EXHIBIT 4.17
FOURTH AMENDMENT TO REIMBURSEMENT AGREEMENT
This FOURTH AMENDMENT TO REIMBURSEMENT AGREEMENT (this
"Amendment"), dated as of November 30, 1999, by and among HILTON HOTELS
CORPORATION, a Delaware corporation (the "Company"), DEUTSCHE BANK AG, NEW
YORK BRANCH, as issuer of the Letter of Credit (in such capacity, the
"Issuer"); DEUTSCHE BANK AG, NEW YORK BRANCH AS SUCCESSOR TO DEUTSCHE BANK AG,
LOS ANGELES BRANCH, THE BANK OF NEW YORK, SOCIETE GENERALE, CITICORP USA,
INC. (herein collectively, the "Banks" and individually a "Bank"); and
DEUTSCHE BANK AG, NEW YORK BRANCH, as agent (in such capacity, the "Agent").
Unless otherwise expressly defined herein, any capitalized term used herein
and defined in the Reimbursement Agreement (as defined below) shall have the
meaning assigned to it in the Reimbursement Agreement.
WITNESSETH:
WHEREAS, the Issuer has issued that certain letter of credit
No. 839-53762, dated May 16, 1996 (the "Letter of Credit"), pursuant to that
certain reimbursement agreement, dated as of May 16, 1996, as amended by a
First Amendment to Reimbursement Agreement, dated as of December 17, 1996, as
further amended by a Second Amendment to Reimbursement Agreement, dated as of
May 1, 1998, as further amended by that certain Letter Agreement, dated May
10, 1999, and as further amended by a Third Amendment to Reimbursement
Agreement, dated as of June 30, 1999 (collectively, the "Original
Reimbursement Agreement"; as amended from time to time, including by this
Agreement, the "Reimbursement Agreement"), by and between the Company, the
Agent, the Issuer and the Banks;
WHEREAS, the Company, the Issuer, the Agent and the Banks each
desire to amend the Original Reimbursement Agreement in the manner and
pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises made
hereunder by the Company, the Issuer, the Agent and the Banks, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. AMENDMENTS TO REIMBURSEMENT AGREEMENT.
1.1. CONSENTS. The Company, the Issuer, the Agent and each
of the Banks executing this Agreement hereby consent to the following
amendments to the Reimbursement Agreement on the terms and subject to the
conditions set forth herein.
1.2 DEFINITIONS.
1.2.1 AMENDMENT TO CERTAIN EXISTING DEFINED TERMS. The
following terms defined in the Reimbursement Agreement are hereby amended in
full to read as follows:
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period before (i) income taxes, (ii) interest expense, (iii)
depreciation and amortization, (iv) minority interest, (v) extraordinary
loses or gains, (vi) Pre-Opening Expenses, (vii) transactional expenses
associated with the Spin-Off and the Promus Acquisition, (viii) discontinued
operations and (ix) nonrecurring non-cash charges; PROVIDED that:
(a) Consolidated EBITDA for my period shall be adjusted
on a pro forma basis (i) to include (or exclude) amounts
attributable to hotel operations acquired (or sold or otherwise
discontinued) during such period as if such acquisition (or
disposition) had occurred on the first day of such period and (ii)
to include amounts (annualized on a simple arithmetic basis)
attributable to hotel projects which commenced operations during
such period and were in operation for at least one full fiscal
quarter during such period;
(b) for purposes of determining Consolidated EBITDA for
any period, Consolidated Net Income shall exclude any interest
income attributable to the assumption or payment by Park Place
of the PPE Assumed Notes;
(c) in calculating "Consolidated EBITDA" for that portion
of any period occurring prior to the Fourth Amendment Effective
Date, "Consolidated EBITDA" shall be computed on the basis of the
combined operating results of the Company, Promus and their
respective Consolidated Subsidiaries for such periods reflected
in the Pro Forma Combined Financial Statements; and
(d) the operating results of each New Project which
commences operations and records not less than one full fiscal
quarter's operations during the relevant period shall be
annualized on a simple arithmetic basis.
"Consolidated Net Income" means, for any period, the
consolidated net income of the Company and its Consolidated Subsidiaries for
such period, PROVIDED that for that portion of any period occurring prior to
the Fourth Amendment Effective Date, such consolidated net income shall be
the pro forma combined net income of the Company, Promus and their respective
Consolidated Subsidiaries for such periods reflected in the Pro Forma
Combined Financial Statements PLUS the Pro Forma Adjustments applicable to
that portion of such period.
1.2.2 ADDITIONAL DEFINED TERMS. The following definitions
are hereby added to the Reimbursement Agreement:
"Consolidated Interest Expense" means, for any period net
interest expense of the Company and its Consolidated Subsidiaries for such
period, determined in accordance with generally accepted accounting
principles, PROVIDED that for that portion of any period occurring prior to
the Fourth Amendment Effective Date, "Consolidated Interest Expense" shall be
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computed on the basis of the net interest expense allocated to the Company
and its Consolidated Subsidiaries and shown on the Pro Forma Combined
Financial Statements.
"Gaming Segment" means the former gaming segment (as "segment"
is used in Regulation S-K and Regulation S-X of the Securities and Exchange
Commission) of the Company which, prior to December 31, 1998, was comprised
of assets and operations now principally owned and conducted by Park Place.
"Investment Grade" means (i) with respect to S&P, a rating of
BBB- or higher and (ii) with respect to Moody's, a rating of Baa3 or higher.
"New Project" means each now hotel or resort project (as
opposed to any project which consists of an extension or redevelopment of an
operating hotel or resort) having a development and construction budget in
excess of $50,000,000 which receives a certificate of completion or
occupancy and all relevant operational licenses, and in fact commences
operations after November 30, 1999.
"Pre-Opening Expenses" means, with respect to any fiscal
period, the amount of expenses (other than Consolidated Interest Expense)
incurred with respect to capital projects which are classified as
"pre-opening expenses" on the applicable financial statements of the Company
and its Consolidated Subsidiaries for such period (or, with respect to that
portion of any period occurring prior to September 30, 1999, the Pro Forma
Combined Financial Statements), prepared in accordance with generally
accepted accounting principles.
"Pricing Certificate" means a Pricing Certificate,
substantially in the form of Exhibit B hereto, properly completed and signed
by an Authorized Officer.
"Pro Forma Adjustment" means an adjustment to the amount of
Consolidated Net Income set forth in the Pro Forma Combined Financial
Statements for the period prior to the Fourth Amendment Effective Date
reflecting anticipated synergies from the Promus Acquisition (on a pro forma
combined basis) equal in each fiscal period set forth below to the amount set
forth opposite that fiscal period:
Fiscal Period Pro Forma Adjustment
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January 1 through March 31, 1999 $10,000,000
April 1 through June 30, 1999 $10,000,000
July 1 through September 30, 1999 $10,000,000
October 1 through December 31, 1999 $ 9,500,000
"Pro Forma Combined Financial Statements" means (a) from
November 30, 1999 until the Company delivers the pro forma combined financial
statements described in Section 7.02(j), the pro forma combined financial
statements of the Company and its Consolidated Subsidiaries (exclusive of its
former Gaming Segment) and Promus and its Consolidated Subsidiaries for the
twelve month period ended September 30, 1999 heretofore delivered by the
Company to the Agent and each Bank, and (b) thereafter, the pro forma
combined financial statements for the twelve month period ended December 31,
1999, so delivered.
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"Promus" means Promus Hotel Corporation, Inc., a Delaware
corporation.
"Promus Acquisition" means the merger of Promus Hotels
Corporation with a Subsidiary of the Company on the effective date hereof, as
a result of which the Company will own, directly or indirectly, all of the
issued and outstanding capital stock of the corporation surviving such merger.
"Rating Agencies" means S&P or Moody's.
1.3 OTHER AMENDMENTS
1.3.1 INFORMATION. Section 7.02 of the Reimbursement Agreement
is amended to add thereto new clause (j), to read in full as follows:
"(j) as soon as available and in any event no later than
March 31, 2000, a pro forma combined statement of income of the Company,
Promus and their respective Consolidated Subsidiaries for the period
commencing January 1, 1999 and ending on December 31, 1999, and a pro
forma combined balance sheet of the Company, Promus and their respective
Consolidated Subsidiaries as at December 31, 1999, in each case prepared
in a manner consistent with the Pro Forma Combined Financial Statements
delivered to the Agent and the Banks prior to the date hereof."
1.3.2 STATUS ELECTION. Section 7.02(c) of the Reimbursement
Agreement is hereby amended to delete clause (iii) thereof, it being
understood that the Company shall not be required to notify the Agent or the
Banks of whether interest rates and fees shall be determined on the basis of
its Ratings or the Leverage Ratio (with the Company to automatically receive
the benefits of the more favorable basis of computation).
1.3.3 PRICING CERTIFICATE AND COMBINED PRO FORMAS. Section
7.02 of the Reimbursement Agreement is further amended to add thereto new
clause (k), to read in full as follows:
"(k) as soon as available and in any event not later than the
last day of February of each year, a completed Pricing Certificate as of
December 31 of the prior year."
1.3.4 SECTION 7.10. Section 7.10 is hereby deleted in its
entirety and amended in full to read as follows:
"Section 7.10. LEVERAGE RATIO. The Leverage Ratio will not, as
of the last day of any fiscal quarter of the Company described
in the matrix below, exceed the ratio set forth opposite that
fiscal quarter:
Fiscal Quarters Ending Maximum Ratio
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September 30, 1999 through and 5.00:1.00
including December 31, 2000
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March 31, 2001 through and including
March 31, 2002 4.75:1.00
Thereafter 4.50:100."
1.3.5 PRICING SCHEDULE. The Pricing Schedule attached as
Exhibit A to the Third Amendment to Reimbursement Agreement, dated as of
June 30, 1996 is hereby deleted in its entirety and the Pricing Schedule
attached to this Agreement as Exhibit A is hereby incorporated into the
Reimbursement Agreement by this reference as if originally set forth in full
therein.
2. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Issuer, the Agent and the Banks as follows:
2.1 AUTHORITY. The Company has all necessary power and has
taken all corporate action necessary to make this Agreement and all other
agreements and instruments executed in connection herewith the legal, valid
and binding obligations they purport to be.
2.2 NO LEGAL OBSTACLE TO AGREEMENT. The execution of this
Agreement has not constituted or resulted in and will not constitute or
result in a breach of any provision of any contract to which the Company is a
party, or the violation of any law, judgment, decree or governmental order,
rule or regulation applicable to, or result in the creation under any
agreement or instrument of any security interest, lien, charge or encumbrance
upon any of the assets of, the Company, except in favor of the Agent and the
Banks or as permitted by the Reimbursement Agreement. No approval or
authorization of any governmental authority is required to permit the
execution, delivery or performance of this Agreement, or the transactions
contemplated hereby or thereby.
2.3 INCORPORATION OF CERTAIN REPRESENTATIONS AND WARRANTIES.
The representations and warranties set forth in Article VI of the
Reimbursement Agreement are true and correct in all respects on and as of the
date hereof, as through made on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to an
earlier date.
2.4 DEFAULT. Upon this Agreement becoming effective pursuant
to Section 3.1 hereof, no Default or Event of Default has occurred and is
continuing.
3. MISCELLANEOUS.
3.1 EFFECTIVE DATE. This Amendment shall become effective on
the date (the "Fourth Amendment Effective Date") when the Company, the Agent,
the Issuer, each Existing Bank and each New Bank shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the Agent.
3.2 EFFECT OF AGREEMENT ON REIMBURSEMENT. Except as affected
hereby, the Reimbursement Agreement, the other Related Documents and any and
all other agreements, documents, certificates and other instruments executed
in connection therewith, shall remain in
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full force and effect in accordance with their respective terms. Except as
otherwise provided herein, the Reimbursement Agreement, the other Related
Documents and any and all other agreements, documents, certificates and other
instruments executed in connection therewith, are in all respects ratified
and confirmed, and nothing contained in this Agreement shall, or shall be
construed to, modify, invalidate or otherwise affect any provision of such
agreements, documents, certificates and instruments or any right of the
parties thereto.
3.3 EFFECT OF BREACH OF AGREEMENT. The Company hereby
acknowledges and agrees that a breach of or noncompliance with any of the
representations, warranties, covenants or terms contained herein shall
constitute an Event of Default.
3.4 NO WAIVER OF EVENT OF DEFAULT. The execution of this
Agreement by the Issuer, the Agent and the Banks does not constitute a waiver
of any Event of Default which not exists or which may occur hereafter.
3.5 COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and delivered shall be
an original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Company
and the Agent.
3.6 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
3.7 REFERENCE. From and after the Fourth Amendment Effective
Date, all references in the Reimbursement Agreement and each of the Related
Documents to the Reimbursement Agreement shall be deemed to be references to
the Reimbursement Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective duly
authorized officers as of the date first above written.
THE COMPANY
HILTON HOTELS CORPORATION
By /s/ Mariel Albrecht
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Title:
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Attention: Mariel Albrecht
Vice President and Assistant Treasurer
Tel: (310) 205-4331
Fax: (310) 205-7849
THE AGENT
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Agent
By
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Title:
By
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Title:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Inken Finnamore
Tel: (212) 469-8348
Fax: (212) 469-8501
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THE ISSUER
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Issuer of the Letter of Credit
By
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Title:
By
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Title:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Volker Fischer
Trade Finance
Tel: (212) 469-8636
Fax: (212) 469-7880
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THE BANKS
DEUTSCHE BANK AG, NEW YORK BRANCH, AS
SUCCESSOR TO DEUTSCHE BANK AG, LOS
ANGELES BRANCH
By
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Title:
By
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Title:
Deutsche Bank AG, New York Branch, as Successor to
Deutsche Bank AG, Los Angeles Branch
31 West 52nd Street
New York, New York 10019
Attention: Thomas Foley
Vice President
Tel: (212) 469-8636
Fax: (212) 469-7880
CITICORP USA, INC.
By
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Title:
Citicorp USA, Inc.
787 West 5th Street
29th Floor
Los Angeles, California 90071
Attention: Walter L. Larsen
Managing Director
Tel: (213) 239-1501
Fax: (213) 624-9765
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THE BANK OF NEW YORK
By
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Title:
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, California 90024
Attention: Lisa Brown
Tel: (310) 996-8656
Fax: (310) 996-8667
SOCIETE GENERALE
By
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Title:
Societe Generale
2029 Century Park East
Suite 2900
Los Angeles, California 90067
Attention: Alex Kim
Tel: (310) 788-7104
Fax: (310) 551-1537
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