred), equal, ratable and pari passu Liens securing the
---- -----
MGM Senior Notes, the Obligations and the Indebtedness under the Other Loan
Agreements, plus interest, fees, premium, indemnities, expenses and other
amounts which are not principal relating or payable with respect to such
principal amount, on collateral which is not, as of any date of
determination, more extensive than the collateral encumbered by the Loan
Documents, and Negative Pledges which are not more extensive than the
Negative Pledge contained in this
Section relating to the MGM Senior Notes, and which in any event allow the
Liens in favor of the Administrative Agent and the other Creditors
contemplated herein;
(h) If a Collateral Event occurs (and no Collateral Release has
subsequently occurred), Liens securing the Mirage Senior Notes, plus
interest, fees, premium, indemnities, expenses and other amounts which are
not principal relating or payable with respect to such principal amount,
(in each case on an equal, ratable and pari passu basis with the MGM Senior
---- -----
Notes, the Obligations and the Indebtedness under the Other Loan
Agreements) on collateral which is not in any event and as of any date of
determination, more extensive than the collateral encumbered by the Loan
Documents, and Negative Pledges which are not more extensive than the
Negative Pledge contained in this Section relating to the Mirage Senior
Notes, and which in any event allow the Liens in favor of the
Administrative Agent and the other Creditors contemplated herein;
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.
6.8 Leverage Ratio. Permit the Leverage Ratio, as of any Fiscal
--------------
Quarter described below to be greater than the ratio set forth below opposite
that Fiscal Quarter (it being understood that this covenant will not apply to
the Fiscal Quarter ending June 30, 2000):
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
September 30, 2000 through
September 30, 2001 5.25:1.00
December 31, 2001 through
September 30, 2002 4.75:1.00
December 31, 2002 and thereafter 4.50:1.00.
6.9 Interest Charge Coverage Ratio. Permit the Interest Charge
------------------------------
Coverage Ratio as of the last day of any Fiscal Quarter described below, to be
less than the ratio set forth opposite that Fiscal Quarter (it being understood
that this covenant will not apply to the Fiscal Quarter ending June 30, 2000):
Fiscal Quarters Ending Minimum Ratio
---------------------- -------------
September 30, 2000 2.25:1.00
December 31, 2000 through
September 30, 2001 2.50:1.00
December 31, 2001 through
September 30, 2002 2.75:1.00
December 31, 2002 and thereafter 3.00:1.00.
Article 7
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
7.1 Financial and Business Information. So long as any Advance
----------------------------------
remains unpaid or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower and each Co-Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Banks)
otherwise consents, at Borrower's and the Co-Borrowers' sole expense, deliver to
the Administrative Agent for distribution by it to the Banks, a sufficient
number of copies for all of the Banks of the following:
(a) As soon as practicable, and in any event within 60 days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
----- ----
Fiscal Year), the consolidated and consolidating balance sheet of Borrower
and its Subsidiaries as at the end of such Fiscal Quarter and the
consolidated and consolidating statement of operations for such Fiscal
Quarter, and its statement of cash flows for the portion of the Fiscal Year
ended with such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer of Borrower as fairly
presenting the financial condition, results of operations and cash flows of
Borrower and its Subsidiaries in accordance with Generally Accepted
Accounting Principles (other than footnote disclosures), consistently
----- ----
applied, as at such date and for such periods, subject only to normal year-
end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 45 days after
the end of each Fiscal Quarter, a Pricing Certificate setting forth a
preliminary calculation of the Leverage Ratio as of the last day of such
Fiscal Quarter, and providing reasonable detail as to the calculation
thereof, which calculations shall be based on the preliminary unaudited
financial statements of Borrower for such Fiscal Quarter, and as soon as
practicable thereafter, in the event of any material variance in the actual
calculation of the Leverage Ratio from such preliminary calculation, a
revised Pricing Certificate setting forth the actual calculation thereof;
(c) As soon as practicable, and in any event within 105 days
after the end of each Fiscal Year, (i) the consolidated and consolidating
balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal
Year and the consolidated and consolidating statements of operations,
shareholders' equity and cash flows, in each case of Borrower and its
Subsidiaries for such Fiscal Year, in each case as at the end of and for
the Fiscal Year, all in reasonable detail. Such financial statements shall
be prepared in accordance with Generally Accepted Accounting Principles,
consistently applied, and such consolidated balance sheet and consolidated
statements shall be accompanied by a report of one of the six largest
public accounting firms in the United States of America or other
independent public accountants of recognized standing selected by Borrower
and reasonably satisfactory to the Requisite Banks, which report shall be
prepared in accordance with generally accepted auditing standards as at
such date, and shall not be subject to any qualifications or exceptions as
to the scope of the audit nor to any other qualification or exception
determined by the Requisite Banks in their good faith business judgment to
be adverse to the interests of the Banks. Such accountants' report shall
be accompanied by a certificate stating that, in making the examination
pursuant to generally accepted auditing standards necessary for the
certification of such financial statements and such report, such
accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants have
reviewed Borrower's financial calculations as at the end of such Fiscal
Year (which shall accompany such certificate) under Sections 6.8 and 6.9,
have read such Sections (including the definitions of all defined terms
used therein) and that nothing has come to the attention of such
accountants in the course of such examination that would cause them to
believe that the same were not calculated by Borrower in the manner
prescribed by this Agreement;
(d) As soon as practicable, and in any event within 45 days after
the commencement of each Fiscal Year, a budget and projection by Fiscal
Quarter for that Fiscal Year and by Fiscal Year for the next two succeeding
Fiscal Years, including for the first such Fiscal Year, projected
---------
consolidated balance sheets, statements of operations and statements of
cash flow and, for the second and third such Fiscal Years, projected
consolidated condensed balance sheets and statements of operations and cash
flows, of Borrower and its Subsidiaries, all in reasonable detail;
(e) Promptly after request by the Administrative Agent or any
Bank, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of Borrower by independent accountants in
connection with the accounts or books of Borrower or any of its
Subsidiaries, or any audit of any of them;
(f) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which Borrower may
file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, and not otherwise required to be delivered to the Banks pursuant
to other provisions of this Section;
(g) Promptly after request by the Administrative Agent or any
Bank, copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any
Bank, copies of any other report or other document that was filed by
Borrower or any of its Subsidiaries with any Governmental Agency (other
-----
than any report regarding Tracinda Corporation or individuals associated
----
with Tracinda Corporation, Borrower and its Subsidiaries and their
confidential business or financial information);
(i) As soon as practicable, and in any event within ten Banking
Days after a Senior Officer of Borrower or any Co-Borrower becomes aware of
the occurrence of any (i) "reportable event" (as such term is defined in
Section 4043 of ERISA) or (ii) "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) in connection
with any Pension Plan or any trust created thereunder, telephonic notice
specifying the nature thereof, and, no more than five Banking Days after
such telephonic notice, written notice again specifying the nature thereof
and specifying what action Borrower or any of its
Subsidiaries is taking or proposes to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect
thereto;
(j) As soon as practicable, and in any event within two Banking
Days after a Senior Officer of Borrower or any Co-Borrower becomes aware of
the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than two Banking Days after such telephonic
notice, written notice again specifying the nature and period of existence
thereof and specifying what action Borrower or its Subsidiaries are taking
or propose to take with respect thereto;
(k) Promptly upon a Senior Officer of Borrower or any Co-Borrower
becoming aware that (i) any Person has commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsidiaries that is
$5,000,000 or more in excess of the amount thereof that is fully covered by
insurance, (ii) any creditor or lessor under a written credit agreement or
material lease has asserted a default thereunder on the part of Borrower or
any of its Subsidiaries, (iii) any Person has commenced a legal proceeding
with respect to a claim against Borrower or any of its Subsidiaries under a
contract that is not a credit agreement or material lease in excess of
$25,000,000 or which otherwise may reasonably be expected to result in a
Material Adverse Effect, (iv) any labor union has notified Borrower of its
intent to strike Borrower or any of its Subsidiaries on a date certain and
such strike would involve more than 100 employees of Borrower or its
Subsidiaries, or (v) any Gaming Board has indicated its intent to consider
or act upon a License Revocation or a fine or penalty of $1,000,000 or more
with respect to Borrower or any of its Subsidiaries, a written notice
describing the pertinent facts relating thereto and what action Borrower or
its Subsidiaries are taking or propose to take with respect thereto;
(l) As soon as practicable, and in any event by the thirtieth day
in the next following month, an operating revenue report for the preceding
calendar month with respect to each operating casino property of Borrower
and its Subsidiaries (including the Australia Companies), segmented for
each such casino property and otherwise in a form reasonably acceptable to
the Administrative Agent, together with a written narrative statement
discussing any significant trends reflected therein signed by a Senior
Officer of Borrower;
(m) Promptly following any Senior Officer of Borrower or any Co-
Borrower becoming aware of any change in the credit ratings assigned by
▇▇▇▇▇'▇ or S&P to the credit facilities provided hereunder (whether senior
secured or senior unsecured) written notice of such change and, if the same
will result in a revision to the Debt Rating, a revised Pricing Certificate
setting forth the revised Debt Rating; and
(n) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Bank (through the
Administrative Agent) or the Requisite Banks.
7.2 Compliance Certificates. So long as any Advance remains unpaid
-----------------------
or any other Obligation remains unpaid or unperformed, or any portion of the
Commitment remains outstanding, Borrower and the Co-Borrowers shall, at their
sole expense, deliver to the Administrative Agent for
distribution by it to the Banks concurrently with the financial statements
required pursuant to Sections 7.1(a) and 7.1(c) (other than as to the Fiscal
Quarter ending June 30, 2000), Compliance Certificates signed by a Senior
Officer of Borrower and each Co-Borrower.
Article 8
CONDITIONS
----------
8.1 Initial Advances on the Closing Date. The obligation of each
------------------------------------
Bank to make the initial Advance to be made by it on the Closing Date, is
subject to the following conditions precedent, each of which shall be satisfied
prior to the making of the initial Advances (unless all of the Banks, in their
sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
(1) at least one executed counterpart of this Agreement, together
with arrangements satisfactory to the Administrative Agent for
additional executed counterparts, sufficient in number for
distribution to the Banks, Borrower, Atlantic City and Detroit;
(2) Notes executed by Borrower, Atlantic City and Detroit in
favor of each Bank, each in a principal amount equal to that Bank's
Pro Rata Share of $1,000,000,000;
(3) [Reserved];
(4) with respect to Borrower, Atlantic City, Detroit and each
Guarantor (including Mirage, New York and their respective
Subsidiaries), such documentation as the Administrative Agent may
require to establish the due organization, valid existence and good
standing of Borrower, Atlantic City, Detroit, and each of the
Guarantors, its qualification to engage in business in each material
jurisdiction in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform any Loan
Documents to which it is a Party, the identity, authority and capacity
of each Responsible Official thereof authorized to act on its behalf,
including (if applicable) certified copies of articles of
---------
incorporation or organization and amendments thereto, bylaws or
operating agreements and amendments thereto, certificates of good
standing and/or qualification to engage in business, tax clearance
certificates, certificates of corporate or other organizational
resolutions, incumbency certificates, Certificates of Responsible
Officials, and the like;
(5) [Reserved];
(6) the Guaranty executed by each Guarantor which is a Restricted
Subsidiary of MGM immediately prior to the consummation of the
transactions contemplated by the Mirage Merger Agreement;
(7) a certificate of insurance issued by Borrower's insurance
carrier or agent;
(8) the Opinions;
(9) a Request for Loan in compliance with Article 2;
(10) a completed Pricing Certificate;
(11) the letter agreement described in Sections 3.3 and 3.6;
(12) 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;
(13) a Certificate signed by a Senior Officer and attaching
thereto the Detroit Operating Agreement and the Mirage Merger
Agreement;
(14) a Certificate signed by a Senior Officer of Borrower and
Atlantic City certifying that the conditions specified in Section
8.1(b), (c), (f) and (g) have been satisfied; and
(15) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent reasonably may require.
(b) The board of directors of Mirage (as heretofore constituted),
shall have approved the election of new directors of Mirage nominated by
Borrower and shall have approved the transactions contemplated by Mirage
Merger Agreement (in a manner which results in such transactions not
constituting a "Change in Control" under the Indentures governing the
Mirage Senior Notes) and the acquisition of Mirage and its Merger with
MGMGMR Acquisition, Inc. contemplated by the Mirage Merger Agreement shall
be in a position to substantially concurrently close in accordance with the
Mirage Merger Agreement and all applicable Laws, and Borrower and its
Subsidiaries shall be in a position to concurrently repay all of the
outstanding obligations under the Mirage Loan Agreement.
(c) Mirage and its Subsidiaries shall be in a position to enter
into joinders to the Guaranty immediately following the consummation of the
Mirage Merger Agreement in accordance with Section 5.8 (acting through the
replacement boards of directors and officers contemplated by the Mirage
Merger Agreement)
(d) The trustees for the holders of the MGM Senior Notes shall
have agreed to concurrently release all Liens in the assets of Borrower and
its Subsidiaries securing the MGM Senior Notes (or securing any guarantee
thereof) under the now existing terms of the related Indentures, without
any amendment or consent from the holders thereof, and without any
repayment of the MGM Senior Notes, pursuant to arrangements acceptable to
the Administrative Agent and its counsel.
(e) The fees payable on the Closing Date pursuant to Article 3
shall have been paid.
(f) The reasonable costs and expenses of the Administrative Agent
in connection with the preparation of the Loan Documents payable pursuant
to Section 11.3, and invoiced to Borrower prior to the Closing Date, shall
have been paid.
(g) The representations and warranties of Borrower and the Co-
Borrowers contained in Article 4 shall be true and correct.
(h) 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.
(i) The Other Loan Agreements shall have been executed by all
parties thereto, Borrower and the Co-Borrowers shall be in compliance with
the terms thereof, and all conditions precedent to the making of loans
thereunder shall be concurrently satisfied.
(j) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & Hampton LLP, special counsel to
the Administrative Agent.
(k) The Closing Date shall have occurred by the last day upon
which the acquisition of Mirage may occur under the Mirage Merger
Agreement, but in any event by March 31, 2001.
(l) The credit facilities hereunder and the MGM Senior Notes
shall have received a rating of BBB- (or higher) from S&P and Baa3 (or
higher) from ▇▇▇▇▇'▇, in each case on an unsecured basis and such ratings
shall be in effect on the Closing Date.
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
----------------------------------------------------
9.1 Events of Default. The existence or occurrence of any one or
-----------------
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default so long as such
event is continuous and has not been waived in accordance with Section 11.2:
(a) Borrower or the Co-Borrowers fail to pay any principal on any
of the Notes, or any portion thereof, on the date when due; or
(b) Borrower or the Co-Borrowers fail to pay any interest on any
of the Notes, or any fees under Sections 3.4 or 3.6, or any portion
thereof, within five Banking Days after the date when due; or fails to pay
any other fee or amount payable to the Banks under any Loan Document, or
any portion thereof, within five Banking Days after demand therefor; or
(c) Borrower or the Co-Borrowers fail to comply with any of the
covenants contained in Article 6, other than the covenants contained in
----- ----
Sections 6.5 or 6.6; or
(d) Borrower or the Co-Borrowers fail to comply with Section
7.1(j) in any respect that is materially adverse to the interests of the
Banks; or
(e) Borrower, any of its Restricted Subsidiaries or any other
Party fails to perform or observe any other covenant or agreement (not
specified in clause (a), (b), (c), or (d) above) contained in any Loan
Document on its part to be performed or observed within (i) ten Banking
Days after the giving of notice by the Administrative Agent on behalf of
the Requisite Banks of such Default or (ii) if the nature of the covenant
or agreement is such that the violation can be cured, thirty Banking Days
after the giving of such notice so long as Borrower and the Co-Borrowers
diligently pursue in good faith the cure or correction of such violation
continuously during such period; or
(f) Any representation or warranty of Borrower or any of its
Restricted Subsidiaries or any other Party made in any Loan Document, or in
any certificate or other writing delivered by Borrower or such Restricted
Subsidiary or Party pursuant to any Loan Document, proves to have been
incorrect when made or reaffirmed in any respect that is materially adverse
to the interests of the Banks; or
(g) Borrower or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $100,000,000 or more, or any guaranty of present or future
Indebtedness of $100,000,000 or more, on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) fails
to perform or observe any other term, covenant or agreement on its part to
be performed or observed, or suffers any event of default to occur, in
connection with any present or future Indebtedness of $100,000,000 or more,
or of any guaranty of present or future Indebtedness of $100,000,000 or
more, if as a result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or
their behalf) has the right to declare such Indebtedness due before the
date on which it otherwise would become due or the right to require
Borrower or any of its Subsidiaries to redeem or purchase, or offer to
redeem or purchase, all or any portion of such Indebtedness; or
(h) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their behalf) the
right to declare such Subordinated Obligation due before the date on which
it otherwise would become due, or the right to require the issuer thereof
to redeem or purchase, or offer to redeem or purchase, all or any portion
of any Subordinated Obligation; or
(i) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action (or omission
----- ----
to act) of the Administrative Agent or any of the Banks or satisfaction in
full of all the Obligations ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect which, in any such event in the reasonable
opinion of the Requisite Banks, is materially adverse to the interests of
the Banks; or any Party thereto denies in writing that it has any or
further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind same; or
(j) A final judgment against Borrower or any of its Subsidiaries
is entered for the payment of money in excess of $25,000,000 and, absent
procurement of a stay of execution, such judgment remains unsatisfied for
thirty calendar days after the date of entry of judgment, or in any event
later than five days prior to the date of any proposed sale thereunder; or
any writ or warrant of attachment or execution or similar process is issued
or levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty calendar
days after its issue or levy; or
(k) Borrower or any of its Subsidiaries institutes or consents to
the institution of any proceeding under a Debtor Relief Law relating to it
or to all or any material part of its Property, or is unable or admits in
writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its Property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of that Person and the appointment continues undischarged or
unstayed for ninety 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
(l) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any
other Loan Document; or
(m) A final unstayed judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(n) Any Pension Plan maintained by Borrower or any of its
Restricted Subsidiaries is determined to have a material "accumulated
funding deficiency" as that term is defined in Section 302 of ERISA and the
result is a Material Adverse Effect or Borrower or any its ERISA Affiliates
incurs any withdrawal liability in respect of any Multiemployer Plan which
is in an amount in excess of $50,000,000 which withdrawal liability is not
paid or otherwise satisfied within thirty days; or
(o) The occurrence of a License Revocation that continues for
seven consecutive calendar days with respect to gaming operations at any
gaming facility accounting for ten percent or more of the consolidated
total assets or consolidated gross revenues of Borrower and its
Subsidiaries.
9.2 Remedies Upon Event of Default. Without limiting any other
------------------------------
rights or remedies of the Creditors provided for elsewhere in this Agreement, or
the other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 9.1(k):
----- ----
(1) the Commitment to make Advances and all other obligations of
the Creditors and all rights of Borrower, the Co-Borrowers and any
other Parties under the Loan Documents shall be suspended without
notice to or demand upon Borrower or any Co-Borrower, which are
expressly waived by Borrower and the Co-Borrowers, except that all of
------
the Banks or the Requisite Banks (as the case may be, in accordance
with Section 11.2) may waive an Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to the Banks or
Requisite Banks, as the case may be, to reinstate the Commitment and
such other obligations and rights and make further Advances, which
waiver or determination shall apply equally to, and shall be binding
upon, all the Banks;
(2) [Reserved]; and
(3) the Requisite Banks may request the Administrative Agent to,
and the Administrative Agent thereupon shall, terminate the Commitment
and/or declare all or any part of the unpaid principal of all Notes,
all interest accrued and unpaid thereon and all other amounts payable
under the Loan Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by Borrower and each Co-
Borrower.
(b) Upon the occurrence, and during the continuance, of any Event
of Default described in Section 9.1(k):
(1) the Commitment to make Advances and all other obligations of
the Creditors and all rights of Borrower, the Co-Borrowers and any
other Parties under the Loan Documents shall terminate without notice
to or demand upon Borrower or any Co-Borrower, which are expressly
waived by Borrower and the Co-Borrowers, except
------
that all of the Banks may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to all the
Banks, to reinstate the Commitment and such other obligations and
rights and make further Advances, which determination shall apply
equally to, and shall be binding upon, all the Banks;
(2) [Reserved]; and
(3) the unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents
shall be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which
are expressly waived by Borrower and the Co-Borrowers.
(c) Upon the occurrence, and during the continuance, of any Event
of Default, the Creditors, or any of them, without notice to (except as
------
expressly provided for in any Loan Document) or demand upon Borrower or any
Co-Borrower, which are expressly waived by Borrower and the Co-Borrowers
(except as to notices expressly provided for in any Loan Document), may
-------
proceed (but only with the consent of the Requisite Banks) to protect,
exercise and enforce their rights and remedies under the Loan Documents
against Borrower, the Co-Borrowers and any other Party and such other
rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Creditors' rights and
remedies are to be exercised shall be determined by the Requisite Banks in
their sole discretion, and all payments received by the Creditors, or any
of them, shall be applied first to the costs and expenses (including
reasonable attorneys' fees and disbursements and the reasonably allocated
costs of attorneys employed by any of the Creditors) of the Creditors, and
thereafter paid pro rata to the Banks in the same proportions that the
aggregate Obligations owed to each Bank under the Loan Documents bear to
the aggregate Obligations owed under the Loan Documents to all the Banks,
without priority or preference among the Banks. Regardless of how each
Bank may treat payments for the purpose of its own accounting, for the
purpose of computing the Obligations hereunder and under the Notes,
payments shall be applied first, to the costs and expenses of the
-----
Creditors, as set forth above, second, to the payment of accrued and unpaid
------
interest due under any Loan Documents to and including the date of such
application (ratably, and without duplication, according to the accrued and
unpaid interest due under each of the Loan Documents), and third, to the
-----
payment of all other amounts (including principal and fees) then owing to
the Creditors under the Loan Documents. Amounts due to a Bank under a
Related Swap Agreement shall be considered a principal amount for purposes
of the preceding sentence. No application of payments will cure any Event
of Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Banks hereunder or thereunder or at
Law or in equity.
Article 10
THE ADMINISTRATIVE AGENT
------------------------
10.1 Appointment and Authorization. Subject to Section 10.8, each
-----------------------------
Bank hereby irrevocably appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof or
are reasonably incidental, as determined by the Administrative Agent, thereto.
This appointment and authorization is intended solely for the purpose of
facilitating the servicing of the Loans and does not constitute appointment of
the Administrative Agent as trustee for any Bank or as representative of any
Bank for any other purpose and, except as specifically set forth in the Loan
------
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of America (and
-----------------------------------
each successor Administrative Agent) has the same rights and powers under the
Loan Documents as any other Bank and may exercise the same as though it were not
the Administrative Agent, and the term "Bank" or "Banks" includes Bank of
America in its individual capacity. Bank of America (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Borrower, any Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary
thereof, as if it were not the Administrative Agent and without any duty to
account therefor to the Banks. Bank of America (and each successor
Administrative Agent) need not account to any other Bank for any monies received
by it for reimbursement of its costs and expenses as Administrative Agent
hereunder, or for any monies received by it in its capacity as a Bank hereunder.
The Administrative Agent shall not be deemed to hold a fiduciary or other
special relationship with any Bank and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The Administrative
----------------------------------------
Agent, on behalf of all the Banks, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held by
the Administrative Agent. Subject to the Administrative Agent's and the Banks'
rights to reimbursement for their costs and expenses hereunder (including
---------
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or a Bank) and subject to the application of payments in accordance with Section
9.2(d), each Bank shall have an interest in the Banks' interest in the
collateral or interests therein in the same proportions that the aggregate
Obligations owed such Bank under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Banks, without priority or
preference among the Banks, except that Obligations owed to any Bank under a
------
Related Swap Agreement shall be secured on an equal, ratable and pari passu
---- -----
basis with all other Obligations up to an amount equal to the Administrative
Agent's then customary credit risk factor for Swap Agreements times the notional
amount of Indebtedness covered by such Related Swap Agreement and shall be
secured on a subordinate basis as to amounts in excess of such amount.
10.4 Banks' Credit Decisions. Each Bank agrees that it has,
-----------------------
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys thereof, and
instead in reliance upon information supplied to it by or on behalf of Borrower
and its Subsidiaries and upon such other information as it has deemed
appropriate, made its own inde-
pendent credit analysis and decision to enter into this Agreement. Each Bank
also agrees that it shall, independently and without reliance upon the
Administrative Agent, any other Creditor or the directors, officers, agents,
employees or attorneys thereof, continue to make its own independent credit
analyses and decisions in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
------------------------------
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default
has occurred and is continuing, unless the Administrative Agent has
received notice from Borrower and the Co-Borrowers stating the nature of
the Default or has received notice from a Bank stating the nature of the
Default and that such Bank considers the Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those obligations under the
Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
------
Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
------
upon the instructions of the Requisite Banks (or of all the Banks, to the
extent required by Section 11.2) and those instructions shall be binding
upon the Administrative Agent and all the Banks, provided that the
--------
Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Law or could
result, in the judgment of the Administrative Agent, in a material risk of
liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice specified
in clause (a), the Administrative Agent shall immediately give notice
thereof to the Banks and shall act or not act upon the instructions of the
Requisite Banks (or of all the Banks, to the extent required by Section
11.2), provided that the Administrative Agent shall not be required to act
--------
or not act if to do so would be contrary to any Loan Document or to
applicable Law or could result, in the judgment of the Administrative
Agent, in a material risk of liability to the Administrative Agent, and
except that if the Requisite Banks (or all the Banks, if required under
------
Section 11.2) fail, for five Banking Days after the receipt of notice from
the Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Banks.
(e) The Administrative Agent shall have no liability to any Bank
for acting, or not acting, as instructed by the Requisite Banks (or all the
Banks, if required under Section 11.2), notwithstanding any other provision
hereof.
10.6 Liability of Administrative Agent. Neither the Administrative
---------------------------------
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or willful
------
misconduct. Without limitation on the foregoing, the Administrative Agent and
its directors, officers, agents and employees:
(a) May treat the payee of any Note as the holder thereof until
the Administrative Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Administrative Agent, signed by the
payee, and may treat each Bank as the owner of that Bank's interest in the
Obligations for all purposes of this Agreement until the Administrative
Agent receives notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by that Bank;
(b) May consult with legal counsel (including in-house legal
---------
counsel), accountants (including in-house accountants) and other
---------
professionals or experts selected by it, or with legal counsel, accountants
or other professionals or experts for Borrower and/or its Subsidiaries or
the Banks, and shall not be liable for any action taken or not taken by it
in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts;
(c) Shall not be responsible to any Bank for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents;
(d) Shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms, conditions
or covenants of any of the Loan Documents or to inspect any collateral or
the Property, books or records of Borrower or its Subsidiaries;
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency
or value of any Loan Document, any other instrument or writing furnished
pursuant thereto or in connection therewith, or any collateral;
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed in good faith by it to be
genuine and signed or sent by the proper party or parties; and
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrower or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any
Bank under any Loan Document, including, principal, interest, commitment
---------
fees, Advances and other amounts; provided that, promptly upon discovery of
--------
such an error in computation, the Administrative Agent, the Banks and (to
the extent applicable) Borrower and/or its Subsidiaries or Affiliates shall
make such adjustments as are necessary to correct such error and to restore
the parties to the position that they would have occupied had the error not
occurred.
10.7 Indemnification. Each Bank shall, ratably in accordance with
---------------
its Pro Rata Share (if the Commitment is then in effect) or in accordance with
its proportion of the aggregate Indebtedness
then evidenced by the Notes (if the Commitment has then been terminated),
indemnify and hold the Administrative Agent and its directors, officers, agents,
employees and attorneys harmless against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
---------
attorneys' fees and disbursements and allocated costs of attorneys employed by
the Administrative Agent) that may be imposed on, incurred by or asserted
against it or them in such capacity in any way relating to or arising out of the
Loan Documents (other than losses incurred by reason of the failure of Borrower
and the Co-Borrowers to pay the Indebtedness represented by the Notes) or any
action taken or not taken by it as Administrative Agent thereunder, except such
------
as result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each Bank shall reimburse the Administrative Agent
upon demand for that Bank's Pro Rata Share of any out-of-pocket cost or expense
incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement or attempted
---------
enforcement of the Loan Documents, to the extent that Borrower, any Co-Borrower
or any other Party is required by Section 11.3 to pay that cost or expense but
fails to do so upon demand. Nothing in this Section shall entitle the
Administrative Agent to recover any amount from the Banks if and to the extent
that such amount has theretofore been recovered from Borrower, and Co-Borrower
or any other Party. To the extent that the Administrative Agent is later
reimbursed such cost or expense by Borrower, a Co-Borrower or any other Party,
it shall return the amounts paid to it by the Banks in respect of such cost or
expense.
10.8 Successor Administrative Agent. The Administrative Agent may,
------------------------------
and at the request of the Requisite Banks shall, resign as Administrative Agent
upon thirty days' notice to the Banks and Borrower. If the Administrative Agent
shall resign as Administrative Agent under this Agreement, the Requisite Banks
shall appoint from among the Banks a successor Administrative Agent for the
Banks, which successor Administrative Agent shall be approved by Borrower (and
such approval shall not be unreasonably withheld or delayed), provided that, to
--------
the extent required by applicable Gaming Laws, the incumbent Administrative
Agent shall remain the collateral agent for the Creditors with respect to any
collateral for which a lienholder must be qualified under such Gaming Laws until
the new Administrative Agent can be so qualified (but the incumbent
Administrative Agent shall be entitled to the indemnities and other protections
provided to the Administrative Agent hereunder in such capacity). If no
successor Administrative Agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Banks and the Borrower, a successor Administrative
Agent from among the Banks. Upon the acceptance of its appointment as successor
Administrative Agent hereunder, such successor Administrative Agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
Administrative Agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article 10, and Sections 11.3, 11.11 and 11.22, shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If (a) the Administrative Agent has
not been paid its agency fees under Section 3.6 or has not been reimbursed for
any expense reimbursable to it under Section 11.3, in either case for a period
of at least one year and (b) no successor Administrative Agent has accepted
appointment as Administrative Agent by the date which is thirty days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks
shall perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Requisite Banks appoint a successor Administrative Agent as
provided for above.
10.9 Foreclosure on Collateral. In the event of foreclosure or
-------------------------
enforcement of the Lien created by any of the Loan Documents, title to any
collateral encumbered thereby shall be taken and held by the Administrative
Agent (or an Affiliate or designee thereof) pro rata for the benefit of the
Banks in accordance with the Obligations outstanding to each of them and shall
be administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities.
10.10 Intercreditor Arrangements; Attornment Agreements. Provided
-------------------------------------------------
that no Default or Event of Default has then occurred, the Administrative Agent
is hereby irrevocably authorized by the other Creditors to enter into (a)
intercreditor arrangements acceptable to the Administrative Agent with creditors
(or a trustee or other representative for such creditors) holding the Mirage
Senior Notes, the MGM Senior Notes and the Other Loan Agreements to effectuate
the provisions of Section 6.7 requiring any Liens of the Administrative Agent to
be equal, ratable and pari passu with the creditors holding the Mirage Senior
---- -----
Notes, the MGM Senior Notes and the Other Loan Agreements, provided that any
such arrangements shall require the concurrent release of the Liens held by such
creditors if a Collateral Release occurs, and (b) attornment, non-disturbance
and estoppel agreements acceptable to the Administrative Agent with lessees of
interests in leases of real property from Borrower and its Restricted
Subsidiaries permitted hereby, provided in each case that not less than 5
--------
Business Days prior to entering into any such arrangement or agreement, the
Administrative Agent shall circulate drafts thereof to the Banks, and the
Requisite Banks shall not have objected to the form thereof.
10.11 No Obligations of Borrower and the Co-Borrowers. Nothing
-----------------------------------------------
contained in this Article 10 shall be deemed to impose upon Borrower or any Co-
Borrower any obligation in respect of the due and punctual performance by the
Administrative Agent of its obligations to the Banks under any provision of this
Agreement, and Borrower and the Co-Borrowers shall have no liability to the
Administrative Agent or any of the Banks in respect of any failure by the
Administrative Agent or any Bank to perform any of its obligations to the
Creditors under this Agreement. Without limiting the generality of the
foregoing, where any provision of this Agreement relating to the payment of any
amounts due and owing under the Loan Documents provides that such payments shall
be made by Borrower or the Co-Borrower to the Administrative Agent for the
account of the Banks, Borrower's and the Co-Borrowers' obligations to the Banks
in respect of such payments shall be deemed to be satisfied upon the making of
such payments to the Administrative Agent in the manner provided by this
Agreement.
Article 11
MISCELLANEOUS
-------------
11.1 Cumulative Remedies; No Waiver. The rights, powers,
------------------------------
privileges and remedies of the Creditors provided herein or in any Note or other
Loan Document are cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the part of the
Administrative Agent or any Bank in exercising any right, power, privilege or
remedy may be, or may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other or
further exercise of the same or any other right, power, privilege or remedy.
The terms and conditions of Article 8 hereof are inserted for the sole benefit
of the Creditors; the same may be waived in whole or in part, with or without
terms or conditions, in respect of any Loan without prejudicing the
Administrative Agent's or the Banks' rights to assert them in whole or in part
in respect of any other Loan.
11.2 Amendments; Consents. Each amendment, modification,
--------------------
supplement, extension, termination, waiver, approval and consent under this
Agreement and the other Loan Documents shall be subject to the terms of all
applicable Laws, including Gaming Laws. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by the Borrower, the Co-Borrowers or any other Party therefrom, may in
any event be effective unless in writing signed by the Administrative Agent with
the approval of Requisite Banks (and, in the case of any amendment, modification
or supplement of or to any Loan Document to which the Borrower or any of its
Subsidiaries is a Party, signed by each such Party, and, in the case of any
amendment, modification or supplement to Article 10, signed by the
Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of all the Banks,
no amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To (i) reduce the principal of, or the amount of principal,
principal prepayments or the rate of interest payable on, any Note, or (ii)
to increase the amount of the Commitment or the Pro Rata Share of any Bank
or (iii) to reduce the amount of any commitment fee payable to any Bank, or
any other fee or amount payable to any Bank 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 facility or
other fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Note or
any installment of any commitment fee, or to extend the term of the
Commitment;
(c) [Reserved];
(d) To release the Guaranty or any material portion of any
collateral for the Obligations, provided that if no Default or Event of
--------
Default exists, the Administrative Agent may without the consent of any
Bank (and shall at the request of Borrower), (i) release its Lien in any
personal property financed or leased by the Borrower or its Subsidiaries
and granted a Lien in accordance with Section 6.7(e), (ii) release its Lien
in any collateral as otherwise may be expressly provided for in any Loan
Document, (iii) release its Lien in the equity securities of,
and the Guaranty executed by, any Subsidiary which is the subject of a
Disposition permitted under Section 6.2 or which has Property having a
value of less than $500,000 as of the date of such release, (iv)
subordinate its Lien with respect to any Property which is the subject of a
Disposition permitted under Section 6.2, (v) release its Lien in any
Property which is the subject of a Distribution not prohibited by this
Agreement, and (vi) release all of the Liens under the Loan Documents in a
Collateral Release under Section 2.12.
(e) To amend the provisions of the definitions of "Requisite
---------
Banks" or "Maturity Date";
----- -------------
(f) To amend or waive Article 8, Section 6.4 or this Section; or
(g) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Banks.
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.
11.3 Costs, Expenses and Taxes. Borrower and the Co-Borrowers
-------------------------
shall pay within five Banking Days after demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the Administrative Agent and the
Lead Arranger in connection with the negotiation, preparation, syndication,
execution and delivery of the Loan Documents and any amendment thereto or waiver
thereof. Borrower and the Co-Borrowers shall also pay on demand, accompanied by
an invoice therefor, the reasonable costs and expenses of the Creditors in
connection with the refinancing, restructuring, reorganization (including a
---------
bankruptcy reorganization) and enforcement or attempted enforcement of the Loan
Documents, and any matter related thereto. The foregoing costs and expenses
shall include filing fees, recording fees, title insurance fees, appraisal fees,
search fees, and other out-of-pocket expenses and the reasonable fees and out-
of-pocket expenses of any legal counsel (including reasonably allocated costs of
---------
legal counsel employed by the Administrative Agent or any Bank), independent
public accountants and other outside experts retained by the Administrative
Agent or any Bank, whether or not such costs and expenses are incurred or
suffered by the Administrative Agent or any Bank in connection with or during
the course of any bankruptcy or insolvency proceedings of Borrower or any
Subsidiary thereof. Such costs and expenses shall also include, in the case of
any amendment or waiver of any Loan Document requested by Borrower or the Co-
Borrowers, the administrative costs of the Administrative Agent reasonably
attributable thereto. Borrower and the Co-Borrowers shall pay any and all
documentary and other taxes, excluding (i) taxes imposed on or measured in whole
---------
or in part by overall net income, gross income or gross receipts and franchise
taxes imposed on any Bank by (A) any jurisdiction (or political subdivision
thereof) in which it is organized or maintains its principal office or
Eurodollar Lending Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business", (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America that are not
attributable to any change in any Law or the interpretation or administration of
any Law by any Governmental Agency and (iii) any withholding tax or other taxes
based on gross income imposed by the United States of America for any period
with respect to which it has failed to provide Borrower with the appropriate
form or forms required by Section 11.21, to the extent such forms are then
required by applicable Laws, and all costs, expenses, fees and charges payable
or determined to be payable in connection with the filing or recording of this
Agreement, any other Loan Document or any other instrument or writing to be
delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on
the terms set forth in 11.11 the Creditors from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative Agent or any
Bank under this Section shall bear interest from the second Banking Day
following the date of demand for payment at the Default Rate.
11.4 Nature of Banks' Obligations. The obligations of the Banks
----------------------------
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the Creditors
or any of them pursuant hereto or thereto may, or may be deemed to, make the
Banks a partnership, an association, a joint venture or other entity, either
among themselves or with the Borrower, the Co-Borrowers or any Affiliate of
Borrower. Each Bank's obligation to make any Advance pursuant hereto is several
and not joint or joint and several, and in the case of the initial Advance only
is conditioned upon the performance by all other Banks of their obligations to
make initial Advances. A default by any Bank will not increase the Pro Rata
Share of any other Bank. Any Bank not in default may, if it desires, assume in
such proportion as the nondefaulting Banks agree the obligations of any Bank in
default, but is not obligated to do so. The Administrative Agent agrees that it
will use its best efforts either to induce the other Banks to assume the
obligations of a Bank in default or to obtain another Bank, reasonably
satisfactory to Borrower and the Co-Borrowers, to replace such a Bank in
default.
11.5 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Bank, notwithstanding any
investigation made by the Administrative Agent or any Bank or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
------- ------
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Borrower and the Co-Borrower expressly agree that the credit
facilities provided hereunder are being provided for the joint convenience of
Borrower and its Restricted Subsidiaries, including the Co-Borrowers, and that
(despite the joint and several nature of the Obligations), it is expected that
Borrower shall administer the Advances on behalf of itself and the Co-Borrowers.
Accordingly, Borrower and the Co-Borrowers agree that any notice provided to
Borrower hereunder shall be deemed to constitute the same notice to the Co-
Borrowers, without the requirement that separate notices be provided to the Co-
Borrowers. Except as otherwise expressly provided in any Loan Document, if any
------
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given by
telecopier, when sent; if dispatched by commercial courier, on the scheduled
delivery date; or if given by personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative Agent
---------------------------
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party followed by prompt transmission of an original
signature. The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts hereof or
thereof, as the case may be, have been executed by all the parties hereto or
thereto.
11.8 Binding Effect; Assignment.
--------------------------
(a) This Agreement and the other Loan Documents to which Borrower
and the Co-Borrowers are a Party will be binding upon and inure to the
exclusive benefit of Borrower, the Co-Borrowers, the Creditors, and their
respective successors and assigns, except that Borrower and the Co-
------
Borrowers may not assign their respective rights hereunder or thereunder or
any interest herein or therein without the prior written consent of all the
Banks. Each Bank represents that it is not acquiring its Notes with a
view to the distribution thereof within the meaning of the Securities Act
of 1933, as amended (subject to any requirement that disposition of its
Notes must be within the control of such Bank). Any Bank may at any time
pledge its Notes or any other instrument evidencing its rights as a Bank
under this Agreement to a Federal Reserve Bank, but no such pledge shall
release that Bank from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Bank hereunder absent foreclosure of such
pledge.
(b) From time to time, each Bank may assign to one or more
Eligible Assignees all or any portion of its Pro Rata Share, provided that
--------
(i) such Eligible Assignee, if not then a Bank or an Affiliate of the
assigning Bank, shall be approved by each of the Administrative Agent and
(if no Event of Default then exists) Borrower and the Co-Borrowers (none of
which approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by an Assignment Agreement, a copy of which
shall be furnished to the Administrative Agent as hereinbelow provided,
(iii) except in the case of an assignment to an Affiliate of the assigning
------
Bank, to another Bank or of the entire remaining Commitment of the
assigning Bank, the assignment shall not assign a Pro Rata Share that is
less than $5,000,000, (iv) the effective date of any such assignment shall
be as specified in the Assignment Agreement, but not earlier than the date
which is five Banking Days after the date the Administrative Agent has
received the Assignment Agreement, (v) such assignment shall be of a
constant and non-varying percentage of the Pro Rata Share of the assigning
Bank, and (vi) the assignor Bank shall have paid a $3500 assignment fee to
the Administrative Agent. Upon the effective date of such Assignment
Agreement, the Eligible Assignee named therein shall be a Bank for all
purposes of this Agreement, with the Pro Rata Share set forth therein and,
to the extent of such Pro Rata Share, the assigning Bank shall be released
from its further obligations under this Agreement. Borrower and the Co-
Borrowers agree that they shall execute and
deliver (against delivery by the assigning Bank to Borrower of its Note) to
such assignee Bank, a Note evidencing that assignee Bank's Pro Rata Share,
and to the assigning Bank, a Note evidencing the remaining balance Pro Rata
Share retained by the assigning Bank.
(c) By executing and delivering a Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other than
the representation and warranty that it is the legal and beneficial owner
of the Pro Rata Share being assigned thereby free and clear of any adverse
claim, the assigning Bank has made no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or sufficiency
of this Agreement or any other Loan Document; (ii) the assigning Bank has
made no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or its Subsidiaries or the
performance by Borrower and its Subsidiaries of the Obligations; (iii) it
has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.1 and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment Agreement;
(iv) it will, independently and without reliance upon the Administrative
Agent or any Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) it appoints and
authorizes the Administrative Agent to take such action and to exercise
such powers under this Agreement as are delegated to the Administrative
Agent by this Agreement; and (vi) it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Assignment Agreement delivered to it and a
register (the "Register") of the names and address of each of the Banks and
the Pro Rata Share held by each Bank, giving effect to each Assignment
Agreement. The Register shall be available during normal business hours
for inspection by Borrower, the Co-Borrowers or any Bank upon reasonable
prior notice to the Administrative Agent. Borrower, the Co-Borrowers and
the Creditors shall deem and treat the Persons listed as Banks in the
Register as the holders and owners of the Pro Rata Share listed therein for
all purposes hereof, and no assignment or transfer of any such Pro Rata
Share shall be effective, in each case unless and until a Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by the Administrative Agent and recorded in the Register as
provided above. Prior to such recordation, all amounts owed with respect
to the applicable Pro Rata Share shall be owed to the Bank listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Bank shall be conclusive and
binding on any subsequent holder, assignee or transferee of the
corresponding Pro Rata Share.
(e) Each Bank may from time to time grant participations to one
or more banks or other financial institutions (including another Bank) in a
---------
portion of its Pro Rata Share; provided, however, that (i) such Bank's
-------- -------
obligations under this Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall
not be a Bank hereunder for any purpose except, if the participation
------
agreement so provides, for the purposes of Sections 3.7, 3.8, 11.11 and
11.22 but only to the extent that the cost of such benefits to Borrower and
the Co-Borrowers does not exceed the cost which Borrower and the Co-
Borrowers would have incurred in respect of such Bank absent the
participation, (iv) Borrower, the Co-Borrowers, the Administrative Agent
and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement, (v) the participation interest shall be expressed as a
percentage of the granting Bank's Pro Rata Share as it then exists and
shall not restrict an increase in the Commitment, or in the granting Bank's
Pro Rata Share, so long as the amount of the participation interest is not
affected thereby, and (vi) the consent of the holder of such participation
interest shall not be required for amendments or waivers of provisions of
the Loan Documents other than those which (A) extend the Maturity Date or
----------
any other date upon which any payment of money is due to the Banks, (B)
reduce the rate of interest on the Notes, any fee or any other monetary
amount payable to the Banks, (C) reduce the amount of any installment of
principal due under the Notes, (D) release the Guaranty, or (E) change the
definition of "Requisite Banks."
(f) Notwithstanding anything in this Section to the contrary, the
rights of the Banks to make assignments of, and grant participations in,
their Pro Rata Shares of the Commitment shall be subject to the approval of
any Gaming Board, to the extent required by applicable Gaming Laws, and to
compliance with applicable securities laws, if any.
(g) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to one or more SPC's established or
maintained by that Granting Bank the option to provide all or any part of
any Loan or Advance that such Granting Bank would otherwise be obligated to
make pursuant to Sections 2.1, 2.2 or 2.3, provided that (i) nothing herein
shall constitute a commitment to make any Loan by any SPC, (ii) if a SPC
elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof, and (iii) the rights of any such SPC shall be
derivative of the rights of the Granting Bank, and each SPC shall be
subject to all of the restrictions upon the Granting Bank herein contained.
Each SPC shall be conclusively presumed to have made arrangements with its
Granting Bank for the exercise of voting and other rights hereunder in a
manner which is acceptable to the SPC, and the Administrative Agent, the
other Creditors, Borrower, the Co-Borrowers and each other Party shall be
entitled to rely upon and deal solely with the Granting Bank with respect
to Loans and Advances made by or through its SPC. The making of a Loan by
a SPC hereunder shall utilize the Commitment of the Granting Bank to the
same extent, and as if, such Loan were made by the Granting Bank. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which
shall remain with the related Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings
under the laws of the United States or any State thereof, provided that the
-------- ----
Granting Bank for each SPC hereby agrees to indemnify, save, and hold
harmless each other party hereto for any loss, cost, damage and expense
arising out of their
inability to institute any such proceeding against its SPC. In addition,
notwithstanding anything to the contrary contained in this Section 11.8,
any SPC may (i) with notice to, but without the prior written consent of,
the Borrower, the Co-Borrowers or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Bank or to any financial
institutions providing liquidity and/or credit facilities to or for the
account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans (but nothing
contained herein shall be construed in derogation of the obligation of the
Granting Bank to make Loans hereunder), provided that neither the consent
-------- ----
of the SPC or of any such assignee shall be required for amendments or
waivers of provisions of the Loan Documents except for those amendments or
waivers for which the consent of participants is required under Section
11.8(e)(vi), and (ii) disclose on a confidential basis (in the same manner
described in Section 11.14) any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of a
surety, guarantee or credit or liquidity enhancement to such SPC.
11.9 Right of Setoff. If an Event of Default has occurred and is
---------------
continuing, the Administrative Agent or any Bank (but in each case only with the
consent of the Requisite Banks) may exercise its rights under Article 9 of the
Uniform Commercial Code and other applicable Laws and, to the extent permitted
by applicable Laws, apply any funds in any deposit account maintained with it by
Borrower, the Co-Borrowers and/or any of their Property in its possession
against the Obligations.
11.10 Sharing of Setoffs. Each Bank severally agrees that if it,
------------------
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, any Co-Borrower, or otherwise, receives payment of the
Obligations held by it that is ratably more than any other Bank, through any
means, receives in payment of the Obligations held by that Bank, then, subject
to applicable Laws: (a) the Bank exercising the right of setoff, banker's lien
or counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Bank a participation in
the Obligations held by the other Bank and shall pay to the other Bank a
purchase price in an amount so that the share of the Obligations held by each
Bank after the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Banks
share any payment obtained in respect of the Obligations ratably in accordance
with each Bank's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion of a
--------
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Bank by Borrower, any Co-Borrower or any Person claiming through
or succeeding to the rights of Borrower or a Co-Borrower, the purchase of a
participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Bank that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Bank were the original owner of the Obligations purchased. Borrower and each
Co-Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in an Obligation so purchased may exercise any and
all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Bank were the original owner of the Obligation
purchased.
11.11 Indemnity by Borrower and the Co-Borrowers. Borrower and
------------------------------------------
each Co-Borrower jointly and severally agrees to indemnify, save and hold
harmless the Administrative Agent and each Bank and their Affiliates and their
directors, officers, agents, attorneys and employees (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
------------
causes of action (except a claim, demand, action, or cause of action for any
------
amount excluded from the definition of "Taxes" in Section 3.12(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, its Subsidiaries or any of
their officers, directors or stockholders relating to the Commitment, the use or
contemplated use of proceeds of any Loan, or the relationship of Borrower, the
Co-Borrowers and the Banks under this Agreement; (b) any administrative or
investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clause (a) above; and
(c) any and all liabilities, losses, costs or expenses (including reasonable
---------
attorneys' fees and the reasonably allocated costs of attorneys employed by any
Indemnitee and disbursements of such attorneys and other professional services)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that no Indemnitee
--------
shall be entitled to indemnification under this Section for any loss caused by
its own gross negligence or willful misconduct or for any loss asserted against
it by another Indemnitee. If any claim, demand, action or cause of action is
asserted against any Indemnitee, such Indemnitee shall promptly notify Borrower
and the Co-Borrowers, but the failure to so promptly notify Borrower and the Co-
Borrowers shall not affect their obligations under this Section unless such
failure materially prejudices Borrower's and the Co-Borrowers' right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
and the Co-Borrowers in writing) contest the validity, applicability and amount
of such claim, demand, action or cause of action and shall permit Borrower and
the Co-Borrowers to participate in such contest. Any Indemnitee that proposes
to settle or compromise any claim or proceeding for which Borrower or any Co-
Borrower may be liable for payment of indemnity hereunder shall give Borrower
and the Co-Borrowers written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Borrower's and each Co-Borrowers prior consent
(which shall not be unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this Section against more
than one Indemnitee, all such Indemnitees shall be represented by the same legal
counsel (which may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrower and the Co-Borrowers;
provided, that if such legal counsel determines in good faith that representing
--------
all such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower and the Co-
Borrowers, with all such legal counsel using reasonable efforts to avoid
unnecessary duplication of effort by counsel for all Indemnitees; and further
-------
provided that the Administrative Agent (as an Indemnitee) shall at all times be
--------
entitled to representation by separate legal counsel (which may be a law firm or
attorneys employed by the Administrative Agent or a combination of the
foregoing). Any obligation or liability of Borrower and the Co-Borrowers to any
Indemnitee under this Section shall survive the expiration or termination of
this Agreement, the repayment of all Loans and the payment and performance of
all other Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrower and each Co-Borrower
-------------------------
acknowledges and agrees that:
(a) Any inspections of any Property of Borrower and its
Subsidiaries made by or through the Creditors are for purposes of
administration of the Loans only and Borrower and its Affiliates are not
entitled to rely upon the same (whether or not such inspections are at the
expense of Borrower or its Subsidiaries);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Creditors pursuant to the Loan
Documents, neither the Administrative Agent nor the Banks shall be deemed
to have warranted or represented the sufficiency, legality, effectiveness
or legal effect of the same, or of any term, provision or condition
thereof, and such acceptance or approval thereof shall not constitute a
warranty or representation to anyone with respect thereto by the Creditors;
(c) The relationship between Borrower and the Co-Borrowers and
the Creditors is, and shall at all times remain, solely that of borrowers
and lenders; neither the Administrative Agent nor the Banks shall under any
circumstance be construed to be partners or joint venturers of Borrower or
its Affiliates; neither the Administrative Agent nor the Banks shall under
any circumstance be deemed to be in a relationship of confidence or trust
or a fiduciary or other "special" relationship with Borrower or its
Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates;
neither the Administrative Agent nor the Banks undertake or assume any
responsibility or duty to Borrower or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform Borrower or its Affiliates
of any matter in connection with their Property or the operations of
Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Creditors in connection with such matters is
solely for the protection of the Creditors and neither Borrower, the Co-
Borrowers nor any other Person is entitled to rely thereon; and
(d) The Creditors shall not be responsible or liable to any
Person for any loss, damage, liability or claim of any kind relating to
injury or death to Persons or damage to Property caused by the actions,
inaction or negligence of Borrower and/or its Affiliates and Borrower and
the Co-Borrowers hereby indemnify and hold the Creditors harmless on the
terms set forth in Section 11.11 from any such loss, damage, liability or
claim.
11.13 No Third Parties Benefitted. 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 11.29 no other Person shall have any rights of any nature hereunder
or by reason hereof.
11.14 Confidentiality. Each Bank agrees to hold any confidential
---------------
information that it may receive from Borrower and the Co-Borrowers pursuant to
this Agreement in confidence, except for disclosure: (a) to other Banks (or,
------
subject to appropriate confidentiality restrictions, Affiliates of any Bank);
(b) to legal counsel and accountants for Borrower and the Co-Borrowers or any
Bank; (c) to other professional advisors to Borrower and the Co-Borrowers or any
Bank, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section; (d) to regulatory officials having
jurisdiction over that Bank; (e) to any Gaming Board having regulatory
jurisdiction over Borrower or its Subsidiaries, provided that each Bank agrees
to use its best efforts to notify Borrower and the Co-Borrowers of any such
disclosure unless prohibited by applicable Laws; (f) as required by Law or legal
process or in connection with any legal proceeding to which that Bank and
Borrower or any of its Subsidiaries are adverse parties; and (g) to another
financial institution in connection with a disposition or proposed disposition
to that financial institution of all or part of that Bank's interests hereunder
or a 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 Bank, and (iii) information previously disclosed by
Borrower or its Subsidiaries to any Person not associated with Borrower without
a confidentiality agreement or obligation substantially similar to this Section.
Nothing in this Section shall be construed to create or give rise to any
fiduciary duty on the part of the Creditors to Borrower or any other Party.
11.15 Further Assurances. Borrower and its Subsidiaries shall, at
------------------
their expense and without expense to the Banks or the Administrative Agent, do,
execute and deliver such further acts and documents as the Requisite Banks or
the Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Banks or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, the other Loan Documents, and
-----------
the letter agreements referred to in Sections 3.2, 3.3 and 3.6, comprise the
complete and integrated agreements of the parties on the subject matter hereof
and supersedes all prior agreements, written or oral, on the subject matter
hereof. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control and govern; provided that the inclusion of supplemental rights or
--------
remedies in favor of the Creditors in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
------------- ------
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the local Laws of Nevada.
11.18 Severability of Provisions. Any provision in any Loan
--------------------------
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and
--------
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
-------------------
Documents.
11.21 Foreign Banks and Participants. Each Bank that is
------------------------------
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrower (with a copy to the Administrative Agent), within
twenty (20) days after the Closing Date (or after accepting an assignment or
receiving a participation interest herein pursuant to Section 11.8, if
applicable) two duly completed copies, signed by a Responsible Official, of
either Form 1001 (relating to such Bank and entitling it to a complete exemption
from withholding on all payments to be made to such Bank by Borrower and the Co-
Borrowers pursuant to this Agreement) or Form 4224 (relating to all payments to
be made to such Bank by Borrower and the Co-Borrowers pursuant to this
Agreement) of the United States Internal Revenue Service or such other evidence
(including, if reasonably necessary, Form W-9), or any successor form(s),
---------
satisfactory to Borrower and the Co-Borrowers and the Administrative Agent that
no withholding under the federal income tax laws is required with respect to
such Bank. Thereafter and from time to time, each such Bank shall upon request
by Borrower and the Co-Borrowers (a) promptly submit to Borrower and the Co-
Borrowers (with a copy to the Administrative Agent), such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrower, the Co-
Borrowers and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Bank by
Borrower and the Co-Borrowers pursuant to this Agreement and (b) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Bank, and as may be reasonably necessary (including the re-designation of
its Eurodollar Lending Office, if any) to avoid any requirement of applicable
Laws that Borrower and the Co-Borrowers make any deduction or withholding for
taxes from amounts payable to such Bank. In the event that Borrower, the Co-
Borrowers or the Administrative Agent become aware that a participation has been
granted pursuant to Section 11.8(e) to a financial institution that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America, any State thereof or the District of Columbia,
then, upon request made by Borrower, the Co-Borrowers or the Administrative
Agent to the Bank which granted such participation, such Bank shall cause such
participant financial institution to deliver the same documents and information
to Borrower, the Co-Borrowers and the Administrative Agent as would be required
under this Section if such financial institution were a Bank.
11.22 Hazardous Material Indemnity. Borrower and each Co-Borrower
----------------------------
hereby agrees to indemnify, hold harmless and defend (by counsel reasonably
satisfactory to the Administrative Agent) the Administrative Agent and each of
the Banks (and any successor to a Bank) and their respective directors,
officers, employees and agents from and against any and all claims, losses,
damages, liabilities, fines, penalties, charges, administrative and judicial
proceedings and orders, judgments, remedial action requirements, enforcement
actions of any kind, and all costs and expenses incurred in connection therewith
(including reasonable attorneys' fees and the reasonably allocated costs of
---------
attorneys employed by the Administrative Agent or any Bank, and expenses to the
extent that the defense of any such action has not been assumed by Borrower and
the Co-Borrowers), arising directly
or indirectly out of (i) the presence on, in, under or about any Real Property
of any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by Borrower its Subsidiaries or any of
their predecessors in title, whether prior to or during the term of this
Agreement, and whether by Borrower, its Subsidiaries or any predecessor in title
or any employees, agents, contractors or subcontractors of Borrower, its
Subsidiaries or any predecessor in title, or any third persons at any time
occupying or present on any Real Property (other than a Bank or a representative
----------
of a Bank), in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials at
any time located or present on, in, under or about any Real Property; provided
--------
that, anything to the contrary herein notwithstanding (including Exhibit J), the
liability of Detroit shall be limited to that portion of the Obligations which
are used, directly or indirectly, to finance the design, development,
construction or operation of the Detroit Project or which are actually borrowed
or received by Detroit. The foregoing indemnity shall further apply to any
residual contamination on, in, under or about any Real Property, or affecting
any natural resources, and to any contamination of any Property or natural
resources arising in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and irrespective of
whether any of such activities were or will be undertaken in accordance with
applicable Laws, but the foregoing indemnity shall not apply to Hazardous
Materials on any Real Property, the presence of which is caused by the
Creditors. Borrower and each Co-Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or any of the other Loan
Documents to the contrary, the obligations of Borrower and the Co-Borrowers
under this Section (and under Sections 4.18 and 5.9) shall be unlimited
corporate obligations of Borrower and the Co-Borrowers and shall not be secured
---
by any deed of trust or mortgage on any Real Property. Any obligation or
liability of Borrower and the Co-Borrowers to any Indemnitee under this Section
shall survive the expiration or termination of this Agreement, the repayment of
all Loans and the payment and performance of all other Obligations owed to the
Banks.
11.23 Gaming Boards. The Administrative Agent and each of the
-------------
Banks agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrower and its
Subsidiaries, including the provision of such documents or other information as
---------
may be requested by any such Gaming Board relating to Borrower or any of its
Subsidiaries or to the Loan Documents.
11.24 Lien Releases. The Administrative Agent shall release any
-------------
Lien granted to or held by the Administrative Agent on any collateral for the
Obligations (i) sold, transferred or otherwise disposed of in connection with
any transaction not prohibited by the Loan Documents, (ii) constituting Property
leased to Borrower or its Subsidiaries under a lease which has expired or been
terminated in a transaction not prohibited by the Loan Documents or which will
concurrently expire and which has not been, and is not intended by Borrower or
the relevant Subsidiary to be, renewed or extended, (iii) consisting of an
instrument, if the Indebtedness evidenced by such instrument has been finally
repaid in full, (iv) if approved or consented to by those of the Banks required
by Section 11.2, or (v) as otherwise expressly required by the Loan Documents.
If the collateral so released consists of capital stock of a Subsidiary, then
the Administrative Agent shall concurrently also release such Subsidiary from
its obligations under the Guaranty. Upon the request of the Administrative
Agent, each Bank shall promptly provide written confirmation of the authority of
the Administrative Agent to release such Liens upon any one or more items of
collateral under this Section.
11.25 Termination; Release of Liens. In addition to any Collateral
-----------------------------
Release as contemplated in Section 2.12 and the release of the Liens heretofore
securing the Old Loan Agreement, upon (a) the expiration or termination of the
Commitment, (b) the full and final payment in Cash of the Loans, all interest
and fees with respect thereto, (c) the payment of all amounts then demanded by
any Bank or indemnitee under Sections 3.7, 3.8, 11.11 and 11.22 and (d) the
payment of all other amounts then due under the Loan Documents, the
Administrative Agent is hereby authorized by the Banks to, and the
Administrative Agent shall, upon the request of Borrower and the Co-Borrowers,
execute and deliver to Borrower and the Co-Borrowers discharges from further
compliance with the covenants contained in Articles 5, 6, and 7 and releases of
the Liens created by the Loan Documents, and shall return any Property pledged
to the Administrative Agent as collateral for the Obligations, notwithstanding
the survival of any provisions of this Agreement herein provided for.
11.26 Nevada Gaming Collateral. If any Collateral Event occurs, the
------------------------
Administrative Agent shall, to the extent required by Gaming Laws, retain
possession of all pledged collateral consisting of the capital stock of (a)
Nevada gaming licensees within the State of Nevada at a location designated to
the Nevada State Gaming Control Board, and (b) gaming licensees in other
jurisdictions at a location in that jurisdiction designated to the Gaming Board
of that jurisdiction, if so required by the Gaming Board of that jurisdiction.
11.27 Removal of a Bank. Borrower and the Co-Borrowers shall have
-----------------
the right to remove a Bank as a party to this Agreement in accordance with this
Section (a) under the circumstances set forth in Sections 2.10, 3.7, 3.8(g) and
3.12(d) and (b) if such Bank is the subject of a Disqualification. If Borrower
and the Co-Borrowers are entitled to remove a Bank pursuant to this Section
either:
------
(x) Upon notice from Borrower and the Co-Borrowers, the Bank being
removed shall execute and deliver a Assignment Agreement covering that
Bank's Pro Rata Share in favor of one or more Eligible Assignees
designated by Borrower and the Co-Borrowers (and acceptable to the
Administrative Agent, which acceptance shall not be unreasonably
delayed or withheld), subject to payment of a purchase price by such
Eligible Assignee equal to all principal and accrued interest, fees
and other amounts payable to such Bank under this Agreement through
the date of assignment; or
(y) Except in the case of the removal of a Bank pursuant to Section
2.10, Borrower and the Co-Borrowers may reduce the Commitment pursuant
to Section 2.8 (and, for this purpose, the numerical requirements of
such Section shall not apply) by an amount equal to that Bank's Pro
Rata Share, pay and provide to such Bank the amounts, assurances and
indemnities described in subclauses (i) and (ii) of clause (x) above
and release such Bank from its Pro Rata Share.
11.28 Joint and Several. Borrower and each of the Co-Borrowers shall
-----------------
be obligated for all of the Obligations on a joint and several basis,
notwithstanding which of them may have directly received the proceeds of any
particular Loan or Advance, provided that, anything to the contrary herein
--------
notwithstanding (including Exhibit J), the liability of Detroit shall be limited
to that portion of the Obligations which are used, directly or indirectly, to
finance the design, development, construction or operation of the Detroit
Project or which are actually borrowed or received by Detroit. Borrower and
each of the Co-Borrowers acknowledge and agree that, for purposes of the Loan
Documents, Borrower,
the Co-Borrowers and the Guarantors constitute a single integrated financial
enterprise and that each receives a benefit from the availability of credit
under this Agreement. Borrower and the Co-Borrowers each waive all defenses
arising under the Laws of suretyship, to the extent such Laws are applicable, in
connection with their joint and several obligations under this Agreement.
Without limiting the foregoing, Borrower and each of the Co-Borrowers agree to
the Joint Borrower Provisions set forth in Exhibit J, incorporated by this
reference.
11.29 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.
11.30 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
--------------------------------
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
11.31 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 BANK THAT DOES NOT COMPLY WITH
SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
MGM GRAND, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Senior Vice President & Secretary/Treasurer
---------------------------------------------
MGM GRAND ATLANTIC CITY, INC., a New Jersey corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Senior Vice President & Secretary/Treasurer
---------------------------------------------
MGM GRAND DETROIT, LLC
By: MGM Grand Detroit, Inc., managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Senior Vice President & Secretary/Treasurer
---------------------------------------------
Address for Borrower and each Co-Borrower:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Chief Financial
Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer
MGM Grand, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Christensen, Miller, Fink, Jacobs, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
2121 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A., as Administrative Agent and as a
Bank
By: ________________________________
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Address for notices:
Bank of America, N.A.
Agency Management Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (LA-5777)
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
CIBC, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Executive Director
CIBC World Markets Corp., AS AGENT
Address for Notices:
CIBC, Inc.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE
By: /s/ ▇▇▇▇ ▇. ▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
---------------------------------------
Title: Vice President
--------------------------------------
Address for Notices:
Societe Generale
Attention: ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: President
----------------------------------------
Address for Notices:
Bear ▇▇▇▇▇▇▇ Corporate Lending Inc.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address for Notices:
Bank One, NA
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Principal
--------------------------------
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address for Notices:
Bankers Trust Company
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
Address for Notices:
Citibank, N.A.
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By: /s/Christian Jagenberg
-----------------------------------
Name: Christian Jagenberg
--------------------------------
Title: SVP and Manager
--------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Assistant Treasurer
--------------------------------
Address for Notices:
Commerzbank AG, New York and Grand Cayman Branches
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
World Financial Center North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Managing Director
--------------------------------
Address for Notices:
The Bank of Nova Scotia
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇