Exhibit 4.9
FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT
This FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT (this "Agreement"),
dated as of December 17, 1996, by and among HILTON HOTELS CORPORATION, a
Delaware corporation (the "Company"), DEUTSCHE BANK AG, NEW YORK BRANCH, as
issuer of the Letter of Credit (in such capacity, the "Issuer"); DEUTSCHE
BANK AG, LOS ANGELES BRANCH, THE BANK OF NEW YORK, SOCIETE GENERALE, CIBC
INC., THE SUMITOMO BANK, LIMITED, THE MITSUBISHI TRUST & BANKING CORPORATION,
AND WESTDEUTSCHE LANDESBANK GIROZENTRALE (herein collectively, the "Banks"
and individually a "Bank"); and DEUTSCHE BANK AG, NEW YORK BRANCH, as agent
(in such capacity, the "Agent") for the Banks hereunder. Unless otherwise
expressly defined herein, any capitalized term used herein and defined in the
Reimbursement Agreement (as defined below) shall have the meaning assigned to
it in the Reimbursement Agreement.
W I T N E S S E T H:
WHEREAS, the Issuer has issued that certain letter of credit No.
839-53762, dated May 16, 1996 (the "Letter of Credit"), pursuant to that certain
reimbursement agreement, dated as of May 16, 1996 (the "Original Reimbursement
Agreement"; as amended from time to time, including by this Agreement, the
"Reimbursement Agreement"), by and between the Company, the Agent, the Issuer
and the Banks;
WHEREAS, the Company, the Issuer, the Agent and the Banks each desire
to amend the Original Reimbursement Agreement in the manner and pursuant to the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises made hereunder by the
Company, the Issuer, the Agent and the Banks, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. AMENDMENTS TO REIMBURSEMENT AGREEMENT.
1.1 CONSENTS. The Company, the Issuer, the Agent and each of the
Banks executing this Agreement hereby consent to the following amendments to the
Reimbursement Agreement on the terms and subject to the conditions set forth
herein.
1.2 DEFINITIONS.
1.2.1 The following definitions are hereby added to the
Reimbursement Agreement:
"'BENEFIT ARRANGEMENT' means at any time any employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the Controlled Group.
'CONSOLIDATED DEBT' means at any date the Debt of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
'CONSOLIDATED NET WORTH' means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries
determined as of such date.
'COVERED SUBSIDIARY' means at any time any Subsidiary of the Company
that has consolidated assets in an amount greater than $5,000,000.
'EFFECTIVE DATE' means December 17, 1996.
'FACILITY FEE' has the meaning set forth in Section 2.05.
'FACILITY FEE RATE' has the meaning set forth in the Pricing Schedule.
'LEVERAGE RATIO' means at any date the ratio of Consolidated Debt at
such date to Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date.
'PRICING SCHEDULE' means the Schedule attached hereto identified as
such.
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'SIGNIFICANT SUBSIDIARY' means at any time a Subsidiary of the Company
having (i) at least 10% of the total consolidated assets of the Company and
its Subsidiaries (determined as of the last day of the most recent fiscal
quarter of the company) or (ii) at least 10% of the consolidated revenues
of the company and its Subsidiaries for the fiscal year of the Company then
most recently ended.
'STATUS' has the meaning set forth in the Pricing Schedule."
1.2.2 The following definitions are hereby deleted in their
entirety and amended in full to read as follows:
"'AUTHORIZED OFFICER' means the Chairman of the Board, the Vice
Chairman of the Board, the President, the Treasurer, the Chief Financial
Officer, the Secretary or any Assistant Secretary of the Company.
'CONSOLIDATED EBITDA' means, for any period, Consolidated Net Income
for such period before (i) income taxes, (ii) interest expense, (iii)
depreciation and amortization, (iv) minority interest, (v) extraordinary
losses or gains, (vi) discontinued operations and (vii) the cumulative
effect of changes in accounting principles.
'CONTROLLED GROUP' means the Company, any Subsidiary and all members
of a controlled group of corporations and all trades or business (whether
or not incorporated) under common control which, together with the Company
or any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.
'FEES' means any or all of the Letter of Credit Fee, the Facility Fee
and such other fees as are set forth in the Fee Letter or as may otherwise
be agreed to by the Company and the Agent, in writing, from time to time.
'LETTER OF CREDIT FEE RATE' has the meaning set forth in the Pricing
Schedule."
1.2.3 The definition of "CONSOLIDATED TANGIBLE NET WORTH" is
hereby deleted from the Reimbursement Agreement in its entirety.
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1.3 OTHER AMENDMENTS.
1.3.1 SECTION 2.05 Section 2.05 (including the pricing
schedule contained therein) is hereby deleted in its entirety and amended in
full to read as follows:
"Section 2.05. (a) FACILITY FEE. The Company shall pay to the Agent
for the account of the Banks ratably a facility fee (the "Facility Fee") at
a rate per annum determined daily in accordance with the Pricing Schedule.
Such Facility Fee shall accrue from and including the Effective Date to but
excluding the Expiration Date, on the daily aggregate amount of the Letter
of Credit Commitments (whether used or unused) of the Banks.
(b) LETTER OF CREDIT FEE. The Company shall pay to the Agent for
the account of the Banks ratably a letter of credit fee (the "Letter of
Credit Fee") accruing daily on the aggregate amount then available for
drawing under the Letter of Credit at a rate per annum determined in
accordance with the Pricing Schedule.
(c) PAYMENTS. Accrued fees under this Section shall be payable
quarterly in arrears on the first day of each March, June, September and
December and on the Expiration Date."
1.3.2 PRICING SCHEDULE. The Pricing Schedule attached to this
Agreement as Exhibit A is hereby incorporated into the Reimbursement Agreement
by this reference as if originally set forth in full therein.
1.3.3 SECTION 7.02(c). Section 7.02(c) is hereby deleted in its
entirety and amended in full to read as follows:
"(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b), a certificate of an
Authorized Officer (i) setting forth in reasonable detail the calculations
required to establish whether the Company was in compliance with the
requirements of clauses (g) and (h) of Section 7.07 and Section 7.10 on the
date of such financial statements, (ii) stating whether a Default or Event
of Default exists on the date of such certificate and, if any Default or
Event of Default then exists, setting forth the details thereof and the
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action which the Company is taking or proposes to take with respect thereto
and (iii) if the Company elects that Status shall be determined for
purposes of the Pricing Schedule on the basis of the Leverage Ratio
reflected in such certificate, a statement to such effect."
1.3.4 SECTION 7.02(d)(ii). The language "with respect to the
Company's Consolidated Tangible Net Worth" contained in Section 7.02(d)(ii)
is hereby deleted in its entirety.
1.3.5 SECTION 7.02(g). Section 7.02(g) is hereby deleted in its
entirety and amended in full to read as follows:
"(g) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV or ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer, any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer or the
chief accounting officer of the Company setting forth details as to such
occurrence and action, if any,
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which the Company or applicable member of the Controlled Group is required
or proposes to take;"
1.3.6 SECTION 7.02(h), (i). The period at the end of Section
7.02(h) is hereby deleted and replaced with "; and" and a new Section 7.02(i) is
hereby added to the Reimbursement Agreement as follows:
"(i) forthwith, notice of any change of which the Company becomes
aware in the rating by Moody's or Standard & Poor's of the Company's
outstanding senior unsecured long-term debt securities."
1.3.7 SECTION 7.03(a). The following is hereby added at the end of
Section 7.03(a) after the word "excepted" and prior to the semi-colon:
", except where failure to do so would not have a material adverse effect
on the business, financial position, results of operations or prospects of
the Company and its Consolidated Subsidiaries, considered as a whole"
1.3.8 SECTION 7.04. (a) All references to "Subsidiary" and
"Subsidiaries" contained in Section 7.04 are hereby deleted in their entirety
and amended in full to read "Significant Subsidiary" and "Significant
Subsidiaries", respectively.
(b) The following is hereby added at the end of Section 7.04 after
the word "business" and prior to the period:
"; provided, that nothing in this Section 7.04 shall prohibit (i) the
merger of a Subsidiary into the Company or the merger or the consolidation
of a Subsidiary with or into another Person if the corporation surviving
such consolidation or merger is a Subsidiary and if, in each case, after
giving effect thereto, no Default or Event of Default shall have occurred
and be continuing or (ii) the termination of the corporate existence of any
Subsidiary if the Company in good faith determines that such termination is
in the best interest of the Company and is not materially disadvantageous
to the Banks"
1.3.9 SECTIONS 7.05 AND 7.06. All references to "Subsidiary"
contained in Sections 7.05 and 7.06 are hereby
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deleted in their entirety and amended in full to read "Significant Subsidiary".
1.3.10 SECTION 7.07(a). Section 7.07(a) is hereby deleted in its
entirety and amended in full to read as follows:
"(a) Liens existing as of October 18, 1996."
1.3.11 SECTION 7.07(c). Section 7.07(c) is hereby deleted in its
entirety and amended in full to read as follows:
"(c) any Lien on any assets securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or
constructing such asset (it being understood that, for this purpose, the
acquisition of a Person is also an acquisition of the assets of such
Person); provided that the Lien attaches to such asset concurrently with or
within 180 days after the acquisition thereof, or such longer period, not
to exceed 12 months, due to the Company's inability to obtain the requisite
governmental approvals with respect to such acquisition; provided further,
that, in the case of real estate, (i) the Lien attaches within 12 months
after the latest of the acquisition thereof, the completion of construction
thereon or the commencement of full operation thereof and (ii) the Debt so
secured does not exceed the sum of (x) the purchase price of such real
estate plus (y) the costs of such construction;"
1.3.12 SECTION 7.07(f). Section 7.07(f) is hereby deleted in its
entirety and amended in full to read as follows:
"(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased (other
than to cover any transaction costs of such refinancing, extension, renewal
or refunding) and is not secured by any additional assets:
1.3.13 SECTIONS 7.07(g), (h) AND (i). The "and" at the end of
Section 7.07(g) is hereby deleted in its entirety. Section 7.07(h) is hereby
deleted in its
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entirety and amended in full, and a new Section 7.07(i) is hereby added, each to
read as follows:
"(h) Liens securing Debt of a Subsidiary to the Company or another
Subsidiary; and
(i) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time
outstanding not to exceed 15% of Consolidated Net Worth."
1.3.14 SECTION 7.09. The following is hereby added at the end of
Section 7.09 immediately prior to the period:
"other than 'margin stock' issued by the Company which is retired upon
purchase."
1.3.15 SECTION 7.10. Section 7.10 is hereby deleted in its entirety
and amended in full to read as follows:
"Section 7.10. LEVERAGE RATIO. The Leverage Ratio will at no time
exceed 4:1.
1.3.16 SECTIONS 7.11 AND 7.12. Sections 7.11 and 7.12 are hereby
deleted in their entirety and amended in full to read "RESERVED".
1.3.17 SECTION 8.01(g) AND (h). Sections 8.01(g) and 8.01(h) are
hereby deleted in their entirety and amended in full to read as follows:
"(g) the Company or any Covered Subsidiary or any Significant
Subsidiary, shall fail to make any payment in respect of any Debt (other
than the Debt evidenced by (i) this Agreement, the Related Reimbursement
Agreement or the Related Documents or (ii) Non-Recourse Debt) when due or
within any applicable grace period and the aggregate principal amount of
such Debt is in excess of $100,000,000;
(h) any event or condition shall occur which results in the
acceleration of the maturity of any Debt (other than Non-Recourse Debt) in
excess of $100,000,000 of the Company or any Covered Subsidiary or any
Significant Subsidiary or enables the holder of such Debt or any Person
acting on such holder's behalf to accelerate the maturity thereof;"
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1.3.18 SECTIONS 8.01(i) AND (j). All references to "Subsidiary" or
"subsidiary" contained in Sections 8.01(i) and 8.01(j) are hereby deleted in
their entirety and amended in full to read "Significant Subsidiary".
1.3.19 SECTION 8.01(k). Section 8.01(k) is hereby deleted in its
entirety and amended in full to read as follows:
"(k) any member of the Controlled Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the Controlled Group, any plan administrator of any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
section 4007 of ERISA) in respect of, or to cause a trustee to be appointed
to administer, any Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the Controlled Group to incur a current
payment obligation in excess of $25,000,000;"
1.3.20 SECTION 8.01(l). The reference to "Ten Million Dollars
($10,000,000)" contained in Section 8.01(l) is hereby deleted in its entirety
and amended in full to read "$25,000,000".
2. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Issuer, the Agent and the Banks as follows:
2.1 AUTHORITY. The Company has all necessary power and has taken all
corporate action necessary to make this Agreement and all other agreements and
instruments executed in connection herewith the legal, valid and binding
obligations they purport to be.
2.2 NO LEGAL OBSTACLE TO AGREEMENT. The execution of this Agreement
has not constituted or resulted in and will not constitute or result in a breach
of any
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provision of any contract to which the Company is a party, or the violation of
any law, judgment, decree or governmental order, rule or regulation applicable
to, or result in the creation under any agreement or instrument of any security
interest, lien, charge or encumbrance upon any of the assets of, the Company,
except in favor of the Agent and the Banks or as permitted by the Reimbursement
Agreement. No approval or authorization of any governmental authority is
required to permit the execution, delivery or performance of this Agreement, or
the transactions contemplated hereby or thereby.
2.3 INCORPORATION OF CERTAIN REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in Article VI of the Reimbursement
Agreement are true and correct in all respects on and as of the date hereof, as
though made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date.
2.4 DEFAULT. Upon this Agreement becoming effective pursuant to
Section 4.1 hereof, no Default or Event of Default has occurred and is
continuing.
3. MISCELLANEOUS.
3.1 DATE OF EFFECTIVENESS. Upon the execution hereof by the Company,
the Issuer, the Agent and the Banks, this Agreement shall become effective as of
the date first above written.
3.2 EFFECT OF AGREEMENT ON REIMBURSEMENT. Except as affected
hereby, the Reimbursement Agreement, the other Related Documents and any and
all other agreements, documents, certificates and other instruments executed
in connection therewith, shall remain in full force and effect in accordance
with their respective terms. Except as otherwise provided herein, the
Reimbursement Agreement, the other Related Documents and any and all other
agreements, documents, certificates and other instruments executed in
connection therewith, are in all respects ratified and confirmed, and nothing
contained in this Agreement shall, or shall be construed to, modify,
invalidate or otherwise affect any provision of such agreements, documents,
certificates and instruments or any right of the parties thereto.
3.3 EFFECT OF BREACH OF AGREEMENT. The Company hereby acknowledges
and agrees that a breach of or
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noncompliance with any of the representations, warranties, covenants or terms
contained herein shall constitute an Event of Default.
3.4 NO WAIVER OF EVENT OF DEFAULT. The execution of this Agreement by
the Issuer, the Agent and the Banks does not constitute a waiver of any Event of
Default which now exists or which may occur hereafter.
3.5 LIMITATION OF CONSENTS. The consents given hereby are one-time
consents only and are made only with respect to the matters and to the extent
described herein. Such consents are not to be construed as consents to anything
or for any purpose other than as specifically set forth in this Agreement and
shall not constitute an agreement or obligation of the Company, the Issuer, the
Agent or the Banks to grant any other or future consent.
3.6 APPLICABLE LAW; ASSIGNMENTS; ETC. This Agreement (i) SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK, (ii) shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns and (iii) may be
executed in any number of counterparts, each of which shall be deemed an
original hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as
of the date first above written.
THE COMPANY HILTON HOTELS CORPORATION
By /s/ Scott A. LaPorta
-------------------------------
Title: Scott A. LaPorta
Senior Vice President
and Treasurer
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Attention: Scott La Porta
Senior Vice President
and Treasurer
Telephone: (310) 205-4331
Telecopier: (310) 205-7849
THE AGENT DEUTSCHE BANK AG,
NEW YORK BRANCH, as Agent
By /s/ Ross A. Howard
------------------------------
Title: Ross A. Howard
Director
By /s/ J. Scott Jessup
------------------------------
Title: J. Scott Jessup
Vice President
Deutsche Bank AG,
New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Doris Braun
Telephone: (212) 469-8636
Telecopier: (212) 469-7880
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THE ISSUER DEUTSCHE BANK AG,
NEW YORK BRANCH, as Issuer
of the Letter of Credit
By /s/ Ross A. Howard
-----------------------
Title: Ross A. Howard
Director
By /s/ J. Scott Jessup
-----------------------
Title: J. Scott Jessup
Vice President
Deutsche Bank AG,
New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Volker Fischer
Trade Finance
Telephone: (212) 474-7978
Telecopier: (212) 469-7989
THE BANKS DEUTSCHE BANK AG,
LOS ANGELES BRANCH
By /s/ Ross A. Howard
-----------------------
Title: Ross A. Howard
Director
By /s/ J. Scott Jessup
-----------------------
Title: J. Scott Jessup
Vice President
Deutsche Bank AG,
Los Angeles Branch
550 South Hope Street, Suite 1850
Los Angeles, California 90071
Attention: Anne Norwood
Telephone: (213) 630-7682
Telecopier: (213) 630-7655
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THE BANK OF NEW YORK
By /s/ Lisa Y. Brown
------------------------------
Title: Lisa Y. Brown
Vice President
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, California 90024
Attention: Lisa Brown
Telephone: (310) 996-8656
Telecopier: (310) 996-8667
THE SUMITOMO BANK, LIMITED
By /s/ Tatsuo Ueda
------------------------------
Title: Tatsuo Ueda
General Manager
The Sumitomo Bank, Limited
777 South Figueroa Street
Suite 2600
Los Angeles, California 90017
Attention: Al Galluzzo
Telephone: (213) 955-0855
Telecopier: (213) 623-6832
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
NEW YORK BRANCH
By /s/ [ILLEGIBLE]
------------------------------
Title: Vice President
By /s/ [ILLEGIBLE]
------------------------------
Title: Associate
Westdeutsche Landesbank
Girozentrale
1211 Avenue of the Americas
New York, New York 10036
Attention: Karen Hoplock
Telephone: (212) 852-6087
Telecopier: (212) 852-6148
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THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/ Yasushi Satomi
-------------------------------
Title: Chief Manager &
Senior Vice President
The Mitsubishi Trust and
Banking Corporation
801 South Figueroa Street
Suite 500
Los Angeles, California 90017
Attention: Dean Kawai
Telephone: (213) 896-4666
Telecopier: (213) 687-4631
SOCIETE GENERALE
By: /s/ [ILLEGIBLE]
--------------------------------
Title: Vice President
Societe Generale
2029 Century Park East
Suite 2900
Los Angeles, California 90067
Attention: Don Schubert
Telephone: (310) 788-7104
Telecopier: (310) 551-1537
CIBC INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Title: Associate, CIBC Wood Gundy
Securities Corp., AS AGENT
CIBC Inc.
350 South Grand Avenue
Suite 2600
Los Angeles, California 90071
Attention: Dean Decker
Telephone: (213) 617-6245
Telecopier: (213) 346-0157
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