EXHIBIT 10.1(10)
EXECUTION
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
Dated as of November 22, 2004
among
MGM MIRAGE,
as Borrower
and
MGM GRAND DETROIT, LLC
as Co-Borrower
The Lenders, Co-Documentation Agents and Syndication Agent herein named
and
BANK OF AMERICA, N.A.
as Administrative Agent
THE ROYAL BANK OF SCOTLAND PLC
as Syndication Agent
---------------------------------
BANC OF AMERICA SECURITIES LLC and THE ROYAL BANK OF SCOTLAND PLC
Joint Lead Arrangers
BANC OF AMERICA SECURITIES LLC, THE ROYAL BANK OF SCOTLAND PLC, JP MORGAN
SECURITIES, INC., CITIBANK NORTH AMERICA, INC.
and DEUTSCHE BANK SECURITIES INC.
Joint Book Managers
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS.................................................................. 1
1.1 Defined Terms.............................................................................. 1
1.2 Use of Defined Terms....................................................................... 29
1.3 Accounting Terms - Fiscal Periods.......................................................... 29
1.4 Rounding................................................................................... 29
1.5 Exhibits and Schedules..................................................................... 29
1.6 Miscellaneous Terms........................................................................ 29
1.7 Letter of Credit Amounts................................................................... 30
ARTICLE 2 LOANS AND LETTERS OF CREDIT....................................................................... 31
2.1 Committed Loans-General.................................................................... 31
2.2 Base Rate Loans............................................................................ 32
2.3 LIBOR Loans................................................................................ 33
2.4 Letters of Credit.......................................................................... 33
2.5 Competitive Advances....................................................................... 39
2.6 Swing Line................................................................................. 42
2.7 Co-Borrowers............................................................................... 44
2.8 Voluntary Reduction of the Commitments..................................................... 45
2.9 Optional Termination of Commitments........................................................ 45
2.10 Administrative Agent's Right to Assume Funds Available for Advances........................ 45
2.11 Release and Reattachment of Collateral..................................................... 45
2.12 Senior Indebtedness........................................................................ 46
2.13 Collateral................................................................................. 47
ARTICLE 3 PAYMENTS AND FEES................................................................................. 48
3.1 Principal and Interest..................................................................... 48
3.2 Arrangement Fees........................................................................... 49
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3.3 Upfront Fees............................................................................... 49
3.4 Ticking and Unused Fees.................................................................... 49
3.5 Letter of Credit Fees...................................................................... 49
3.6 Agency Fees................................................................................ 50
3.7 Increased Commitment Costs................................................................. 50
3.8 LIBOR Costs and Related Matters............................................................ 51
3.9 Late Payments.............................................................................. 54
3.10 Computation of Interest and Fees........................................................... 54
3.11 Non-Business Days.......................................................................... 54
3.12 Manner and Treatment of Payments........................................................... 54
3.13 Funding Sources............................................................................ 55
3.14 Failure to Charge Not Subsequent Waiver.................................................... 56
3.15 Administrative Agent's Right to Assume Payments Will be Made............................... 56
3.16 Fee Determination Detail................................................................... 56
3.17 Survivability.............................................................................. 57
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.................................................................... 58
4.1 Existence and Qualification; Power; Compliance With Laws................................... 58
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations..... 58
4.3 No Governmental Approvals Required......................................................... 59
4.4 Subsidiaries............................................................................... 59
4.5 Financial Statements....................................................................... 60
4.6 No Other Liabilities; No Material Adverse Changes.......................................... 60
4.7 Title to Property.......................................................................... 60
4.8 Public Utility Holding Company Act......................................................... 60
4.9 Litigation................................................................................. 60
4.10 Binding Obligations........................................................................ 61
4.11 No Default................................................................................. 61
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4.12 ERISA...................................................................................... 61
4.13 Regulations T, U and X; Investment Company Act............................................. 61
4.14 Disclosure................................................................................. 61
4.15 Tax Liability.............................................................................. 62
4.16 Projections................................................................................ 62
4.17 Hazardous Materials........................................................................ 62
4.18 Mandalay Acquisition Effective............................................................. 62
4.19 Solvency................................................................................... 62
4.20 Disclosure Schedule........................................................................ 62
ARTICLE 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)......................... 63
5.1 Preservation of Existence.................................................................. 63
5.2 Maintenance of Properties.................................................................. 63
5.3 Maintenance of Insurance................................................................... 63
5.4 Compliance With Laws....................................................................... 63
5.5 Inspection Rights.......................................................................... 63
5.6 Keeping of Records and Books of Account.................................................... 64
5.7 Use of Proceeds............................................................................ 64
5.8 New Restricted Subsidiaries................................................................ 64
ARTICLE 6 NEGATIVE COVENANTS................................................................................ 65
6.1 Mergers.................................................................................... 65
6.2 Hostile Acquisitions....................................................................... 65
6.3 Change in Nature of Business............................................................... 65
6.4 Liens and Negative Pledges................................................................. 65
6.5 Total Leverage Ratio....................................................................... 67
6.6 Senior Leverage Ratio...................................................................... 67
6.7 Interest Charge Coverage Ratio............................................................. 67
6.8 Investments in Insurance Subsidiary........................................................ 67
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6.9 Collateral................................................................................. 67
ARTICLE 7 INFORMATION AND REPORTING REQUIREMENTS............................................................ 69
7.1 Financial and Business Information......................................................... 69
7.2 Compliance Certificates.................................................................... 71
ARTICLE 8 CONDITIONS........................................................................................ 72
8.1 Initial Advances on the Closing Date....................................................... 72
8.2 Any Increasing Advance..................................................................... 75
8.3 Any Letter of Credit....................................................................... 75
ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT.............................................. 76
9.1 Events of Default.......................................................................... 76
9.2 Remedies Upon Event of Default............................................................. 78
ARTICLE 10 THE ADMINISTRATIVE AGENT......................................................................... 80
10.1 Appointment and Authorization of Administrative Agent...................................... 80
10.2 Delegation of Duties....................................................................... 80
10.3 Liability of Administrative Agent.......................................................... 80
10.4 Reliance by Administrative Agent........................................................... 81
10.5 Notice of Default.......................................................................... 81
10.6 Credit Decision; Disclosure of Information by Administrative Agent......................... 81
10.7 Indemnification of Administrative Agent.................................................... 82
10.8 Administrative Agent in its Individual Capacity............................................ 82
10.9 Successor Administrative Agent............................................................. 82
10.10 Administrative Agent May File Proofs of Claim.............................................. 83
10.11 Other Agents; Arrangers and Managers....................................................... 84
10.12 Proportionate Interest in any Collateral................................................... 84
10.13 Foreclosure on Collateral.................................................................. 84
10.14 Intercreditor Arrangements; Attornment Agreements.......................................... 84
10.15 No Obligations of Borrower and the Co-Borrowers............................................ 85
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ARTICLE 11 MISCELLANEOUS.................................................................................... 86
11.1 Cumulative Remedies; No Waiver............................................................. 86
11.2 Amendments; Consents....................................................................... 86
11.3 Attorney Costs, Expenses and Taxes......................................................... 87
11.4 Nature of Lenders' Obligations............................................................. 88
11.5 Survival of Representations and Warranties................................................. 89
11.6 Notices.................................................................................... 89
11.7 Execution of Loan Documents................................................................ 90
11.8 Binding Effect; Assignment................................................................. 90
11.9 Right of Setoff............................................................................ 94
11.10 Sharing of Setoffs......................................................................... 94
11.11 Indemnification by Borrower and the Co-Borrowers........................................... 95
11.12 Nonliability of the Lenders................................................................ 95
11.13 No Third Parties Benefited................................................................. 96
11.14 Confidentiality............................................................................ 96
11.15 Further Assurances......................................................................... 97
11.16 Integration................................................................................ 97
11.17 Governing Law.............................................................................. 97
11.18 Severability of Provisions................................................................. 97
11.19 Headings................................................................................... 97
11.20 Time of the Essence........................................................................ 97
11.21 Foreign Lenders and Participants........................................................... 98
11.22 Hazardous Material Indemnity............................................................... 99
11.23 Gaming Boards.............................................................................. 100
11.24 Lien Releases.............................................................................. 100
11.25 Termination; Release of Liens.............................................................. 100
11.26 Removal of a Lender........................................................................ 101
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11.27 Joint and Several.......................................................................... 101
11.28 Non-Involvement of Tracinda................................................................ 101
11.29 Pledged Stock in Gaming Companies.......................................................... 102
11.30 Payments Set Aside......................................................................... 102
11.31 Waiver of Right to Trial by Jury........................................................... 102
11.32 Purported Oral Amendments.................................................................. 102
11.33 USA PATRIOT Act Notice..................................................................... 102
Exhibits
A - Assignment Agreement
B - Assumption Agreement
C - Committed Revolving Note
D - Competitive Bid
E - Competitive Bid Request
F - Competitive Revolving Note
G - Compliance Certificate
H - Pricing Certificate
I - Request for Loan
J - Term Note
K - Joint Borrower Provisions
Schedules
1.1 Pro Rata Shares of the Commitments
4.0 Disclosure Schedule (subject to being updated prior to the Closing Date
pursuant to Section 4.20)
11.6 Notice Addresses
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FOURTH AMENDED AND RESTATED LOAN AGREEMENT
Dated as of November 22, 2004
This Fourth Amended and Restated Loan Agreement ("Agreement") is entered
into by and among MGM MIRAGE, a Delaware corporation ("Borrower"), and MGM Grand
Detroit, LLC, a Delaware limited liability company ("Detroit"), as initial
Co-Borrower, 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 "Lenders"
and individually, a "Lender"), Banc of America Securities LLC and The Royal Bank
of Scotland PLC, as Joint Lead Arrangers, Banc of America Securities LLC, The
Royal Bank of Scotland PLC, JP Morgan Securities, Inc., Citibank North America,
Inc. and Deutsche Bank Securities Inc., as Joint Book Managers, The Royal Bank
of Scotland PLC, as Syndication Agent, JP Morgan Chase Bank, Citigroup USA Inc.,
Deutsche Bank, Bank of Scotland, Barclays Bank PLC, BNP Paribas, Commerzbank,
Sumitomo Mitsui Banking Corporation and Wachovia Bank, N.A., as Co-Documentation
Agents, Societe Generale, as Senior Managing Agent, Merrill Lynch Bank USA and
U.S. Bank National Association, as Managing Agents, and Bank of America, N.A.,
as Administrative Agent, with reference to the following facts:
A. Pursuant to the Mandalay Purchase Agreement referred to below,
Borrower proposes to acquire 100% of the issued and outstanding capital
stock of Mandalay Resort Group ("Mandalay") through a wholly-owned direct
Subsidiary of Borrower for Cash.
B. It is anticipated that required regulatory approvals for the
Mandalay Acquisition will be obtained during the first quarter of 2005,
with the Mandalay Purchase Agreement providing for an outside date of June
30, 2005 in which to obtain such approvals.
C. Effective on the Closing Date, Borrower, the Administrative Agent
and the Banks desire to amend and restate the Existing Loan Agreement in
its entirety by this Agreement, and to provide, inter alia (and subject to
the terms and conditions set forth herein), for an increase in the amount
of the credit facilities provided by the Existing Loan Agreement, an
extension of the maturity thereof and revisions to the covenants of
Borrower set forth therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, Borrower, Detroit, each Co-Borrower
which hereafter becomes a Party hereto pursuant to Section 2.7, and each of the
Creditors, hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate Bid" means a Competitive Bid to provide Competitive
Advances on the basis of a fixed interest rate.
"Acquisition" means any transaction, or any series of related
transactions, by which Borrower or its Restricted Subsidiaries directly or
indirectly (i) acquire any going business or all or any material part of
the assets of any Person, or any division thereof, whether through
purchase of assets, merger or otherwise, or (ii) acquire (in one
transaction or as the most recent transaction
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in a series of transactions) control of at least a majority in ordinary
voting power of the securities of a corporation which have ordinary voting
power for the election of directors, or (iii) acquire control of a
majority ownership interest in any partnership, joint venture, limited
liability company or any other Person.
"Act" has the meaning set forth for that term in Section 11.33.
"Administrative Agent" means Bank of America, when acting in its
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on Schedule 11.6, or such other address as the
Administrative Agent hereafter may designate by written notice to Borrower
and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Advance" means any advance made or to be made by any Lender to
Borrower or any Co-Borrower as provided in Article 2, and includes each
Base Rate Advance, LIBOR Advance, Committed Advance, Competitive Advance
and Swing Line Advance.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns, directly or
indirectly, 10% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation that
has more than 100 record holders of such securities, or 10% or more of the
partnership or other ownership interests of any other Person that has more
than 100 record holders of such interests, will be presumed (subject to
rebuttal by a preponderance of the evidence) to control such corporation,
partnership or other Person.
"Agent-Related Persons" means the Administrative Agent, together
with its Affiliates (including, in the case of Bank of America in its
capacity as the Administrative Agent and Bank of America Securities LLC as
Joint Lead Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this Fourth Amended and Restated Loan Agreement,
either as originally executed, or as it may from time to time be
supplemented, modified, amended, restated or extended.
"Anticipated Synergies" means, (a) through the first full Fiscal
Quarter after the Closing Date, $40,000,000, (b) as of the end of the
second full Fiscal Quarter after the Closing Date, $30,000,000, (c) as of
the end of the third full Fiscal Quarter after the Closing Date,
$20,000,000 (d) as of the end of the fourth full Fiscal Quarter after the
Closing Date, $10,000,000, and (e) as of each subsequent Fiscal Quarter,
$0.
"Applicable Total Leverage Ratio" means, (a) as of the Closing Date,
and thereafter through the last day of the Pricing Period in which the
Closing Date occurs, the combined pro
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forma Total Leverage Ratio set forth in the Certificate of Borrower
delivered pursuant to Section 8.1(a)(xvi), and (b), as of each subsequent
date of determination, the Total Leverage Ratio in effect as of the last
day of the Fiscal Quarter ending most recently prior to the first day of
the related Pricing Period.
"Applicable Rates" means, as of any date of determination, the
following percentages per annum, based upon the Pricing Level on that
date:
LIBOR BASE RATE UNUSED FEE STANDBY LETTER
PRICING LEVEL MARGIN MARGIN RATE OF CREDIT FEE
- ------------- ------ --------- ---------- --------------
I 0.750% 0.000% 0.150% 0.750%
II 1.000% 0.000% 0.200% 1.000%
III 1.250% 0.250% 0.200% 1.250%
IV 1.375% 0.375% 0.250% 1.375%
V 1.500% 0.500% 0.250% 1.500%
VI 1.625% 0.625% 0.250% 1.625%
VII 1.750% 0.750% 0.300% 1.750%
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Assignment and Assumption" 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.
"Attorney Costs" means and includes all reasonable fees, expenses
and disbursements of any law firm or other external counsel.
"Bank of America" means Bank of America, N.A., its successors and
assigns.
"Base Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate
of interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate." The "prime rate" is a rate set by
Bank of America based upon various factors including Bank of America's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.
"Base Rate Advance" means an Advance made hereunder and specified to
be a Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be a
Base Rate Loan in accordance with Article 2.
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"Base Rate Margin" means the applicable per annum percentage set
forth in the definition of "Applicable Rates".
"Borrower" means MGM MIRAGE, a Delaware corporation, its successors
and permitted assigns.
"Borrower Group EBITDA" means, for any fiscal period, the EBITDA of
Borrower and its Restricted Subsidiaries for that fiscal period.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of,
or are in fact closed in the State of New York or the state where the
Administrative Agent's Office is located and, if such day relates to any
LIB OR Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank Eurodollar Market.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance with
GAAP, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any Person,
that Person's Investments in:
(a) Government Securities due within one year after the date
of the making of the Investment;
(b) readily marketable direct obligations of any State of
the United States of America or any political subdivision of any
such State or any public agency or instrumentality thereof given on
the date of such Investment a credit rating of at least Aa by
Moody's or AA by S&P in each case due within one year from the
making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Bank or by
any bank incorporated under the Laws of the United States of
America, any State thereof or the District of Columbia and having on
the date of such Investment combined capital, surplus and undivided
profits of at least $250,000,000, or total assets of at least
$5,000,000,000, in each case due within one year after the date of
the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any branch or
office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United
States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due within
one year after the date of the making of the Investment;
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(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of
the Investment capital of at least $50,000,000, due within 90 days
after the date of the making of the Investment; provided that the
maker of the Investment receives written confirmation of the
transfer to it of record ownership of the Government Securities on
the books of a "primary dealer" in such Government Securities or on
the books of such registered broker or dealer, as soon as
practicable after the making of the Investment;
(f) readily marketable commercial paper or other debt
securities issued by corporations doing business in and incorporated
under the Laws of the United States of America or any State thereof
or of any corporation that is the holding company for a bank
described in clause (c) or (d) above given on the date of such
Investment a credit rating of at least P-1 by Moody's or A-1 by S&P,
in each case due within one year after the date of the making of the
Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any
State thereof (i) given on the date of such Investment a credit
rating of at least Aa by Moody's 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 Lender or a bank described in
clauses (c) or (d) above;
(h) a readily redeemable "money market mutual fund"
sponsored by a bank described in clause (c) or (d) hereof, or a
registered broker or dealer described in clause (e) hereof, that has
and maintains an investment policy limiting its investments
primarily to instruments of the types described in clauses (a)
through (g) hereof and given on the date of such Investment a credit
rating of at least Aa by Moody's and AA by S&P; and
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation
incorporated under the Laws of the United States of America or any
State thereof, or a participation interest therein; provided that
any commercial paper issued by such corporation is given on the date
of such Investment a credit rating of at least Aa by Moody's and AA
by S&P.
"Cash Flow" means, for any period, and without duplication, the sum
of (a) Borrower Group EBITDA for that period, plus (b) Other Available
EBITDA for that period, plus (c) New Project Annualized EBITDA, plus, (d)
any Anticipated Synergies applicable to that period, minus (e) Sale Asset
Attributable EBITDA, provided that Cash Flow shall be adjusted on a pro
forma basis (i) in the case of any Material Transaction which is a
Disposition, to exclude for the entire period the results of operation of
any Person or assets which are the subject of such Disposition, and (ii)
in the case of any Material Transaction which is an Acquisition, to
include for the entire period the results of operation of any Person or
assets which are the subject of such Acquisition.
"Cash Interest Charges" means, for any period, that portion of
Interest Charges of Borrower and its Restricted Subsidiaries which are
paid or currently payable in Cash during that period (and to the extent
that Detroit is designated as the Sale Asset, any such Interest Charges of
Detroit Entertainment, L.L.C., the owner of the Motor City Casino)
excluding Interest Charges in respect of:
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(i) intercompany accounts; and
(ii) any other Indebtedness of Borrower or its Restricted
Subsidiaries for borrowed money (including debt securities issued by
Borrower or any of its Restricted Subsidiaries) to the extent that (A) the
proceeds of such Indebtedness are held by either the trustee or other
representative for the holders of such Indebtedness or a third party
escrow agent pending satisfaction or waiver of the conditions for the
release of such proceeds to Borrower or its Restricted Subsidiaries or to
a third party, and (B) such trustee, representative or escrow agent also
holds the amount of any Interest Charges which would otherwise be payable
in Cash during that period in respect of such Indebtedness;
provided, in each case, that if any Material Transaction occurs during
that period, Cash Interest Charges shall be adjusted on a pro forma basis
(a) in the case of any Material Transaction which is a Disposition, to
exclude Interest Charges associated with Funded Debt in an amount equal to
the consideration received by Borrower and its Restricted Subsidiaries in
the form of Cash and Cash Equivalents in connection with such Disposition,
and (b) in the case of any Material Transaction which is an Acquisition,
to increase Interest Charges by the amount of Interest Charges which would
be associated with Funded Debt in an amount equal to the consideration
paid by Borrower and its Restricted Subsidiaries in the form of Cash and
Cash Equivalents in connection with such Acquisition (in each case, for
that portion of the period occurring prior to the receipt of such
consideration, and at an interest rate which is equal to the blended
interest rate payable by Borrower in respect of Indebtedness during the
relevant period (as reasonably determined by Borrower)).
"Change in Control" means (a) any transaction or series of related
transactions in which any Unrelated Person or two or more Unrelated
Persons acting in concert acquire beneficial ownership (within the meaning
of Rule 13d-3(a)(1) under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of 25% or more of the outstanding common
stock of Borrower or (b) during any period of 24 consecutive months,
individuals who at the beginning of such period constituted the board of
directors of Borrower (together with any new or replacement directors
whose election by the board of directors, or whose nomination for
election, was approved by a vote of at least a majority of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for reelection was previously so
approved) cease for any reason to constitute a majority of the directors
then in office, provided, however, that no Change in Control shall exist
for so long as Tracinda Corporation, a Nevada corporation, and its
Affiliates continue to be the beneficial owner of 25% or more of the
common stock of Borrower and no other Person is the owner of more of the
common stock of Borrower than Tracinda Corporation and its Affiliates.
"Closing Date" means the time and Business Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrower and the Creditors of the date
that is the Closing Date.
"Co-Borrowers" means, collectively, Detroit and each other Guarantor
which is hereafter designated as a Co-Borrower pursuant to Section 2.7.
"Co-Documentation Agents" means the Persons identified in the
preamble of this Agreement as such.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
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"Collateral Agent" means U.S. Bank National Association, or any
successor Collateral Agent under the Intercreditor Agreement.
"Collateral Documents" means each mortgage, deed of trust, ship
mortgage, aircraft chattel mortgage, pledge agreement, security agreement
or other instrument, document or agreement now or hereafter executed
pursuant to the Intercreditor Agreement or otherwise to secure the
Obligations or any of the Qualified Obligations.
"Collateral Event" means any event or circumstance pursuant to which
the holders of any class of Senior Indebtedness of Borrower and its
Restricted Subsidiaries receive the benefit of Liens on all or any part of
the Property of Borrower or its Restricted Subsidiaries, which Liens would
be prohibited hereunder but for the provisions of Section 6.4(g).
"Collateral Release" has the meaning set forth for that term in
Section 2.11 (a).
"Commercial Letter of Credit" means each Letter of Credit issued to
support the purchase of goods by Borrower or any Co-Borrower which is
determined to be a commercial letter of credit by the relevant Issuing
Lender.
"Commitments" means, collectively, the Revolving Commitment and the
Term Commitment.
"Committed Advances" means an Advance by a Lender as a ratable part
of a Committed Loan pursuant to such Lender's Pro Rata Share of the
applicable Commitment.
"Committed Loan" means a Loan consisting of ratable Advances by the
Lenders pursuant to their respective Pro Rata Shares of the relevant
Commitment.
"Committed Revolving Note" means each promissory note made by
Borrower and each Co-Borrower to a Lender evidencing the Committed
Advances made by that Lender under its Pro Rata Share of the Revolving
Commitment, substantially in the form of Exhibit C, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Competitive Advance" means an Advance made to Borrower or any
Co-Borrower under the Revolving Commitment by any Lender not determined by
that Lender's Pro Rata Share of the Revolving Commitment pursuant to
Section 2.5.
"Competitive Bid" means (a) a written bid to provide a Competitive
Advance substantially in the form of Exhibit D, signed by a Responsible
Official of a Lender and properly completed to provide all information
required to be included therein or (b) at the election of any Lender, a
telephonic bid by that Lender to provide a Competitive Advance which, if
so made, shall be made by a Responsible Official of that Lender and deemed
to have been made incorporating the substance of Exhibit D, and shall
promptly be confirmed by a written Competitive Bid.
"Competitive Bid Request" means (a) a written request submitted by
Borrower or any Co-Borrower to the Administrative Agent to provide a
Competitive Bid, substantially in the form of Exhibit E, signed by a
Responsible Official of Borrower and any relevant Co-Borrower and properly
completed to provide all information required to be included therein or
(b) at the election of Borrower, a telephonic request by Borrower to the
Administrative Agent to provide a
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Competitive Bid which, if so made, shall be made by a Responsible Official
of Borrower and deemed to have been made incorporating the substance of
Exhibit E, and shall promptly be confirmed by a written Competitive Bid
Request.
"Competitive Revolving Note" means each promissory note made by
Borrower and each Co-Borrower to a Lender evidencing the Competitive
Advances made under the Revolving Commitment by that Lender, substantially
in the form of Exhibit F, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Compliance Certificate" means a certificate substantially in the
form of Exhibit G, properly completed and signed by a Senior Officer of
Borrower and each Co-Borrower.
"Consolidated Net Tangible Assets" means, as of each date of
determination, the total amount of assets of Borrower and its
Subsidiaries, after deducting therefrom (a) all current liabilities of
Borrower and its Subsidiaries (excluding (i) the current portion of
long-term Indebtedness, (ii) inter-company liabilities, and (iii) any
liabilities which are by their terms renewable or extendable at the option
of the obligor thereon to a time more than twelve months from the time as
of which the amount thereof is being computed), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense
and other like intangibles of Borrower and its Subsidiaries, all as set
forth on the latest consolidated balance sheet of Borrower prepared in
accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of
any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or by
which it or any of its Property is bound.
"Creditors" means, collectively, the Administrative Agent, the
Issuing Lenders, the Swing Line Lenders, each Lender and, where the
context requires, any one or more of them.
"Debt Rating" means, as of any date of determination, the credit
rating assigned to the credit facilities provided hereunder whether senior
secured or senior unsecured (or, if the facilities hereunder are not
rated, the corporate rating assigned to Borrower's most senior
indebtedness), by a nationally recognized credit reporting agency selected
by Borrower, reasonably approved by the Administrative Agent, and not
objected to by the Requisite Lenders within five Business Days following
notice of such designation.
"Debtor Relief Laws" means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Default Rate" means the interest rate prescribed in Section 3.9.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations, or participations
in Swing Line Loans required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other
Lender any other
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amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Deposit Account" means separate accounts located at Bank of America
as to Borrower and each Co-Borrower designated by Borrower or such
Co-Borrower with the reasonable approval of the Administrative Agent.
"Designated Market" means, with respect to any LIBOR Loan, (a) the
London Eurodollar Market, (b) if prime banks in the London Eurodollar
Market are at the relevant time not accepting deposits of Dollars or if
the Administrative Agent determines in good faith that the London
Eurodollar Market does not represent at the relevant time the effective
pricing to the Lenders for deposits of Dollars in the London Eurodollar
Market, the Cayman Islands Eurodollar Market or (c) if prime banks in the
Cayman Islands Eurodollar Market are at the relevant time not accepting
deposits of Dollars or if the Administrative Agent determines in good
faith that the Cayman Islands Eurodollar Market does not represent at the
relevant time the effective pricing to the Lenders for deposits of Dollars
in the Cayman Islands Eurodollar Market, such other Eurodollar Market as
may from time to time be selected by the Administrative Agent with the
approval of Borrower, the Co-Borrowers and the Requisite Lenders. The
Administrative Agent will endeavor to provide prompt notice to Borrower
and the Co-Borrowers of any change in the location of the Designated
Market.
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
company, its successors and permitted assigns.
"Disclosure Schedule" means the Disclosure Schedule attached to this
Agreement as Schedule 4.0, as the same may be revised on the Closing Date
in accordance with Section 4.20 of this Agreement.
"Disposition" means the sale, transfer or other disposition, in one
transaction or any series of related transactions, of any asset.
"Disqualification" means, with respect to any Creditor:
(a) the failure of that Person timely to file pursuant to
applicable Gaming Laws (i) any application requested of that Person
by any Gaming Board in connection with any licensing required of
that Person as a lender to Borrower or a Co-Borrower or (ii) any
required application or other papers in connection with
determination of the suitability of that Person as a lender to
Borrower or a Co-Borrower;
(b) the withdrawal by that Person (except where requested or
permitted by the Gaming Board) of any such application or other
required papers; or
(c) any final determination by a Gaming Board pursuant to
applicable Gaming Laws (i) that such Person is "unsuitable" as a
lender to Borrower or a Co-Borrower, (ii) that such Person shall be
"disqualified" as a lender to Borrower or a Co-Borrower or (iii)
denying the issuance to that Person of any license required under
applicable Gaming Laws to be held by all lenders to Borrower or any
Co-Borrower.
"Distribution" means, with respect to any shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement,
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redemption, purchase or other acquisition for Cash or for Property (other
than capital stock, or any warrants or options to purchase an equity
security or other security of such Person) by such Person of any such
security, (b) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Property (other than capital stock,
or any warrants or options to purchase an equity security or other
security of such Person) on or with respect to any such security, (c) any
Investment by such Person in the holder of 5% or more of any such security
if a purpose of such Investment is to avoid characterization of the
transaction as a Distribution and (d) any other payment in Cash or
Property (other than capital stock, or any warrants or options to purchase
an equity security or other security of such Person) by such Person
constituting a distribution under applicable Laws with respect to such
security.
"Dollars" or "$" means United States dollars.
"EBITDA" means, with respect to any fiscal period and with respect
to any Person, the sum of (a) Net Income of such Person for that period,
plus (b) any extraordinary loss reflected in such Net Income and, without
duplication, any loss associated with the early retirement of
Indebtedness, plus (c) any transactional expenses associated with the
Mandalay Acquisition or the early retirement of Indebtedness, minus (d)
any extraordinary gain reflected in such Net Income, plus (e) Interest
Charges of such Person for that period, plus (f) 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 (g)
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 (h) expenses classified as "pre-opening and start-up expenses" on the
applicable financial statements of that Person for that fiscal period,
plus (i) minority interest, in each case as determined in accordance with
GAAP.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, and (ii) unless
an Event of Default has occurred and is continuing, Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, each "Eligible Assignee" (A) shall not be
Borrower or any of Borrower's Affiliates or Subsidiaries, (B) shall be
exempt from withholding of tax on interest and shall deliver the documents
related thereto pursuant to Section 11.21, and (iii) to the extent
required under applicable Gaming Laws, shall not be the subject of a
Disqualification.
"Enhanced LIBOR Margin" means, for any period, the sum of (i) the
LIBOR Margin then in effect plus (ii) such interest rate margin as the
Requisite Lenders specify is necessary to adjust LIBOR to a rate which
represents the effective pricing to such Lenders for deposits of Dollars
in the Designated Market in the relevant amount for the applicable
Interest Period and which adequately and fairly reflects the cost to such
Lenders of making the applicable LIBOR Advances.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced and as
in effect from time to time.
"ERISA Affiliate" means, with respect to any Person, any other
Person (or any trade or business, whether or not incorporated) that is
under common control with that Person within the meaning of Section 414 of
the Code.
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"Eurodollar Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"Event of Default" shall have the meaning provided in Section 9.1.
"Existing Letters of Credit" means the letters of credit issued
under the Existing Loan Agreement and outstanding as of the Closing Date.
"Existing Loan Agreement" means the Third Amended and Restated Loan
Agreement dated as of November 24, 2003 among Borrower, Detroit, as
Co-Borrower, the lenders referred to therein, and the Administrative
Agent, as heretofore amended.
"Existing MGM MIRAGE Subordinated Obligations" means, collectively,
(a) Borrower's $710,000,000 9 3/4 senior subordinated notes due 2007,
issued pursuant to the Indenture dated as of May 31, 2000 between Borrower
(under its former name, MGM Grand, Inc.) and The Bank of New York, as
Trustee, and (b) Borrower' $400,000,000 8 3/8% senior subordinated notes
due 2011 issued pursuant to the Indenture dated as of January 23, 2001
between Borrower and United States Trust Company of New York (to which The
Bank of New York is now successor in interest), as Trustee.
"Existing Mandalay Subordinated Obligations" means, collectively,
(a) Mandalay's $500,000,000 10.25% senior subordinated notes due 2007
issued pursuant to the Indenture dated as of July 24, 2000 between
Mandalay and The Bank of New York, as Trustee, (b) Mandalay's $300,000,000
9.375% senior subordinated notes due 2010 issued pursuant to the Indenture
dated December 20, 2001 between Mandalay and The Bank of New York, as
Trustee and (c) the 1993 Mandalay Subordinated Obligations.
"Existing Subordinated Obligations" means, collectively, Existing
MGM MIRAGE Subordinated Obligations and, upon and after the Closing Date,
the Existing Mandalay Subordinated Obligations.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank on the
Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting,
subject to Section 1.3, of the three calendar month periods ending on each
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting, subject
to Section 1.3, of the twelve month period ending on each December 31.
"Foreign Lender" has the meaning specified in Section 11.21(a)(i).
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"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Funded Debt" means, as of any date of determination, the sum
(without duplication) of (a) all principal Indebtedness of Borrower and
its Restricted Subsidiaries for borrowed money (including debt securities
issued by Borrower or any of its Restricted Subsidiaries) on that date
(other than any such Indebtedness to the extent (x) it has been legally or
contractually defeased, (y) it is the subject of a deposit in Cash or Cash
Equivalents for the purpose of defeasing the same in accordance with its
terms or (z) the proceeds thereof are held by the trustee or other
representative for the holders of such Indebtedness or any third party
escrow agent pending satisfaction or waiver of the conditions for the
release of such proceeds to Borrower or its Restricted Subsidiaries or to
a third party), plus (b) the aggregate amount of all Capital Lease
Obligations of Borrower and its Restricted Subsidiaries on that date, plus
(c) all Guaranty Obligations issued by Borrower and its Restricted
Subsidiaries, provided that the amount of any Guaranty Obligation or
letter of credit shall be deemed to be zero unless and until (i) in the
case of Guaranty Obligations in respect of letters of credit, a drawing is
made with respect thereto, and (ii) in the case of any other Guaranty
Obligations, demand for payment is made with respect thereto.
"GAAP" means, as of any date of determination, accounting principles
(a) set forth as generally accepted in then currently effective Opinions
of the Accounting Principles Board of the American Institute of Certified
Public Accountants, (b) set forth as generally accepted in then currently
effective statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith,
means that the accounting principles applied are consistent in all
material respects with those applied at prior dates or for prior periods.
"Gaming Board" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (c) the New Jersey
Casino Control Commission, (d) the New Jersey Division of Gaming
Enforcement, (e) the Mississippi Gaming Commission, (f) the Michigan
Gaming Control Board, (g) the Illinois Gaming Board, and (h) any other
Governmental Agency (including Governmental Agencies associated with
foreign governments) that holds regulatory, licensing or permit authority
over gambling, gaming or casino activities conducted by Borrower, any
Co-Borrower or any Restricted Subsidiary within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling, gaming
or casino activities conducted by Borrower and its Subsidiaries within its
jurisdiction, in each case to the extent applicable to Borrower and its
Restricted Subsidiaries.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental or
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quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body or (c) any court or
administrative tribunal of competent jurisdiction.
"Granting Lender" has the meaning set forth in Section 11.8(h).
"Guarantors" means, collectively, each Restricted Subsidiary of
Borrower which exists as of the Closing Date, the Mandalay Companies and
each other Restricted Subsidiary of Borrower which hereafter becomes a
Guarantor pursuant to Section 5.8, provided that any Guarantor which is
sold or otherwise transferred in a Disposition may be released from the
Guaranty in accordance with this Agreement.
"Guaranty" means each of the continuing guaranties of the
Obligations (or, in the case of Detroit, of the portion of the Obligations
which are actually borrowed or received by Detroit) executed and delivered
by the Guarantors on the Closing Date, substantially in the form of the
Subsidiary Guaranty executed in connection with the Existing Loan
Agreement.
"Guaranty Obligation" means, as to any Person (without duplication),
any (a) guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person to
an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person, whether
direct, indirect or contingent, including any purchase or repurchase
agreement covering such obligation or any collateral security therefor,
any agreement to provide funds (by means of loans, capital contributions
or otherwise) to such other Person, any agreement to support the solvency
or level of any balance sheet or income statement item of such other
Person or any "keep-well" or other arrangement of whatever nature given
for the purpose of assuring or holding harmless such obligee against loss
with respect to any obligation of such other Person; provided, however,
that the term Guaranty Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business.
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., or
as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or as "friable asbestos" pursuant to the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., in each case as
such Laws are amended from time to time.
"Hazardous Materials Laws" means all Laws governing the treatment,
transportation or disposal of Hazardous Materials applicable to any of the
Real Property.
"Honor Date" has the meaning set forth for that term in Section
2.4(c)(i).
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation for any such indebtedness, (b)
indebtedness of such Person of the nature described in clause (a) that is
non-recourse to the credit of such Person but is secured by assets of such
Person, to the extent of the value of such assets, (c) Capital Lease
Obligations of such Person, (d) indebtedness of such Person arising under
bankers' acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (e) any direct or contingent
obligations of such Person under letters of credit issued for the account
of such
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Person, and (f) any net obligations of such Person under Swap Agreements
in respect of interest rate hedging arrangements.
"Indemnified Liabilities" has the meaning set forth in Section 11.11.
"Indemnitees" has the meaning set forth in Section 11.11.
"Insurance Subsidiary" means MGMM Insurance Company, a Vermont
corporation, which is a captive insurance company approved by the Vermont
Department of Banking, Insurance, Securities and Health Care
Administration engaging primarily in the business of facilitating and
providing insurance coverage and claims services for Borrower,
Co-Borrowers and their Subsidiaries.
"Intercreditor Agreement" means the Collateral Agent and
Intercreditor Agreement dated as of February 13, 2002, among U.S. Bank
National Association, as Collateral Agent; Borrower, Mirage; the
Restricted Subsidiaries referred to therein, and Bank of America, N.A., as
Administrative Agent and each of the other Creditor Representatives
referred to therein, including any subsequent joinders thereto by which
additional Creditor Representatives or Restricted Subsidiaries become
party thereto, and as the same may be amended from time to time in a
manner which is consistent with the terms of Section 10.14(e).
"Interest Charge Coverage Ratio" means, as of the last day of each
Fiscal Quarter, the ratio of (a) Cash Flow for the twelve month period
ending on that date, to (b) Cash Interest Charges for the same period,
minus Sale Asset Attributable Interest Charges for the same period,
provided, however, that in the case of the first four Fiscal Quarters
following the Closing Date, Cash Interest Charges minus Sale Asset
Attributable Interest Charges shall be calculated on an annualized
straight line basis for the period from the Closing Date to the last day
of the relevant Fiscal Quarter.
"Interest Charges" means, for any Person, as of the last day of any
fiscal period, the sum of (a) all interest, fees, charges and related
expenses paid or payable (without duplication) for that fiscal period by
that Person to a lender in connection with borrowed money (including any
obligations for fees, charges and related expenses payable to the issuer
of any letter of credit) or the deferred purchase price of assets that are
considered "interest expense" under GAAP, plus (b) the portion of rent
paid or payable (without duplication) for that fiscal period by that
Person under Capital Lease Obligations that should be treated as interest
in accordance with Financial Accounting Standards Board Statement No. 13.
"Interest Differential" means, with respect to any prepayment of a
LIBOR Loan on a day other than the last day of the applicable Interest
Period and with respect to any failure to borrow a LIBOR Loan on the date
or in the amount specified in any Request for Loan, (a) LIBOR payable (or,
with respect to a failure to borrow, LIBOR which would have been payable)
with respect to the LIBOR Loan minus (b) LIBOR on, or as near as
practicable to, the date of the prepayment or failure to borrow for a
LIBOR Loan with an Interest Period commencing on such date and ending on
the last day of the Interest Period of the LIBOR Loan so prepaid or which
would have been borrowed on such date.
"Interest Period" means, as to each LIBOR Loan, a period of one
week, or of 1, 2, 3, 6 or 9 months (or, to the extent not promptly
objected to by any Lender following notice thereof by the Administrative
Agent, any other period) as designated by Borrower; provided that (a) the
first day of each Interest Period must be a Business Day, (b) any Interest
Period that would otherwise
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end on a day that is not a Business Day shall be extended to the next
succeeding Business Day, unless such Business Day falls in the next
calendar month, in which case the Interest Period shall end on the next
preceding Business Day, and (c) no Interest Period may extend beyond the
Maturity Date.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person. The
amount of any Investment shall be the amount actually invested (minus any
return of capital with respect to such Investment which has actually been
received in Cash or Cash Equivalents or has been converted into Cash or
Cash Equivalents), without adjustment for subsequent increases or
decreases in the value of such Investment.
"Investment Grade" means that the Debt Rating assigned is a rating
which, as reasonably determined by the Administrative Agent, would be the
lowest rating granted by the relevant credit rating agency which is
generally treated as "investment grade" in the ratings regime of that
credit rating agency.
"Issuer Documents" means with respect to any Letter of Credit issued
by an Issuing Lender, the Letter of Credit Application and any other
document, agreement or instrument entered into by Borrower (or any
Subsidiary), and that Issuing Lender or in favor of that Issuing Lender
and relating to any such Letter of Credit.
"Issuing Lender" means, (a) initially, Bank of America, N.A. in its
capacity as an issuer of Letters of Credit hereunder, and (b) up to two
additional willing Lenders designated from time to time by Borrower by a
writing addressed to the Administrative Agent as Issuing Lenders
hereunder.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance).
"L/C Advance" means, with respect to each Lender, such Lender's
funding of its participation in any L/C Borrowing in accordance with its
Pro Rata Share of the Revolving Commitment.
"L/C Borrowing" means an extension of credit resulting from a
drawing under a Letter of Credit which has not been reimbursed on the date
when made or refinanced as a Loan.
"L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For purposes of computing the amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.7. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to be "outstanding" in the amount so remaining available to be drawn.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
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"Lead Arrangers" means Bane of America Securities LLC and The Royal
Bank of Scotland PLC, in their capacities as joint lead arrangers of the
credit facilities described herein.
"Lender" means each lender whose name is set forth in the signature
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 11.8 (and to the extent a party to a
Related Swap Agreement, any Affiliate of a Lender). Each reference to a
"Bank" or "Banks" in any Loan Document or Collateral Document shall be
deemed to be a reference to the Lenders.
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such in such Lender's Administrative
Questionnaire, or such other office or offices as a Lender may from time
to time notify Borrower and the Administrative Agent.
"Letter of Credit Application" means an application and agreement
for the issuance or amendment of a Letter of Credit in the form from time
to time in use by the relevant Issuing Lender.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Usage" means, as of any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all Unreimbursed Amounts, including all L/C
Borrowings.
"Letters of Credit" means any of the Standby Letters of Credit or
Commercial Letters of Credit issued by the Issuing Lenders under the
Revolving Commitment pursuant to Section 2.4, including the Existing
Letters of Credit (and, upon the consummation of the Mandalay Acquisition,
the Mandalay Letters of Credit), either as originally issued or as the
same may be supplemented, modified, amended, renewed, extended or
supplanted.
"LIBOR" means, for any Interest Period with respect to a LIB OR
Loan, the rate per annum equal to the British Bankers Association LIBOR
Rate ("BBA LIBOR"), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the "LIBOR Rate"
for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the LIBOR Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.
"LIBOR Advance" means an Advance made hereunder and specified to be
a LIBOR Advance in accordance with Article 2.
"LIBOR Lending Office" means, as to each Lender, its office or
branch so designated by written notice to Borrower and the Administrative
Agent as its LIBOR Lending Office. If no
-16-
LIBOR Lending Office is designated by a Lender, its LIBOR Lending Office
shall be its office at its address for purposes of notices hereunder.
"LIBOR Loan" means a Loan made hereunder and specified to be a LIBOR
Loan in accordance with Article 2.
"LIBOR Margin" means the applicable per annum percentage set forth
in the definition of "Applicable Rates".
"LIBOR Margin Bid" means a Competitive Bid to provide a Competitive
Advance on the basis of a margin over LIBOR.
"License Revocation" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, supervisor or similar
official with respect to, any casino, gambling or gaming license issued by
any Gaming Board covering any casino or gaming facility.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance or lien of any
kind, whether voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any agreement to grant any of
the foregoing, any conditional sale or other title retention agreement,
any lease in the nature of a security interest, and/or the filing of or
agreement to give any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature of a
security interest) under the Uniform Commercial Code or comparable Law of
any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time by
the Lenders pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Swing Line Documents, the Guaranty, each Request for Loan, each
Competitive Bid Request, each Letter of Credit Application, each Pricing
Certificate, each Compliance Certificate, any Related Swap Agreement and
any other agreements of any type or nature hereafter executed and
delivered by Borrower or any of its Restricted Subsidiaries to the
Administrative Agent or to any Lender in any way relating to or in
furtherance of this Agreement, in each case either as originally executed
or as the same may from time to time be supplemented, modified, amended,
restated, extended or supplanted.
"Mandalay" means Mandalay Resort Group, a Nevada corporation.
"Mandalay Acquisition" means the acquisition of Mandalay by MGM
MIRAGE Acquisition Co. #61, a Nevada corporation, which is a wholly-owned
direct Subsidiary of Borrower, and the subsequent merger of Mandalay and
MGM MIRAGE Acquisition Co. #61 (with Mandalay as the survivor), pursuant
to the Mandalay Purchase Agreement.
"Mandalay Companies" means, collectively, Mandalay and those of its
Subsidiaries which, on the Closing Date, will become Restricted
Subsidiaries following the Mandalay Acquisition.
"Mandalay Letters of Credit" means each of the letters of credit
issued pursuant to the Mandalay Loan Agreement and outstanding on the
Closing Date, as advised by the Administrative Agent to the Lenders on the
Closing Date.
-17-
"Mandalay Loan Agreement" means the Revolving Loan Agreement dated
as of August 22, 2001 among Mandalay, the lenders referred to therein, and
Bank of America, N.A., as Administrative Agent, as amended as of the
Closing Date.
"Mandalay Purchase Agreement" means the Agreement and Plan of Merger
dated as of June 15, 2004 among Borrower, Mandalay and MGM MIRAGE
Acquisition Co. #61, a Nevada corporation.
"Margin Stock" means "margin stock" as such term is defined in
Regulations U and X of the Federal Reserve Board.
"Material Adverse Effect" means any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan
Document, (b) is or could reasonably be expected to be material and
adverse to the condition or prospects (financial or otherwise), assets,
business or operations of Borrower and its Restricted Subsidiaries, taken
as a whole, or (c) materially impairs or could reasonably be expected to
materially impair the ability of Borrower or Guarantors (taken as a whole)
to perform the Obligations.
"Material Transaction" means (a) each Acquisition made by Borrower
or any of its Restricted Subsidiaries or the Mandalay Companies following
the date hereof pursuant to which the aggregate consideration paid by them
(whether in Cash or other Property, or by means of the assumption of any
liabilities) is in excess of $500,000,000, including, without limitation,
the Mandalay Acquisition, and (b) each Disposition made by Borrower or any
of its Restricted Subsidiaries or the Mandalay Companies following the
date hereof pursuant to which the aggregate consideration received by them
(whether in Cash or other Property, or by means of the assumption of any
liabilities) is in excess of $500,000,000, other than any Disposition of
any Property designated as the Sale Asset.
"Maturity Date" means the fifth anniversary of the Closing Date.
"Maximum Competitive Advance" means, with respect to any Competitive
Bid made by a Lender, the amount set forth therein as the maximum
Competitive Advance which that Lender is willing to make in response to
the related Competitive Bid Request.
"Maximum Competitive Outstandings Amount" means, as of each date of
determination, one half of the then effective amount of the Revolving
Commitment.
"MGM Grand Detroit II" means MGM Grand Detroit II, LLC, a Delaware
limited liability company, and its successors.
"Mirage" means Mirage Resorts, Incorporated, a Nevada corporation.
"Moody's" means Moody's Investors Service, Inc., and any successor
thereto.
"Motor City Casino" means the Motor City Casino in Detroit,
Michigan.
"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.
-18-
"Negative Pledge" means a Contractual Obligation that contains a
covenant binding on Borrower or any of its Restricted Subsidiaries that
prohibits Liens on any of its or their Property, other than (a) any such
covenant contained in a Contractual Obligation granting a Lien permitted
under Section 6.4 which affects only the Property that is the subject of
such permitted Lien and (b) any such covenant that does not apply to Liens
securing the Obligations or any indebtedness which is used, directly or
indirectly, to refinance the Obligations.
"Net Income" means, with respect to any fiscal period and with
respect to any Person, the net income of that Person from continuing
operations for that period, determined in accordance with GAAP,
consistently applied.
"New Project" means each free-standing hotel, casino or other
development commenced by Borrower and its Restricted Subsidiaries
following the date hereof having an aggregate construction budget in
excess of $250,000,000.
"New Project Annualized EBITDA" means, as of each date of
determination which occurs during the one year period following the
opening of any New Project for business, the EBITDA associated with that
New Project for the fiscal period following such opening, annualized on
the following basis:
(a) where the period from the opening is less than one full
Fiscal Quarter, such EBITDA times four; and
(b) where the period from the opening is one full Fiscal
Quarter or more, such EBITDA annualized on a straight-line basis.
"Non-Control Subsidiaries" means each Subsidiary of Borrower in
respect of which Borrower and its other Subsidiaries do not have the
collective right to elect a majority of the board of directors or other
equivalent governing body, or otherwise lack the power to direct the
management of such Subsidiary which is identified as such by Borrower in a
notice to the Administrative Agent. Each Non-Control Subsidiary existing
as of the date hereof is listed on the Disclosure Schedule as such. Each
Non-Control Subsidiary existing as of the Closing Date is listed on the
updated Disclosure Schedule delivered pursuant to Section 4.20 as such.
"Notes" means, collectively, the Competitive Revolving Notes, the
Committed Revolving Notes and the Term Notes.
"Obligations" means all present and future obligations of every kind
or nature of Borrower, the Co-Borrowers or the Guarantors at any time and
from time to time owed to the Administrative Agent, the Issuing Lenders,
the Swing Line Lenders or the Lenders or any one or more of them, under
any one or more of the Loan Documents, whether due or to become due,
matured or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well as obligations
of payment, and including interest that accrues after the commencement of
any proceeding under any Debtor Relief Law by or against Borrower or a
Restricted Subsidiary of Borrower, whether or not allowed as a claim in
such proceeding
"Opinions" means the favorable written legal opinions of (a)
Christensen, Miller, Fink, Jacobs, Glaser, Weil and Shapiro, LLP, counsel
to Borrower, (b) Lionel Sawyer & Collins, Nevada counsel to Borrower, (c)
Fox Rothschild LLP, New Jersey counsel to Borrower, (d) Butler, Snow,
O'Mara, Stevens & Cannada, PLLC, Mississippi counsel to Borrower, (e)
Dickinson Wright PLLC, Michigan counsel to Borrower, (f) Shefsky &
Froelich, Illinois
-19-
counsel to Borrower, (g) Crowe & Dunlevy, special aviation counsel to
Borrower and (h) Terriberry, Carroll & Yancey, L.L.P., special admiralty
counsel to Borrower together with copies of all factual certificates and
legal opinions upon which such counsel has relied.
"Other Available EBITDA" means, for any fiscal period, without
duplication (a) that portion of the EBITDA of any Unrestricted
Subsidiaries for that fiscal period to the extent that the same may be
distributed in Cash to Borrower and its Restricted Subsidiaries during
that fiscal period in accordance with applicable Law and subject to any
Contractual Obligations (including credit documents) which are binding
upon such Unrestricted Subsidiaries or their respective Properties
(whether or not so distributed), plus (b) in the event that Detroit is
designated as the Sale Asset, all of the EBITDA attributable to the
operations of the Motor City Casino for that fiscal period.
"Outstanding Obligations" means, as of each date of determination,
and giving effect to the making of any such credit accommodations
requested on that date, the sum of (i) the aggregate principal amount of
the outstanding Committed Loans, plus (ii) the aggregate principal amount
of the outstanding Competitive Advances, plus (iii) the Swing Line
Outstandings, plus (iv) the Letter of Credit Usage.
"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
-20-
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
-21-
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
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.
"Post Closing Fiscal Quarter" means each Fiscal Quarter ending
following the Closing Date, even if a portion of that Fiscal Quarter is
before the Closing Date.
"Pricing Certificate" means a certificate substantially in the form
of Exhibit H, properly completed and signed by a Senior Officer of
Borrower and each Co-Borrower.
"Pricing Level" means, as of each date of determination, the pricing
level set forth below opposite (a) the Applicable Total Leverage Ratio, or
(b) at such times when the Debt Rating is Investment Grade or Superior
Investment Grade, the Debt Rating, provided that if the Applicable Total
Leverage Ratio and the Debt Rating are at different Pricing Levels, then
the Pricing Level which yields the lowest LIBOR Margin shall apply:
-22-
Pricing Criteria
--------------------------------------------------------------
Pricing Level Applicable Total Leverage Ratio Debt Rating
- ------------- ----------------------------------------- -----------------
I Less than 3.50 to 1.00 Superior
Investment Grade
II Equal to or greater than 3.50 to 1.00 but Investment Grade
less than 4.00 to 1.00
III Equal to or greater than 4.00 to 1.00 but N/A
less than 4.50 to 1.00
IV Equal to or greater than 4.50 to 1.00 but N/A
less than 5.00 to 1.00
V Equal to or greater than 5.00 to 1.00 but N/A
less than 5.50 to 1.00
VI Equal to or greater than 5.50 to 1.00 but N/A
less than 6.00 to 1.00
VII Equal to or greater than 6.00 to 1.00 N/A
Pricing Period" means each period commencing on the date of delivery
of each Pricing Certificate and ending on the date immediately preceding
the delivery of the next Pricing Certificate.
"Pro Rata Share" means, with respect to each Lender, the percentage
of the relevant Commitment, the Loans (except for Competitive Advances)
thereunder (and in the case of the Revolving Commitment, the Letters of
Credit and the Swing Line Advances) held by that Lender (or by a SPC for
which that Lender is the Granting Lender). As of the date hereof, the Pro
Rata Shares of the Commitments held by each Lender are set forth on
Schedule 1.1 hereto. The percentage Pro Rata Shares of each Lender in the
Commitments is subject to adjustment pursuant to any Assignment Agreement
executed in accordance with Section 11.8.
"Projections" means the financial projections for Borrower and its
Subsidiaries (including, on a pro forma basis, the Mandalay Companies) as
set forth in the Offering Memorandum prepared on behalf of Borrower and
heretofore distributed to the Lenders as part of the Confidential Offering
Memorandum dated October, 2004.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Qualified Obligations" means (a) the Indebtedness of Borrower and
its Restricted Subsidiaries which is now entitled to the benefits of the
collateral security contemplated by the Intercreditor Agreement, including
the Obligations under this Agreement, (b) each additional class of Senior
Indebtedness of Borrower which hereafter is properly treated as a
Qualified Obligation pursuant to the terms of the Intercreditor Agreement
and (c) each other class of senior Indebtedness of Borrower and its
Restricted Subsidiaries which may hereafter be designated as a "Qualified
Obligation" pursuant to the terms of the Intercreditor Agreement, provided
that no class of Indebtedness of Borrower which is contractually
subordinated to other Indebtedness in any manner may be so designated by
Borrower other than, at Borrower's election, the 1993 Mandalay
Subordinated Obligations.
-23-
"Quarterly Payment Date" means the last Business Day of each
December, March, June and September following the date of this Agreement.
"Real Property" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by Borrower or any
of its Restricted Subsidiaries.
"Regulations T. U and X" means Regulations T, U and X, as at any
time amended, of the Board of Governors of the Federal Reserve System, or
any other regulations in substance substituted therefor.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"Related Swap Agreement" means a Swap Agreement between Borrower and
a Lender or an Affiliate of a Lender. Each Related Swap Agreement is a
secured "Swap Agreement" as described and defined in the Intercreditor
Agreement and is entitled to the benefits of the Liens provided in the
Collateral Documents.
"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 Lenders" means (a) as of any date of determination if the
Commitments are then in effect, Lenders having Pro Rata Shares of the
Commitments which are, in the aggregate, a majority of the Pro Rata Shares
of the Commitments then in effect, and (b) as of any date of determination
if the Commitments have then been terminated and there are then any
Obligations outstanding, Lenders or other creditors holding a majority of
the Outstanding Obligations; provided that the Pro Rata Shares of the
Commitments of, and the portion of the Outstanding Obligations held or
deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Requisite Lenders.
"Responsible Official" means when used with reference to any Person,
any officer or manager of such Person, general partner of such Person,
officer of a corporate or limited liability company general partner of
such Person, officer of a corporate or limited liability company general
partner of a partnership that is a general partner of such Person, or any
other responsible official thereof duly acting on behalf thereof. The
Lenders shall be entitled to conclusively rely upon any document or
certificate that is signed or executed by a Responsible Official of
Borrower, or any of its Restricted Subsidiaries as having been authorized
by all necessary corporate, limited liability company, partnership and/or
other action on the part of Borrower or such Restricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary of Borrower other
than:
-24-
(a) Subsidiaries formed under the Laws of foreign nations
whose only tangible assets are located in foreign nations, and pure
holding companies for such foreign Subsidiaries owning as their sole
asset the stock or other securities and obligations thereof;
(b) MGM Grand Detroit II and the Insurance Subsidiary;
(c) Non-Control Subsidiaries; and
(d) any Subsidiary of Borrower formed or acquired after the
date of this Agreement that is designated as an Unrestricted
Subsidiary in writing by Borrower to the Administrative Agent, but
only so long as such Subsidiary of Borrower does not, and is not
required to, guarantee or otherwise be liable for any of the Senior
Indebtedness.
"Revolving Commitment" means, subject to any decrease in the amount
thereof pursuant to Sections 2.8, 2.9 or 11.26, $5,500,000,000.
"Revolving Lender" means each Lender having a Pro Rata Share of the
Revolving Loans, the Letters of Credit, the Swing Line Loans and the
Revolving Commitment.
"Revolving Loans" means the aggregate of the Advances made at any
one time by the Revolving Lenders under the Revolving Commitment.
"S&P" means Standard & Poor's Ratings Services, a division of McGraw
Hill Companies, Inc., and any successor thereto.
"Sale Asset" means, as of each date of determination, either (a)
Mandalay's direct or indirect interests in the Motor City Casino, or (b)
Borrower's direct or indirect interests in the MGM Grand Detroit Casino in
Detroit, Michigan, in each case, if such asset has been properly
designated by Borrower in accordance with GAAP on its balance sheet
prepared as of that date as an asset "held for sale" or such asset has
been disposed of by the Borrower and its Subsidiaries.
"Sale Asset Attributable Debt" means, as of each date of
determination, the amount designated by Borrower in its Pricing
Certificate as of the relevant date which is equal to:
(a) if no binding agreement for the disposition of the Sale
Asset then exists, $500,000,000;
(b) if there is a binding agreement for the disposition of
the Sale Asset, but the disposition of the Sale Asset has not yet
been consummated, the amount of the Cash consideration payable to
Borrower and its Restricted Subsidiaries pursuant to such agreement;
(c) if the disposition of the Sale Asset has been
consummated, the amount of any proceeds of such disposition which
are the subject of an escrow or similar hold-back arrangement; and
(d) otherwise, zero.
"Sale Asset Attributable EBITDA" means for any period, and to the
extent otherwise included in determining Cash Flow for that period, EBITDA
for the Sale Asset for that period.
-25-
"Sale Asset Attributable Interest Charges" means for any period Cash
Interest Charges in respect of Indebtedness in an amount equal to:
(a) the amount of the Sale Asset Attributable Debt (as
determined from time to time during the relevant period, provided
that if a binding agreement for the disposition of the Sale Asset
becomes effective during that period, the Sale Asset Attributable
Debt for each date during such period occurring prior to the
consummation of such disposition shall be equal to the amount of the
Cash consideration payable to Borrower and its Restricted
Subsidiaries pursuant to such agreement); times
(b) interest in respect of such Sale Asset Attributable Debt
at a rate equal to the blended interest rate payable by Borrower in
respect of Indebtedness during the relevant period (as reasonably
determined by Borrower).
"Senior Indebtedness" means, collectively, (a) any present or future
Qualified Obligations, and (b) each other issue, item or class of
Indebtedness of Borrower or any of its Restricted Subsidiaries which is in
the principal amount of $50,000,000 or more and which is not a
Subordinated Obligation.
"Senior Leverage Ratio" means, as of any date, the ratio of (a)
Funded Debt as of that date minus Subordinated Obligations as of that date
and minus Sale Asset Attributable Debt determined as of that date, to (b)
Cash Flow for the twelve month period then ended.
"Senior Officer" means the (a) chief executive officer or manager,
(b) president, (c) executive vice president, (d) senior vice president,
(e) chief financial officer, (f) treasurer, (g) assistant treasurer, (h)
secretary or (i) assistant secretary of Borrower or any of its Restricted
Subsidiaries.
"Solvent" means, as to any Person, that (a) the sum of the assets of
such Person, both at a fair valuation and at a present fair saleable
value, exceeds its liabilities, including its probable liability in
respect of contingent liabilities, (b) such Person will have sufficient
capital with which to conduct its business as presently conducted and as
proposed to be conducted and (c) such Person has not incurred debts, and
does not intend to incur debts, beyond its ability to pay such debts as
they mature.
"SPC" means, as to each Lender, one or more special purpose funding
vehicles maintained or established by that Lender.
"Special Eurodollar Circumstance" means the application or adoption
after the date hereof of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Lender or its LIBOR Lending Office with any request or directive (whether
or not having the force of Law) of any such Governmental Agency, central
bank or comparable authority, or the existence or occurrence of
circumstances affecting the Designated Market generally that are beyond
the reasonable control of the Lenders.
"Standby Letter of Credit" means each Letter of Credit that is not a
Commercial Letter of Credit.
-26-
"Standby Letter of Credit Fee" means the applicable per annum
percentage set forth in the definition of "Applicable Rates".
"Subordinated Obligations" means, collectively, the Existing
Subordinated Obligations and any future class of Indebtedness of Borrower
or any of its Subsidiaries which is subject to subordination in right of
payment to the Obligations pursuant to subordination provisions which are
(a) reasonably consistent with those contained in the Existing
Subordinated Obligations, or (b) otherwise reasonably consistent with then
prevailing market standards for public issuances of subordinated
indebtedness.
"Subsidiary" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in either case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a
majority of the securities having ordinary voting power for the election
of directors or other governing body (other than securities having such
power only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority of the
partnership or other ownership interests are at the time beneficially
owned by such Person and/or one or more of its Subsidiaries.
For the avoidance of doubt, and only by way of example, as of the
date hereof, (a) Victoria Partners, a Nevada general partnership, and (b)
Marina District Development Holding Co., LLC, a New Jersey limited
liability company, the 100% owner of Marina District Development Company,
LLC, a New Jersey limited liability company doing business as "The
Borgata," are each only 50% owned by Borrower and therefore are not
Subsidiaries of Borrower, however Victoria Partners will become both a
Subsidiary and a Restricted Subsidiary concurrently with the Mandalay
Acquisition by reason of Borrower's acquisition through Mandalay of the
remaining ownership interests in Victoria Partners.
"Superior Investment Grade" means that the Debt Rating assigned is a
rating which, as reasonably determined by the Administrative Agent, would
be a rating which is higher than the minimum Investment Grade rating in
the ratings regime of that credit rating agency.
"Supported Subsidiary" means, collectively, (a) each Restricted
Subsidiary and (b) each Unrestricted Subsidiary in support of which
Borrower and its Restricted Subsidiaries have provided any guarantee,
keep-well, make-well or similar creditor assurance in respect of (i)
Indebtedness which is in an aggregate principal amount which is in excess
of $25,000,000, or (ii) any other obligations which may result in a demand
upon Borrower and its Restricted Subsidiaries which is in excess of
$25,000,000.
"Swap Agreement" means a written agreement between Borrower and one
or more financial institutions providing for (a) "swap", "cap", "collar"
or other interest rate protection with respect to any Indebtedness, or (b)
any currency hedging arrangements.
"Swing Line" means the revolving lines of credit established by the
Swing Line Lenders in favor of Borrower and the Co-Borrowers pursuant to
Section 2.6.
"Swing Line Documents" means the promissory note and any other
documents executed by Borrower and each Co-Borrower in favor of the Swing
Line Lenders in connection with the Swing Line.
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"Swing Line Lenders" means (a) initially, Bank of America and (b)
hereafter such willing additional or replacement Swing Line Lenders as may
be designated by Borrower in a writing addressed to the Administrative
Agent from time to time from amongst the Lenders, provided that not more
than three Lenders shall be Swing Line Lenders at any time.
"Swing Line Loans" and "Swing Line Advances" mean loans made by a
Swing Line Lender to Borrower or the Co-Borrowers pursuant to Section 2.6.
"Swing Line Outstandings" means, as of any date of determination,
the aggregate principal Indebtedness of Borrower and the Co-Borrowers on
all Swing Line Loans then outstanding.
"Term Commitment" means subject to any decrease in the amount
thereof pursuant to Sections 2.8, 2.9 or 11.26, $1,500,000,000.
"Term Lender" means each Lender having a Pro Rata Share of the Term
Loans and the Term Commitment.
"Term Loans" means the aggregate of the Advances made at any one
time by the Term Lenders under the Term Commitment.
"Term Note" means each promissory note made by Borrower and each
Co-Borrower to a Lender evidencing the Advances made by that Lender under
its Pro Rata Share of the Term Commitment, substantially in the form of
Exhibit J, either as originally executed or as the same may from time to
time be supplemented, modified, amended, renewed, extended or supplanted.
"Theme Park Property" means the real property which was the former
site of the MGM Grand Theme Park located adjacent to the MGM Grand Hotel
and Casino and all improvements, fixtures and personalty located thereon
(but not any portion of the casino or hotel improvements associated with
the MGM Grand Hotel and Casino).
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with
the exercise of reasonable due diligence under the circumstances (in
accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or, in
the case of a Person other than a natural Person, would have been known by
a Responsible Official of that Person).
"Total Leverage Ratio" means, as of any date, the ratio of (a)
Funded Debt as of that date minus Sale Asset Attributable Debt determined
as of that date, to (b) Cash Flow for the twelve month period then ended.
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or
Advance, or a LIBOR Loan or Advance.
"Unreimbursed Amount" has the meaning set forth in Section
2.4(c)(i).
"Unrelated Person" means any Person other than (i) an employee stock
ownership plan or other employee benefit plan covering the employees of
Borrower and its Subsidiaries or (ii) an
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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.
"Unused Fee" has the meaning set forth in Section 3.4(a).
"Unused Fee Rate" means the applicable per annum percentage set
forth in the definition of "Applicable Rates".
"1993 Mandalay Subordinated Obligations" means the $150,000,000
Senior Subordinated Notes of Mandalay issued pursuant to the Indenture
dated July 21, 1993 between Mandalay (under its former name, Circus
Circus Enterprises, Inc.) and First Interstate Bank of Nevada, N.A. (to
which Wells Fargo Bank, N.A., is now successor in interest), as
Trustee, as amended as of the date hereof.
1.2 Use of Defined Terms. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 Accounting Terms - Fiscal Periods. All accounting terms not
specifically defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, except as
otherwise specifically prescribed herein. In the event that GAAP or Borrower's
Fiscal Year or Fiscal Quarters change during the term of this Agreement such
that the covenants contained in Sections 6.5, 6.6 and 6.7 would then be
calculated for different periods, in a different manner or with different
components, (a) Borrower, the Co-Borrowers and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the same
criteria as were effective prior to such change in Fiscal Year, Fiscal Quarters
or in GAAP and (b) Borrower and the Co-Borrowers shall be deemed to be in
compliance with the covenants contained in the aforesaid Sections if and to the
extent that Borrower and the Co-Borrowers would have been in compliance
therewith for the pre-existing fiscal periods and under GAAP as in effect
immediately prior to such change, but shall have the obligation to deliver each
of the materials described in Article 7 to the Creditors, on the dates therein
specified, with financial data presented for its pre-existing fiscal periods and
in a manner which conforms with GAAP as in effect immediately prior to such
change.
1.4 Rounding. Any financial ratios required to be maintained by
Borrower and the Co-Borrowers pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 Miscellaneous Terms. With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document:
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(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "herein," "hereto," "hereof and "hereunder"
and words of similar import when used in any Loan Document shall refer to
such Loan Document as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(d) The term "including" is by way of example and not
limitation.
(e) The term "or" is not exclusive.
(f) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form.
(g) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;" and
the word "through" means "to and including."
1.7 Letter of Credit Amounts. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum stated amount is in effect at
such time.
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ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 Committed Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date through
the Business Day immediately prior to the Maturity Date, each Revolving
Lender shall, pro rata according to that Revolving Lender's Pro Rata Share
of the then applicable Revolving Commitment, make Committed Advances to
Borrower or to any Co-Borrower under the Revolving Commitment in Dollars
in such amounts as Borrower or any Co-Borrower may request that (i) do not
result in the sum of the Indebtedness evidenced by the Committed Revolving
Notes and the Competitive Revolving Notes plus the Letters of Credit Usage
plus the Swing Line Outstandings (after giving effect to any concurrent
payment thereof with the proceeds of such Advances) exceeding the then
effective Revolving Commitment, and (ii) in the case of Committed Advances
made to a Co-Borrower, are directly used to finance the development,
construction or operation of hotel/casino properties owned by that
Co-Borrower. Subject to the limitations set forth herein, the Committed
Advances by each Revolving Lender under its Pro Rata Share of the
Revolving Commitment may be prepaid without premium or penalty. The
Administrative Agent shall promptly provide Borrower or the relevant
Co-Borrower with a written report allocating the Obligations under the
Revolving Commitment if requested by Borrower or such Co-Borrower.
(b) Subject to the terms and conditions set forth in this
Agreement, on the Closing Date, each Term Lender shall make an Advance to
Borrower or to any Co-Borrower under the Term Commitment in Dollars in the
full amount of that Term Lender's Pro Rata Share of the Term Commitment.
Thereafter, through the Business Day immediately prior to the Maturity
Date, each Term Lender shall refinance its outstanding Advances, pro rata
according to that Term Lender's Pro Rata Share of the then applicable Term
Commitment, in such amounts as Borrower or the relevant Co-Borrower may
request that do not result in the Indebtedness evidenced by the Term Notes
being in excess of the then effective Term Commitment. No Term Loan which
is repaid (rather than refinanced with the making of new Term Loans) may
be reborrowed. Subject to the limitations set forth herein, the Advances
by each Term Lender under its Pro Rata Share of the Term Commitment may be
prepaid without premium or penalty.
(c) Subject to the next sentence, each Loan consisting of
Committed Advances shall be made pursuant to a Request for Loan which
shall specify the requested (i) date of such Loan, (ii) type of Loan,
(iii) amount of such Loan, (iv) in the case of a LIBOR Loan, the Interest
Period for such Loan, and (v) whether the Loan is requested under the Term
Commitment or the Revolving Commitment. Unless the Administrative Agent,
in its sole and absolute discretion, has notified Borrower or the relevant
Co-Borrower to the contrary, a Loan consisting of Committed Advances may
be requested by telephone by a Responsible Official of Borrower or the
relevant Co-Borrower, in which case Borrower or the relevant Co-Borrower
shall confirm such request by promptly delivering a Request for Loan in
person or by telecopier conforming to the preceding sentence to the
Administrative Agent. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request purportedly
made by a Responsible Official of Borrower or the relevant Co-Borrower,
and Borrower and the Co- Borrowers hereby agree to indemnify each Creditor
from any loss, cost, expense or liability as a result of so acting.
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(d) Promptly following receipt of a Request for Loan in
respect of a Revolving Loan, the Administrative Agent shall notify each
Revolving Lender by telephone or telecopier (and if by telephone, promptly
confirmed by telecopier) of the date and type of the Revolving Loan, any
applicable Interest Period, and that Revolving Lender's Pro Rata Share of
the Loan.
(e) Not later than 11:00 a.m., Las Vegas time, on the date
specified for any Committed Loan (which must be a Business Day), each
Lender having a Pro Rata Share of the relevant Commitment shall make its
Pro Rata Share of the Committed Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent's
Office. Upon satisfaction or waiver of the applicable conditions set forth
in Article 8, all Committed Advances shall be credited on that date in
immediately available funds to the Deposit Account for Borrower or that
Co-Borrower.
(f) Unless the Requisite Lenders otherwise consent, each
Committed Loan shall be in an integral multiple of $1,000,000 which is not
less than $5,000,000.
(g) The Committed Advances made by each Revolving Lender
under the Revolving Commitment shall be evidenced by that Lender's
Committed Revolving Note, and the Committed Advances made by each Term
Lender under the Term Commitment shall be evidenced by that Lender's Term
Note.
(h) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(i) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(c), if applicable) has
been made within the requisite notice periods set forth in Section 2.2 or
2.3 prior to the end of the Interest Period for any LIBOR Loan, then on
the last day of such Interest Period, such LIBOR Loan shall be
automatically converted into a Base Rate Loan in the same amount.
(j) If a Loan is to be made on the same date that another
Loan is due and payable:
(i) the Lenders shall make available to the
Administrative Agent (or the Administrative Agent shall make
available to the Lenders) the net amount of funds giving effect to
both such Loans and the effect for purposes of this Agreement shall
be the same as if separate transfers of funds had been made with
respect to each such Loan; and
(ii) in the case where the same Party is the primary
borrower of both such Loans, Borrower or the relevant Co-Borrower
shall make available to the Administrative Agent (or the
Administrative Agent shall make available to such Party) the net
amount of funds giving effect to both such Loans and the effect for
purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such Loan.
2.2 Base Rate Loans. Each request by Borrower or any Co-Borrower
for a Base Rate Loan shall be made pursuant to a Request for Loan (or telephonic
or other request for loan referred to in the second sentence of Section 2.1(c),
if applicable) received by the Administrative Agent, at the Administrative
Agent's Office, not later than 10:00 a.m., Las Vegas time, on the date (which
must be a
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Business Day) of the requested Base Rate Loan. All Committed Loans shall
constitute Base Rate Loans unless properly designated as a LIBOR Loan pursuant
to Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower or any Co-Borrower for a LIBOR
Loan (including any conversion or continuation thereof) shall be made
pursuant to a Request for Loan (or telephonic or other request for Loan
referred to in the second sentence of Section 2.1(c), if applicable)
received by the Administrative Agent, at the Administrative Agent's
Office, not later than 10:00 a.m., Las Vegas time, at least three Business
Days before the first day of the applicable Interest Period.
(b) On the date which is two Business Days before the first
day of the applicable Interest Period, the Administrative Agent shall
confirm its determination of the applicable LIBOR (which determination
shall be conclusive in the absence of manifest error) and promptly shall
give notice of the same to Borrower and any relevant Co-Borrowers and the
Lenders by telephone or telecopier (and if by telephone, promptly
confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than twenty-five LIBOR Loans shall be
outstanding at any one time.
(d) No LIBOR Loan may be requested during the continuation
of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to
fund any LIBOR Advance in the Designated Market.
2.4 Letters of Credit.
(a) Letter of Credit Subfacility. Concurrently with the
effectiveness of this Agreement each of the Existing Letters of Credit
shall be deemed issued and outstanding hereunder, and each of the Lenders
having a share in the Revolving Commitment shall be deemed to have
purchased a participation, in accordance with its Pro Rata Share of the
Revolving Commitment, in the Existing Letters of Credit. Concurrently with
the effectiveness of the Mandalay Acquisition, each of the Mandalay
Letters of Credit shall be deemed issued and outstanding hereunder, and
each of the Lenders having a share in the Revolving Commitment shall be
deemed to have purchased a participation, in accordance with its Pro Rata
Share of the Revolving Commitment, in the Mandalay Letters of Credit.
Subject to the terms and conditions of this Agreement (including Section
8.3), Borrower or any Co-Borrower may request from time to time during the
period from the Closing Date through the day prior to the Letter of Credit
Expiration Date that the Issuing Lenders, in reliance upon the agreements
of the other Lenders set forth in this Section 2.4, issue Letters of
Credit for the account of Borrower or the relevant Co-Borrower, and each
Issuing Lender agrees to issue for the account of Borrower or the relevant
Co-Borrower one or more Letters of Credit denominated in Dollars and to
amend Letters of Credit previously issued by it in accordance with clause
(b) below, provided that (i) Borrower or the relevant Co-Borrower shall
not request that any Issuing Lender issue any Letter of Credit if, after
giving effect to such issuance, the aggregate outstanding principal
evidenced by the Committed Revolving Notes and the Competitive Revolving
Notes plus the Letter of Credit Usage plus the Swing Line Outstandings
exceeds the Revolving Commitment, (ii) in no event shall any Issuing
Lender issue any Letter of Credit having an expiration date after the
Maturity Date, (iii) Borrower or the relevant Co-Borrower shall not
request any Letter of Credit if, after
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giving effect to such issuance, the Letter of Credit Usage would exceed
$250,000,000 or any limit established by Law after the Closing Date on the
relevant Issuing Lender's ability to issue the requested Letter of Credit
at any time, and (iv) prior to the issuance of any Letter of Credit the
relevant Issuing Lender shall request confirmation by telephone from the
Administrative Agent that such Letter of Credit may be issued and shall
have received electronic confirmation from the Administrative Agent to
that effect. Notwithstanding the foregoing, the Issuing Lenders shall not
be obligated to issue any Letter of Credit if, (A) on or prior to the
Business Day immediately preceding the issuance thereof any Revolving
Lender has notified the Administrative Agent or the Issuing Lenders in
writing that the conditions set forth in Section 8.3 have not been
satisfied with respect to the issuance of such Letter of Credit, (B) any
order, judgment or decree of any Governmental Agency or arbitrator shall
by its terms purport to enjoin or restrain the Issuing Lenders from
issuing such Letter of Credit, or any Law applicable to the Issuing
Lenders or any request or directive (whether or not having the force of
law) from any Governmental Agency with jurisdiction over the Issuing
Lenders shall prohibit, or request that the Issuing Lenders refrain from,
the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lenders with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Lenders are not otherwise compensated hereunder) not in
effect on the date hereof, or shall impose upon the Issuing Lenders any
unreimbursed loss, cost or expense which was not applicable on the date
hereof and which the relevant Issuing Lender in good faith deems material
to it, (C) the issuance of such Letter of Credit would violate one or more
policies of the relevant Issuing Lender, or (D) the expiry date of such
requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all of the Lenders have approved such expiry date.
(b) Procedures for Issuance and Amendment of Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended,
as the case may be, upon the request of Borrower or any Co-Borrower
delivered to the relevant Issuing Lender (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Official of
Borrower or the relevant Co-Borrower. Each Letter of Credit
Application submitted by Borrower (or any Co-Borrower) shall be
deemed to be a representation and warranty that the conditions
specified in Section 8.3 have been satisfied on and as of the date
of the issuance of the Letter of Credit requested thereby. Such
Letter of Credit Application must be received by the relevant
Issuing Lender and the Administrative Agent not later than 1:00
p.m., Las Vegas time, at least three Business Days (or such later
date and time as the relevant Issuing Lender may agree in a
particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case
of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the relevant Issuing Lender: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such
other matters as the relevant Issuing Lender may require. In the
case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the relevant Issuing Lender (W) the Letter of
Credit to be amended; (X) the proposed date of amendment thereof
(which shall be a Business Day); (Y) the nature of the proposed
amendment; and (Z) such other matters as the relevant Issuing Lender
may require. Additionally, Borrower (or the applicable Co-Borrower)
shall furnish to the
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relevant Issuing Lender and the Administrative Agent such other
documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the
relevant Issuing Lender or the Administrative Agent may reasonably
require.
(ii) Promptly after receipt of any Letter of Credit
Application, the relevant Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit
Application from Borrower or the relevant Co-Borrower and, if not,
the relevant Issuing Lender will provide the Administrative Agent
with a copy thereof. Upon receipt by the relevant Issuing Lender of
confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, the
relevant Issuing Lender shall, on the requested date, issue a Letter
of Credit for the account of Borrower or the relevant Co-Borrower or
enter into the applicable amendment, as the case may be, in each
case in accordance with the relevant Issuing Lender's usual and
customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
relevant Issuing Lender a risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Pro Rata
Share of the Revolving Commitment times the amount of such Letter of
Credit.
(iii) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising Lender
with respect thereto or to the beneficiary thereof, the relevant
Issuing Lender will also deliver to Borrower or the relevant
Co-Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(c) Drawings and Reimbursements: Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the
relevant Issuing Lender shall notify Borrower or the relevant
Co-Borrower and the Administrative Agent thereof. Not later than
11:00 a.m., Las Vegas time on the date of any payment by the
relevant Issuing Lender under a Letter of Credit (each such date, an
"Honor Date"), Borrower or the relevant Co-Borrower shall reimburse
the relevant Issuing Lender through the Administrative Agent in an
amount equal to the amount of such drawing. If Borrower or the
relevant Co-Borrower fails to so reimburse that Issuing Lender by
such time, the Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the amount of the unreimbursed
drawing (the "Unreimbursed Amount"), and the amount of such
Revolving Lender's Pro Rata Share thereof. In such event, Borrower
shall be deemed to have requested a Base Rate Loan under the
Revolving Commitment to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.1(f) for the principal amount of
Base Rate Loans, but subject to the amount of the unutilized portion
of the Revolving Commitment and the conditions set forth in Section
8.2 (other than the delivery of a Request for Loan). Any notice
given by an Issuing Lender or the Administrative Agent pursuant to
this Section 2.4(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect
of such notice.
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(ii) Each Revolving Lender (including the Lender acting
as Issuing Lender) shall upon any notice pursuant to Section
2.4(c)(i) make funds available to the Administrative Agent for the
account of that Issuing Lender at the Administrative Agent's Office
in an amount equal to its Pro Rata Share of the Unreimbursed Amount
not later than 1:00 p.m., Las Vegas time, on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.4(c)(iii), each Revolving
Lender that so makes funds available shall be deemed to have made a
Committed Advance to Borrower or the relevant Co-Borrower in such
amount. The Administrative Agent shall remit the funds so received
to that Issuing Lender.
(iii) With respect to any Unreimbursed Amount that is
not fully refinanced by a Base Rate Loan because the conditions set
forth in Section 8.2 cannot be satisfied or for any other reason,
Borrower or the relevant Co-Borrower shall be deemed to have
incurred from the relevant Issuing Lender an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which
L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such
event, each Lender's payment to the Administrative Agent for the
account of the relevant Issuing Lender pursuant to Section
2.4(c)(ii) shall be deemed payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C Advance from such
Revolving Lender in satisfaction of its participation obligation
under this Section 2.4.
(iv) Until each Revolving Lender funds its Committed
Advance or L/C Advance pursuant to this Section 2.4(c) to reimburse
the relevant Issuing Lender for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Lender's Pro Rata
Share of such amount shall be solely for the account of the relevant
Issuing Lender.
(v) Each Revolving Lender's obligation to make
Committed Advances or L/C Advances to reimburse the relevant Issuing
Lender for amounts drawn under Letters of Credit, as contemplated by
this Section 2.4(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such
Revolving Lender may have against the relevant Issuing Lender,
Borrower, any Co-Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Revolving
Lender's obligation to make Committed Advances pursuant to this
Section 2.4(c) is subject to the conditions set forth in Section 8.2
(other than delivery by Borrower or any Co-Borrower of a Request for
Loan). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of Borrower or the relevant Co-Borrower to
reimburse the relevant Issuing Lender for the amount of any payment
made by that Issuing Lender under any Letter of Credit, together
with interest as provided herein.
(vi) If any Revolving Lender fails to make available to
the Administrative Agent for the account of an Issuing Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.4(c) by the time specified in Section
2.4(c)(ii), that Issuing Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to that Issuing Lender at a rate per annum equal to the
Federal Funds Rate from time to time in effect. A certificate of the
relevant
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Issuing Lender submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after any Issuing Lender has made a
payment under any Letter of Credit and has received from any
Revolving Lender such Revolving Lender's L/C Advance in respect of
such payment in accordance with Section 2.4(c), if the
Administrative Agent receives for the account of that Issuing Lender
any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from Borrower, or the relevant
Co-Borrower or otherwise, including proceeds of cash collateral
applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Revolving Lender its Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Revolving Lender's
L/C Advance was outstanding) in the same funds as those received by
the Administrative Agent.
(ii) If any payment received by the Administrative
Agent for the account of the relevant Issuing Lender pursuant to
Section 2.4(c)(i) is required to be returned under any of the
circumstances described in Section 11.30 (including pursuant to any
settlement entered into by that Issuing Lender in its discretion),
each Revolving Lender shall pay to the Administrative Agent for the
account of the relevant Issuing Lender its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such
Revolving Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
(e) Obligations Absolute. The obligation of Borrower and the
Co-Borrowers to reimburse the Issuing Lenders for each drawing under
Letters of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances, including the
following:
(i) any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that Borrower or the relevant Co-Borrower may
have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the Issuing Lenders or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under such Letter of Credit;
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(iv) any payment by the relevant Issuing Lender under
such Letter of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the relevant Issuing Lender under
such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, Borrower or the relevant Co-Borrower.
Borrower or the relevant Co-Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and,
in the event of any claim of noncompliance with Borrower's or the relevant
Co-Borrower's instructions or other irregularity, Borrower or the relevant
Co-Borrower will immediately notify the relevant Issuing Lender. Borrower
or the relevant Co-Borrower shall be conclusively deemed to have waived
any such claim against the relevant Issuing Lender and its correspondents
unless such notice is given as aforesaid.
(f) Role of Issuing Lenders. Each Lender, Borrower and each
of the Co-Borrowers agree that, in paying any drawing under a Letter of
Credit, the Issuing Lenders shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as
to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. None of the Issuing
Lenders, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Lenders shall be
liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the
Requisite Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit
Application. Borrower and the relevant Co-Borrower hereby assume all risks
of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, however, that this assumption
is not intended to, and shall not, preclude Borrower's or the relevant
Co-Borrower's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the
Issuing Lenders, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Lenders, shall be
liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.4(e); provided, however, that anything in such
clauses to the contrary notwithstanding, Borrower or the relevant
Co-Borrower may have a claim against the relevant Issuing Lender, and that
Issuing Lender may be liable to Borrower or the relevant Co-Borrower, to
the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by Borrower or the relevant
Co-Borrower which such Borrower or such Co-Borrower proves were caused by
that Issuing Lender's willful misconduct or gross negligence or that
Issuing Lender's willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing,
the Issuing Lenders may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the Issuing Lenders
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shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative
Agent, (i) if the relevant Issuing Lender has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted
in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration
Date, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, Borrower or the relevant Co-Borrower shall
immediately Cash Collateralize the then outstanding amount of the Letter
of Credit Usage (in an amount equal to such outstanding amount determined
as of the date of such L/C Borrowing or the Letter of Credit Expiration
Date, as the case may be). For purposes hereof, "Cash Collateralize" means
to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the relevant Issuing Lender and the Revolving Lenders, as
collateral for the then outstanding amount of the Letter of Credit Usage,
Cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the relevant
Issuing Lender (which documents are hereby consented to by the Revolving
Lenders), subject to any limitations in the Intercreditor Agreement.
Derivatives of such term have corresponding meanings. Any Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
Bank of America.
(h) Applicability of ISP98 and UCP. Unless otherwise
expressly agreed by an Issuing Lender and Borrower or the relevant
Co-Borrower when a Letter of Credit is issued, (i) the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) shall apply to each Standby Letter
of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International
Chamber of Commerce at the time of issuance shall apply to each Commercial
Letter of Credit.
(i) Conflict with Letter of Credit Application. In the event
of any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.
(j) Fees for Modifications. The issuance of any supplement,
modification, amendment, renewal, or extension to or of any Letter of
Credit shall be treated in all respects the same as the issuance of a new
Letter of Credit, except that the issuance fees payable to Bank of America
as an Issuing Lender shall be payable as set forth in the letter agreement
referred to in Section 3.5.
2.5 Competitive Advances.
(a) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through and including the
Maturity Date, each Revolving Lender may in its sole and absolute
discretion make Competitive Advances to Borrower or to any Co-Borrower in
Dollars pursuant to Competitive Bids accepted by Borrower or the relevant
Co-Borrower in such principal amounts as Borrower or the relevant
Co-Borrower may request pursuant to a Competitive Bid Request that do not
result in the aggregate outstanding principal Indebtedness evidenced by
the Competitive Revolving Notes being in excess of the Maximum Competitive
Outstandings Amount, provided that after giving effect to the making of
each Competitive Advance, the sum of the Indebtedness evidenced by the
Committed Revolving Notes and the Competitive Revolving Notes plus the
Letters of Credit Usage plus the Swing Line Outstandings shall not exceed
the then effective Revolving Commitment. Each Competitive
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Advance made to a Co-Borrower shall be directly used to finance and/or
refinance the development, construction or operation of hotel/casino
properties owned by that Co-Borrower. No Competitive Advance made by any
Revolving Lender shall relieve that Revolving Lender of its Pro Rata Share
of the undrawn Revolving Commitment.
(b) Borrower or the relevant Co-Borrower shall request
Competitive Advances by submitting Competitive Bid Requests to the
Administrative Agent, which specify the relevant date, amount and maturity
of the proposed Competitive Advance and whether the Competitive Bid
requested is an Absolute Rate Bid or a LIBOR Margin Bid, or both. Borrower
and each Co-Borrower may submit telephonic requests for Competitive
Advances. Any Competitive Bid Request made by telephone shall promptly be
confirmed by the delivery to Administrative Agent in person or by
telecopier of a written Competitive Bid Request. The Administrative Agent
shall incur no liability whatsoever hereunder in acting upon any
telephonic Competitive Bid Request purportedly made by a Responsible
Official of Borrower or Co-Borrower, each of which hereby agrees to
indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting. The Competitive Bid Request must be
received by the Administrative Agent not later than 10:00 a.m., Las Vegas
time, on a Business Day that is at least one Business Day prior to the
date of the proposed Competitive Advance if an Absolute Rate Bid is
requested; if a LIBOR Margin Bid is requested, it must be received by the
Administrative Agent four Business Days prior to the date of the proposed
Competitive Advance.
(c) Unless the Administrative Agent otherwise agrees, in its
sole and absolute discretion, no Competitive Bid Request may be submitted
within the five Business Day period following submission of another
Competitive Bid Request.
(d) Each Competitive Bid Request must be made for a
Competitive Advance of at least $10,000,000 and shall be in an integral
multiple of $1,000,000.
(e) No Competitive Bid Request shall be made for a
Competitive Advance with a maturity of less than 7 days or more than 180
days, with a maturity date subsequent to the Maturity Date, or for a
maturity which ends on a day other than a Business Day.
(f) The Administrative Agent shall, promptly after receipt
of a Competitive Bid Request, notify the Revolving Lenders thereof by
telephone and provide the Revolving Lenders a copy thereof by telecopier.
Any Revolving Lender may, by written notice to the Administrative Agent
(with a copy to Borrower and the Co-Borrowers), advise the Administrative
Agent that it elects not to be so notified of Competitive Bid Requests, in
which case the Administrative Agent shall not notify such Revolving Lender
of the Competitive Bid Request.
(g) Each Revolving Lender receiving a Competitive Bid
Request may, in its sole and absolute discretion, make or not make a
Competitive Bid responsive to the Competitive Bid Request. Each
Competitive Bid shall be submitted to the Administrative Agent not later
than 7:30 a.m. (or, in the case of the Revolving Lender which is also the
Administrative Agent, not later than 7:15 a.m.) Las Vegas time, in the
case of a LIBOR Margin Bid, on the date which is three Business Days prior
to the requested Competitive Advance and, in the case of an Absolute Rate
Bid, on the date of the requested Competitive Advance. Any Competitive Bid
received by the Administrative Agent after 7:30 a.m. (or 7:15 a.m. in the
case of the Revolving Lender which is also the Administrative Agent) on
such date shall be disregarded for purposes of this Agreement. Any
Competitive Bid made by telephone shall promptly be confirmed by the
delivery to the Administrative Agent in person or by telecopier of a
written Competitive Bid. The
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Administrative Agent shall incur no liability whatsoever hereunder in
acting upon any telephonic Competitive Bid purportedly made by a
Responsible Official of a Revolving Lender, each of which hereby agrees to
indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting with respect to that Revolving Lender.
(h) Each Competitive Bid shall specify the fixed interest
rate or the margin over LIBOR, as applicable, for the offered Maximum
Competitive Advance set forth in the Competitive Bid. The Maximum
Competitive Advance offered by a Revolving Lender in a Competitive Bid may
be less than the Competitive Advance requested by Borrower or the relevant
Co-Borrower in the Competitive Bid Request, but, if so, shall be an
integral multiple of $1,000,000. Any Competitive Bid which offers an
interest rate other than a fixed interest rate or a margin over LIBOR, is
in a form other than set forth in Exhibit D or which otherwise contains
any term, condition or provision not contained in the Competitive Bid
Request shall be disregarded for purposes of this Agreement. A Competitive
Bid once submitted to the Administrative Agent shall be irrevocable until
10:00 a.m., Las Vegas time, in the case of a LIBOR Margin Bid, on the date
which is three Business Days prior to the requested Competitive Advance
and, in the case of an Absolute Rate Bid, on the date of the proposed
Competitive Advance set forth in the related Competitive Bid Request, and
shall expire by its terms at such time unless accepted by Borrower or the
relevant Co-Borrower prior thereto.
(i) Promptly after 7:30 a.m., Las Vegas time, in the case of
a LIBOR Margin Bid, on the date which is three Business Days prior to the
date of the proposed Competitive Advance and, in the case of an Absolute
Rate Bid, on the date of the proposed Competitive Advance, the
Administrative Agent shall notify Borrower or the relevant Co-Borrower of
the names of the Revolving Lenders providing Competitive Bids to the
Administrative Agent at or before 7:30 a.m. on that date (or 7:15 a.m. in
the case of the Revolving Lender which is also the Administrative Agent)
and the Maximum Competitive Advance and fixed interest rate or margin over
LIBOR set forth by each such Revolving Lender in its Competitive Bid. The
Administrative Agent shall promptly confirm such notification in writing
delivered in person or by telecopier to Borrower or the relevant
Co-Borrower.
(j) Borrower or the relevant Co-Borrower may, in its sole
and absolute discretion, reject any or all of the Competitive Bids. If
Borrower or the relevant Co-Borrower accepts any Competitive Bid, the
following shall apply: (a) Borrower or the relevant Co-Borrower must
accept all Absolute Rate Bids at all lower fixed interest rates before
accepting any portion of an Absolute Rate Bid at a higher fixed interest
rate, (b) Borrower or the relevant Co-Borrower must accept all LIBOR
Margin Bids at all lower margins over LIBOR before accepting any portion
of a LIBOR Margin Bid at a higher margin over LIBOR, (c) if two or more
Revolving Lenders have submitted a Competitive Bid at the same fixed
interest rate or margin, then Borrower or the relevant Co-Borrower must
accept either all of such Competitive Bids or accept such Competitive Bids
in the same proportion as the Maximum Competitive Advance of each
Revolving Lender bears to the aggregate Maximum Competitive Advances of
all such Revolving Lenders, and (d) Borrower and the Co-Borrower may not
accept Competitive Bids for an aggregate amount in excess of the requested
Competitive Advance set forth in the Competitive Bid Request. Borrower or
the relevant Co-Borrower must accept (i) each LIBOR Margin Bid prior to
10:00 a.m., Las Vegas time on the date which is three Business Days prior
to the requested Competitive Advance and (iii) each Absolute Rate Bid
prior to 10:00 a.m., Las Vegas time on the date of the requested
Competitive Advance or shall be deemed to have rejected the offered
Competitive Advances. Acceptance of a Competitive Bid by Borrower or a
Co-Borrower shall be irrevocable upon communication thereof to the
Administrative Agent. The Administrative Agent shall promptly notify each
of the Revolving Lenders whose Competitive
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Bid has been accepted by Borrower or the relevant Co-Borrower by
telephone, which notification shall promptly be confirmed in writing
delivered in person or by telecopier to such Revolving Lenders.
(k) In the case of LIBOR Margin Bids, the Administrative
Agent shall determine LIBOR on the date which is two Business Days prior
to the date of the proposed Competitive Advance, and shall promptly
thereafter notify Borrower or the relevant Co-Borrower and the Revolving
Lenders whose Competitive Bids were accepted by Borrower or the relevant
Co-Borrower of such LIBOR.
(l) A Revolving Lender whose Competitive Bid has been
accepted shall make the Competitive Advance in accordance with the
Competitive Bid Request and with its Competitive Bid, subject to the
applicable conditions set forth in this Agreement by making funds
immediately available to the Administrative Agent at the Administrative
Agent's Office in the amount of such Competitive Advance not later than
12:00 noon Las Vegas time, on the date set forth in the Competitive Bid
Request. The Administrative Agent shall then promptly credit the
Competitive Advance in immediately available funds to the relevant Deposit
Account.
(m) The Administrative Agent shall notify Borrower and the
Revolving Lenders promptly after any Competitive Advance is made of the
amounts and maturity of such Competitive Advances and the identity of the
Revolving Lenders making such Competitive Advances.
(n) The Competitive Advances made by each Revolving Lender
shall be evidenced by that Revolving Lender's Competitive Revolving Note.
2.6 Swing Line.
(a) Subject to the terms and conditions set forth herein,
from the Closing Date through the day prior to the Maturity Date, the
Swing Line Lenders shall make Swing Line Loans to Borrower and each of the
Co-Borrowers in such amounts as they may request which do not result in
the sum of the Indebtedness evidenced by the Committed Revolving Notes and
the Competitive Revolving Notes plus the Letters of Credit Usage plus the
Swing Line Outstandings exceeding the then effective Revolving Commitment
(as in effect on the date of the making of the related Swing Line Loan),
provided that:
(i) after giving effect to each Swing Line Loan, the
aggregate principal amount of the Swing Line Outstandings shall not
exceed $150,000,000;
(ii) no Swing Line Lender shall be obligated to permit
the aggregate principal amount of the Swing Line Outstanding owed to
that Swing Line Lender to exceed any limit set forth in the Swing
Line Documents executed in favor of that Swing Line Lender;
(iii) without the consent of all of the Lenders, no
Swing Line Loan may be made during the continuation of an Event of
Default;
(iv) prior to the making of the initial Swing Line Loan
by the relevant Swing Line Lender, the Borrower or the relevant
Co-Borrower shall have provided the relevant Swing Line Lender with
a note or other Swing Line Documents in form and substance
reasonably satisfactory to that Swing Line Lender;
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(v) the relevant Swing Line Lender has not given at
least twenty-four hours prior notice to Borrower that availability
under the Swing Line is suspended or terminated. Borrower and the
Co-Borrowers may borrow, repay and reborrow under this Section.
Unless notified to the contrary by the Administrative Agent, borrowings
under the Swing Line may be made in amounts which are integral multiples
of $100,000 upon telephonic request by a Responsible Official of Borrower
or the relevant Co-Borrower made to the Administrative Agent (and to the
relevant Swing Line Lender, if the Swing Line Lender is not Bank of
America) not later than 1:00 p.m., Las Vegas time, on the Business Day of
the requested borrowing (which telephonic request shall be promptly
confirmed in writing by telecopier), provided that if the requested Swing
Line Loan is to be credited to an account which is not with the Swing Line
Lender, the request must be submitted by 11:30 a.m., Las Vegas time.
Promptly after receipt of such a request for borrowing, the Administrative
Agent shall provide telephonic verification to the relevant Swing Line
Lender that, after giving effect to such request, the sum of the
Indebtedness evidenced by the Committed Revolving Notes and the
Competitive Revolving Notes plus the Letters of Credit Usage plus the
Swing Line Outstandings will not exceed the then effective Revolving
Commitment (and such verification shall be promptly confirmed in writing
by telecopier or by email). Unless notified to the contrary by the
relevant Swing Line Lender, each repayment of a Swing Line Loan shall be
in an amount which is an integral multiple of $100,000. If Borrower or the
relevant Co-Borrower instructs a Swing Line Lender to debit its demand
deposit account at that Swing Line Lender in the amount of any payment
with respect to a Swing Line Loan, or that Swing Line Lender otherwise
receives repayment, after 3:00 p.m., Las Vegas time, on a Business Day,
such payment shall be deemed received on the next Business Day. Each Swing
Line Lender shall promptly notify the Administrative Agent of the Swing
Line Outstandings each time there is a change therein or if it suspends or
terminates availability under its Swing Line.
(b) Swing Line Loans shall bear interest at a rate per annum
agreed to from time to time by Borrower and the relevant Swing Line
Lender. Interest shall be payable on such dates, as may be specified by
the relevant Swing Line Lender and in any event on the Maturity Date. Each
Swing Line Lender shall be responsible for invoicing Borrower or the
relevant Co-Borrower for such interest on Swing Line Loans made by it.
Interest payable on each Swing Line Loan is solely for the account of the
Swing Line Lender making that Swing Line Loan (subject to clause (d)
below).
(c) A Swing Line Loan shall be payable within five Business
Days after demand made by the relevant Swing Line Lender and in any event
on the Maturity Date or any earlier date when all other Obligations are
due.
(d) Upon the making of a Swing Line Loan in accordance with
Section 2.6(a), each Revolving Lender shall be deemed to have purchased
from the relevant Swing Line Lender a participation therein in an amount
equal to that Lender's Pro Rata Share of the Revolving Commitment times
the amount of the Swing Line Loan. Upon demand made by the relevant Swing
Line Lender through the Administrative Agent, each Revolving Lender shall,
according to its Pro Rata Share of the Revolving Commitment, promptly
provide to such Swing Line Lender its purchase price therefor in an amount
equal to its participation therein. The obligation of each Revolving
Lender to so provide its purchase price to a Swing Line Lender shall be
absolute and unconditional (subject only to the making of a demand upon
that Revolving Lender by such Swing Line Lender) and shall not be affected
by the occurrence of a Default or Event of Default; provided that no
Revolving Lender shall be obligated to purchase its Pro Rata
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Share under the Revolving Commitment of (i) Swing Line Loans to the extent
that the aggregate Swing Line Outstandings are in excess of $150,000,000
or to the extent that the sum of the Indebtedness evidenced by the
Committed Revolving Notes and the Competitive Revolving Notes plus the
Letters of Credit Usage plus the Swing Line Outstandings exceeds the
Revolving Commitment (as in effect on the date of the making of the
related Swing Line Loan) and (ii) any Swing Line Loan made (absent the
consent of all of the Revolving Lenders) at any time when the applicable
conditions set forth in Section 8.2 have not been satisfied. Each
Revolving Lender that has provided to a Swing Line Lender the purchase
price due for its participation in Swing Line Loans shall thereupon
acquire a pro rata participation, to the extent of such payment, in the
claim of such Swing Line Lender against Borrower and the Co-Borrowers for
principal and interest and shall share, in accordance with that pro rata
participation, in any principal payment made by Borrower or the
Co-Borrowers with respect to such claim and in any interest payment made
by Borrower or the Co-Borrowers (but only with respect to periods
subsequent to the date such Revolving Lender paid the Swing Line Lender
its purchase price) with respect to such claim.
(e) Upon any demand for payment of the Swing Line
Outstandings by a Swing Line Lender (unless Borrower or the relevant
Co-Borrower has made other arrangements acceptable to such Swing Line
Lender to reduce the Swing Line Outstandings to $0), Borrower or the
relevant Co-Borrower shall request a Committed Loan pursuant to Section
2.1 (a) sufficient to repay all Swing Line Outstandings to that Swing Line
Lender (and, for this purpose, Section 2.1(f) shall not apply). In each
case, the Administrative Agent shall automatically provide the respective
Committed Advances made by each Revolving Lender to the relevant Swing
Line Lender (which such Swing Line Lender shall then apply to the Swing
Line Outstandings). In the event that Borrower and the Co-Borrowers fail
to request a Committed Loan within the time specified by Section 2.2 on
any such date, the Administrative Agent may, but is not required to,
without notice to or the consent of Borrower or the Co-Borrowers, cause
Committed Advances to be made by the Revolving Lenders under the Revolving
Commitment in amounts which are sufficient to reduce the Swing Line
Outstandings as required above. The conditions precedent set forth in
Article 8 shall not apply to Committed Advances to be made by the
Revolving Lenders pursuant to the three preceding sentences but the
Revolving Lenders shall not be obligated to make such Committed Advances
to the extent that the conditions set forth in Section 2.6(a)(i), (ii) and
(iii) were not satisfied as to any Swing Line Loan which is part of such
Swing Line Outstandings. The proceeds of such Committed Advances shall be
paid directly to the Swing Line Lender for application to the Swing Line
Outstandings.
2.7 Co-Borrowers. Detroit is hereby designated as a direct
Co-Borrower under this Agreement, with the right to request Loans, Swing Line
Loans and Letters of Credit through the Administrative Agent directly from the
Lenders, the Swing Line Lenders and the Issuing Lenders, subject to the terms
and conditions set forth herein. From time to time following the Closing Date,
Borrower may designate one or more Guarantors which are United States domestic
Persons to be additional joint and several direct Co-Borrowers hereunder by
written request to the Administrative Agent accompanied by (a) an executed
Assumption Agreement and appropriate Notes executed by the designated Guarantor,
(b) a certificate of good standing of the designated Guarantor in the
jurisdiction of its incorporation or organization, (c) a certified resolution
authorizing the execution and delivery of the Assumption Agreement and such
Notes, (d) a written consent to the Assumption Agreement executed by each other
Guarantor, and (e) appropriate written legal opinions similar to the Opinions
with respect to the Co-Borrower and the Assumption Agreement. The Administrative
Agent shall promptly notify the Lenders of such request, together with copies of
such of the foregoing as any Lender may request and the designated Guarantor
shall become a Co-Borrower hereunder. Notwithstanding the other provisions of
this Section 2.7, (a) each Loan and Letter of Credit made hereunder to Detroit
or any other Co-Borrower shall be used solely and directly to finance and/or
refinance the development, construction or operation of
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hotel/casino properties owned by that Co-Borrower, and (b) the liability of
Detroit is limited to that portion of the Obligations which are actually
borrowed or received by Detroit.
2.8 Voluntary Reduction of the Commitments. Borrower and the
Co-Borrowers shall have the right, at any time and from time to time, without
penalty or charge, upon at least three Business Days' prior written notice by a
Responsible Official of Borrower and the Co-Borrowers to the Administrative
Agent, voluntarily to reduce, permanently and irrevocably, in aggregate
principal amounts in an integral multiple of $1,000,000 (but in the case of
assignments of Pro Rata Shares of the Revolving Commitment, not less than
$5,000,000), or to terminate, all or a portion of the then undisbursed portion
of either of the Commitments; provided that (a) the Revolving Commitment may not
be so reduced below an amount equal to the sum of (i) the aggregate principal
amount outstanding under the Committed Revolving Notes and the Competitive
Revolving Notes, plus (ii) the Letters of Credit Usage plus (iii) the Swing Line
Outstandings, and (b) concurrently with each reduction of the Term Commitment,
the Term Loans shall be prepaid in the same amount. The Administrative Agent
shall promptly notify the Lenders of any reduction or termination of the
Commitments under this Section.
2.9 Optional Termination of Commitments. Following the occurrence
of a Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect to terminate the Commitments during the sixty day period
immediately subsequent to the later of (a) such occurrence or (b) the earlier of
(i) receipt of written notice to the Administrative Agent of the Change in
Control from Borrower and the Co-Borrowers, or (ii) if no such notice has been
received by the Administrative Agent, the date upon which the Administrative
Agent has actual knowledge thereof. In the event that the Lenders elect to so
terminate the Commitments, the Commitments shall be terminated effective on the
date which is sixty days subsequent to written notice from the Administrative
Agent to Borrower and the Co-Borrowers thereof.
2.10 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m., Las Vegas time, on the Business Day of the proposed
funding by the Administrative Agent of any Loan that such Lender does not intend
to make available to the Administrative Agent such Lender's portion of the total
amount of such Loan, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of the Loan
and the Administrative Agent may, in reliance upon such assumption, make
available to Borrower or the relevant Co-Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower or a Co-Borrower based
on such assumption and such corresponding amount is not in fact made available
to the Administrative Agent by such Lender, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent promptly shall
notify Borrower or that Co-Borrower who shall pay such corresponding amount to
the Administrative Agent. The Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Administrative Agent to Borrower or the Co-Borrowers to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to the daily Federal Funds Rate. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its share of the Commitments
or to prejudice any rights which the Administrative Agent, Borrower or any
Co-Borrower may have against any Lender as a result of any default by such
Lender hereunder.
2.11 Release and Reattachment of Collateral.
(a) If, following the date hereof, Borrower and its
Restricted Subsidiaries are then entitled to the release of all of the
Liens described in the Intercreditor Agreement, pursuant
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to the Intercreditor Agreement and pursuant to the credit documents
governing each of the then existing Qualified Obligations, 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, as a Creditor Representative under
the Intercreditor Agreement, and the Administrative Agent shall, upon such
request, direct the Collateral Agent to release each of the Liens securing
the Obligations and the other Qualified Obligations. 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 Collateral Agent and the holders of the other Qualified
Obligations shall previously or concurrently release all Liens held by
such creditors. Promptly upon receipt of such a Certificate, the
Administrative Agent shall (i) provide a copy thereof to the Lenders and
(ii) direct the Collateral Agent to return to the Persons legally entitled
thereto, all Collateral pledged in support of the Obligations and the
other Qualified Obligations, but subject to the requirement that the Liens
held by the Collateral Agent and the holders of the other Qualified
Obligations are previously or concurrently released, all at the sole
expense of Borrower and the Co-Borrowers (a "Collateral Release"). No
Collateral Release shall constitute or be construed as a release (or to
require the release) of the Guaranty.
(b) If, following any Collateral Release, a Collateral Event
occurs, 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 for the
benefit of any then outstanding Qualified Obligations, grant perfected
Liens in the same collateral to secure the Obligations, including any
Related Swap Agreements, in manner contemplated by the Intercreditor
Agreement, 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 holders of
the Obligations and the other Qualified Obligations 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 such Senior Indebtedness 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 other Senior Indebtedness, (ii) granted concurrently with any
such Liens, and (iii) granted pursuant to instruments, documents and
agreements which are similar to the Collateral Documents or otherwise
reasonably acceptable to the Administrative Agent. It is acknowledged that
the same may subordinate to certain prior Liens in favor of creditors
other than the holders of Senior Indebtedness permitted pursuant to
Section 6.4. 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, but
only to the extent that policies of title insurance on the corresponding
Property are provided to the holders of other classes of Senior
Indebtedness (and in an insured amount that is proportionately equal to
the policies provided to the holders of the other classes of Senior
Indebtedness), and (z) legal opinions and other assurances as the
Administrative Agent may reasonably request.
2.12 Senior Indebtedness. The Obligations shall be and hereby are
designated as "Senior Indebtedness" and "Senior Obligations" of Borrower and its
Restricted Subsidiaries with respect
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to all Subordinated Obligations, and Borrower shall promptly provide to the
trustee or other representative of the holders of each class of Subordinated
Obligations any certificate, designation or other writing which is required by
the terms of the indenture or other instrument evidencing any Subordinated
Obligations to so designate the Obligations.
2.13 Collateral. As of the Closing Date and each subsequent date,
unless a Collateral Release has occurred and no re-attachment has thereafter
occurred, the Obligations under the Loan Documents, including each Related Swap
Agreement, are secured by the Collateral contemplated by the Intercreditor
Agreement and the Collateral Documents.
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ARTICLE 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily
unpaid principal amount of each Advance from the date thereof until
payment in full is made and shall accrue and be payable at the rates set
forth or provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the commencement
of any proceeding under any Debtor Relief Law, with interest on overdue
principal and interest at the Default Rate to the fullest extent permitted
by applicable Laws.
(b) Interest accrued on each Base Rate Loan on each
Quarterly Payment Date shall be due and payable on that day. Except as
otherwise provided in Section 3.9, the unpaid principal amount of any Base
Rate Loan shall bear interest at a fluctuating rate per annum equal to the
Base Rate plus the applicable Base Rate Margin. Each change in the
interest rate under this Section 3.1(b) due to a change in the Base Rate
shall take effect simultaneously with the corresponding change in the Base
Rate.
(c) Interest accrued on each LIBOR Loan which is for a term
of three months or less shall be due and payable on the last day of the
related Interest Period. Interest accrued on each other LIBOR Loan shall
be due and payable on the date which is three months after the date such
LIBOR Loan was made (and, every three months thereafter through the last
day of the Interest Period) and on the last day of the related Interest
Period. Except as otherwise provided in Section 3.9, the unpaid principal
amount of any LIBOR Loan shall bear interest at a rate per annum equal to
LIBOR for that LIBOR Loan plus the applicable LIBOR Margin.
(d) Interest accrued on each Competitive Advance shall be
due and payable on the maturity date of the Competitive Advance. Except as
otherwise provided in Section 3.9, the unpaid principal amount of each
Competitive Advance shall bear interest at the fixed interest rate or the
margin over LIBOR specified in the related Competitive Bid.
(e) If not sooner paid, the principal Indebtedness evidenced
by the Notes shall be payable as follows:
(i) the amount, if any, by which the Obligations
outstanding (including, without limitation, obligations evidenced by
the Competitive Revolving Notes) under the Revolving Commitment at
any time exceed the then applicable Revolving Commitment, shall be
payable immediately;
(ii) the principal amount of each Competitive Advance
shall be payable on the maturity date specified in the related
Competitive Bid; and
(iii) the principal Indebtedness 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., Las Vegas time, on the
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Business Day prior to the date of prepayment (which must be a Business
Day) in the case of a Base Rate Loan, and, in the case of a LIBOR Loan,
three Business Days before the date of prepayment, which notice shall
identify the date and amount of the prepayment and the Loan(s) being
prepaid, (iii) each prepayment of principal on any LIBOR Loan shall be
accompanied by payment of interest accrued to the date of payment on the
amount of principal paid and (iv) any payment or prepayment of all or any
part of any LIBOR Loan on a day other than the last day of the applicable
Interest Period shall be subject to Section 3.8(e). Promptly following
receipt of a notice of prepayment under clause (ii) above, the
Administrative Agent shall notify each Lender by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier) of the date and
amount thereof.
(g) No Competitive Revolving Note may be prepaid
without the prior written consent of the Lender making such Competitive
Advance.
3.2 Arrangement Fees. On the Closing Date, Borrower shall pay to
the Lead Arrangers fees in the amounts heretofore agreed upon by letter
agreements between Borrower and the Lead Arrangers. These fees are for the
services of the Lead Arrangers in arranging the credit facilities under this
Agreement and are fully earned when paid and are nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall pay to the
Administrative Agent, for the account of each Lender, upfront fees in an amount
as set forth in a written confirmation delivered to that Lender by the Lead
Arrangers; provided that the fees for Bank of America and The Royal Bank of
Scotland PLC shall be as set forth in a letter agreement among Borrower, Bank of
America and The Royal Bank of Scotland PLC. Such upfront fees are for the credit
facilities committed to by each Lender under this Agreement and are fully earned
when paid. The upfront fees paid to each Lender are solely for its own account
and are nonrefundable
3.4 Ticking and Unused Fees.
(a) From the Closing Date, Borrower and the Co-Borrowers shall pay
to the Administrative Agent, for the ratable accounts of the Revolving Lenders
pro rata according to their Pro Rata Shares of the Revolving Commitment, an
unused fee equal to the Unused Fee Rate in effect from time to time times the
difference between (i) the principal amount of the Revolving Commitment, and
(ii) the aggregate principal amount of the Obligations outstanding from time to
time under the Revolving Commitment (including the Letters of Credit), other
than the Swing Line Outstandings and other than the aggregate principal amount
outstanding under the Competitive Revolving Notes (the "Unused Fee"). The Unused
Fees shall be payable quarterly in arrears on each Quarterly Payment Date, on
the Maturity Date upon the date of any partial reduction or termination of the
Revolving Commitment pursuant to Sections 2.8, 2.9 or 11.26.
(b) In the event that the Closing Date does not occur on or prior to
April 30, 2005, then during the period between May 1, 2005 and the Closing Date,
Borrower and the Co-Borrowers shall pay to the Administrative Agent, for the
ratable accounts of all of the Lenders pro rata according to their Pro Rata
Shares of the Revolving Commitment and the Term Commitment, a ticking fee equal
to five basis points per annum times the amount of the Commitments (the "Ticking
Fee"). The Ticking Fees shall be payable in arrears on the earliest to occur of
(i) the Closing Date, or (ii) the date of any partial reduction or termination
of the Commitments pursuant to Sections 2.8, 2.9 or 11.26.
3.5 Letter of Credit Fees. With respect to each Letter of Credit,
Borrower and the Co-Borrowers shall pay the following fees:
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(a) concurrently with the issuance of each Standby Letter of
Credit, any letter of credit issuance fee agreed to between Borrower, the
relevant Co-Borrower and the relevant Issuing Lender, which fee shall be
for the sole account of that Issuing Lender (in the case of Bank of
America, as an Issuing Lender, in the amount set forth in a letter
agreement between Borrower and Bank of America);
(b) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent for the ratable account of the
Revolving Lenders in accordance with their Pro Rata Shares of the
Revolving Commitment, a standby letter of credit fee in an amount equal to
the applicable Standby Letter of Credit Fee per annum as of the date of
such issuance times the face amount of such Standby Letter of Credit
through the termination or expiration of such Standby Letter of Credit,
which the Administrative Agent shall promptly pay to the Lenders; and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Commercial Letter of Credit, to the relevant Issuing
Lender for the sole account of that Issuing Lender, issuance, negotiation,
drawing and amendment fees in the amounts set forth from time to time as
that Issuing Lender's published scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this Section is
earned when due and is nonrefundable.
3.6 Agency Fees. On the Closing Date and annually thereafter,
Borrower and the Co-Borrowers shall pay to the Administrative Agent an agency
fee in such amounts as heretofore agreed upon by letter agreement between
Borrower and Bank of America and Banc of America Securities LLC. The agency fee
is for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall determine in
good faith that the introduction after the date hereof of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its LIBOR Lending
Office) or any corporation controlling the Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority, affects or would affect the amount
of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) determines in good faith that the amount of
such capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten Business
Days after demand of such Lender, Borrower and the Co-Borrowers shall pay to
such Lender, from time to time as specified in good faith by such Lender,
additional amounts sufficient to compensate such Lender in light of such
circumstances, to the extent reasonably allocable to such obligations under this
Agreement, provided that Borrower and the Co-Borrowers shall not be obligated to
pay any such amount which arose prior to the date which is ninety days preceding
the date of such demand or is attributable to periods prior to the date which is
ninety days preceding the date of such demand. Each Lender's determination of
such amounts shall be conclusive in the absence of manifest error. Any request
for compensation by a Lender under this Section shall set forth the basis upon
which it has been determined that such an amount is due from Borrower and the
Co-Borrowers, a calculation of the amount due, and a certification that the
corresponding costs or diminished rate of return on capital have been incurred
or sustained by the Lender. If Borrower and the Co-Borrowers become obligated to
pay a material amount under this Section to any Lender, that Lender will be
subject to removal in
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accordance with Section 11.26; provided that Borrower and the Co-Borrowers shall
have paid such amount to that Lender and that Borrower and the Co-Borrowers,
within the thirty day period following the date of such payment, shall have
notified that Lender in writing of their intent to so remove the Lender.
3.8 LIBOR Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (including any emergency,
supplemental or other reserve) with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known
as "eurocurrency liabilities") of that Lender, Borrower or the relevant
Co- Borrower shall pay that Lender within five Business Days after demand
all amounts necessary to compensate such Lender (determined as though such
Lender's LIBOR Lending Office had funded 100% of its LIBOR Advance in the
Designated Market) in respect of the imposition of such reserve
requirements. The Lender's determination of such amount shall be
conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Lending
Office to any tax, duty or other charge or cost with respect to any
LIBOR Advance, any of its Notes evidencing LIBOR Advances or its
obligation to make LIBOR Advances, or shall change the basis of
taxation of payments to any Lender attributable to the principal of
or interest on any LIBOR Advance or any other amounts due under this
Agreement in respect of any LIBOR Advance, any of its Notes
evidencing LIBOR Advances or its obligation to make LIBOR Advances,
excluding (i) taxes imposed on or measured in whole or in part by
its overall net income, gross income or gross receipts, (ii)
franchise taxes imposed by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business," and
(iii) any withholding taxes or other taxes based on gross income
imposed by the United States of America for any period with respect
to which it has failed to provide Borrower or the relevant
Co-Borrower with the appropriate form or forms required by Section
11.21, to the extent such forms are then available under applicable
Laws;
(ii) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the 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 Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending
Office or the Designated Market any other condition affecting any
LIBOR Advance, any of its Notes evidencing LIBOR Advances, its
obligation to make LIBOR Advances or this Agreement, or shall
otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its LIBOR Lending Office
of making or maintaining any LIBOR Advance or in respect of any LIBOR
Advance, any of its Notes evidencing LIBOR Advances or its obligation to
make LIBOR Advances or reduces the amount of any sum received or
receivable by
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such Lender or its LIBOR Lending Office with respect to any LIBOR Advance,
any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR
Advances (assuming such Lender's LIBOR Lending Office had funded 100% of
its LIBOR Advance in the Designated Market), then, within five Business
Days after demand by such Lender (with a copy to the Administrative
Agent), Borrower and the Co-Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender's LIBOR
Lending Office had funded 100% of its LIBOR Advance in the Designated
Market). A statement of any Lender claiming compensation under this clause
(b) and setting forth in reasonable detail the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.
(c) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its LIBOR
Lending Office to make, maintain or fund its portion of any LIBOR Advance
or materially restrict the authority of such Lender to purchase or sell,
or to take deposits of, Dollars in the Designated Market, or to determine
or charge interest rates based upon LIBOR, and such Lender shall so notify
the Administrative Agent, then such Lender's obligation to make LIBOR
Advances shall be suspended for the duration of such illegality or
impossibility and the Administrative Agent forthwith shall give notice
thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt
of such notice, the outstanding principal amount of such Lender's LIBOR
Advances, together with accrued interest thereon, automatically shall be
converted to Base Rate Advances on either (1) the last day of the Interest
Period(s) applicable to such LIBOR Advances if such Lender may lawfully
continue to maintain and fund such LIBOR Advances to such day(s) or (2)
immediately if such Lender may not lawfully continue to fund and maintain
such LIBOR Advances to such day(s), provided that in such event the
conversion shall not be subject to payment of a prepayment fee under
clause (e) of this Section. Each Lender agrees to endeavor promptly to
notify Borrower and the Co-Borrowers of any event occurring after the date
hereof of which it has actual knowledge, which will cause that Lender to
notify the Administrative Agent under this Section, and agrees to
designate a different LIBOR Lending Office if such designation will avoid
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender. In the
event that any Lender is unable, for the reasons set forth above, to make,
maintain or fund its portion of any LIBOR Loan or Advance, such Lender
shall fund such amount as a Base Rate Advance for the same period of time,
and such amount shall be treated in all respects as a Base Rate Advance.
Any Lender whose obligation to make LIBOR Advances has been suspended
under this Section shall promptly notify the Administrative Agent and
Borrower of the cessation of the Special Eurodollar Circumstance which
gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated Market
generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being
offered to any Lender in the Designated Market for the applicable
Interest Period; or
(ii) the Requisite Lenders advise the Administrative
Agent that LIBOR as determined by the Administrative Agent (i) does
not represent the effective pricing to such Lenders for deposits in
Dollars in the Designated Market in the relevant amount for the
applicable Interest Period, or (ii) will not adequately and fairly
reflect the cost to such Lenders of making the applicable LIBOR
Advances;
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then the Administrative Agent forthwith shall give notice thereof to
Borrower or the relevant Co-Borrower and the Lenders, whereupon until the
Administrative Agent notifies Borrower or the relevant Co-Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligation of the Lenders to make any future LIBOR Advances shall be
suspended unless (but only if clause (2) above is the basis for such
suspension) Borrower and each Co-Borrower notify the Administrative Agent
in writing that they elect to pay the Enhanced LIB OR Margin with respect
to all LIB OR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other
than as the result of a conversion required under clause (c) of this
Section) on a day other than the last day in the applicable Interest
Period (whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower or any Co-Borrower (for a
reason other than the failure of a Lender to make an Advance) to borrow on
the date or in the amount specified for a LIBOR Advance in any Request for
Loan or Competitive Bid Request, or upon the failure of Borrower or any
Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a
notice of prepayment delivered to the Administrative Agent pursuant to
Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate
Lender within 10 Business Days after demand a prepayment fee, failure to
borrow fee or failure to prepay fee, as the case may be (determined as
though 100% of that Lender's LIBOR Advance had been funded in the
Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid
or not borrowed or prepaid, as the case may be, times (the number of
days from and including the date of prepayment or failure to borrow
or prepay, as applicable, to but excluding the last day in the
applicable Interest Period divided by 360) times the applicable
Interest Differential (provided that the product of the foregoing
formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee, failure
to borrow fee or failure to prepay fee payable under this Section shall be
conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify
Borrower and the Co- Borrowers of any event of which it has actual
knowledge, occurring after the date hereof, which will entitle such Lender
to compensation pursuant to clause (a) or clause (b) of this Section, and
agrees to designate a different LIBOR Lending Office if such designation
will avoid the need for or reduce the amount of such compensation and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender
under this Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrower and the Co-Borrowers,
a calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from
making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time,
upon at least four Business Days' prior notice to the Administrative
Agent and such Lender and upon payment in full of the amounts
provided for in this Section through the date of such payment plus
any prepayment fee (subject to clause (c) of this Section) required
by
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clause (e) of this Section, pay in full the affected LIBOR Advances
of such Lender or request that such LIB OR Advances be converted to
Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers
become obligated to pay a material amount under this Section to any
Lender, that Lender will be subject to removal in accordance with
Section 11.26; provided that Borrower and the Co-Borrowers shall
have paid such amount to that Lender and that Borrower and the
Co-Borrowers, within the thirty day period following the date of
such payment, shall have notified that Lender in writing of their
intent to so remove the Lender.
3.9 Late Payments. If any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
rate otherwise payable with respect thereto plus 2% per annum (or, in the case
of any Obligations which do not bear stated interest, at the rate then otherwise
applicable to Base Rate Loans plus 2% per annum), to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be compounded monthly, on the
last day of each calendar month, to the fullest extent permitted by applicable
Laws.
3.10 Computation of Interest and Fees. Computation of interest on
Base Rate Loans shall be calculated on the basis of a year of 365 or 366 days,
as the case may be, and the actual number of days elapsed; computation of
interest on LIBOR Loans, Competitive Advances and all fees under this Agreement
shall be calculated on the basis of a year of 360 days and the actual number of
days elapsed. Borrower and the Co-Borrowers acknowledge that such latter
calculation method will result in a higher yield to the Lenders than a method
based on a year of 365 or 366 days. Interest shall accrue on each Loan for the
day on which the Loan is made; interest shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid. Any Loan
that is repaid on the same day on which it is made shall bear interest for one
day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.11 Non-Business Days. If any payment to be made by Borrower, any
of the Co-Borrowers or any other Party under any Loan Document shall come due
on a day other than a Business Day, payment shall instead be considered due on
the next succeeding Business Day and the extension of time shall be reflected in
computing interest and fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to
Sections 3.7, 3.8, 11.3, 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 Lenders or
the Administrative Agent, as the case may be, in immediately available
funds not later than 12:00 noon, Las Vegas time (other than payments with
respect to Swing Line Loans, which must be paid directly to the relevant
Swing Line Lender and received by 3:00 p.m., Las Vegas time), on the day
of payment (which must be a Business Day). All payments received after
such time, on any Business Day, shall be deemed received on the next
succeeding Business Day. The amount of all payments received by the
Administrative Agent for the account of each Lender shall be immediately
paid by the Administrative Agent to the applicable Lender in immediately
available funds and, if such payment was received by the Administrative
Agent by 12:00 noon, Las Vegas time, on a Business Day and not so made
available to the account of a Lender on that
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Business Day, the Administrative Agent shall reimburse that Lender for the
cost to such Lender of funding the amount of such payment at the Federal
Funds Rate. All payments shall be made in lawful money of the United
States of America.
(b) Each payment or prepayment on account of any Loan shall
be applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record
(which may be in tangible or electronic or other intangible form) of
Advances made by it and payments received by it with respect to each of
its Notes and such record shall, as against Borrower and the Co-Borrowers,
be presumptive evidence of the amounts owing. Notwithstanding the
foregoing sentence, the failure by any Lender to keep such a record shall
not affect Borrower's and the Co-Borrowers' joint and several obligations
to pay the Obligations.
(d) Each payment of any amount payable by Borrower or any
other Party under this Agreement or any other Loan Document shall be made
free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency, central
bank or comparable authority, excluding (i) taxes imposed on or measured
in whole or in part by overall net income, gross income or gross receipts,
(ii) franchise taxes imposed on any Lender by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business," (iii) any
withholding taxes or other taxes based on gross income imposed by the
United States of America that are not attributable to any change in any
Law or the interpretation or administration of any Law by any Governmental
Agency and (iv) any withholding tax or other taxes based on gross income
imposed by the United States of America for any period with respect to
which it has failed to provide Borrower with the appropriate form or forms
required by Section 11.21, to the extent such forms are then available
under applicable Laws (all such non-excluded taxes, assessments or other
charges being hereinafter referred to as "Taxes"). To the extent that
Borrower or any other Party is obligated by applicable Laws to make any
deduction or withholding on account of Taxes from any amount payable to
any Lender under this Agreement, they shall (i) make such deduction or
withholding and pay the same to the relevant Governmental Agency and (ii)
pay such additional amount to that Lender as is necessary to result in
that Lender's receiving a net after-Tax amount equal to the amount to
which that Lender would have been entitled under this Agreement absent
such deduction or withholding. If and when receipt of such payment results
in an excess payment or credit to that Lender on account of such Taxes,
that Lender shall promptly refund such excess to Borrower or the relevant
Party. If Borrower or any such Party becomes obligated to pay a material
amount under this Section to any Lender, that Lender will be subject to
removal in accordance with Section 11.26; provided that Borrower or the
relevant Party shall have paid such amount to that Lender and that
Borrower and the Co-Borrowers, within the thirty day period following the
date of such payment, shall have notified that Lender in writing of their
intent to so remove the Lender.
(e) All payments to be made by Borrower or any Co-Borrower
shall be made without conditions or deduction for any counterclaim,
defense, recoupment or setoff.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner, provided that each Lender which is not a bank under
the laws of the United States or any state thereof severally represents and
warrants that it has obtained the funds for its Advances
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in compliance with applicable Laws and that the making of its Advances will not
constitute "prohibited transactions" as such term is defined in ERISA.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest at the Default Rate), fee, cost or other amount payable
under any Loan Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a waiver of the
Administrative Agent's or such Lender's right to require full payment of any
interest (including interest at the Default Rate), fee, cost or other amount
payable under any Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made.
Unless Borrower, any Co-Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that Borrower, such Co- Borrower or such Lender,
as the case may be, will not make such payment, the Administrative Agent may
assume that Borrower, such Co-Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(a) if Borrower or any Co-Borrower failed to make such
payment, each Lender shall forthwith on demand repay to the Administrative
Agent the portion of such assumed payment that was made available to such
Lender in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available
funds at the Federal Funds Rate from time to time in effect; and
(b) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon for
the period from the date such amount was made available by the
Administrative Agent to Borrower or any Co-Borrower to the date such
amount is recovered by the Administrative Agent (the "Compensation
Period") at a rate per annum equal to the Federal Funds Rate from time to
time in effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Advance included in
the applicable Loan. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent
may make a demand therefor upon Borrower or the Co- Borrowers, if
applicable, and Borrower or the Co-Borrowers, if applicable, shall pay
such amount to the Administrative Agent, together with interest thereon
for the Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Advance. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Pro Rata
Share of the Commitments or to prejudice any rights which the
Administrative Agent, Borrower or any Co- Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender, any Co-Borrower or Borrower
with respect to any amount owing under this Section 3.15 shall be conclusive,
absent manifest error.
3.16 Fee Determination Detail. The Administrative Agent and any
Lender shall provide reasonable detail to Borrower and the Co-Borrowers
regarding the manner in which the amount of any payment to the Creditors, or
that Lender, under Article 3 has been determined, concurrently with demand for
such payment.
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3.17 Survivability. All of Borrower's and the Co-Borrowers'
obligations under Sections 3.7 and 3.8 shall survive for ninety days following
the date on which the Commitments are terminated, all Obligations hereunder are
fully paid and all Letters of Credit have expired.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower and each Co-Borrower represents and warrants to the Lenders
on the date hereof and as of the Closing Date that, except as set forth in the
Disclosure Schedule:
4.1 Existence and Qualification; Power; Compliance With Laws.
Borrower is a corporation duly incorporated, validly existing and in good
standing under the Laws of Delaware. Detroit is a limited liability company duly
formed, validly existing and in good standing under the Laws of Delaware.
Borrower and each Co-Borrower are each duly qualified or registered to transact
business and are in good standing in each other jurisdiction in which the
conduct of their business or the ownership or leasing of their Properties makes
such qualification or registration necessary, except where the failure so to
qualify or register and to be in good standing would not constitute a Material
Adverse Effect. Borrower and each Co-Borrower have all requisite corporate or
other organizational power and authority to conduct their business, to own and
lease their Properties and to execute and deliver each Loan Document to which
each is a Party and to perform the Obligations, except where the failure to have
such power and authority would not constitute a Material Adverse Effect. All
outstanding shares of the capital stock of Borrower are duly authorized, validly
issued, fully paid and non-assessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws. All
the equity interests in each Co-Borrower are duly authorized, validly issued,
fully paid and non assessable, and no holder thereof has any enforceable right
of rescission under any applicable state or federal securities Laws. Borrower
and each Co-Borrower are in compliance with all Requirements of Law applicable
to its business as at present conducted, has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business as at present conducted, except where the failure so
to comply, file, register, qualify or obtain exemptions would not constitute a
Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by Borrower,
each Co-Borrower and each Guarantor of the Loan Documents to which it is a Party
have been duly authorized by all necessary corporate or other organizational
action, and do not and will not:
(a) Require any consent or approval not heretofore obtained
of any member, partner, director, stockholder, security holder or creditor
of such party;
(b) Violate or conflict with any provision of such party's
charter, articles of incorporation, operating agreement or bylaws, as
applicable;
(c) Result in or require the creation or imposition of any
Lien upon or with respect to any Property of Borrower and its Restricted
Subsidiaries, other than Liens permitted by Section 6.4; or
(d) Violate any Requirement of Law applicable to such Party,
subject to obtaining the authorizations from, or filings with, the
Governmental Agencies described in the Disclosure Schedule;
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and neither Borrower, the Co-Borrowers nor any Guarantor is in violation
of, or default under, any Requirement of Law or Contractual Obligation, or
any indenture, loan or credit agreement, in any respect that constitutes a
Material Adverse Effect
The execution, delivery and performance by Borrower of the Mandalay
Acquisition Agreement and the consummation of the Mandalay Acquisition has been
duly authorized by all necessary corporate or other organizational action of
Borrower, and at the Closing Date, will not:
(w) Require any material consent or approval not theretofore
obtained of any member, partner, director, stockholder, security holder or
creditor of Borrower and its Restricted Subsidiaries;
(x) Violate or conflict with any provision of Borrower's
charter, articles of incorporation or bylaws;
(y) Result in or require the imposition of any Lien upon or
with respect to any Property of Borrower and its Restricted Subsidiaries,
other than Permitted Encumbrances and Liens permitted by Section 6.4; or
(z) Violate any Requirement of Law applicable to Borrower or
its Restricted Subsidiaries, subject to obtaining the authorizations from,
or filings with, the Governmental Agencies then described in the
Disclosure Schedule.
4.3 No Governmental Approvals Required. Except as obtained or made
on or prior to the Closing Date, no authorization, consent, approval, order,
license or permit from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or permit under
applicable Laws (a) the execution, delivery and performance by Borrower and its
Restricted Subsidiaries of the Loan Documents to which it is a Party, and (b)
the execution, delivery and performance of the Mandalay Acquisition Agreement
and the consummation of the Mandalay Acquisition. As of the Closing Date, all
authorizations from, or filings with, any Governmental Agency described on the
Disclosure Schedule have been accomplished.
4.4 Subsidiaries.
(a) As of the date hereof, the Disclosure Schedule correctly
sets forth the names, form of legal entity, ownership and jurisdictions of
organization of all Subsidiaries of Borrower. Except as described in the
Disclosure Schedule, Borrower does not own any capital stock, equity
interest or debt security which is convertible, or exchangeable, for
capital stock or equity interests in any Person as of the date hereof.
Unless otherwise indicated in the Disclosure Schedule, 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 and Liens
permitted by Section 6.4.
(b) Each Restricted Subsidiary of Borrower is duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, is duly qualified or registered to transact
business and is in good standing as such in each jurisdiction in which the
conduct of its business or the ownership or leasing of its Properties
makes such qualification or
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registration necessary, and has all requisite corporate or other
organizational power and authority to conduct its business and to own and
lease its Properties, except where the failure to qualify or register, to
be in good standing or to have such power and authority would not
constitute a Material Adverse Effect.
(c) Each Restricted Subsidiary of Borrower is in compliance
with all Requirements of Law applicable to its business as at present
conducted, has obtained all authorizations, consents, approvals, orders,
licenses, and permits from, and has accomplished all filings,
registrations, and qualifications with, or obtained exemptions from any of
the foregoing from, any Governmental Agency that are necessary for the
transaction of its business as at present conducted, except where the
failure to so comply, file, register, qualify or obtain exemptions would
not constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the
Administrative Agent for distribution to the Lenders (a) the audited
consolidated financial statements of Borrower and its Subsidiaries for the
Fiscal Year ended December 31, 2003, and (b) unaudited financial statements of
Borrower and its Subsidiaries as of the Fiscal Quarter ended September 30, 2004.
The financial statements described above fairly present in all material respects
the financial condition, results of operations and changes in financial position
of Borrower and its Subsidiaries as of such dates and for such periods in
conformity with GAAP, consistently applied (except, in the case of the financial
statements described in (b), for the absence of certain footnotes and other
informational disclosures customarily omitted from interim financial
statements).
4.6 No Other Liabilities; No Material Adverse Changes. Borrower
and its Subsidiaries do not have any material liability or material contingent
liability required under GAAP to be reflected or disclosed and not reflected or
disclosed in the financial statements described in Section 4.5(a), other than
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the date hereof
(and, at the Closing Date, as of the Closing Date), no circumstance or event has
occurred that constitutes a Material Adverse Effect since December 31, 2003. At
the Closing Date, as of the Closing Date, since January 31, 2004 there has not
been any "Company Material Adverse Effect" (as such term is defined in the
Mandalay Purchase Agreement).
4.7 Title to Property. As of December 31, 2003, Borrower and its
Subsidiaries had valid title to the Property reflected in the financial
statements described in Section 4.5(a), other than immaterial items of Property,
free and clear of all Liens, other than Permitted Encumbrances, and Liens
described in the Disclosure Schedule or permitted by Section 6.4. As of the date
hereof (and, at the Closing Date as of the Closing Date), Borrower and its
Subsidiaries have valid title to all material Property reflected in the
financial statements of Borrower then most recently filed with the Securities
and Exchange Commission, other than Property subsequently sold or disposed of by
Borrower and its Subsidiaries in the ordinary course of business, free and clear
of all Liens, other than Permitted Encumbrances, and Liens described in the
Disclosure Schedule or permitted by Section 6.4.
4.8 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.
4.9 Litigation. There are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower and the
Co-Borrowers, threatened against or affecting Borrower or any of its Restricted
Subsidiaries or any Property of any of them before any Governmental Agency which
(a) if
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determined adversely, could reasonably be expected to have a Material Adverse
Effect, or (b) in any manner draw into question the validity or enforceability
of the Loan Documents, the Intercreditor Agreement or the Collateral Documents
in a manner which is materially adverse to the interests of the Lenders.
4.10 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.
4.11 No Default. No event has occurred and is continuing that is a
Default or Event of Default.
4.12 ERISA
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA) that could reasonably be expected to have a Material Adverse
Effect;
(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.
4.13 Regulations T, U and X; Investment Company Act. Borrower is
not engaged and will not engage in, principally or as one of its important
activities, in the business of purchasing or carrying any Margin Stock in
violation of Regulations T, U and X. Neither Borrower nor any of its
Subsidiaries is or is required to be registered as an "investment company" under
the Investment Company Act of 1940.
4.14 Disclosure. No written statement made by a Senior Officer of
Borrower, any Co-Borrower or any Guarantor to the Administrative Agent or any
Lender in connection with this Agreement, or in connection with any Loan, as of
the date thereof contained any untrue statement of a material fact or omitted a
material fact necessary to make the statement made not misleading in light of
all the circumstances existing at the date the statement was made; provided
that, with respect to the Projections, Borrower only makes the representations
set forth in Section 4.16.
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4.15 Tax Liability. Borrower and its Subsidiaries have filed all
material tax returns which are required to be filed, and have paid, or made
provision for the payment of, all material taxes with respect to the periods,
Property or transactions covered by said returns, or pursuant to any assessment
received by Borrower or its Subsidiaries, except such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained, and so long as no
material Property of Borrower or any of its Subsidiaries is in jeopardy of being
seized, levied upon or forfeited.
4.16 Projections. As of the date of the preparation of the
Projections, to the best knowledge of Borrower and the Co-Borrowers, the
assumptions set forth in the Projections were reasonable and consistent with
each other and with all facts known to Borrower and its Subsidiaries as of that
date, and the Projections were reasonably based on such assumptions. As of the
date hereof, no fact or circumstance has come to the attention of the Borrower
since the preparation of the Projections which is in material conflict with the
assumptions set forth in the Projections. Nothing in this Section shall be
construed as a representation or covenant that the Projections in fact will be
achieved. The Creditors acknowledge that the Projections are forward-looking
statements and that actual financial results for Borrower and its Subsidiaries
could differ materially from those set forth in the Projections.
4.17 Hazardous Materials. To the best knowledge of Borrower and the
Co-Borrowers, no condition exists that violates any Hazardous Material Law
affecting any Real Property except for such violations that would not
individually or in the aggregate have a Material Adverse Effect.
4.18 Mandalay Acquisition Effective. Substantially concurrently
with the making of the initial Advances on the Closing Date, Mandalay will be
acquired by Borrower in accordance with the Mandalay Acquisition Agreement and
in material compliance with all applicable Laws.
4.19 Solvency. Giving effect to the consummation of the Mandalay
Acquisition Agreement, the incurrence of the Obligations and the Guaranty, and
the refinancing of the Existing Loan Agreement and the Mandalay Loan Agreement,
on the Closing Date, Borrower and its Restricted Subsidiaries (including the
Mandalay Companies), considered as a single integrated financial enterprise, are
Solvent.
4.20 Disclosure Schedule. Borrower shall be permitted to provide,
not later than five Business Days prior to the Closing Date, the Disclosure
Schedule to provide for disclosures respecting events transpiring between the
date hereof and the Closing Date, including, among other things, providing any
disclosures which would then be relevant in light of the Mandalay Acquisition
and the Mandalay Companies becoming Guarantors and Restricted Subsidiaries
hereunder, provided that such additional disclosures, individually or in the
aggregate, do not have a Material Adverse Effect. Any such updated Disclosure
Schedule shall be delivered to the Administrative Agent pursuant to a
certificate signed by a Senior Officer of Borrower. Provided that the contents
of such updated Disclosure Schedule are reasonably acceptable to the
Administrative Agent and not objected to by the Requisite Lenders within such
five Business Day period, the updated Disclosure Schedule shall be deemed
appended hereto and all matters set forth therein shall be deemed excluded from
the related representations, warranties and covenants.
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ARTICLE 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding or any other Obligation remains unpaid, or any portion of
either Commitment remains in force, Borrower shall, and shall cause each of its
Restricted Subsidiaries to, and each Co-Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
5.1 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business except (a) where the
failure to so preserve and maintain the existence of any Restricted Subsidiary
of Borrower and such authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations would not constitute a
Material Adverse Effect and (b) that a merger permitted by Section 6.1 or a
Disposition shall not constitute a violation of this covenant; and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect.
5.2 Maintenance of Properties. Maintain, preserve and protect all
of their respective material Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties, except that the failure to maintain, preserve and
protect a particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrower and its Restricted Subsidiaries,
taken as a whole, shall not constitute a violation of this covenant.
5.3 Maintenance of Insurance. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrower and its Restricted
Subsidiaries operate and in any event such insurance as may be required by the
Collateral Documents.
5.4 Compliance With Laws. Comply, within the time period, if any,
given for such compliance by the relevant Governmental Agency with enforcement
authority, with all Requirements of Law (including Hazardous Materials Laws,
ERISA, federal tax laws and Gaming Laws) noncompliance with which constitutes a
Material Adverse Effect, except that Borrower and its Restricted Subsidiaries
need not comply with a Requirement of Law then being contested by any of them in
good faith by appropriate proceedings.
5.5 Inspection Rights. Upon reasonable notice, at any time during
regular business hours and as often as reasonably requested (but not so as to
materially interfere with the business of Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Lender, or any authorized employee, agent
or representative thereof, to examine, audit and make copies and abstracts from
the records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, managers, key
employees or accountants and, upon request, furnish promptly to the
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Administrative Agent or any Lender true copies of all financial information made
available to the board of directors or audit committee of the board of directors
of Borrower.
5.6 Keeping of Records and Books of Account. Keep adequate records
and books of account reflecting all financial transactions in conformity with
GAAP, consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over
Borrower or any of its Subsidiaries.
5.7 Use of Proceeds. Use the proceeds of Loans (a) on the Closing
Date, in conjunction with other capital markets sources, to finance the
acquisition by Borrower of the capital stock of Mandalay, including the payment
of associated transactional fees and expenses, prepayment premiums and tender
expenses and to refinance Loans under the Existing Loan Agreement, (b)
immediately following the consummation of the Mandalay Acquisition, to repay the
loans outstanding under the Mandalay Loan Agreement, (c) to finance expenses
associated with the transactions contemplated herein, (d) to finance design,
development and construction expenses associated with Acquisitions and
Investments not prohibited under Article 6 hereof, and (e) 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 execute and deliver to
the Administrative Agent a Guaranty (and, if no Collateral Release has then
occurred, or to the extent required by Section 2.11, Collateral Documents in
favor of the Collateral Agent pursuant to the Intercreditor Agreement
encumbering all of its material Property).
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ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding or any other Obligation remains unpaid, or any portion of
either Commitment remains in force, Borrower shall not, and shall not permit any
of its Restricted Subsidiaries to, and each Co-Borrower shall not unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 Mergers. Merge or consolidate with or into any Person, except:
(a) mergers and consolidations of a Restricted Subsidiary of
Borrower into Borrower or another Restricted Subsidiary of Borrower, (b) mergers
and consolidations with a Person to effect a mere change in the State or form of
organization of Borrower, (c) mergers with any Person which if acquired by
Borrower or its other Restricted Subsidiaries pursuant to Investments not
prohibited hereby, would be Restricted Subsidiaries, provided that the financial
condition of Borrower and its Subsidiaries are not adversely affected thereby
and Borrower and its Subsidiaries execute such amendments to the Loan Documents
as may be requested by the Administrative Agent to reflect such change, and (d)
other mergers provided that the terms of Section 6.2 are not violated thereby,
provided that giving pro forma effect to such mergers as of the last day of the
then most recently ended Fiscal Quarter, Borrower is in compliance with Sections
6.5, 6.6 and 6.7.
6.2 Hostile Acquisitions. Use the proceeds of any Loan in
connection with the acquisition of part or all of a voting interest of five
percent or more in any corporation or other business entity if such acquisition
is opposed by the board of directors or other equivalent governing body of such
corporation or business entity.
6.3 Change in Nature of Business. Make any material change in the
nature of the business of Borrower and its Subsidiaries, taken as a whole.
6.4 Liens and Negative Pledges. Create, incur, assume or suffer to
exist any Lien or Negative Pledge of any nature upon or with respect to any of
its Properties, or engage in any sale and leaseback transaction with respect to
any of its Properties, whether now owned or hereafter acquired, except:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the date hereof
and disclosed in the Disclosure Schedule and any renewals/extensions or
amendments thereof, provided that the obligations secured or benefited
thereby are not increased;
(d) Liens on Property acquired by Borrower or any of its
Restricted Subsidiaries after the date hereof that are in existence at the
time of such acquisition and are not created in contemplation of such
acquisition;
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(e) purchase money Liens securing Indebtedness and Capital
Lease Obligations in an aggregate principal amount not to exceed
$250,000,000 (including any refinancings thereof);
(f) any Lien or Negative Pledge created by an agreement or
instrument entered into by Borrower or a Restricted Subsidiary of Borrower
in the ordinary course of its business which consists of a restriction on
the assignability, transfer or hypothecation of such agreement or
instrument;
(g) Liens granted pursuant to the Intercreditor Agreement
securing (i) the Qualified Obligations existing as of the date hereof
(including Qualified Obligations which are the primary obligations of
Mandalay), (ii) at the election of Borrower, the 1993 Mandalay
Subordinated Obligations, and (iii) other classes of Senior Indebtedness
of Borrower and its Restricted Subsidiaries which are designated as
Qualified Obligations pursuant to the Intercreditor Agreement when no
Default or Event of Default has occurred and remains continuing;
(h) Liens granted on the stock, partnership or other equity
interests in a Person which is not a Restricted Subsidiary owned by
Borrower or any if its Restricted Subsidiaries, which are granted solely
to secure Indebtedness of that Person; and
(i) At any time following a Collateral Release, Liens not
otherwise permitted by the foregoing clauses of this Section encumbering
assets of Borrower and its Restricted Subsidiaries having an aggregate
fair market value, as of the date of the incurrence of such Liens, which
is not in excess of 10% of Consolidated Net Tangible Assets determined as
of the then most recently ended Fiscal Quarter;
provided that this Section shall not be effective to prohibit the Liens or
Negative Pledges with respect to securities issued by any gaming licensee to the
extent that appropriate approvals of this covenant have not been obtained under
applicable Gaming Laws.
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6.5 Total Leverage Ratio. Permit the Total Leverage Ratio, as of
the last day of any Fiscal Quarter described below, to be greater than the ratio
set forth below opposite that Fiscal Quarter:
Maximum Total
Leverage Ratio
--------------
First Post Closing Fiscal Quarter 7.50:1.00
Second Post Closing Fiscal Quarter 7.50:1.00
Third Post Closing Fiscal Quarter 7.25:1.00
Fourth Post Closing Fiscal Quarter 7.00:1.00
Fifth Post Closing Fiscal Quarter 6.75:1.00
Sixth Post Closing Fiscal Quarter 6.75:1.00
Seventh Post Closing Fiscal Quarter 6.50:1.00
Eighth Post Closing Fiscal Quarter 6.50:1.00
Ninth Post Closing Fiscal Quarter 6.25:1.00
Tenth Post Closing Fiscal Quarter 6.25:1.00
Eleventh Post Closing Fiscal Quarter 6.00:1.00
Twelfth Post Closing Fiscal Quarter 5.75:1.00
Thirteenth Post Closing Fiscal Quarter 5.75:1.00
Fourteenth Post Closing Fiscal Quarter 5.50:1.00
Fifteenth Post Closing Fiscal Quarter 5.50:1.00
Sixteenth Post Closing Fiscal Quarter 5.25:1.00
Seventeenth Post Closing Fiscal Quarter 5.25:1.00
Eighteenth Post Closing Fiscal Quarter 5.00:1.00
Nineteenth Post Closing Fiscal Quarter 5.00:1.00
Twentieth Post Closing Fiscal Quarter 4.75:1.00
and thereafter
6.6 Senior Leverage Ratio. Until such time as the maximum Total
Leverage Ratio permitted pursuant to Section 6.5 is 5.75:1.00 or less, permit
the Senior Leverage Ratio, as of the last day of any Fiscal Quarter, to be
greater than 5.75:1.00, provided that in respect of each Fiscal Quarter for
which the maximum Total Leverage Ratio permitted by Section 6.5 is 5.75:1.00 or
less, this Section 6.6 shall be of no further force or effect.
6.7 Interest Charge Coverage Ratio. Permit the Interest Charge
Coverage Ratio as of the last day of any of the first four full Fiscal Quarters
following the Closing Date, to be less than 2.00:1.00 and, for the following
Fiscal Quarters (after the first four full Fiscal Quarters following the Closing
Date) to be less than 2.25:1:00.
6.8 Investments in Insurance Subsidiary. Make Investments in the
Insurance Subsidiary in an amount exceeding $150,000,000 in the aggregate.
6.9 Collateral. Fail to cause each of the Mandalay Companies to
become parties to the Intercreditor Agreement and to execute Collateral
Documents on substantially all of their respective Property (which Collateral
Documents shall be similar to those executed by Borrower and its other
Restricted Subsidiaries or otherwise reasonably acceptable to the Administrative
Agent), within 90 days following the Closing Date (or such longer period as may
be reasonably acceptable to the Administrative
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Agent), provided that (a) the Mandalay Companies 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 holders of the Obligations and the other
Qualified Obligations unless and until all required approvals of Gaming Boards
thereto are obtained, and (b) if a Collateral Release occurs, this Section 6.9
shall be of no further force or effect.
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ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance
remains unpaid, or any Letter of Credit remains outstanding or any other
Obligation remains unpaid, or any portion of either Commitment remains in force,
Borrower and each Co-Borrower shall, unless the Administrative Agent (with the
written approval of the Requisite Lenders) otherwise consents, at Borrower's and
the Co-Borrowers' sole expense, deliver to the Administrative Agent for
distribution by it to the Lenders:
(a) As soon as practicable, and in any event within 60 days
after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter
in any Fiscal Year), the consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the consolidated
statement of operations for such Fiscal Quarter, and its statement of cash
flows for the portion of the Fiscal Year ended with such Fiscal Quarter,
all in reasonable detail;
(b) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, a Pricing Certificate setting forth
a preliminary calculation of the Total Leverage Ratio as of the last day
of such Fiscal Quarter, and providing reasonable detail as to the
calculation thereof, which calculations shall be based on the preliminary
unaudited financial statements of Borrower for such Fiscal Quarter, and as
soon as practicable thereafter, in the event of any material variance in
the actual calculation of the Total Leverage Ratio from such preliminary
calculation, a revised Pricing Certificate setting forth the actual
calculation thereof;
(c) As soon as practicable, and in any event within 105 days
after the end of each Fiscal Year, (i) the consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of operations, shareholders' equity and cash
flows, in each case of Borrower and its Subsidiaries for such Fiscal Year,
in each case as at the end of and for the Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
GAAP, consistently applied, and such consolidated balance sheet and
consolidated statements shall be accompanied by a report of one of the
four largest public accounting firms in the United States of America or
other independent public accountants of recognized standing selected by
Borrower and reasonably satisfactory to the Requisite Lenders, which
report shall be prepared in accordance with generally accepted auditing
standards as at such date, and shall not be subject to any qualifications
or exceptions as to the scope of the audit nor to any other qualification
or exception determined by the Requisite Lenders in their good faith
business judgment to be adverse to the interests of the Lenders. Such
accountants' report shall be accompanied by a certificate stating that, in
making the examination pursuant to generally accepted auditing standards
necessary for the certification of such financial statements and such
report, such accountants have obtained no knowledge of any Default or, if,
in the opinion of such accountants, any such Default shall exist, stating
the nature and status of such Default, and stating that such accountants
have reviewed Borrower's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections 6.5,
6.6 and 6.7, have read such Sections (including the definitions of all
defined terms used therein) and that nothing has come to the attention of
such accountants in the course of such examination that would cause them
to believe that the same were not calculated by Borrower in the manner
prescribed by this Agreement;
(d) As soon as practicable, and in any event within 90 days
after the commencement of each Fiscal Year, a budget and projection by
Fiscal Quarter for that Fiscal
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Year and by Fiscal Year for the next two succeeding Fiscal Years,
including for the first such Fiscal Year, projected consolidated balance
sheets, statements of operations and statements of cash flow and, for the
second and third such Fiscal Years, projected consolidated condensed
balance sheets and statements of operations and cash flows, of Borrower
and its Subsidiaries, all in reasonable detail;
(e) Promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of Borrower, and copies of all
annual, regular, periodic and special reports and registration statements
which Borrower may file or be required to file with the Securities and
Exchange Commission under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, and not otherwise required to be delivered to the
Lenders pursuant to other provisions of this Section;
(f) Promptly after request by the Administrative Agent or
any Lender, copies of the Nevada "Regulation 6.090 Report" and "6A
Report";
(g) Promptly after request by the Administrative Agent or
any Lender, copies of any other report or other document that was filed by
Borrower or any of its Subsidiaries with any Governmental Agency (other
than any report regarding Tracinda Corporation or individuals associated
with Tracinda Corporation, Borrower and its Subsidiaries and their
confidential business or financial information);
(h) As soon as practicable, and in any event within five
Business Days after a Senior Officer of Borrower becomes aware of the
existence of any condition or event which constitutes a Default or Event
of Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than three Business Days after such
telephonic notice, written notice again specifying the nature and period
of existence thereof and specifying what action Borrower or its
Subsidiaries are taking or propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower or any
Co-Borrower becoming aware of any litigation, governmental investigation
or proceeding (including any litigation, governmental investigation or
proceeding by or subject to decision by any Gaming Board) that is pending
(i) against Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect, (ii) in respect of any
material Indebtedness of Borrower or any of its Subsidiaries, or (iii)
with respect to the Loan Documents, the Intercreditor Agreement, or the
Collateral Documents, notice of the same;
(j) Promptly following any Senior Officer of Borrower or any
Co-Borrower becoming aware of any change in the Debt Rating assigned
hereto written notice of such change if the same will result in a revision
to the Pricing Level by providing a revised Pricing Certificate setting
forth the revised Debt Rating; and
(k) Such other data and information as from time to time may
be reasonably requested by the Administrative Agent, any Lender (through
the Administrative Agent) or the Requisite Lenders.
Each of Borrower and each Co-Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Lead Arrangers will make available to the
Lenders and the Issuing Lenders materials and/or information provided by or on
behalf of Borrower hereunder (collectively, "Borrower Materials") by posting
Borrower Materials on IntraLinks or another similar electronic system (the
"Platform") and (b) certain of the Lenders may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material
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non-public information with respect to Borrower or its securities) (each, a
"Public Lender"). Borrower hereby agrees that (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," Borrower shall be deemed to have authorized the Administrative Agent,
the Lead Arrangers, the Issuing Lenders and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to Borrower or its
securities for purposes of United States Federal and state securities laws; (y)
all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the
Administrative Agent and the Lead Arrangers shall treat any Borrower Materials
that are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not designated "Public Investor."
7.2 Compliance Certificates. So long as any Advance remains
unpaid, or any Letter of Credit remains outstanding or any other Obligation
remains unpaid or unperformed, or any portion of either Commitment remains
outstanding, Borrower and the Co-Borrowers shall, at their sole expense, deliver
to the Administrative Agent for distribution by it to the Lenders concurrently
with the financial statements required pursuant to Sections 7.1 (a) and 7.1(c),
Compliance Certificates signed by a Senior Officer of Borrower and each
Co-Borrower.
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ARTICLE 8
CONDITIONS
8.1 Initial Advances on the Closing Date. Concurrently herewith,
Borrower shall deliver to the Administrative Agent this Agreement with each of
the Schedules referred to in the table of contents hereto (other than the
Disclosure Schedule). The obligation of each Lender to make the initial Advance
to be made by it on the Closing Date, is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following
unless the Administrative Agent otherwise agrees or directs):
(i) An updated Disclosure Schedule pursuant to
Section 4.20;
(ii) Committed Revolving Notes executed by Borrower,
Detroit and each other Co-Borrower which has then been designated
pursuant to Section 2.7, if any, in favor of each Revolving Lender,
each in a principal amount equal to that Revolving Lender's Pro Rata
Share of the Revolving Commitment;
(iii) Term Notes executed by Borrower and Detroit and
each other Co-Borrower which has then been designated pursuant to
Section 2.7, if any, in favor of each Term Lender, each in a
principal amount equal to that Term Lender's Pro Rata Share of the
Term Commitment;
(iv) Competitive Revolving Notes executed by Borrower
and Detroit and each other Co-Borrower which has then been
designated pursuant to Section 2.7, if any, in favor of each Lender
having a Pro Rata Share of the Revolving Commitment in a principal
amount equal to $2,750,000,000;
(v) with respect to Borrower, Detroit, and each of
their Restricted Subsidiaries, and with respect to Mandalay and each
of its Subsidiaries which will become Restricted Subsidiaries upon
the consummation of the Mandalay Acquisition, such documentation as
the Administrative Agent may reasonably require to establish their
respective due organization, valid existence and good standing,
their qualification to engage in business in each material
jurisdiction in which it is engaged in business or required to be so
qualified, including (if applicable) certified copies of their
respective organizational papers and amendments thereto, bylaws,
certificates of good standing and/or qualification to engage in
business, tax clearance certificates;
(vi) the Assistant Secretary of Borrower, Detroit and
their respective Restricted Subsidiaries shall have delivered to the
Administrative Agent a certificate attaching copies of the
resolutions adopted by Borrower, Detroit and their respective
Restricted Subsidiaries authorizing the execution and delivery of
this Agreement, the other Loan Documents and the other transactions
contemplated hereby;
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(vii) the Assistant Secretary of Borrower, Detroit and
their respective Restricted Subsidiaries shall have delivered to the
Administrative Agent an incumbency certificate setting forth the
identity, authority and capacity of each Responsible Official
thereof authorized to act on its behalf, certificates of corporate
or other organizational resolutions, incumbency certificates,
Certificates of Responsible Officials, and the like;
(viii) the Guaranty executed by each of the Restricted
Subsidiaries of Borrower;
(ix) a certificate of insurance issued by Borrower's
insurance carrier or agent demonstrating that Borrower and its
Restricted Subsidiaries maintain the insurance coverages required by
Section 5.3;
(x) the Opinions;
(xi) a Request for Loan and a Letter of Credit
Application in compliance with Article 2;
(xii) a completed Pricing Certificate;
(xiii) the letter agreement described in Sections 3.2,
3.5 and 3.6;
(xiv) 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;
(xv) a Certificate signed by a Senior Officer of
Borrower and Detroit certifying that the conditions specified in
Section 8.1(b), (f) and (g) have been satisfied;
(xvi) a Certificate signed by a Senior Officer of
Borrower calculating the Total Leverage Ratio on a combined pro
forma basis, after giving pro forma effect to the Mandalay
Acquisition as of the most recently ended calendar month for which
relevant financial statements are available to the Borrower (but in
any event as of a date which is not more than 60 days prior to the
Closing Date), and giving effect to the incurrence of all
Indebtedness contemplated to be incurred on the Closing Date by
Borrower and its Restricted Subsidiaries; and
(xvii) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) Unless a Collateral Release has then occurred, Borrower
and its Restricted Subsidiaries in existence as of the date hereof shall
have executed and delivered to the Collateral Agent such amendments to the
Collateral Documents as shall reasonably be required to assure that the
Obligations are entitled to the equal, ratable and pari passu benefits of
the presently existing Collateral Documents;
(c) The Mandalay Acquisition shall be in a position to be
consummated substantially concurrently with the making of the initial
Loans under this Agreement, and each of the following shall be in a
position to occur substantially concurrently with (or immediately
following) the Mandalay Acquisition:
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(i) The merger of Mandalay and MGM MIRAGE
Acquisition Co. #61;
(ii) Each of the Mandalay Companies which is a
Restricted Subsidiary shall adopt resolutions in the form heretofore
presented to the Administrative Agent in draft authorizing the
execution and delivery by the Mandalay Companies of joinders to the
Guaranty;
(iii) Borrower shall have requested Loans sufficient
for the repayment of the aggregate outstanding principal amount of
the Loans under the Mandalay Loan Agreement;
(iv) Mandalay shall have executed a letter in favor
of the lenders under the Mandalay Loan Agreement terminating the
lending commitments thereunder;
(v) Mandalay shall concurrently repay its
obligations under the Mandalay Loan Agreement (other than the
Mandalay Letters of Credit); and
(vi) Each of the Lenders under the Mandalay Loan
Agreement shall be deemed released from their respective
participations in the Mandalay Letters of Credit (subject to
assumption by the Revolving Lenders of risk participations
thereunder in accordance with Section 2.4).
(d) The fees payable on the Closing Date pursuant to Article
3 shall have been paid.
(e) 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.
(f) The representations and warranties of Borrower and the
Co-Borrowers contained in Article 4 shall be true and correct.
(g) 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.
(h) The Closing Date shall have occurred on or prior to June
30, 2005, provided that this date may be extended by the Borrower in its
discretion for not more than ninety days.
(i) All legal matters relating to the Loan Documents shall
be satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special
counsel to the Administrative Agent.
Without limiting the generality of the provisions of Section 10.4, for purposes
of determining compliance with the conditions specified in this Section 8.1,
unless the Administrative Agent shall have received notice from the Requisite
Lenders prior to the proposed Closing Date specifying their objection to the
manner in which any condition precedent is proposed to be satisfied, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required under
this Section 8.1.
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It is acknowledged that effective upon the Closing Date, the lending commitments
of the lenders under the Existing Loan Agreement shall be terminated and that
the Existing Loan Agreement shall be amended and restated in its entirety
hereby.
8.2 Any Increasing Advance. The obligation of each Lender to make
any Advance, and the obligation of the Issuing Lenders to issue Letters of
Credit, which would result in an increase in the outstanding principal amount of
the Outstanding Obligations owed to that Lender, is subject to the following
conditions precedent (unless the Requisite Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and correct
as a result of a change which is permitted by this Agreement or (ii) as
disclosed by Borrower and the Co-Borrowers and approved in writing by the
Requisite Lenders, the representations and warranties contained in Article
4 (other than Sections 4.4(a), 4.6 and 4.17 (but only if Borrower and its
Restricted Subsidiaries are diligently engaged in measures that will
result in compliance with all Hazardous Materials Laws)) shall be true and
correct on and as of the date of the Advance as though made on that date;
(b) the Administrative Agent shall have timely received a
Request for Loan or Competitive Bid Request in compliance with Article 2
(or telephonic or other request for Loan referred to in the second
sentence of Section 2.1(c), if applicable) or the relevant Issuing Lender
shall have received a Letter of Credit Application, as the case may be, in
compliance with Article 2; and
(c) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or Requisite Lenders reasonably may require.
8.3 Any Letter of Credit. The obligation of the Issuing Lenders to
issue any Letter of Credit, and the obligation of the other Lenders to
participate therein, are subject to the conditions precedent that (a) the
conditions set forth in Section 8.2 have been satisfied and (b) Borrower shall
have certified that, giving effect to the issuance of the requested Letter of
Credit, the Letter of Credit Usage shall not exceed any limitations set forth in
this Agreement.
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ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default so long as such
event is continuous and has not been waived in accordance with Section 11.2:
(a) Borrower or the Co-Borrowers fail to pay any principal
on any of the Notes, or any L/C Borrowing or any portion thereof, on the
date when due; or
(b) Borrower or the Co-Borrowers fail to pay any interest on
any of the Notes, or any fees under Sections 3.4, 3.5 or 3.6, or any
portion thereof, within five Business Days after the date when due; or
fails to pay any other fee or amount payable to the Lenders under any Loan
Document, or any portion thereof, within five Business Days after demand
therefor; or
(c) Borrower or the Co-Borrowers fail to comply with any of
the covenants contained in Article 6, other than the covenant contained in
Section 6.3; or
(d) Borrower, any of its Restricted Subsidiaries or any
other Party fails to perform or observe any other covenant or agreement
(not specified in clause (a), (b) or (c) above) contained in any Loan
Document on its part to be performed or observed within (i) ten Business
Days after the giving of notice by the Administrative Agent on behalf of
the Requisite Lenders of such Default or (ii) if the nature of the
covenant or agreement is such that the violation can be cured, thirty
Business Days after the giving of such notice so long as Borrower and the
Co-Borrowers diligently pursue in good faith the cure or correction of
such violation continuously during such period; or
(e) Any representation or warranty of Borrower or any of its
Restricted Subsidiaries or any other Party made in any Loan Document, or
in any certificate or other writing delivered by Borrower or such
Restricted Subsidiary or Party pursuant to any Loan Document, proves to
have been incorrect when made or reaffirmed in any respect that is
materially adverse to the interests of the Lenders; or
(f) Borrower or any of its Supported Subsidiaries (i) fails
to pay the principal, or any principal installment, of any present or
future Indebtedness of $250,000,000 or more, or any guaranty of present or
future Indebtedness of $250,000,000 or more, on its part to be paid, when
due (or within any stated grace period), whether at the stated maturity,
upon acceleration, by reason of required prepayment or otherwise or (ii)
fails to perform or observe any other term, covenant or agreement on its
part to be performed or observed, or suffers any event of default to
occur, in connection with any present or future Indebtedness of
$250,000,000 or more, or of any guaranty of present or future Indebtedness
of $250,000,000 or more, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their behalf)
has the right to declare such Indebtedness due before the date on which it
otherwise would become due or the right to require Borrower or any of its
Supported Subsidiaries to redeem or purchase, or offer to redeem or
purchase, all or any portion of such Indebtedness; or
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(g) Any Loan Document, at any time after its execution and
delivery and for any reason other than (i) as expressly permitted
hereunder, (ii) the agreement or action (or omission to act) of the
Administrative Agent or any of the Lenders, or (iii) satisfaction in full
of all the Obligations, ceases to be in full force and effect and, in the
reasonable judgment of the Requisite Lenders, such circumstance is
materially adverse to the interests of the Lenders; or is declared by a
court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the reasonable
opinion of the Requisite Lenders, is materially adverse to the interests
of the Lenders; or Borrower or any of its Restricted Subsidiaries denies
in writing that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind any Loan
Document;
(h) Any default of Borrower or its Restricted Subsidiaries
occurs under the Intercreditor Agreement or the Collateral Documents which
entitles the Collateral Agent or the Creditor Representatives thereunder
to exercise upon any of the collateral provided pursuant to the Collateral
Documents; or
(i) the Intercreditor Agreement or any of the Collateral
Documents are terminated (other than in accordance with their express
terms or pursuant to a Collateral Release);
(j) A final judgment against Borrower or any of its
Supported Subsidiaries is entered for the payment of money in excess of
$100,000,000 and, absent procurement of a stay of execution, such judgment
remains unsatisfied for thirty calendar days after the date of entry of
judgment, or in any event later than five days prior to the date of any
proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the Property of any such Person and is not released,
vacated or fully bonded within thirty calendar days after its issue or
levy; or
(k) Borrower or any of its Supported Subsidiaries institutes
or consents to the institution of any proceeding under a Debtor Relief Law
relating to it or to all or any material part of its Property, or is
unable or admits in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the
appointment continues undischarged or unstayed for ninety calendar days;
or any proceeding under a Debtor Relief Law relating to any such Person or
to all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for ninety calendar
days; or
(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) 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
(n) The occurrence of a License Revocation that continues
for fifteen consecutive calendar days with respect to gaming operations at
any gaming facility accounting for ten percent or more of the consolidated
total assets or consolidated gross revenues of Borrower and its Restricted
Subsidiaries.
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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):
(i) the Commitments to make Advances, the obligation
of the Issuing Lenders to issue Letters of Credit, the obligation of
the Swing Line Lender to make Swing Line Loans and all other
obligations of the Creditors and all rights of Borrower, the
Co-Borrowers and any other Parties under the Loan Documents shall be
suspended without notice to or demand upon Borrower or any
Co-Borrower, which are expressly waived by Borrower and the
Co-Borrowers, except that all of the Lenders or the Requisite
Lenders (as the case may be, in accordance with Section 11.2) may
waive an Event of Default or, without waiving, determine, upon terms
and conditions satisfactory to the Lenders or Requisite Lenders, as
the case may be, to reinstate the Commitments and such other
obligations and rights and make further Advances, and cause the
Issuing Lenders to issue further Letters of Credit which waiver or
determination shall apply equally to, and shall be binding upon, all
the Lenders;
(ii) the Issuing Lenders may, with the approval of
the Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by Borrower and the Co-Borrowers of an amount
equal to the aggregate amount of all outstanding Letters of Credit
to be held by the Issuing Lenders in an interest-bearing cash
collateral account as collateral for the Letters of Credit; and
(iii) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon
shall, terminate the Commitments and/or declare all or any part of
the unpaid principal of all 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):
(i) the Commitments to make Advances, the obligation
of the Issuing Lenders to issue Letters of Credit, the obligation of
the Swing Line Lender to make Swing Line Loans and all other
obligations of the Creditors and all rights of Borrower, the
Co-Borrowers and any other Parties under the Loan Documents shall
terminate without notice to or demand upon Borrower or any
Co-Borrower, which are expressly waived by Borrower and the
Co-Borrowers, except that all of the Lenders may waive the Event of
Default or, without waiving, determine, upon terms and conditions
satisfactory to all the Lenders, to reinstate the Commitments and
such other obligations and rights and make further Advances and to
cause the Issuing Lenders to issue further Letters of Credit, which
determination shall apply equally to, and shall be binding upon, all
the Lenders;
(ii) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and payable
to the Issuing Lenders without
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notice to or demand upon Borrower or any Co-Borrower, which are
expressly waived by Borrower and the Co-Borrowers, to be held by the
Issuing Lenders in an interest-bearing account as collateral for the
Letters of Credit; and
(iii) the unpaid principal of all 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
Lenders) to protect, exercise and enforce their rights and remedies under
the Loan Documents against Borrower, the Co-Borrowers and any other Party
and such other rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Creditors' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole discretion, and all payments received by the Creditors, or
any of them, shall be applied first to the costs and expenses (including
Attorney Costs) of the Creditors, and thereafter paid pro rata to the
Lenders in the same proportions that the aggregate Obligations owed to
each Lender under the Loan Documents bear to the aggregate Obligations
owed under the Loan Documents to all the Lenders, without priority or
preference among the Lenders. Regardless of how each Lender may treat
payments for the purpose of its own accounting, for the purpose of
computing the Obligations hereunder and under the Notes, payments shall be
applied first, to the costs and expenses of the Creditors, as set forth
above, second, to the payment of accrued and unpaid interest due under any
Loan Documents to and including the date of such application (ratably, and
without duplication, according to the accrued and unpaid interest due
under each of the Loan Documents), 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 Lender 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 Lenders hereunder or thereunder or at Law or in
equity.
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ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together
with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere herein or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting
parties.
(b) Each of the Issuing Lenders shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and each Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in
this Article 10 with respect to any acts taken or omissions suffered by
that Issuing Lender in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the
term "Administrative Agent" as used in this Article 10 and in the
definition of "Agent-Related Person" includes the Issuing Lenders with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Issuing Lenders.
10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
10.3 Liability of Administrative Agent. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Party or any other party to any Loan Document to perform its obligations
hereunder or
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thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Party
or any Affiliate thereof.
10.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Party), independent accountants
and other experts selected by the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action
under any Loan Document unless it shall first receive such advice or
concurrence of the Requisite Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Requisite Lenders (or such greater number
of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 8.1, unless the Administrative Agent shall
have received notice from the Requisite Lenders prior to the proposed
Closing Date specifying its objection to the manner in which any condition
precedent is proposed to be satisfied, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required under Section
8.1.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Requisite
Lenders in accordance with Article 9; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
10.6 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent- Related Person and based on such documents and information as it has
deemed appropriate, made its own
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appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Parties and
their respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to Borrower, Co-Borrower and the
other Parties hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower and the other Parties. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
10.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Party and without limiting the obligation of any Party to do so),
pro rata, and hold harmless each Agent-Related Person from and against any and
all Indemnified Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such Agent-
Related Person's own gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Requisite Lenders
(or, if required by Section 11.2, all of the Lenders) shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
10.8 Administrative Agent in its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Parties and their respective Affiliates as though Bank
of America were not the Administrative Agent or the Issuing Lenders hereunder
and without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Party or its Affiliates (including information that
may be subject to confidentiality obligations in favor of such Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
Administrative Agent or the Issuing Lenders, and the terms "Lender" and
"Lenders" include Bank of America in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of
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America shall also constitute its resignation as an Issuing Lender and Swing
Line Lender. The Administrative Agent shall, in connection with any such
resignation, make appropriate arrangements to ensure that, to the extent that it
then holds any capital stock or other equity securities of any Person which is a
gaming licensee as collateral for the Obligations, that any transfer of
possession of such pledged securities to any successor is in full compliance
with the requirements of all relevant Gaming Boards. If the Administrative Agent
resigns under this Agreement, the Requisite Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be consented to by Borrower at all times other than
during the existence of an Event of Default (which consent of Borrower shall not
be unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, Issuing Lender
and Swing Line Lender and the respective terms "Administrative Agent," "Issuing
Lender" and "Swing Line Lender" shall mean such successor administrative agent,
Letter of Credit issuer and Swing Line Lender, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated and the retiring Issuing Lender's and Swing Line Lender's rights,
powers and duties as such shall be terminated, without any other or further act
or deed on the part of such retiring Issuing Lender or Swing Line Lender or any
other Lender, other than the obligation of the successor Issuing Lender to issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or to make other arrangements satisfactory to the
retiring Issuing Lender to effectively assume the obligations of the retiring
Issuing Lender with respect to such Letters of Credit. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article 10 and Sections 11.3 and 11.11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Article 3 and Section 11.3) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Article 3 and Section 11.3. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
10.11 Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co-arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
10.12 Proportionate Interest in any Collateral. The Administrative
Agent, on behalf of all the Lenders, 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 Lenders'
rights to reimbursement for their costs and expenses hereunder (including
Attorney Costs) and subject to the application of payments in accordance with
Section 9.2(d), each Lender shall have an interest in the Lenders' interest in
the collateral or interests therein in the same proportions that the aggregate
Obligations owed such Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without priority
or preference among the Lenders, except that Obligations owed to any Lender
under a Related Swap Agreement shall be secured on an equal, ratable and pari
passu basis with all other Obligations in an amount equal to (i) the marked to
market exposure under the ISDA Master Agreement covering the Related Swap
Agreement, or (ii) if not governed by an ISDA Master Agreement, an amount equal
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, in each case shall be secured on a subordinate basis as to amounts in
excess of such amount.
10.13 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 (a) by the Collateral
Agent pursuant to the Intercreditor Agreement, or (b) by the Administrative
Agent (or an Affiliate or designee thereof) pro rata for the benefit of the
Lenders 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.
10.14 Intercreditor Arrangements; Attornment Agreements. Each of the
Creditors and the other Parties acknowledges that the Collateral for the
Obligations, and the rights of the Administrative Agent to take action with
respect thereto, are subject to the terms of the Intercreditor Agreement.
Provided that no Default or Event of Default has then occurred, the
Administrative Agent is hereby irrevocably authorized by the other Creditors to:
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(a) take any discretionary action, or exercise any
prerogatives, provided to a Creditor Representative pursuant to the
Intercreditor Agreement;
(b) enter into 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;
(c) provided that no Default or Event of Default has
occurred and remains continuing, enter into or approve, as Creditor
Representative, such amendments to the Collateral Documents as are
required to secure additional Qualified Obligations designated by Borrower
in accordance with the terms of the Intercreditor Agreement;
(d) provided that no Default or Event of Default has
occurred and remains continuing, enter into such instruments, documents or
agreements as are reasonably required to release or partially release, or
authorize the Collateral Agent to release or partially release, the Liens
of the Collateral Documents under the circumstances described in, and
subject to the conditions set forth in, Section 2.11 (a) or Section 11.2,
as applicable; and
(e) to the extent applicable, to enter into amendments to
the Intercreditor Agreement, and to authorize the Collateral Agent to
enter into amendments to the Collateral Documents referred to therein,
which are acceptable to the Administrative Agent and not objected to by
the Requisite Lenders, in connection with (i) the execution and delivery
by the Mandalay Companies which are Restricted Subsidiaries of the
Intercreditor Agreement and Collateral Documents with respect to their
respective Properties, (ii) the extension of the benefits of the
Intercreditor Agreement and the Collateral Documents to the Senior
Indebtedness of the Mandalay Companies and the 1993 Mandalay Subordinated
Obligations as additional Qualified Obligations under the Intercreditor
Agreement.
10.15 No Obligations of Borrower and the Co-Borrowers. Nothing
contained in this Article 10 shall be deemed to impose upon Borrower or any
Co-Borrower any obligation in respect of the due and punctual performance by the
Administrative Agent of its obligations to the Lenders under any provision of
this Agreement, and Borrower and the Co-Borrowers shall have no liability to the
Administrative Agent or any of the Lenders in respect of any failure by the
Administrative Agent or any Lender to perform any of its obligations to the
Creditors under this Agreement. Without limiting the generality of the
foregoing, where any provision of this Agreement relating to the payment of any
amounts due and owing under the Loan Documents provides that such payments shall
be made by Borrower or the Co-Borrower to the Administrative Agent for the
account of the Lenders, Borrower's and the Co-Borrowers' obligations to the
Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
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ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies, No Waiver. The rights, powers, privileges
and remedies of the Creditors provided herein or in any Note or other Loan
Document are cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the part of the
Administrative Agent or any Lender in exercising any right, power, privilege or
remedy may be, or may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other or
further exercise of the same or any other right, power, privilege or remedy. The
terms and conditions of Article 8 hereof are inserted for the sole benefit of
the Creditors; the same may be waived in whole or in part, with or without terms
or conditions, in respect of any Loan or Letter of Credit without prejudicing
the Administrative Agent's or the Lenders' rights to assert them in whole or in
part in respect of any other Loan.
11.2 Amendments; Consents. Each amendment, modification,
supplement, extension, termination, waiver, approval and consent under this
Agreement and the other Loan Documents shall be subject to the terms of all
applicable Laws, including Gaming Laws. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower, the Co- Borrowers or any other Party therefrom, may in
any event be effective unless in writing signed by the Administrative Agent with
the approval of Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which Borrower or any
of its Subsidiaries is a Party, signed by each such Party, and, in the case of
any amendment, modification or supplement to Article 10, signed by the
Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of all the Lenders
(or such of the Lenders as are required pursuant to the following clauses of
this Section), no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) Without the consent of each affected Lender, (i) to
reduce the principal of, or the amount of principal, principal prepayments
or the rate of interest payable on, any Note, or (ii) to increase the
amount of the Commitments or the Pro Rata Share of any Lender or (iii) to
reduce the amount of any Unused Fee payable to any Revolving Lender, or
any other fee or amount payable to any Lender under the Loan Documents or
(iv) to waive an Event of Default consisting of the failure of Borrower or
the Co-Borrowers to pay when due principal, interest or any Unused Fee or
other fee;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on, any Note
or any installment of any Unused Fee, or to extend the term of either of
the Commitments;
(c) To permit the term of any Letter of Credit to exceed one
year (provided that this shall not be construed to prohibit the provision
of automatic renewal clauses in Letters of Credit issued hereunder) or
extend beyond the Maturity Date;
(d) To release the Guaranty, the Collateral Documents or any
other material portion of any collateral for the Obligations, or to permit
the Collateral Agent to take any such action (except in accordance with
the provisions of the Intercreditor Agreement), provided that if no
Default or Event of Default exists, the Administrative Agent may without
the consent of any Lender (and shall at the request of Borrower):
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(i) Release any Subsidiary from its guaranty of the
Obligations concurrently with the Disposition of such Subsidiary;
(ii) consent to the release by the Collateral Agent
of its Liens upon (A) any personal property financed or leased by
Borrower or its Subsidiaries and granted a Lien in accordance with
Section 6.4(e), (B) any collateral as otherwise may be expressly
provided for in any Loan Document, (C) the equity securities of any
Subsidiary which is the subject of a Disposition (and to the
corresponding release by the Collateral Agent of any guarantees
issued by such Subsidiary); (D) any Property which is the subject of
a Distribution, and (E) all Property of Borrower and its Restricted
Subsidiaries in connection with a Collateral Release under Section
2.11;
(iii) authorize the Collateral Agent to make any
amendments to the deed of trust covering the Theme Park Property
and/or subordinate the lien of such deed of trust to any maps
subdividing the Theme Park Property so as to give effect to any
subdivision of the Theme Park Property (whether concurrently with or
prior to the Disposition thereof) by Borrower;
(iv) send notice to the Collateral Agent and the
Creditor Representatives requesting the release of any Theme Park
Property concurrently with the sale or other Disposition thereof; or
(v) consent to the subordination by the Collateral
Agent of its Liens with respect to any Property which is the subject
of a Disposition.
(e) To amend the provisions of the definitions of "Requisite
Lenders" or "Maturity Date";
(f) To amend or waive Article 8, Section 6.2 or this
Section; or
(g) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent
pursuant to this Section shall apply equally to, and shall be binding upon, all
of the Creditors. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Pro Rata Share of the Commitments of such
Lender may not be increased or extended without the consent of such Lender. It
is acknowledged that the Administrative Agent shall be entitled to enter into
certain amendments to the Intercreditor Agreement, and to consent to the
execution of amendments to the Collateral Documents by the Collateral Agent, in
the manner contemplated by Section 10.14(e).
11.3 Attorney Costs, Expenses and Taxes.
(a) Borrower and the Co-Borrowers agree (a) to pay or
reimburse the Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of
this Agreement and the other Loan Documents and any amendment, waiver,
consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to
pay or reimburse the Administrative Agent and each Lender for all costs
and
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expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and
expenses incurred during any "workout" or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding
under any Debtor Relief Law), including all Attorney Costs. The foregoing
costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and
other out-of-pocket expenses incurred by the Administrative Agent and the
cost of independent public accountants and other outside experts retained
by the Administrative Agent or any Lender. All amounts due under this
Section 11.3 shall be payable within five Business Days after demand
therefor. The agreements in this Section shall survive the termination of
the Commitments and repayment of all other Obligations.
(b) Borrower and the Co-Borrowers shall pay any and all
documentary and other taxes, excluding (1) taxes imposed on or measured in
whole or in part by overall net income, gross income or gross receipts and
franchise taxes imposed on any Lender by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business", (2) any
withholding taxes or other taxes based on gross income imposed by the
United States of America that are not attributable to any change in any
Law or the interpretation or administration of any Law by any Governmental
Agency and (3) any withholding tax or other taxes based on gross income
imposed by the United States of America for any period with respect to
which it has failed to provide Borrower with the appropriate form or forms
required by Section 11.21, to the extent such forms are then required by
applicable Laws, and all costs, expenses, fees and charges payable or
determined to be payable in connection with the filing or recording of
this Agreement, any other Loan Document or any other instrument or writing
to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto, and shall reimburse, hold harmless
and indemnify on the terms set forth in Section 11.11 the Creditors from
and against any and all loss, liability or legal or other expense with
respect to or resulting from any delay in paying or failure to pay any
such tax, cost, expense, fee or charge or that any of them may suffer or
incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any Lender
under this Section shall bear interest from the second Business Day
following the date of demand for payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the Lenders
hereunder to make Loans and to fund participations in Letters of Credit and
Swing Line Loans are several and not joint. The failure of any Lender to make
any Loan or to fund any such participation on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to
so make its Loan or purchase its participation. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Creditors or any
of them pursuant hereto or thereto may, or may be deemed to, make the Lenders a
partnership, an association, a joint venture or other entity, either among
themselves or with Borrower, the Co-Borrowers or any Subsidiary of Borrower.
Each Lender's obligation to make any Advance pursuant hereto is several and not
joint or joint and several, and in the case of the initial Advance only is
conditioned upon the performance by all other Lenders of their obligations to
make initial Advances. A default by any Lender will not increase the Pro Rata
Share of any other Lender. Any Lender not in default may, if it desires, assume
in such proportion as the non-Defaulting Lenders agree the obligations of any
Lender in default, but is not obligated to do so. The Administrative Agent
agrees that it will use its best efforts either to induce the other Lenders to
assume the obligations of a Lender in default or to obtain another Lender,
reasonably satisfactory to Borrower and the Co-Borrowers, to replace such a
Lender in default.
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11.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Letter of Credit, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.6 Notices.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in
writing (including by facsimile transmission). All such written notices
shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to clause (c) below) electronic mail address, and all
notices and other communications expressly permitted hereunder to be given
by telephone shall be made to the applicable telephone number, as follows:
(i) if to Borrower, the Administrative Agent, the
Issuing Lenders or a Swing Line Lender, to the address, facsimile
number, electronic mail address or telephone number specified for
such Person on Schedule 11.6 or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other
address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to Borrower,
the Administrative Agent, the Issuing Lenders and the Swing Line
Lenders.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by
or on behalf of the relevant party hereto; (B) if delivered by mail, four
Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by
telephone; and (D) if delivered by electronic mail (which form of delivery
is subject to the provisions of clause (c) below), when delivered;
provided, however, that notices and other communications to the
Administrative Agent, the Issuing Lenders and the Swing Line Lenders
pursuant to Article 2 shall not be effective until actually received by
such Person. In no event shall a voicemail message be effective as a
notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures.
Loan Documents may be transmitted or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually-signed
originals and shall be binding on all Parties, the Administrative Agent
and the Lenders. The Administrative Agent may also require that any such
documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or
signature.
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(c) Limited Use of Electronic Mail. Electronic mail and
Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as
provided in Section 7.1, and to distribute Loan Documents for execution by
the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act
upon any notices (including telephonic requests for Loans and Swing Line
Loans) that, in the reasonable judgment of the Administrative Agent and
the Lenders, are purportedly given by or on behalf of Borrower or any
Co-Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. Borrower and the Co-
Borrowers shall jointly and severally indemnify each Agent-Related Person
and each Lender from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice that, in the reasonable
judgment of such Agent-Related Person, is purportedly given by or on
behalf of Borrower or any Co-Borrower. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to
such recording.
(e) Notice to Borrower is Notice to Co-Borrowers. Borrower
and the Co-Borrower expressly agree that the credit facilities provided
hereunder are being provided for the joint convenience of Borrower and its
Restricted Subsidiaries, including the Co-Borrowers, and that it is
expected that Borrower shall administer the Advances and Letters of Credit
on behalf of itself and the Co-Borrowers. Accordingly, Borrower and the
Co-Borrowers agree that any notice provided to Borrower hereunder shall be
deemed to constitute the same notice to the Co-Borrowers, without the
requirement that separate notices be provided to the Co-Borrowers.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party followed by prompt transmission of an original
signature. The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts hereof or
thereof, as the case may be, have been executed by all the parties hereto or
thereto.
11.8 Binding Effect; Assignment.
(a) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither Borrower nor
any other Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except for the
following (any other attempted assignment or transfer by any party hereto
shall be null and void):
(i) to an Eligible Assignee in accordance with the provisions of
clause (b) of this Section;
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(ii) by way of participation in accordance with the provisions of
clause (d) of this Section;
(iii) by way of pledge or assignment of a security interest subject
to the restrictions of clause (f) of this Section; or
(iv) to an SPC in accordance with the provisions of clause (h) of
this Section.
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent
provided in clause (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Lenders and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement. Each Lender
represents that it is not acquiring its Notes with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (subject to any requirement that disposition of its Notes must be
within the control of such Lender).
(b) Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of Pro Rata Share of the
Commitments and the Loans (including for purposes of this clause (b),
participations in L/C Obligations and in Swing Line Loans) at the time
owing to it); provided that:
(i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Pro Rata Share of
the relevant Commitment and the related Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Pro Rata Share of the relevant Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the
Commitments are not then in effect, the principal outstanding
balance of the related Loans of the assigning Lender subject to each
such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less
than, with respect to (A) the Revolving Commitment or Revolving
Loans, $5,000,000 and (B) the Term Commitments or Term Loans,
$1,000,000, unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, Borrower and
each Co-Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the
Loans or the Pro Rata Share of the Commitments assigned, except that
this clause (ii) shall not apply to rights in respect of Swing Line
Loans;
(iii) each assignment must be approved by the
Administrative Agent, the Issuing Lenders and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and
(iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and
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recordation fee of $3,500, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to clause (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.7, 3.8 and 11.11 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Upon request, Borrower (at its expense) shall execute and
deliver a Note under the relevant Commitment to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this clause shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with clause (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose
as an agent of Borrower, shall maintain at the Administrative Agent's
Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive,
and Borrower, the Co-Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available
for inspection by each of Borrower, each Co-Borrower and the Issuing
Lenders at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a
material or substantive change to the Loan Documents is pending, any
Lender wishing to consult with other Lenders in connection therewith may
request and receive from the Administrative Agent a copy of the Register.
(d) Any Lender may at any time, without the consent of, or
notice to, Borrower, any Co-Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or Borrower or
any of Borrower's Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of that Lender's rights and/or obligations under this
Agreement (including all or a portion of any of its Pro Rata Shares of the
Commitments and/or the Loans (including that Lender's participations in
L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
that Lender's obligations under this Agreement shall remain unchanged,
(ii) that Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Borrower, the
Administrative Agent, the Lenders and the Issuing Lenders shall continue
to deal solely and directly with that Lender in connection with that
Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification
described in Section 11.2 requiring the consent of that Lender and which
also affects such Participant. Subject to clause (e)
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of this Section, Borrower agrees that each Participant shall be entitled
to the benefits of Sections 3.7 and 3.8 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to clause (b)
of this Section.
(e) A Participant shall not be entitled to receive any
greater payment under Section 3.7 or 3.8 than the applicable Lender would
have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant
is made with Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 3.12(d) unless Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of
Borrower, to comply with Section 11.21 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release
such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
(g) The words "execution," "signed," "signature," and words
of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each
of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(h) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to an SPC the option to
provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any
Loan, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof or, if it fails
to do so, to make such payment to the Administrative Agent as is required
under Section 2.10. Each party hereto hereby agrees that (i) neither the
grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of
Borrower under this Agreement (including its obligations under Sections
3.7 and 3.8), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes, including
the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The
making of a Loan by an SPC hereunder shall utilize the Pro Rata Share of
the relevant Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one
year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under
the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to,
but without prior consent of Borrower and the Administrative Agent and
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with the payment of a processing fee of $3,500, assign all or any portion
of its right to receive payment with respect to any Loan to the Granting
Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency,
commercial paper dealer or provider of any surety or Contingent Obligation
or credit or liquidity enhancement to such SPC.
(i) Resignation as Issuing Lender or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Pro Rata Shares of the
Commitments and Loans pursuant to clause (b) above, Bank of America may,
upon 30 days' notice to Borrower and the Lenders, concurrently resign as
an Issuing Lender and a Swing Line Lender. In the event of any such
resignation as Issuing Lender and Swing Line Lender, Borrower shall be
entitled to appoint from among the Lenders a replacement Issuing Lender or
Swing Line Lender hereunder; provided, however, that no failure by
Borrower to appoint any such successor shall affect the resignation of
Bank of America as Issuing Lender or Swing Line Lender, as the case may
be. If Bank of America resigns as an Issuing Lender, it shall retain all
the rights and obligations of an Issuing Lender hereunder with respect to
all Letters of Credit issued by it and outstanding as of the effective
date of its resignation as Issuing Lender and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.4(c)). If Bank of America resigns as a Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as
of the effective date of such resignation, including the right to require
the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.6(e).
(j) Notwithstanding anything in this Section to the
contrary, the rights of the Lenders to make assignments of, and grant
participations in, their Pro Rata Shares of the Commitments shall be
subject to the approval of any Gaming Board, to the extent required by
applicable Gaming Laws, and to compliance with applicable securities laws,
if any.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under Article 9 of
the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrower, the Co-Borrowers and/or any of their Property in its
possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, any Co-Borrower, or otherwise, receives payment of the
Obligations held by it that is ratably more than any other Lender, through any
means, receives in payment of the Obligations held by that Lender, then, subject
to applicable Laws: (a) the Lender exercising the right of setoff, banker's lien
or counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Lender a participation
in the Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Lenders
share any payment obtained in respect of the Obligations ratably in accordance
with each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is
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thereafter recovered from the purchasing Lender by Borrower, any Co-Borrower or
any Person claiming through or succeeding to the rights of Borrower or a
Co-Borrower, the purchase of a participation shall be rescinded and the purchase
price thereof shall be restored to the extent of the recovery, but without
interest. Each Lender that purchases a participation in the Obligations pursuant
to this Section shall from and after the purchase have the right to give all
notices, requests, demands, directions and other communications under this
Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original owner of the
Obligations purchased. Borrower and each Co-Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in an
Obligation so purchased may exercise any and all rights of setoff, banker's lien
or counterclaim with respect to the participation as fully as if the Lender were
the original owner of the Obligation purchased.
11.11 Indemnification by Borrower and the Co-Borrowers. Whether or
not the transactions contemplated hereby are consummated, Borrower and each
Co-Borrower jointly and severally shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
any Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit) or (c) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect, consequential, special or punitive damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the date hereof). All
amounts due under this Section 11.11 shall be payable within 10 Business Days
after demand therefor. The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
11.12 Nonliability of the Lenders. Borrower and each Co-Borrower
acknowledges and agrees that:
(a) Any inspections of any Property of Borrower and its
Subsidiaries made by or through the Creditors are for purposes of
administration of the Loans and Letters of Credit only and Borrower and
its Affiliates are not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower or its Subsidiaries);
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(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Creditors pursuant to the
Loan Documents, neither the Administrative Agent nor the Lenders shall be
deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such 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 Lenders
shall under any circumstance be construed to be partners or joint
venturers of Borrower or its Affiliates; neither the Administrative Agent
nor the Lenders shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary or other "special"
relationship with Borrower or its Affiliates, or to owe any fiduciary duty
to Borrower or its Affiliates; neither the Administrative Agent nor the
Lenders undertake or assume any responsibility or duty to Borrower or its
Affiliates to select, review, inspect, supervise, pass judgment upon or
inform Borrower or its Affiliates of any matter in connection with their
Property or the operations of Borrower or its Affiliates; Borrower and its
Affiliates shall rely entirely upon their own judgment with respect to
such matters; and any review, inspection, supervision, exercise of
judgment or supply of information undertaken or assumed by the Creditors
in connection with such matters is solely for the protection of the
Creditors and neither Borrower, the Co-Borrowers nor any other Person is
entitled to rely thereon; 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 Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Co-Borrowers and the Creditors in connection with the Loans, and
is made for the sole benefit of Borrower, the Co-Borrowers, the Creditors, and
the Creditors' successors and assigns. Except as provided in Sections 11.8,
11.11, and 11.28 no other Person shall have any rights of any nature hereunder
or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any confidential
information that it may receive from Borrower and the Co-Borrowers pursuant to
this Agreement in confidence, except for disclosure: (a) to other Creditors (or,
subject to appropriate confidentiality restrictions, Affiliates of any
Creditor); (b) to legal counsel and accountants for Borrower and the
Co-Borrowers or any Lender; (c) to other professional advisors to Borrower and
the Co-Borrowers or any Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially similar to this
Section; (d) to regulatory officials having jurisdiction over that Lender; (e)
to any Gaming Board having regulatory jurisdiction over Borrower or its
Subsidiaries, provided that each Lender agrees to use its best efforts to notify
Borrower and the Co-Borrowers of any such disclosure unless prohibited by
applicable Laws; (f) as required by Law or legal process or in connection with
any legal proceeding to which that Lender and Borrower or any of its
Subsidiaries are adverse parties; and (g) to another financial institution in
connection with a disposition or proposed disposition to that financial
institution of all or part of that Lender's interests hereunder or a
participation interest in its Notes, provided that the recipient has accepted
such information subject to a confidentiality agreement substantially similar to
this Section. For purposes of the foregoing, "confidential information" shall
mean any information respecting Borrower or its Subsidiaries reasonably
considered by Borrower to be confidential, other than (i) information previously
filed with any Governmental Agency and available to the public, (ii) information
previously
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published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by Borrower or its
Subsidiaries to any Person not associated with Borrower without a
confidentiality agreement or obligation substantially similar to this Section.
Notwithstanding anything herein to the contrary, "confidential information"
shall not include, and the Administrative Agent and each Lender may disclose
without limitation of any kind, any information with respect to the "tax
treatment" and "tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby. Nothing in this Section shall be construed to
create or give rise to any fiduciary duty on the part of the Creditors to
Borrower or any other Party.
11.15 Further Assurances. Borrower and its Subsidiaries shall, at
their expense and without expense to the Lenders or the Administrative Agent,
do, execute and deliver such further acts and documents as the Requisite Lenders
or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, the other Loan Documents and the
letter agreements referred to in Sections 3.2, 3.5 and 3.6, comprise the
complete and integrated agreements of the parties on the subject matter hereof
and supersedes all prior agreements, written or oral, on the subject matter
hereof. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control and govern; provided that the inclusion of supplemental rights or
remedies in favor of the Creditors in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the local Laws of Nevada.
11.18 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
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11.21 Foreign Lenders and Participants.
(a) Tax Forms.
(i) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt
of any payment subject to withholding under the Code (or upon
accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to
such Foreign Lender by Borrower pursuant to this Agreement) or IRS
Form W-8ECI or any successor thereto (relating to all payments to be
made to such Foreign Lender by Borrower pursuant to this Agreement)
or such other evidence satisfactory to Borrower and the
Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and
from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed
and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States
taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to Borrower and the Administrative Agent of any
available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender
by Borrower pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C)
take such steps as shall not be materially disadvantageous to it, in
the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that Borrower make any
deduction or withholding for taxes from amounts payable to such
Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not
act or ceases to act for its own account with respect to any portion
of any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by
such Lender), shall deliver to the Administrative Agent on the date
when such Foreign Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at such
other times as may be necessary in the determination of the
Administrative Agent (in the reasonable exercise of its discretion),
(A) two duly signed completed copies of the forms or statements
required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect
to which such Lender acts for its own account that is not subject to
U.S. withholding tax, and (B) two duly signed completed copies of
IRS Form W-8IMY (or any successor thereto), together with any
information such Lender chooses to transmit with such form, and any
other certificate or statement of exemption required under the Code,
to establish that such Lender is not acting for its own account with
respect to a portion of any such sums payable to such Lender.
(iii) Borrower shall not be required to pay any
additional amount to any Foreign Lender under Section 3.12(d) (A)
with respect to any taxes required to be deducted or withheld on the
basis of the information, certificates or statements of exemption
such Lender transmits with an IRS Form W-8IMY pursuant to this
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Section 11.21(a) or (B) if such Lender shall have failed to satisfy
the foregoing provisions of this Section 11.21(a); provided that if
such Lender shall have satisfied the requirement of this Section
11.21 (a) on the date such Lender became a Lender or ceased to act
for its own account with respect to any payment under any of the
Loan Documents, nothing in this Section 11.21(a) shall relieve
Borrower of its obligation to pay any amounts pursuant to Section
3.12(d) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of
the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any
payment under any of the Loan Documents with respect to which
Borrower is not required to pay additional amounts under this
Section 11.21(a).
(b) Form W-9. Upon the request of the Administrative Agent,
each Lender that is a "United States person" within the meaning of Section
7701(a)(30) of the Code shall deliver to the Administrative Agent two duly
signed completed copies of IRS Form W-9. If such Lender fails to deliver
such forms, then the Administrative Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) Withholding. If any Governmental Agency asserts that the
Administrative Agent did not properly withhold or backup withhold, as the
case may be, any tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Administrative
Agent therefor, including all penalties and interest, any taxes imposed by
any jurisdiction on the amounts payable to the Administrative Agent under
this Section, and costs and expenses (including Attorney Costs) of the
Administrative Agent. The obligation of the Lenders under this Section
shall survive the termination of the Commitments, repayment of all other
Obligations hereunder and the resignation of the Administrative Agent.
11.22 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 Lenders (and any successor to a Lender) 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 Lender, 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 Lender or a representative of a Lender), in connection
with the handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials at any time
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located or present on, in, under or about any Real Property; provided that,
anything to the contrary herein notwithstanding (including Exhibit K), the
liability of Detroit shall be limited to that portion of the Obligations 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 4.17 and 5.4, with respect to compliance
with Hazardous Materials Laws) shall be unlimited corporate obligations of
Borrower and the Co-Borrowers and shall not be secured by any deed of trust or
mortgage on any Real Property. Any obligation or liability of Borrower and the
Co-Borrowers to any Indemnitee under this Section shall survive the expiration
or termination of this Agreement, the repayment of all Loans, the expiration or
termination of all Letters of Credit and the payment and performance of all
other Obligations owed to the Lenders.
11.23 Gaming Boards. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrower and its
Subsidiaries, including the provision of such documents or other information as
may be requested by any such Gaming Board relating to Borrower or any of its
Subsidiaries or to the Loan Documents.
11.24 Lien Releases. The Administrative Agent shall release any Lien
granted to or held by the Administrative Agent on any collateral for the
Obligations (and shall consent to the release by the Collateral Agent of any
Liens held by the Collateral Agent) which is (i) sold, transferred or otherwise
disposed of in connection with any Distribution or Disposition (or in any other
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 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) approved or consented to by
those of the Lenders required by Section 11.2, or (v) otherwise expressly
required by the Loan Documents, provided in each case that any Liens on such
Property securing the other Senior Indebtedness are concurrently released. If
the collateral so released consists of capital stock of a Subsidiary which is
sold, transferred or otherwise disposed of, then the Administrative Agent shall
concurrently also release such Subsidiary from its obligations under the
Guaranty. Each of the Creditors hereby consent to the arrangements set forth in
this Section and, upon the request of the Administrative Agent, each Lender
shall promptly provide written confirmation of the authority of the
Administrative Agent to release such Liens (or to consent to such release by the
Collateral Agent) 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 2.11, upon (a) the expiration or termination
of the Commitments, (b) the full and final payment in Cash of the Loans, all
interest and fees with respect thereto, (c) the reimbursement of all draws under
Letters of Credit and the payment of all fees with respect thereto, (d) the
expiration of all Letters of Credit or the deposit of Cash collateral with an
Issuing Lender in the effective face amount thereof, (e) the payment of all
amounts then demanded by any Lender or indemnitee under Sections 3.7, 3.8, 11.11
and 11.22 and (f) the payment of all other amounts then due under the Loan
Documents, the Administrative Agent is hereby authorized by the Lenders to, and
the Administrative Agent shall, upon the request of Borrower and the
Co-Borrowers, execute and deliver to Borrower and the Co-Borrowers
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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 Removal of a Lender. Borrower and the Co-Borrowers shall have
the right to remove a Lender as a party to this Agreement in accordance with
this Section (a) under the circumstances set forth in Sections 3.7, 3.8(g) and
3.12(d) and (b) if such Lender is the subject of a Disqualification. If Borrower
and the Co-Borrowers are entitled to remove a Lender pursuant to this Section
either:
(x) Upon notice from Borrower and the Co-Borrowers, the Lender
being removed shall execute and deliver a Assignment Agreement
covering that Lender's Pro Rata Share in favor of one or more
Eligible Assignees designated by Borrower and the Co-Borrowers (and
acceptable to the Administrative Agent, which acceptance shall not
be unreasonably delayed or withheld), subject to (i) payment of a
purchase price by such Eligible Assignee equal to all principal and
accrued interest, fees and other amounts payable to such Lender
under this Agreement through the date of assignment and (ii) the
written release of the Issuing Lenders and the Swing Line Lenders of
such Lender's obligations under Sections 2.4(c) and 2.6(d) or
delivery by such Eligible Assignee of such appropriate assurances
and indemnities (which may include letters of credit) as such Lender
may reasonably require with respect to its participation interest in
any Letters of Credit then outstanding or any Swing Line
Outstandings; or
(y) Borrower and the Co-Borrowers may reduce the Commitments
pursuant to Section 2.9 (and, for this purpose, the numerical
requirements of such Section shall not apply) by an amount equal to
that Lender's Pro Rata Share, pay and provide to such Lender the
amounts, assurances and indemnities described in subclauses (i) and
(ii) of clause (x) above and release such Lender from its Pro Rata
Share.
11.27 Joint and Several. Borrower and each of the Co-Borrowers shall
be obligated for all of the Obligations on a joint and several basis,
notwithstanding which of them may have directly received the proceeds of any
particular Loan or Advance or the benefit of a particular Letter of Credit,
provided that, anything to the contrary herein notwithstanding (including
Exhibit K), the liability of Detroit shall be limited to that portion of the
Obligations which are actually borrowed or received by Detroit. Borrower and
each of the Co-Borrowers acknowledge and agree that, for purposes of the Loan
Documents, Borrower, the Co-Borrowers and the Guarantors constitute a single
integrated financial enterprise and that each receives a benefit from the
availability of credit under this Agreement. Borrower and the Co-Borrowers each
waive all defenses arising under the Laws of suretyship, to the extent such Laws
are applicable, in connection with their joint and several obligations under
this Agreement. Without limiting the foregoing, Borrower and each of the
Co-Borrowers agree to the Joint Borrower Provisions set forth in Exhibit K,
incorporated by this reference.
11.28 Non-Involvement of Tracinda. The parties hereto acknowledge
that neither Kirk Kerkorian nor Tracinda Corporation, individually or
collectively, is a party to this Agreement or any of the other Loan Documents
executed on the date hereof. 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 Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach,
default or claim.
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11.29 Pledged Stock in Gaming Companies. If and to the extent that
the capital stock or other equity securities of any Person which holds a gaming
license are at any time pledged to the Creditors, the Creditors shall, to the
extent required by applicable Gaming Laws (a) in the case of any such Person
holding a Nevada gaming license, retain possession of such pledged capital stock
or other equity securities within the State of Nevada at a location designated
to the Nevada State Gaming Control Board, and (b) in the case of any Person
holding a gaming license from another jurisdiction, shall retain possession of
such pledged stock or other equity securities at a location in that jurisdiction
designated to the Gaming Board of that jurisdiction, if so required by the
Gaming Board of that jurisdiction.
11.30 Payments Set Aside. To the extent that any payment by or on
behalf of Borrower or any Co-Borrower is made to the Administrative Agent or any
Lender, or the Administrative Agent or any Lender exercises its right of
set-off, and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
11.31 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.32 Purported Oral Amendments. BORROWER AND EACH CO-BORROWER
EXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY
BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2.
BORROWER AND EACH CO-BORROWER AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF
DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY LENDER THAT DOES NOT COMPLY
WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
11.33 USA PATRIOT Act Notice. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies Borrower and each Co-Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and
-102-
record information that identifies Borrower and each Co-Borrower, which
information includes the name and address of Borrower and each Co-Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify Borrower and each Co-Borrower in accordance with the
Act.
-103-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
MGM MIRAGE,
a Delaware corporation
By: /s/ Bryan L. Wright
----------------------------------------
Bryan L. Wright, Vice President-Assistant
General Counsel and Assistant Secretary
MGM GRAND DETROIT, LLC
By: MGM Grand Detroit, Inc., managing member
By: /s/ Bryan L. Wright
------------------------------------
Bryan L. Wright, Assistant Secretary
-1-
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Chris M. Levine
----------------------------------------
Chris M. Levine, Assistant Vice President
-2-
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Brian Corum
----------------------------------------
Brian Corum, Managing Director
-3-
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ David Apps
-------------------------------------
Name: David Apps
Title: Senior Vice President
-4-
JPMORGAN CHASE BANK,
as a Lender
By: /s/ DONALD S. SHOKRIAN
-------------------------------------
Name: DONALD S. SHOKRIAN
Title: MANAGING DIRECTOR
-5-
CITICORP USA, INC.,
as a Lender
By: /s/ Robert F. Parr
-------------------------------------
Name: Robert F. Parr
Title: Managing Director, Global Media &
Communication
-6-
BANK OF SCOTLAND, as a Lender
By: /s/ Karen Weich
-------------------------------------
Name: Karen Weich
Title: Assistant Vice President
-7-
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as a Lender
By: /s/ Brenda Casey
-------------------------------------
Name: Brenda Casey
Title: Vice President
-8-
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ AL GALLUZZO
-------------------------------------
Name: AL GALLUZZO
Title: SENIOR VICE PRESIDENT
-9-
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ Werner Schmidbauer
-------------------------------------
Name: Werner Schmidbauer
Title: SVP
BY: /s/ Karla Wirth
-------------------------------------
Name: Karla Wirth
Title: AVP
-10-
BARCLAYS BANK PLC, as a Lender
By: /s/ Nicholas Bell
-------------------------------------
Name: Nicholas Bell
Title: Director
-11-
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ G. Lee Wagner, Jr.
-------------------------------------
Name: G. Lee Wagner, Jr.
Title: Assistant Vice President
-12-
BNP PARIBAS, as a Lender
By: /s/ Janice S. H. Ho
-------------------------------------
Name: Janice S. H. Ho
Title: Director
By: /s/ C. Bettles
-------------------------------------
Name: C. Bettles
Title: Managing Director
-13-
SOCIETE GENERALE, as a Lender
By: /s/ Thomas K. Day
-------------------------------------
Name: Thomas K. Day
Title: Managing Director
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
-14-
MERRILL LYNCH BANK USA, as a Lender
By: /s/ Louis Alder
-------------------------------------
Name: Louis Alder
Title: Director
-15-
U. S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Scott J. Bell
-------------------------------------
Name: Scott J. Bell
Title: Senior Vice President
-16-
MORGAN STANLEY, as a Lender
By /s/ Daniel Twengo
-------------------------------------
Name: Daniel Twengo
Title: Vice President
Morgan Stanley Bank
-17-
COMERICA BANK, as a Lender
By: /s/ Kevin T. Urban
-------------------------------------
Name: Kevin T. Urban
Title: Corporate Banking Officer
-18-
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH, as a Lender
By: /s/ Marianne Weinzinger
-------------------------------------
Name: Marianne Weinzinger
Title: Director
By: /s/ Tricia Grieve
-------------------------------------
Name: Tricia Grieve
Title: Director
-19-
UNITED OVERSEAS BANK, as a Lender
By: /s/ Hoong Chen
-------------------------------------
Name: Hoong Chen
Title: First Vice President and General
Manager
-20-
MIZUHO CORPORATE BANK, LTD.,
as a Lender
By: /s/ Mark Gronich
-----------------------------------
Name: Mark Gronich
Title: Senior Vice President
-21-
THE BANK OF NEW YORK,
as a Lender
By: /s/ David Molnar
-----------------------------------
Name: David Molnar
Title: Assistant Treasurer
-22-
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Michael J. Vegh
-----------------------------------
Name: Michael J. Vegh
Title: Assistant Vice President
-23-
SCOTIABANC INC., as a Lender
By: /s/ William E. Zarrett
-----------------------------------
Name: William E. Zarrett
Title: Managing Director
-24-
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Ann T. Melone
-----------------------------------
Name: Ann T. Melone
Title: Associate Director
-25-
UFJ BANK LIMITED, as a Lender
By: /s/ Toshiko Boyd
-----------------------------------
Name: Toshiko Boyd
Title: Vice President
-26-
BANK OF CHINA, LOS ANGELES BRANCH,
as a Lender
By: /s/ Haiping Liu
-----------------------------------
Name: Haiping Liu
Title: First VP & Head of LA Branch
By: /s/ Jason Fu
-----------------------------------
Name: Jason Fu
Title: VP
-27-
THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND, as a Leader
By: /s/ Geraldine Hannon
-----------------------------------
Name: Geraldine Hannon
Title: Authorised signatory
By: /s/ Mary Connolly
-----------------------------------
Name: Mary Connolly
Title: Authorised signatory
-28-
SOVEREIGN BANK, as a Lender
By: /s/ Chris D. Wolfslayer
-----------------------------------
Name: Chris D. Wolfslayer
Title: Vice President
-29-
STANDARD FEDERAL BANK N.A., as a Lender
By: /s/ Annette Gordon
-----------------------------------
Name: Annette Gordon
Title: First Vice President
-30-
ALLIED IRISH BANK, as a Lender
By: /s/ John Farrace
-----------------------------------
Name: JOHN FARRACE
Title: SENIOR VICE PRESIDENT
/s/ [ILLEGIBLE]
-31-
BANK OF HAWAII, as a Lender
By: /s/ James Karnowski
-----------------------------------
Name: James Karnowski
Title: Vice President
-32-
ERSTE BANK NEW YORK BRANCH,
as a Lender
By: /s/ Robert J. Wagman /s/ Bryan J. Lynch
------------------------------ --------------------
Name: ROBERT J. WAGMAN
Title: VICE PRESIDENT BRYAN J. LYNCH
ERSTE BANK NEW YORK BRANCH FIRST VICE PRESIDENT
-33-
THE PEOPLES BANK, BILOXI, MISSISSIPPI,
as a Lender
By: /s/ Chevis C. Swetman
-----------------------------------
Name: Chevis C. Swetman
Title: President
-34-
OAK BROOK BANK, as a Lender
By: /s/ Henry Wessel
-----------------------------------
Name: Henry Wessel
Title: VP
-35-
FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
as a Lender
By: First Tennessee Bank National Association
Name: /s/ [ILLEGIBLE]
---------------------------------------
Title: Vice President
-36-
CHANG HWA COMMERCIAL BANK, LTD., as a Lender
By: /s/ Chen-Yu Chen
-----------------------------------------
Name: Chen-Yu Chen
Title: V. P. & General Manager
-37-
HUA NAN COMMERCIAL BANK LTD., as a Lender
By: /s/ David Y. C. Cheng
-----------------------------------------
Name: David Y. C. Cheng
Title: VP & General Manager
-38-
SCHEDULE 1
Pro Rata Shares of the Commitments
REVOLVING
COMMITMENT TERM COMMITMENT
LENDER ALLOCATION ALLOCATION TOTAL ALLOCATION
- ----------------------------------- ----------------- ----------------- -----------------
1 Bank of America, N.A. $ 430,178,571.43 $ 120,535,714.28 $ 550,714,285.71
2 The Royal Bank of Scotland, $ 428,214,285.71 $ 116,785,714.29 $ 545,000,000.00
PLC
3 Bank of Scotland $ 392,857,142.86 $ 107,142,857.14 $ 500,000,000.00
4 Citicorp USA, Inc. $ 373,214,285.71 $ 101,785,714.29 $ 475,000,000.00
5 Deutsche Bank Trust Company $ 373,214,285.71 $ 101,785,714.29 $ 475,000,000.00
Americas
6 JP Morgan Chase Bank $ 373,214,285.71 $ 101,785,714.29 $ 475,000,000.00
7 Barclays Bank PLC $ 341,785,714.29 $ 93,214,285.71 $ 435,000,000.00
8 BNP Paribas $ 341,785,714.29 $ 93,214,285.71 $ 435,000,000.00
9 Commerzbank AG, New York $ 341,785,714.29 $ 93,214,285.71 $ 435,000,000.00
and Grand Cayman Branches
10 Sumitomo Mitsui Banking $ 341,785,714.29 $ 93,214,285.71 $ 435,000,000.00
Corporation
11 Wachovia Bank, National $ 341,785,714.29 $ 93,214,285.71 $ 435,000,000.00
Association
12 Societe Generale $ 294,642,857.14 $ 80,357,142.86 $ 375,000,000.00
13 Merrill Lynch Bank USA $ 216,071,428.57 $ 58,928,571.43 $ 275,000,000.00
14 U.S. Bank National Association $ 216,071,428.57 $ 58,928,571.43 $ 275,000,000.00
15 Morgan Stanley $ 137,500,000.00 $ 37,500,000.00 $ 175,000,000.00
16 Mizuho Corporate Bank, Ltd. $ 62,857,142.86 $ 17,142,857.14 $ 80,000,000.00
17 Comerica Bank $ 58,928,571.43 $ 16,071,428.57 $ 75,000,000.00
18 Bayerische Hypo- und $ 58,928,571.43 $ 16,071,428.57 $ 75,000,000.00
Vereinsbank AG,
New York Branch
19 United Overseas Bank $ 58,928,571.43 $ 16,071,428.57 $ 75,000,000.00
20 The Bank of New York $ 39,285,714.29 $ 10,714,285.71 $ 50,000,000.00
21 KeyBank National Association $ 39,285,714.29 $ 10,714,285.71 $ 50,000,000.00
22 Scotiabanc, Inc. $ 23,571,428.58 $ 6,428,571.42 $ 30,000,000.00
23 The Bank of Nova Scotia $ 15,714,285.71 $ 4,285,714.29 $ 20,000,000.00
24 UFJ Bank Limited $ 39,285,714.29 $ 10,714,285.71 $ 50,000,000.00
25 Bank of China, Los Angeles $ 23,571,428.57 $ 6,428,571.43 $ 30,000,000.00
Branch
26 The Governor and Company of $ 19,642,857.14 $ 5,357,142.86 $ 25,000,000.00
the Bank of Ireland
-1-
27 Sovereign Bank $ 19,642,857.14 $ 5,357,142.86 $ 25,000,000.00
28 Standard Federal Bank N.A. $ 15,714,285.71 $ 4,285,714.29 $ 20,000,000.00
29 Allied Irish Bank $ 11,785,714.29 $ 0 $ 11,785,714.29
30 Bank of Hawaii $ 11,785,714.29 $ 3,214,285.71 $ 15,000,000.00
31 Erste Bank New York Branch $ 11,785,714.29 $ 3,214,285.71 $ 15,000,000.00
32 The Peoples Bank, Biloxi, $ 11,785,714.29 $ 3,214,285.71 $ 15,000,000.00
Mississippi
33 Oak Brook Bank $ 9,821,428.57 $ 2,678,571.43 $ 12,500,000.00
34 Chang Hwa Commercial Bank, $ 7,857,142.86 $ 2,142,857.14 $ 10,000,000.00
Ltd.
35 First Tennessee Bank $ 7,857,142.86 $ 2,142,857.14 $ 10,000,000.00
36 Hua Nan Commercial Bank Ltd. $ 7,857,142.86 $ 2,142,857.14 $ 10,000,000.00
----------------- ----------------- -----------------
$5,500,000,000.00 $1,500,000,000.00 $7,000,000,000.00
----------------- ----------------- -----------------
-2-