Exhibit 4.1
EXECUTION
FIVE YEAR LOAN AGREEMENT
Dated as of April 30, 1999
among
HARRAH'S ENTERTAINMENT, INC.
as Guarantor
HARRAH'S OPERATING COMPANY, INC.
MARINA ASSOCIATES
as Borrowers
The Lenders, Syndication Agent, Documentation Agents
And Co-Documentation Agents Herein Named
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
NATIONSBANC MONTGOMERY SECURITIES, LLC.,
Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Article 1 DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms
1.2 Use of Defined Terms
1.3 Accounting Terms
1.4 Rounding
1.5 Exhibits and Schedules
1.6 Miscellaneous Terms
Article 2 LOANS AND LETTERS OF CREDIT
2.1 Committed Loans-General
2.2 Base Rate Loans
2.3 Eurodollar Rate Loans
2.4 Letters of Credit
2.5 Competitive Advances
2.6 Swing Line
2.7 Voluntary Increase to the Commitment
2.8 Voluntary Reduction of Commitment
2.9 Optional Termination of Commitment
2.10 Additional Borrowers
2.11 Administrative Agent's Right to Assume Funds Available
for Advances
2.12 Extension of the Maturity Date
Article 3 PAYMENTS AND FEES
3.1 Principal and Interest
3.2 Arrangement Fee
3.3 Upfront Fees
3.4 Facility Fees
3.5 Letter of Credit Fees
3.6 Agency Fees
3.7 Increased Commitment Costs
3.8 Eurodollar Costs and Related Matters
3.9 Default Rate
3.10 Computation of Interest and Fees
3.11 Non-Business Days
3.12 Manner and Treatment of Payments
3.13 Funding Sources
3.14 Failure to Charge Not Subsequent Waiver
3.15 Administrative Agent's Right to Assume Payments Will
be Made by Borrowers
3.16 Fee Determination Detail
3.17 Survivability
Article 4 REPRESENTATIONS AND WARRANTIES
4.1 Existence and Qualification; Power; Compliance With
Laws
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations
4.3 No Governmental Approvals Required
4.4 Significant Subsidiaries
4.5 Financial Statements
4.6 No Other Liabilities; No Material Adverse Effect
4.7 Title to Property
4.8 Litigation
4.9 Binding Obligations
4.10 No Default
4.11 ERISA
4.12 Regulations T, U and X; Investment Company Act
4.13 Disclosure
4.14 Tax Liability
4.15 Projections
4.16 Hazardous Materials
4.17 Gaming Laws
4.18 Year 2000 Compliance
4.19 Solvency
Article 5 AFFIRMATIVE COVENANTS
5.1 Preservation of Existence
5.2 Maintenance of Properties
5.3 Maintenance of Insurance
5.4 Compliance With Laws
5.5 Inspection Rights
5.6 Keeping of Records and Books of Account
5.7 Use of Proceeds
5.8 Existing Rio Indentures
5.9 Year 2000 Preparations
Article 6 NEGATIVE COVENANTS
6.1 Consolidations, Mergers and Sales of Assets
6.2 Hostile Tender Offers
6.3 Change in Nature of Business
6.4 Liens, Negative Pledges, Sale Leasebacks and Rights of Others
6.5 Total Debt Ratio
6.6 Interest Coverage Ratio
6.7 Subsidiary Indebtedness
Article 7 INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information
7.2 Compliance Certificates
Article 8 CONDITIONS
8.1 Initial Advances, Etc.
8.2 Any Increasing Advance, Etc.
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default
9.2 Remedies Upon Event of Default
Article 10 THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization
10.2 Administrative Agent and Affiliates
10.3 Proportionate Interest in any Collateral
10.4 Lenders' Credit Decisions
10.5 Action by Administrative Agent
10.6 Liability of Administrative Agent
10.7 Indemnification
10.8 Successor Administrative Agent
10.9 No Obligations of Parent or Borrowers
Article 11 MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver
11.2 Amendments; Consents
11.3 Costs, Expenses and Taxes
11.4 Nature of Lenders' Obligations
11.5 Survival of Representations and Warranties
11.6 Notices
11.7 Execution of Loan Documents
11.8 Binding Effect; Assignment
11.9 Sharing of Setoffs
11.10 Indemnity by Parent and Borrowers
11.11 Nonliability of the Lenders
11.12 No Third Parties Benefitted
11.13 Confidentiality
11.14 Removal of a Lender
11.15 Further Assurances
11.16 Integration
11.17 Governing Law
11.18 Severability of Provisions
11.19 Headings
11.20 Time of the Essence
11.21 Foreign Lenders and Participants
11.22 Gaming Boards
11.23 Nature of the Borrowers' Obligations
11.24 Designated Senior Debt
11.25 Gaming Regulations
11.26 Waiver of Right to Trial by Jury
11.27 Purported Oral Amendments
EXHIBITS
A - Assignment Agreement
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G - Opinions of Counsel
H - Parent Guaranty
I - Request for Letter of Credit
J - Request for Loan
K - Election to Become a Borrower
L - Joint Borrower Provisions
SCHEDULES
1.1 Pro Rata Shares
1.2 Continuing Letters of Credit
1.3 Historical Combined EBITDA
4.3 Governmental Approvals
4.4 Significant Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
FIVE YEAR LOAN AGREEMENT
Dated as of April 30, 1999
This FIVE YEAR LOAN AGREEMENT ("Agreement") is entered into among
Harrah's Operating Company, Inc., a Delaware corporation ("Company"), Marina
Associates, a New Jersey general partnership ("Marina" and together with the
Company and such other Subsidiaries that become Borrowers pursuant to Section
2.10 hereof, as Borrowers, Harrah's Entertainment, Inc., a Delaware corporation
(the "Parent"), as Guarantor, Bank of America National Trust and Savings
Association and each lender whose name is set forth on the signature pages of
this Agreement and each other lender which may hereafter become a party to this
Agreement pursuant to Section 11.8 (collectively, the "Lenders" and
individually, a "Lender"), Bankers Trust Company, as Syndication Agent, Canadian
Imperial Bank of Commerce and Societe Generale, as Documentation Agents,
Commerzbank AG, PNC Bank, National Association and Wells Fargo Bank, N.A., as
Co-Documentation Agents, and Bank of America National Trust and Savings
Association, as Administrative Agent. While not party to this Agreement,
NationsBanc Montgomery Securities, LLC has served as Lead Arranger and Sole Book
Manager and BT Alex. Brown Incorporated has served as Co-Lead Arranger for the
credit facilities described herein.
RECITALS
A. Parent and Borrowers have requested that the Lenders provide the
credit facilities described herein and in the 364-Day Loan Agreement to
provide for their common working capital needs and for the refinancing
of certain existing Indebtedness of Borrowers and their Subsidiaries,
including without limitation the Existing Harrah's Credit Agreements
and the Existing Rio Credit Agreements and the Existing Rio Indentures
described herein, all as further set forth in Section 5.7.
B. It is intended that the Company shall be jointly and severally
liable for all of the Obligations hereunder, as more particularly set
forth in Section 11.23, notwithstanding any allocation of the
Obligations to the nominal account of any other Borrower.
C. The principal Obligations of Marina for Loans, Swing Line Advances
and Letters of Credit hereunder shall be limited to the amount of Loans
and Swing Line Advances borrowed by Marina and Letters of Credit issued
for the account of Marina under its Aggregate Sublimit.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and 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.
"ADMINISTRATIVE AGENT" means Bank of America, when acting in
its capacity as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative
Agent's address as set forth on the signature pages of this Agreement,
or such other address as the Administrative Agent hereafter may
designate by written notice to Borrowers and the Lenders.
"ADVANCE" means any advance made or to be made by any Lender
to a Borrower as provided in Article 2, and includes each Base Rate
Advance, Eurodollar Rate Advance, Committed Advance, Swing Line Advance
and Competitive 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, 5% 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 5% 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 deemed to control such corporation or other
Person.
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"AGGREGATE EFFECTIVE AMOUNT" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the sum of (a) the aggregate undrawn face amounts of all
such Letters of Credit, plus (b) the aggregate amounts paid by Issuing
Lenders under any Letters of Credit for which the relevant Issuing
Lender has not been reimbursed and which are not the subject of
Advances made pursuant to Section 2.4(f).
"AGGREGATE SUBLIMIT" means (a) with respect to Marina
$500,000,000, and (b) with respect to each other Subsidiary of Parent
which hereafter becomes a Borrower, such aggregate amount as shall be
established in accordance with Section 2.10.
"AGREEMENT" means this Five Year Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement
substantially in the form of Exhibit A.
"ATLANTIC CITY SHOWBOAT LAND DEBT" means, the $100,000,000
aggregate face amount of Showboat Land, LLC's 7.09% Promissory Note due
February 1, 2028.
"BANK OF AMERICA" means Bank of America National Trust and
Savings Association, its successors and assigns.
"BASE RATE" means, as of any date of determination, the rate
per annum (rounded upwards, if necessary, to the next 1/100 of 1%)
equal to the higher of (a) the Reference Rate in effect on such date
(calculated on the basis of a year of 365 or 366 days and the actual
number of days elapsed) and (b) the Federal Funds Rate in effect on
such date (calculated on the basis of a year of 360 days and the actual
number of days elapsed) plus 1/2 of 1% (50 basis points).
"BASE RATE ADVANCE" and "Base Rate Loan" mean, respectively, a
Committed Advance or a Committed Loan made hereunder and specified to
be a Base Rate Advance or Loan in accordance with Article 2.
"BASE RATE MARGIN" means, for each Pricing Period, the
Eurodollar Margin (after any Pricing Adjustment) for that Pricing
Period minus 125 basis points, provided that in no event shall the Base
Rate Margin be less than 0.00 basis points.
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"BORROWERS" means, collectively, Company, Marina and each
other Wholly-Owned Subsidiary which is hereafter designated as a
Borrower in accordance with Section 2.10, and their respective
successors and permitted assigns.
"BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday
or Friday, other than a day on which commercial banks are authorized or
required to be closed in California or New York.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of
a Person under any leasing or similar arrangement which, in accordance
with Generally Accepted Accounting Principles, is classified as a
capital lease.
"CASH" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with Generally Accepted Accounting Principles,
consistently applied.
"CERTIFICATE OF A RESPONSIBLE OFFICIAL" means a certificate
signed by a Responsible Official of the Person providing the
certificate.
"CHANGE IN CONTROL" means the occurrence of a Rating Decline
in connection with any of the following events (or, if the Debt Ratings
are not then Investment Grade, any further decline in the Debt
Ratings): (i) upon any merger or consolidation of Parent with or into
any person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of Parent, on a
consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction,
any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended) is or becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of securities
representing a majority of the total voting power of the aggregate
outstanding securities of the transferee or surviving entity normally
entitled to vote in the election of directors, managers, or trustees,
as applicable, of the transferee or surviving entity, (ii) when any
person or group of persons (within the meaning of Section 13 or 14 of
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the Securities Exchange Act of 1934, as amended) is or becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated by The
Securities and-Exchange Commission under said Act) of securities
representing a majority of total voting power of the aggregate
outstanding securities of Parent normally entitled to vote in the
election of directors of Parent, (iii) when, during any period of 12
consecutive calendar months, individuals who were directors of Parent
on the first day of such period (together with any new directors whose
election by the board of directors of Parent or whose nomination for
election by the stockholders of Parent was approved by a vote of 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 election was previously so approved) cease for any
reason to constitute a majority of the board of directors of Parent, or
(iv) the sale or disposition, whether directly or indirectly, by Parent
of all or substantially all of its assets.
"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 Borrowers and the Lenders of the date
that is the Closing Date.
"CO-DOCUMENTATION AGENTS" means those Lenders listed in the
preamble of this Agreement as such. No Co-Documentation Agent shall
have any additional rights, duties or obligations under this Agreement
or the other Loan Documents by reason of its being a Co-Documentation
Agent.
"CO-LEAD ARRANGER" means BT Alex. Brown Incorporated. The
Co-Lead Arranger shall have no rights, duties or obligations under this
Agreement or the other Loan Documents.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COMMITMENT" means, subject to Sections 2.7, 2.8, 2.9 and
11.14, $1,300,000,000. As of the Closing Date, the respective Pro Rata
Shares of the Lenders with respect to the Commitment are set forth in
Schedule 1.1.
"COMMITTED ADVANCE" means an Advance made to a Borrower by any
Lender in accordance with its Pro Rata Share pursuant to Section 2.1.
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"COMMITTED ADVANCE NOTE" means the promissory note made by
each Borrower to a Lender evidencing the Committed Advances under that
Lender's Pro Rata Share to that Borrower, 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.
"COMMITTED LOANS" means Loans that are comprised of Committed
Advances.
"COMPANY" means Harrah's Operating Company, Inc., its
successors and permitted assigns.
"COMPETITIVE ADVANCE" means an Advance made to a Borrower by
any Lender not determined by that Lender's Pro Rata Share pursuant to
Section 2.5.
"COMPETITIVE ADVANCE NOTE" means the promissory note made by
each Borrower in favor of a Lender to evidence the Competitive Advances
made to that Borrower by that Lender, 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 or extended.
"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 a Borrower to the Administrative Agent to provide a
Competitive Bid, substantially in the form of Exhibit E, signed by a
Responsible Official of that Borrower and properly completed to provide
all information required to be included therein or (b) at the election
of any Borrower, a telephonic request by a Borrower to the
Administrative Agent to provide a Competitive Bid which, if so made,
shall be made by a Responsible Official of that Borrower and deemed to
have been made incorporating the substance of Exhibit E, and shall
promptly be confirmed by a written Competitive Bid Request.
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"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit F, properly completed and signed on behalf of
Borrowers by a Senior Officer of each Borrower.
"CONFIDENTIAL INFORMATION MEMORANDUM" means the Confidential
Information Memorandum dated March, 1999, distributed to the Lenders in
connection with the credit facilities provided herein.
"CONTINGENT OBLIGATION" means, as to any Person, 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 item of such
other Person or any "keep-well", "make-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 Contingent Obligation shall
not include endorsements of instruments for deposit or collection in
the ordinary course of business.
"CONTINUING LETTERS OF CREDIT" means those of the letters of
credit issued under the Existing Harrah's Credit Agreements which are
described on Schedule 1.2.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any outstanding security issued by that Person or of any
material agreement, instrument or undertaking to which that Person is a
party or by which it or any of its Property is bound.
"CREDITORS" means, collectively, the Administrative Agent,
each Issuing Lender, the Swing Line Lender, each Lender, Syndication
Agent, Documentation Agents, Co-Documentation Agents, the Lead
Arranger, the Co-Lead Arranger and, where the context requires, any one
or more of them.
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"DEBT RATING" means, as of each date of determination, the
most creditworthy credit rating, actual or implicit, assigned to senior
unsecured Indebtedness of Company by S&P or Moody's, whichever is
higher.
"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.
"DEFEASED DEBT" means (a) the $58,300,000 aggregate principal
amount of Showboat's First Mortgage Bonds due 2008, (b) the $2,400,000
aggregate outstanding principal amount of Showboat's Senior
Subordinated Notes due 2009, and (c) any other Indebtedness of Parent
and its Subsidiaries which, at any relevant time, is subject to legal
or covenant defeasance in a manner which is reasonably acceptable to
the Administrative Agent.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Borrowers with Bank of America, as from time to time
designated by Borrowers by written notification to the Administrative
Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any
Eurodollar Rate Loan, (a) the London Eurodollar Market, or (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
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
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not accepting deposits of Dollars or if the Administrative Agent
determines 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 Borrowers and the Requisite
Lenders.
"DISQUALIFICATION" means, with respect to any Lender:
(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 Borrowers or (ii) any required application or
other papers in connection with determination of the suitability of
that Person as a lender to Borrowers;
(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 Borrowers, (ii) that such Person shall be "disqualified" as a lender
to Borrowers or (iii) denying the issuance to that Person of any
license required under applicable Gaming Laws to be held by all lenders
to Borrowers.
"DOCUMENTATION AGENTS" means those Lenders listed in the
preamble of this Agreement as such. No Documentation Agent shall have
any additional rights, duties or obligations under this Agreement or
the other Loan Documents by reason of its being a Documentation Agent.
"DOLLARS" or "$" means United States dollars.
"EBITDA" means, for any period, 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) Pre-Opening Expenses, and (vii) nonrecurring non-cash
charges, provided that, in calculating "EBITDA":
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(a) for all periods ending on or prior to December 31, 1998,
"EBITDA" shall be computed on the basis of the combined operating
results of Parent and its Subsidiaries, Showboat and Rio as described
on Schedule 1.3.
(b) the operating results of each New Project which commences
operations and records not less than one full fiscal quarter's
operations during the relevant period shall be annualized; and
(c) EBITDA shall be adjusted, on a pro forma basis, to include
the operating results of each resort or casino property acquired by
Parent and its Consolidated Subsidiaries during the relevant period and
to exclude the operating results of each resort or casino property sold
or otherwise disposed of by Parent and its Subsidiaries, or whose
operations are discontinued during the relevant period.
"ELECTION TO BECOME A BORROWER" means an Election to Become a
Borrower, substantially in the form of Exhibit K to this Agreement,
properly completed and duly executed by each required party thereto.
"ELIGIBLE ASSIGNEE" means (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender, (c) any commercial bank
having a combined capital and surplus of $100,000,000 or more which is
(i) organized under the laws of the United States or any state thereof,
or (ii) the domestic branch or agency of any such commercial bank
organized under the laws of a country which is a member of the
Organization for Economic Cooperation and Development, (d) any (i)
savings bank, savings and loan association or similar financial
institution or (ii) insurance company engaged in the business of
writing insurance which, in either case (A) has a net worth of
$200,000,000 or more, (B) is engaged in the business of lending money
and extending credit under credit facilities substantially similar to
those extended under this Agreement and (C) is operationally and
procedurally able to meet the obligations of a Lender hereunder to the
same degree as a commercial bank and (e) any other financial
institution (including a mutual fund or other fund) having total assets
of $250,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (d) above; provided that each Eligible
Assignee must either (a) be organized under the Laws of the United
States of America, any State thereof or the District
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of Columbia or (b) be organized under the Laws of the Cayman Islands or
any country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a
country, and (i) act hereunder through a branch, agency or funding
office located in the United States of America and (ii) otherwise be
exempt from withholding of tax on interest and delivers Form 1001 or
Form 4224 pursuant to Section 11.21 at the time of any assignment
pursuant to Section 11.8.
"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.
"EURODOLLAR BUSINESS DAY" means any Business Day on which
dealings in Dollar deposits are conducted by and among banks in the
Designated Eurodollar Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its
office or branch so designated by written notice to Borrowers and the
Administrative Agent as its Eurodollar Lending Office. If no Eurodollar
Lending Office is designated by a Lender, its Eurodollar Lending Office
shall be its office at its address for purposes of notices hereunder.
"EURODOLLAR MARGIN" means, for each Pricing Period, the
interest rate margin set forth below (expressed in basis points)
opposite the Pricing Level for that Pricing Period plus or minus any
then Pricing Adjustment applicable during that Pricing Period:
PRICING LEVEL EURODOLLAR MARGIN
I 50.00
II 62.50
III 72.50
IV 80.00
V 100.00
VI 132.50
"EURODOLLAR MARGIN BID" means a Competitive Bid to provide a
Competitive Advance on the basis of a margin over the Eurodollar Quoted
Rate.
"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.
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"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities, as
defined in Regulation D.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan,
the period commencing on the date specified by any Borrower pursuant to
Section 2.1(b) and ending 1, 2, 3 or 6 months thereafter (or, with the
written consent of all of the Lenders, any other period), as specified
by that Borrower in the applicable Request for Loan; provided that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Business Day;
(b) Any Eurodollar Period that would otherwise end on
a day that is not a Eurodollar Business Day shall be extended
to the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in
which case such Eurodollar Period shall end on the next
preceding Eurodollar Business Day; and
(c) No Eurodollar Period shall extend beyond the
Maturity Date.
"EURODOLLAR QUOTED RATE" means, with respect to any Eurodollar
Rate Loan, the average of the interest rates per annum (rounded upward,
if necessary, to the next 1/16 of 1%) at which deposits in Dollars are
offered by Bank of America to prime banks in the Designated Eurodollar
Market at or about 11:00 a.m. local time in the Designated Eurodollar
Market, two Eurodollar Business Days before the first day of the
applicable Eurodollar Period in an aggregate amount approximately equal
to the amount of the Advances made by Bank of America with respect to
such Eurodollar Rate Loan and for a period of time comparable to the
number of days in the applicable Eurodollar Period. The determination
of the Eurodollar Quoted Rate by the Administrative Agent shall be
conclusive in the absence of manifest error.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Loan and any Competitive Advance based on a margin over the Eurodollar
Rate, an interest rate per annum (rounded upward, if necessary, to the
nearest 1/16 of one percent) determined pursuant to the following
formula:
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Eurodollar Eurodollar Quoted Rate
Rate ----------------------------
= 1.00 - Eurodollar Reserve
Percentage
"EURODOLLAR RATE ADVANCE" and "EURODOLLAR RATE LOAN" mean,
respectively, a Committed Advance made hereunder and specified to be a
Eurodollar Rate Advance or Loan in accordance with Article 2.
"EURODOLLAR RESERVE PERCENTAGE" means, with respect to any
Eurodollar Rate Loan, the maximum reserve percentage (expressed as a
decimal, rounded upward to the nearest 1/100th of 1%) in effect on the
date the Eurodollar Quoted Rate for that Eurodollar Rate Loan is
determined (whether or not applicable to any Lender) under regulations
issued from time to time by the Federal Reserve Board for determining
the maximum reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to eurocurrency
funding (currently referred to as "eurocurrency liabilities") having a
term comparable to the Eurodollar Period for such Eurodollar Rate Loan.
The determination by the Administrative Agent of any applicable
Eurodollar Reserve Percentage shall be conclusive in the absence of
manifest error.
"EVENT OF DEFAULT" shall have the meaning provided in Section
9.1.
"EXISTING HARRAH'S CREDIT AGREEMENTS" means the Amended and
Restated Credit Agreement and the Amended and Restated 364-Day Credit
Agreement, in each case dated as of June 9, 1995, as amended and
restated April 1, 1998, and among Parent, the initial Borrowers, the
lenders therein named, and Bankers Trust Company, as Administrative
Agent, in each case as amended.
"EXISTING RIO CREDIT AGREEMENTS" means (a) the Amended and
Restated Credit Agreement dated as of February 24, 1998 among Rio
Properties, Inc., a Nevada corporation, Rio Leasing, Inc., a Nevada
corporation, the lenders referred to therein, and Bank of America, as
agent, and (b) the Loan Agreement dated as of December 18, 1998 among
Rio Properties, Inc., Rio Leasing, Inc., the lenders referred to
therein, and Bank of America, as agent, in each case as amended.
-13-
"EXISTING RIO INDENTURES" means, (a) the $100,000,000 10-5/8%
Senior Subordinated Notes Due 2005 issued by Rio Hotel & Casino, Inc.,
a Nevada corporation, and (b) the $125,000,000 9-1/2% Senior
Subordinated Notes Due 2007 issued by Rio Hotel & Casino, Inc., in each
case as amended.
"EXISTING SENIOR NOTES" means the Company's $500,000,000 in
7.5% Senior Unsecured Notes due 2009 issued pursuant to the Indenture
dated December 18, 1998 between the Company and IBJ Schroeder Bank and
Trust Company, as Trustee and the First Supplemental Indenture with
respect thereto dated as of January 20, 1999 among the Company, the
Parent and IBJ Whitehall Bank & Trust Company, as Trustee.
"EXISTING SUBORDINATED DEBT" means the Company's $750,000,000
7.875% Senior Subordinated Notes due 2005 issued pursuant to the
Indenture dated December 9, 1998 among the Company and IBJ Schroeder
Bank and Trust Company, as Trustee and the First Supplemental Indenture
with respect thereto dated as of December 9, 1998 among the Company,
the Parent and the Trustee.
"FACILITY FEE RATE" means, for each Pricing Period, the rate
set forth below (expressed in basis points) opposite the Pricing Level
for that Pricing Period:
PRICING LEVEL FACILITY FEE RATE
I 10.00
II 12.50
III 15.00
IV 20.00
V 25.00
VI 30.00
"FEDERAL FUNDS RATE" means, as of any date of determination,
the rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such
date will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. government
securities, or any successor publication, published by the Federal
Reserve Bank
-14-
of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such date under the caption "Federal Funds Effective
Rate". If on any relevant date the appropriate rate for such date is
not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that date by each of three
leading brokers of Federal funds transactions in New York City selected
by the Administrative Agent. For purposes of this Agreement, any change
in the Base Rate due to a change in the Federal Funds Rate shall be
effective as of the opening of business on the effective date of such
change.
"FISCAL QUARTER" means the fiscal quarter of Parent consisting
of a three month fiscal period ending on each March 31, June 30,
September 30, December 31.
"FISCAL YEAR" means the fiscal year of Parent consisting of a
twelve month fiscal period ending on each December 31.
"GAMING BOARD" means any Governmental Agency that holds
regulatory, licensing or permit authority over gambling, gaming or
casino activities conducted by Parent and its Subsidiaries within its
jurisdiction, or before which an application for licensing to conduct
such activities is pending.
"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 Parent and its
Subsidiaries within its jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any
date of determination, accounting principles (a) set forth as generally
accepted in then currently effective Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States
of America. The term "consistently applied," as used in connection
therewith, means that the accounting principles applied are consistent
in all material respects to those applied at prior dates or for prior
periods.
-15-
"GOVERNMENTAL AGENCY" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality or
public body, or (c) any court or administrative tribunal.
"HAZARDOUS MATERIALS" means substances defined as hazardous
substances pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., or
as hazardous, toxic or pollutant pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. ss. 6901, et seq., the
Hazardous Waste Control Law, California Health & Safety Code ss. 25100,
et seq., or in any other applicable Hazardous Materials Law, in each
case as such Laws are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all federal, state or local
laws, ordinances, rules or regulations governing the disposal of
Hazardous Materials applicable to any of the Real Property.
"INDEBTEDNESS" means, as to any Person and as of each date of
determination, without duplication, (i) all obligations of such Person
for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such Person as
lessee which are capitalized in accordance with Generally Accepted
Accounting Principles, (v) all indebtedness or other obligations
secured by a contractual Lien on any asset of such Person, whether or
not such indebtedness or other obligations are otherwise an obligation
of such Person, and (vi) all Contingent Obligations made by such Person
(including by way of provision of letters of credit or other contingent
obligations) with respect to indebtedness or other obligations of any
other Person which constitute "Indebtedness" of a type or class
described in clauses (i) through (v) of this definition.
"INTANGIBLE ASSETS" means assets that are considered
intangible assets under Generally Accepted Accounting Principles,
including customer lists, goodwill, computer software, copyrights,
trade names, trademarks and patents.
-16-
"INTEREST COVERAGE RATIO" means, as of the last day of any
Fiscal Quarter, the RATIO OF (a) EBITDA for the four Fiscal Quarter
period ending on that date to (b) Interest Expense for the same period.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment
of a Eurodollar Rate Loan on a day prior to the last day of the
applicable Eurodollar Period and with respect to any failure to borrow
a Eurodollar Rate Loan on the date or in the amount specified in any
Request for Loan, (a) the per annum interest rate payable pursuant to
Section 3.1(c) with respect to the Eurodollar Rate Loan minus (b) the
Eurodollar Rate on, or as near as practicable to the date of the
prepayment or failure to borrow for, a Eurodollar Rate Loan commencing
on such date and ending on the last day of the Eurodollar Period of the
Eurodollar Rate Loan so prepaid or which would have been borrowed on
such date.
"INTEREST EXPENSE" means, 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 to a
lender in connection with borrowed money or the deferred purchase price
of assets that are considered "interest expense" under Generally
Accepted Accounting Principles, PLUS (b) the portion of rent paid or
payable (without duplication) for that fiscal period under Capital
Lease Obligations that should be treated as interest in accordance with
Financial Accounting Standards Board Statement No. 13.
"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, without adjustment for subsequent increases or decreases in
the value of such Investment.
"INVESTMENT GRADE" means (i) with respect to S&P, a rating of
BBB- or higher, and (ii) with respect to Moody's, a rating of Baa3 or
higher.
-17-
"ISSUING LENDER" means, as to each Letter of Credit, the
Lender which issues the same in accordance with Section 2.4, but only
when acting in its capacity as Issuing Lender for that Letter of
Credit. Subject to the procedures set forth in Section 2.4, any Lender
may, at its option, be an Issuing Lender for Letters of Credit issued
under this Agreement.
"LAWS" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
"LEAD ARRANGER" means NationsBanc Montgomery Securities, LLC.
The Lead Arranger shall have no duties or obligations under this
Agreement or the other Loan Documents.
"LETTER OF CREDIT" means any letter of credit issued pursuant
to Section 2.4, either as originally issued or as the same may from
time to time be supplemented, modified, amended, renewed or extended in
accordance with the terms hereof.
"LETTER OF CREDIT FEE" means, for each Pricing Period, the
rate per annum set forth below (expressed in basis points) opposite the
Pricing Level for that Pricing Period PLUS or minus any then Pricing
Adjustment applicable during that Pricing Period:
PRICING LEVEL LETTER OF CREDIT FEE
I 60.00
II 75.00
III 87.50
IV 100.00
V 125.00
VI 162.50
"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 of Parent or
any of its Subsidiaries.
-18-
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance,
lien or charge 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 or other agreement 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 Letters of Credit, the Swing Line Documents, the Parent
Guaranty, any Request for Loan, any Request for Letter of Credit, any
Competitive Bid Request, any Compliance Certificate and any other
instruments, documents or agreements of any type or nature hereafter
executed and delivered by Parent or any of its Subsidiaries or
Affiliates to the Administrative Agent or any other Creditor 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.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability
of any Loan Document, (b) is or could reasonably be expected to be
material and adverse to the condition (financial or otherwise), assets,
business or operations of Parent and its Subsidiaries, taken as a
whole, or (c) materially impairs or could reasonably be expected to
materially impair the ability of Parent and its Subsidiaries, taken as
a whole, to perform the Obligations.
"MATURITY DATE" means April 30, 2004, or such later
anniversary thereof as may be established pursuant to Section 2.12.
-19-
"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.
"MOODY'S" means Moody's Investor Service, Inc., its successors
and assigns.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that contains
a covenant binding on Parent or any of its 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.
"NET INCOME" means, with respect to any fiscal period, the
consolidated net income of Parent and its Subsidiaries for that period,
determined in accordance with Generally Accepted Accounting Principles,
consistently applied.
"NET TANGIBLE ASSETS" means, as of each date of determination,
the total amount of assets of Parent and its Subsidiaries as of the
last day of the most recent Fiscal Quarter for which financial
statements have been delivered in accordance with Section 7.1, after
deducting therefrom (a) all current liabilities of Parent 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, all as set forth on the latest consolidated
balance sheet of Parent prepared in accordance with Generally Accepted
Accounting Principles.
-20-
"NEW PROJECT" means each new hotel - casino, casino or resort
project (as opposed to any project which consists of an extension or
redevelopment of an operating hotel, casino or resort) owned by Parent
or its Subsidiaries having a development and construction budget in
excess of $25,000,000 which hereafter receives a certificate of
completion or occupancy and all relevant gaming and other licenses, and
in fact commences operations.
"NOTES" means, collectively, the Committed Advance Notes and
the Competitive Advance Notes.
"OBLIGATIONS" means all present and future obligations of
every kind or nature of Parent, Borrowers or any Party at any time and
from time to time owed to the Creditors 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 Parent, any Borrower or any Subsidiary of Parent.
"OPINIONS OF COUNSEL" means (a) the favorable written legal
opinion of Parent's general counsel, and (b) the favorable written
legal opinion of Latham & Watkins, special counsel to Parent and the
Borrowers, substantially in the form of Exhibit G, together with copies
of all factual certificates and legal opinions upon which such counsel
have relied.
"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 Aggregate
Effective Amount of all Letters of Credit.
"PARENT" means Harrah's Entertainment, Inc., a Delaware
corporation, and its permitted successors and assigns.
-21-
"PARENT GUARANTY" means the Guaranty executed by Parent on the
Closing Date with respect to the Obligations, substantially in the form
of Exhibit H, either as originally executed or as it may from time to
time be supplemented, modified, amended, restated or extended.
"PARTY" means any Person other than Creditors which now or
hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"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 Parent or any of its Subsidiaries or to which Parent or
any of its Subsidiaries contributes or has an obligation to contribute.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction or
maintenance of Real Property; or Liens incident to
construction or maintenance of Real 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 Real Property is subject to a material risk of loss or
forfeiture;
(b) Liens for taxes and assessments on and similar
charges with respect to Real Property which are not yet past
due; or Liens for taxes and assessments on Real 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
material Real Property is subject to a material risk of loss
or forfeiture;
-22-
(c) defects and irregularities in title to any Real
Property which in the aggregate do not materially impair the
fair market value or use of the Real 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, driveways, drainage, irrigation,
water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like
purposes affecting Real Property, facilities, or equipment
which in the aggregate do not materially burden or impair the
fair market value or use of such Real 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 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 Real
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, building codes and
ordinances, zoning restrictions, or other laws and ordinances
restricting the occupancy, use, or enjoyment of Real 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;
-23-
(j) covenants, conditions, and restrictions affecting
the use of Real Property which in the aggregate do not
materially impair the fair market value or use of the Real
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 Real Property entered into in the ordinary
course of business of the Person owning such Real 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 Parent
or any of its Subsidiaries 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) in the ordinary course of business;
(o) Liens consisting of any right of offset, or
statutory bankers' lien, on bank deposit accounts maintained
in the ordinary course of business so long as such bank
deposit accounts are not established or maintained for the
purpose of providing such right of offset or bankers' lien;
(p) Liens consisting of deposits of property to
secure statutory obligations of Parent or any of its
Subsidiaries in the ordinary course of its business;
(q) Liens consisting of deposits of property to
secure (or in lieu of) surety, appeal or customs bonds in
proceedings to which Parent or any of its Subsidiaries is a
party in the ordinary course of business;
-24-
(r) Liens created by or resulting from any litigation
or legal proceeding involving Parent or any of its
Subsidiaries 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 and no material property is subject to a material risk
of loss or forfeiture;
(s) precautionary UCC financing statement filings
made in connection with operating leases and not constituting
Liens; and
(t) 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 Parent and its Subsidiaries, taken as a
whole.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting
of (i) an interest (other than a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a
ground lease), that does not materially impair the value or use of
Property for the purposes for which it is or may reasonably be expected
to be held, (ii) an option or right to acquire a Lien that would be a
Permitted Encumbrance, (iii) the subordination of a lease or sublease
in favor of a financing entity and (iv) a license, or similar right, of
or to Intangible Assets granted in the ordinary course of business.
"PERSON" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock
company, trust, estate, unincorporated organization, business
association, firm, joint venture, Governmental Agency, or otherwise.
"PRE-OPENING EXPENSES" means, with respect to any fiscal
period, the amount of expenses (other than Interest Expense) incurred
with respect to capital projects which are classified as "pre-opening
expenses" on the applicable financial statements of Parent and its
Subsidiaries for such period (or, with respect to periods prior to
December 31, 1998, the financial statements of Rio and Showboat),
prepared in accordance with Generally Accepted Accounting Principles.
-25-
"PRICING ADJUSTMENT" means, during any Pricing Period, (a) if
the Total Debt Ratio as of the last day of the Fiscal Quarter ending
immediately prior to the commencement of such Pricing Period was
greater than 3.75 to 1.00 but less than or equal to 4.25:1.00, an
increase to the Eurodollar Margin of 7.5 basis points, (b) if the Total
Debt Ratio as of the last day of the Fiscal Quarter ending immediately
prior to the commencement of such Pricing Period was greater than
4.25:1.00, an increase to the Eurodollar Margin of 15.0 basis points,
and (c) if the Total Debt Ratio as of the last day of the Fiscal
Quarter ending immediately prior to the commencement of such Pricing
Period was less than 2.00:1.00, a decrease to the Eurodollar Margin of
7.5 basis points.
"PRICING LEVEL" means, for each Pricing Period, the pricing
level set forth below opposite the Debt Ratings as of the first day of
that Pricing Period:
MOODY'S/S&P RATING APPLICABLE PRICING LEVEL
A-/A3 or higher Pricing Level I
BBB+/Baa1 Pricing Level II
BBB/Baa2 Pricing Level III
BBB-/Baa3 Pricing Level IV
BB+/Ba1 Pricing Level V
BB/Ba2 or lower Pricing Level VI
PROVIDED that if Moody's and S&P each assign Debt Ratings which are
associated with different Pricing Levels in the matrix set forth above,
then the applicable Pricing Level shall be the Pricing Level which is
one Pricing Level higher than that associated with the lower of the two
Debt Ratings.
"PRICING PERIOD" means (a) the period commencing on the
Closing Date and ending on May 31, 1999, (b) each subsequent three
month period commencing on each June 1, September 1, December 1 and
March 1, and (c) any shorter period ending on the date upon which the
Commitment is terminated.
"PROJECTIONS" means the financial projections contained in the
Confidential Information Memorandum.
"PROPERTY" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
-26-
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Commitment held by that Lender. The Pro Rata Share of
each Lender as of the Closing Date is set forth opposite the name of
that Lender on Schedule 1.1.
"QUARTERLY PAYMENT DATE" means each March 31, June 30,
September 30 and December 31.
"RATING DECLINE" means the occurrence of a decrease in the
Debt Rating by either Moody's or S&P to below Investment Grade on any
date on or within 90 days after the date of the first public notice of
(a) the occurrence of an event described in clauses (i)-(iv) of the
definition of "Change in Control" or (b) the intention by any of the
Parent or Borrowers to effect such an event (which 90-day period shall
be extended so long as the Debt Rating is under publicly announced
consideration for possible downgrade by Moody's or S&P).
"REAL PROPERTY" means, as of any date of determination, all
real property then or theretofore owned, leased or occupied by Parent
or any of its Subsidiaries.
"REFERENCE RATE" means the rate of interest publicly announced
from time to time by Bank of America as its "reference rate" or the
similar prime rate or reference rate announced by any successor
Administrative Agent. Bank of America's reference 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
the Reference Rate announced by Bank of America or any successor
Administrative Agent shall take effect at the opening of business on
the day specified in the public announcement of such change.
"REGULATIONS D, T, U AND X" means Regulations D, T, U and X,
as at any time amended, of the Board of Governors of the Federal
Reserve System, or any other regulations in substance substituted
therefor.
"REQUEST FOR LETTER OF CREDIT" means a written request for a
Letter of Credit substantially in the form of Exhibit I, together with
any forms of application for letter of credit required by the relevant
Issuing Lender therefor, in each case signed by a Responsible Official
of a Borrower on
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behalf of that Borrower and properly completed to provide all
information required to be included therein (provided that it is
understood that the terms of the Loan Documents shall govern and
control in the event of any conflict between the terms of any such
application and the Loan Documents).
"REQUEST FOR LOAN" means a written request for a Loan
substantially in the form of Exhibit J, signed by a Responsible
Official of a Borrower, on behalf of that Borrower, 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 Commitment is then in effect, Lenders having in the aggregate
51% or more of the Commitment then in effect and (b) as of any date of
determination if the Commitment has then been terminated, Lenders
holding 51% of the Outstanding Obligations.
"RESPONSIBLE OFFICIAL" means when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner of such Person, corporate officer of a corporate
general partner of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on behalf
thereof. Any document or certificate hereunder that is signed or
executed by a Responsible Official of another Person shall be
conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such other
Person.
"RIGHT OF OTHERS" means, as to any Property in which a Person
has an interest, any legal or equitable ownership right, title or other
interest (other than a Lien) held by any other Person in that Property,
and any option or right held by any other Person to acquire any such
right, title or
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other interest in that Property, including any option or right to
acquire a Lien; provided, however, that (a) any covenant restricting
the use or disposition of Property of such Person contained in any
Contractual Obligation of such Person, (b) any provision contained in a
contract creating a right of payment or performance in favor of a
Person that conditions, limits, restricts, diminishes, transfers or
terminates such right, and (c) any residual rights held by a lessor or
vendor of Property, shall not be deemed to constitute a Right of
Others.
"RIO" means Rio Hotel & Casino, Inc., a Nevada Corporation,
and its Subsidiaries.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., its successors and assigns.
"SALE AND LEASEBACK" means, with respect to any Person, the
sale of Property owned by that Person (the "Seller") to another Person
(the "Buyer"), together with the substantially concurrent leasing of
such Property (or any portion thereof) by the Buyer to the Seller.
"SALE AND LEASEBACK OBLIGATION" means, with respect to any
Sale and Leaseback and as of any date of determination, the present
value of the aggregate monetary obligations of the lessee under the
lease of the Property which is the subject of such Sale and Leaseback
(discounted at the interest rate implicit in such lease, compounded
annually) for the then remaining term of such lease (treating all
extension options exercisable by the lessor as having been exercised,
but deeming the lease terminated as of the earliest date upon which the
lessee has the option to do so); provided that such monetary
obligations shall exclude amounts payable in respect of maintenance,
repairs, insurance, taxes, assessments, utilities and similar charges.
"SENIOR OFFICER" means Parent's and each Borrower's (a) chief
executive officer, (b) president, (c) chief financial officer, (d)
treasurer, (e) vice presidents or (f) secretaries.
"SHORT TERM COMMITMENTS" means the lending commitment of the
lenders under the Short Term Loan Agreement.
"SHORT TERM LOAN AGREEMENT" means the 364-Day Loan Agreement
of even date herewith among the Lenders party to this Agreement on the
Effective Date and Bank of America National Trust and Savings
Association, as Administrative Agent, as at any time amended
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"SHOWBOAT" means Showboat, Inc., a Nevada corporation and its
Subsidiaries.
"SIGNIFICANT SUBSIDIARY" means, as of any date of
determination, each Subsidiary of Parent that had on the last day of
the Fiscal Quarter then most recently ended total assets (determined in
accordance with Generally Accepted Accounting Principles) of
$50,000,000 or more.
"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 Eurodollar Lending Office
with any request or directive (whether or not having the force of Law)
of any such Governmental Agency, central bank or comparable authority,
or the existence or occurrence of circumstances affecting the
Designated Eurodollar Market generally that are beyond the reasonable
control of the Lenders.
"SOLVENT" as to any Person shall mean that (a) the sum of the
assets of such Person, both at a fair valuation and at present fair
saleable value, exceeds its liabilities, including its probable
liability in respect of contingent liabilities, (b) such Person will
have sufficient capital with which to conduct its business as presently
conducted and as proposed to be conducted and (c) such Person has not
incurred debts, and does not intend to incur debts, beyond its ability
to pay such debts as they mature. For purposes of this definition,
"debt" means any liability on a claim, and "claim" means (x) a right to
payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured, or (y) a right to
an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. With respect to any such contingent
liabilities, such liabilities shall be computed at the amount which, in
light of all the facts and circumstances existing at the time,
represents the amount which can reasonably be expected to become an
actual or matured liability.
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"SUBORDINATED DEBT" means (a) the Existing Subordinated Debt,
and (b) any other Indebtedness of Parent or the Company which is
subordinated in right of payment to the Obligations pursuant to
subordination provisions which are either (i) substantively no less
favorable to the Lenders than the subordination provisions of the
Existing Subordinated Debt, or (ii) otherwise are acceptable to the
Requisite Lenders in the exercise of their sole discretion.
"SUBSIDIARY" means, as of any date of determination and with
respect to any Person, any corporation 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, 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 having ordinary management power are at the time
beneficially owned by such Person and/or one or more of its
Subsidiaries.
"SWING LINE" means the revolving line of credit established by
the Swing Line Lender in favor of Borrowers pursuant to Section 2.6.
"SWING LINE ADVANCES" means Advances made by the Swing Line
Lender to any of the Borrowers pursuant to Section 2.6.
"SWING LINE DOCUMENTS" means the promissory notes and any
other documents executed by Borrowers in favor of the Swing Line Lender
in connection with the Swing Line.
"SWING LINE LENDER" means, when acting in such capacity, Bank
of America (through its Nevada Commercial Banking Division), its
successors and assigns.
"SWING LINE OUTSTANDINGS" means, as of any date of
determination, the aggregate principal Indebtedness of Borrowers on all
Swing Line Advances then outstanding.
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"SYNDICATION AGENT" means Bankers Trust Company. Bankers Trust
Company shall not have any additional rights, duties or obligations
under this Agreement or the other Loan Documents by reason of its being
a Syndication Agent.
"TOTAL DEBT" means, as of any date of determination, the sum
(without duplication) of (a) the outstanding principal Indebtedness of
Parent and its Subsidiaries for borrowed money (including debt
securities issued by Parent or any of its Subsidiaries) on that date,
plus (b) the aggregate amount of all Capital Lease Obligations of
Parent and its Subsidiaries on that date, plus (c) all obligations in
respect of letters of credit or other similar instruments for which
Parent or any of its Subsidiaries are account parties or are otherwise
obligated, plus (d) the aggregate amount of all Contingent Obligations
and other similar contingent obligations of Parent and its Subsidiaries
with respect to any of the foregoing, and plus (e) any obligations of
Parent or any of its Subsidiaries to the extent that the same are
secured by a Lien on any of the assets of Parent or its Subsidiaries.
In computing "Total Debt," the amount of any Contingent Obligation or
letter of credit shall be deemed to be zero unless and until (1) in the
case of obligations in respect of letters of credit, a drawing is made
with respect thereto, (2) in the case of any other Contingent
Obligations, demand for payment is made with respect thereto, or (3)
Parent's independent auditors have quantified the amount of Parent's
and its Subsidiaries with respect to letters of credit and Contingent
Obligations as liabilities on Parent's consolidated balance sheet in
accordance with Generally Accepted Accounting Principles (as opposed to
merely noted in the footnotes to any such balance sheet) and the amount
of any such individual liability is in excess of $50,000,000, in which
case the amount thereof shall be deemed to be the amount so quantified
from time to time.
"TOTAL DEBT RATIO" means, as of the last day of any Fiscal
Quarter, the RATIO OF (a) Total Debt on that date, to (b) EBITDA for
the four Fiscal Quarter period ending on that date.
"TYPE", when used with respect to any Loan or Advance, means
the designation of whether such Loan or Advance is a Base Rate Loan or
Advance, or a Eurodollar Rate Loan or Advance.
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"WHOLLY-OWNED SUBSIDIARY" means, as to any Person any other
Person, 100% of whose capital stock, partnership interests, membership
interests or other forms of equity ownership interest (other than
directors qualifying shares and similar interests) is at the time
owned, directly or indirectly, by such Person.
"YEAR 2000 ISSUE" means failure of computer software, hardware
and firmware systems, and equipment containing embedded computer chips,
to properly receive, transmit, process, manipulate, store, retrieve,
re-transmit or in any other way utilize data and information due to the
occurrence of the year 2000 or the inclusion of dates on or after
January 1, 2000.
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. All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, except
as otherwise specifically prescribed herein. In the event that Generally
Accepted Accounting Principles change during the term of this Agreement such
that the covenants contained in Sections 6.5 and 6.6 would then be calculated in
a different manner or with different components, (a) Parent, Borrowers and the
Lenders agree to amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating Parent's consolidated
financial condition to substantially the same criteria as were effective prior
to such change in Generally Accepted Accounting Principles and (b) Parent and
Borrowers shall be deemed to be in compliance with the covenants contained in
the aforesaid Sections during the 90 day period following any such change in
Generally Accepted Accounting Principles if and to the extent that Parent and
Borrowers would have been in compliance therewith under Generally Accepted
Accounting Principles as in effect immediately prior to such change.
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1.4 ROUNDING. Any financial ratios required to be maintained by Parent
and 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. The term "or" is disjunctive; the term "and"
is conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
Article 2
LOANS 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 and
including the Maturity Date, each Lender shall, pro rata according to that
Lender's Pro Rata Share of the then applicable Commitment, make Committed
Advances in Dollars to Borrowers in such amounts as any Borrower may request
provided that (a) giving effect to such Advances, the Outstanding Obligations
shall not exceed the Commitment at any time, (b) without the consent of all of
the Lenders, the aggregate principal amount of the Outstanding Obligations of
Marina plus the outstanding principal amount of the loans outstanding to Marina
under the Short Term Commitment shall not exceed Marina's Aggregate Sublimit at
any time, and (c) without the consent of all of the Lenders, the aggregate
principal amount of the
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Outstanding Obligations of each Borrower hereafter designated as such pursuant
to Section 2.10 PLUS the outstanding principal amount of the loans outstanding
to such Borrower under the Short Term Commitment shall not exceed that
Borrower's Aggregate Sublimit at any time. Subject to the limitations set forth
herein, each of the Borrowers may borrow, repay and reborrow under the
Commitment without premium or penalty.
(b) Subject to the next sentence, each Committed Loan shall be
made pursuant to a Request for Loan executed by the relevant Borrower which
shall specify the requested (i) date of such Loan, (ii) type of Loan, (iii)
amount of such Loan, and (iv) in the case of a Eurodollar Rate Loan, the
Eurodollar Period for such Loan. Unless the Administrative Agent has notified,
in its sole and absolute discretion, Borrowers to the contrary, a Loan may be
requested by telephone by a Responsible Official of any Borrower, in which case
that 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 for loan purportedly
made by a Responsible Official of a Borrower, and each Borrower hereby jointly
and severally (but as between Borrowers, ratably) agrees to indemnify the
Administrative Agent from any loss, cost, expense or liability as a result of so
acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or telecopier (and if
by telephone, promptly confirmed by telecopier) of the identity of the relevant
Borrower, the date and type of the Loan, the applicable Eurodollar Period, and
that Lender's Pro Rata Share of the Loan. Not later than 11:00 a.m., California
local time, on the date specified for any Loan (which must be a Business Day),
each Lender 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 Designated Deposit Account.
(d) Unless the Requisite Lenders otherwise consent, each
Committed Loan shall be an integral multiple of $1,000,000 and shall be not less
than $10,000,000.
(e) The Committed Advances made by each Lender to each
Borrower shall be evidenced by a Committed Advance Note issued by that Borrower
and made payable to that Lender.
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(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for loan
referred to in the second sentence of Section 2.1(b), if applicable) has been
made within the requisite notice periods set forth in Sections 2.2 or 2.3 in
connection with a Loan which, if made and giving effect to the application of
the proceeds thereof, would not increase the outstanding principal Indebtedness
evidenced by the Committed Advance Notes of the relevant Borrower, then that
Borrower shall be deemed to have requested, as of the date upon which the
related then outstanding Loan is due pursuant to Section 3.1(f)(i), a Base Rate
Loan in an amount equal to the amount necessary to cause the outstanding
principal Indebtedness evidenced by its Committed Advance Notes to remain the
same and the Lenders shall make the Advances necessary to make such Loan
notwithstanding Sections 2.1(b), 2.2 and 2.3.
2.2 BASE RATE LOANS. Each request by a Borrower for a Base Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or other request for
loan referred to in the second sentence of Section 2.1(b), if applicable)
received by the Administrative Agent, at the Administrative Agent's Office, not
later than 9:00 a.m. California local time, on the date (which must be a
Business Day) of the requested Base Rate Loan. All Committed Loans shall
constitute Base Rate Loans unless properly designated as a Eurodollar Rate Loan
pursuant to Section 2.3.
2.3 EURODOLLAR RATE LOANS.
(a) Each request by a Borrower for a Eurodollar Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or other request for
loan referred to in the second sentence of Section 2.1(b), if applicable)
received by the Administrative Agent, at the Administrative Agent's Office, not
later than 9:00 a.m., California local time, at least three Eurodollar Business
Days before the first day of the applicable Eurodollar Period.
(b) On the date which is two Eurodollar Business Days before
the first day of the applicable Eurodollar Period, the Administrative Agent
shall confirm its determination of the applicable Eurodollar Rate (which
determination shall be conclusive in the absence of manifest error) and promptly
shall give notice of the same to Borrowers and the Lenders by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier).
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(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than twenty Eurodollar Rate Loans shall be
outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the
existence of a Default or Event of Default.
(e) No Lender shall be required to obtain the funds necessary
to fund its Eurodollar Rate Advances in the Designated Eurodollar Market or from
any other particular source of funds, rather each Lender shall be free to obtain
such funds from any legal source.
2.4 LETTERS OF CREDIT.
(a) On the Closing Date, each of the Continuing Letters of
Credit shall be deemed to have been issued and to be outstanding under this
Agreement, and each issuer of a Continuing Letter of Credit hereby consents to
the termination, concurrently with the Closing Date, of the participation
therein of the lenders under the Existing Harrah's Credit Agreements.
(b) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the day prior to the
Maturity Date, any one or more of the Borrowers may request that any one or more
of the Lenders issue, as Issuing Lender, additional Letters of Credit under the
Commitment (each of which shall be denominated in Dollars) by submission of a
Request for Letter of Credit to such Lender (with a copy to the Administrative
Agent); provided that giving effect to all such Letters of Credit, (i) the
Outstanding Obligations shall not exceed the Commitment at any time, (ii)
without the consent of all of the Lenders, the aggregate principal amount of the
Outstanding Obligations of Marina PLUS the outstanding principal amount of the
loans outstanding to Marina under the Short Term Commitment shall not exceed
Marina's Aggregate Sublimit at any time, (iii) without the consent of all of the
Lenders, the aggregate principal amount of the Outstanding Obligations of each
Borrower hereafter designated as such pursuant to Section 2.10 PLUS the
outstanding principal amount of the loans outstanding to such Borrower under the
Short Term Commitment shall not exceed that Borrower's Aggregate Sublimit at any
time, and (iv) the Aggregate Effective Amount under all outstanding Letters of
Credit shall not exceed $200,000,000. Each Letter of Credit shall be in a form
reasonably acceptable to the relevant Issuing Lender. Unless all the Lenders
otherwise consent in a writing delivered to the Administrative Agent, no Letter
of Credit shall have a term which extends beyond the Maturity Date.
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(c) Each Request for Letter of Credit shall be submitted to
the relevant Issuing Lender, with a copy to the Administrative Agent, at least
five Business Days prior to the date upon which the related Letter of Credit is
proposed to be issued (or such shorter period as may be acceptable to both the
relevant Issuing Lender and the Administrative Agent). The Administrative Agent
shall promptly notify the relevant Issuing Lender whether such Request for
Letter of Credit, and the issuance of a Letter of Credit pursuant thereto,
conforms to the requirements of this Agreement. Upon issuance, amendment to or
extension of a Letter of Credit, the relevant Issuing Lender shall promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify the Lenders, of the amount and terms thereof.
(d) On the Closing Date, each Lender shall be deemed to have
purchased a pro rata participation in each Continuing Letter of Credit from the
relevant Issuing Lender in an amount equal to that Lender's Pro Rata share. Upon
the issuance of each other Letter of Credit, each Lender shall be deemed to have
purchased a pro rata participation in such Letter of Credit from the relevant
Issuing Lender in an amount equal to that Lender's Pro Rata Share. Without
limiting the scope and nature of each Lender's participation in any Letter of
Credit, to the extent that the relevant Issuing Lender has not been reimbursed
by the Borrower which is the account party for any Letter of Credit for any
payment required to be made by the relevant Issuing Lender thereunder, each
Lender shall, pro rata according to its Pro Rata Share, reimburse the relevant
Issuing Lender promptly upon demand for the amount of such payment. The
obligation of each Lender to so reimburse the relevant Issuing Lender shall be
absolute and unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of Borrowers to reimburse the
relevant Issuing Lender for the amount of any payment made by the relevant
Issuing Lender under any Letter of Credit together with interest as hereinafter
provided.
(e) Promptly and in any event within one Business Day
following any drawing upon a Letter of Credit, the amendment or extension
thereof, the Issuing Bank for that Letter of Credit shall provide notice thereof
to the Administrative Agent. Each Borrower agrees to pay to the relevant Issuing
Lender an amount equal to any payment made by the relevant Issuing Lender with
respect to each Letter of Credit within one Business Day after demand made by
the relevant Issuing Lender therefor (which demand
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the relevant Issuing Lender shall make promptly and in any event shall make upon
the request of the Requisite Lenders), together with interest on such amount
from the date of any payment made by the relevant Issuing Lender at the rate
applicable to Base Rate Loans for three Business Days and thereafter at the
Default Rate. The principal amount of any such payment shall be used to
reimburse the relevant Issuing Lender for the payment made by it under the
Letter of Credit and, to the extent that the Lenders have not reimbursed the
relevant Issuing Lender pursuant to Section 2.4(d), the interest amount of any
such payment shall be for the account of the relevant Issuing Lender. Each
Lender that has reimbursed the relevant Issuing Lender pursuant to Section
2.4(d) for its Pro Rata Share of any payment made by the relevant Issuing Lender
under a Letter of Credit shall thereupon acquire a pro rata participation, to
the extent of such reimbursement, in the claim of the relevant Issuing Lender
against Borrowers for reimbursement of principal and interest under this Section
2.4(e) and shall share, in accordance with that pro rata participation, in any
principal payment made by Borrowers with respect to such claim and in any
interest payment made by Borrowers (but only with respect to periods subsequent
to the date such Lender reimbursed the relevant Issuing Lender) with respect to
such claim. The relevant Issuing Lender shall promptly make available to the
Administrative Agent, which will thereupon remit to the appropriate Lenders, in
immediately available funds, any amounts due to the Lenders under this Section.
(f) Each Borrower may, pursuant to a Request for Loan, request
that Advances be made pursuant to Section 2.1(a) to provide funds for the
payment required by Section 2.4(e) and, for this purpose, the conditions
precedent set forth in Article 8 shall not apply. The proceeds of such Advances
shall be paid directly by the Administrative Agent to the relevant Issuing
Lender to reimburse it for the payment made by it under the Letter of Credit.
(g) If Borrowers fail to make the payment required by Section
2.4(e) within the time period therein set forth, in lieu of the reimbursement to
the relevant Issuing Lender under Section 2.4(d) the relevant Issuing Lender may
(but is not required to), without notice to or the consent of Borrowers, to
require that the Administrative Agent request that the Lenders to make Advances
under the Commitment in an aggregate amount equal to the amount paid by that
Issuing Lender with respect to that
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Letter of Credit and, for this purpose, the conditions precedent set forth in
Article 8 shall not apply. The proceeds of such Advances shall be paid by the
Administrative Agent directly to the relevant Issuing Lender to reimburse it for
the payment made by it under the Letter of Credit.
(h) 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.
(i) The obligation of Borrowers to pay to each Issuing Lender
the amount of any payment made by that Issuing Lender under any Letter of Credit
shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, Borrowers' obligations shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or
other rights which any Borrower may have at any time against
any Issuing Lender or any other Creditor, any beneficiary of
the Letter of Credit (or any persons or entities for whom any
such beneficiary may be acting) or any other Person, whether
in connection with the Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto, or any
unrelated transactions;
(iv) any demand, statement, or any other document
presented under the 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
whatsoever;
(v) payment by the relevant Issuing Lender under the
Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the
terms of the Letter of Credit;
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(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property
purported to be represented by documents presented in
connection with any Letter of Credit or any difference between
any such Property and the character, quality, quantity,
condition, or value of such Property as described in such
documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the
existence, nature and extent of any insurance relative
thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a Letter of
Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the relevant
Issuing Lender, or any delay or interruption in any such
message;
(xi) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of the
relevant Issuing Lender;
(xii) so long as the relevant Issuing Lender in good
faith determines that the contract or document appears to
comply with the terms of the Letter of Credit, the form,
accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to the relevant
Issuing Lender in connection with a Letter of Credit; and
(xiii) where the relevant Issuing Lender has acted in
good faith and observed general banking usage, any other
circumstances whatsoever.
(j) Each Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 10.6, mutatis mutandis.
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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 Lender may in its sole and absolute discretion make Competitive
Advances to each Borrower pursuant to Competitive Bids accepted by that Borrower
in such principal amounts as that Borrower may request pursuant to a Competitive
Bid Request that do not result in the aggregate outstanding principal
Indebtedness evidenced by the Competitive Advance Notes being in excess of
$200,000,000, provided that giving effect to the making of each Competitive
Advance, (a) the Outstanding Obligations shall not exceed the Commitment at any
time, and (b) without the consent of all of the Lenders, the aggregate principal
amount of the Outstanding Obligations of Marina plus the outstanding principal
amount of the loans outstanding to Marina under the Short Term Commitment shall
not exceed Marina's Aggregate Sublimit at any time, and (c) without the consent
of all of the Lenders, the aggregate principal amount of the Outstanding
Obligations of each Borrower hereafter designated as such pursuant to Section
2.10 PLUS the outstanding principal amount of the loans outstanding to such
Borrower under the Short Term Commitment shall not exceed that Borrower's
Aggregate Sublimit at any time. No Competitive Advance made by any Lender shall
relieve that Lender of its Pro Rata Share of the undrawn Commitment.
(b) Each 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,
whether the Competitive Bid requested is an Absolute Rate Bid or a Eurodollar
Margin Bid. 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 a Borrower, and each
Borrower hereby jointly and severally (but as between Borrowers, ratably) agrees
to indemnify the Administrative Agent from any loss, cost, expense or liability
as a result of so acting. Each Competitive Bid Request must be received by the
Administrative Agent not later than 9:00 a.m., California local time, on a
Business Day that is at least one Business Day prior
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to the date of the proposed Competitive Advance if an Absolute Rate Bid is
requested; if a Eurodollar Margin Bid is requested, it must be received by the
Administrative Agent five 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 shall be made by a
Borrower if any Borrower has, within the immediately preceding five Business
Days, submitted 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 14 days or more than 180 days, or with a
maturity date subsequent to the Maturity Date.
(f) The Administrative Agent shall, promptly after receipt of
a Competitive Bid Request, notify the Lenders thereof by telephone and provide
the Lenders a copy thereof by telecopier. Any Lender may, by written notice to
the Administrative Agent, 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 Lender of the Competitive Bid Request.
(g) Each 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 Lender
which is also the Administrative Agent, submitted to the Borrower not later than
7:15 a.m.) California local time, in the case of a Eurodollar Margin Bid, on the
date which is four (4) 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 Lender which is also the
Administrative Agent) on such date shall be disregarded for purposes of this
Agreement. Any Competitive Bid made by telephone shall promptly be confirmed by
the delivery to the Administrative Agent in person or by telecopier of a written
Competitive Bid. The Administrative Agent shall incur no
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liability whatsoever hereunder in acting upon any telephonic Competitive Bid
purportedly made by a Responsible Official of a 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 Lender.
(h) Each Competitive Bid shall specify the fixed interest rate
or the margin over the Eurodollar Quoted Rate, as applicable, for the offered
Maximum Competitive Advance set forth in the Competitive Bid. The Maximum
Competitive Advance offered by a Lender in a Competitive Bid may be less than
the Competitive Advance requested 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 the Eurodollar
Quoted Rate, 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 8:30 a.m.
California local time, in the case of a Eurodollar 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 the relevant Borrower prior thereto.
(i) Promptly after 7:30 a.m. California local time, in the
case of a Eurodollar Margin Bid, on the date which is four 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 Borrowers of the names of the 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 Lender which is also the Administrative Agent) and the
Maximum Competitive Advance and fixed interest rate or margin over the
Eurodollar Quoted Rate set forth by each such Lender in its Competitive Bid. The
Administrative Agent shall promptly confirm such notification in writing
delivered in person or by telecopier to Borrowers.
(j) Each Borrower may, in its sole and absolute discretion,
reject any or all of the Competitive Bids. If a Borrower accepts any Competitive
Bid, the following shall apply: (a) the relevant 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) the
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relevant Borrower must accept all Eurodollar Margin Bids at all lower margins
over the Eurodollar Quoted Rate before accepting any portion of a Eurodollar
Margin Bid at a higher margin over the Eurodollar Quoted Rate, (c) if two or
more Lenders have submitted a Competitive Bid at the same fixed interest rate or
margin, then the relevant 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 Lender bears to the aggregate Maximum Competitive
Advances of all such Lenders, and (d) the relevant Borrower may not accept
Competitive Bids for an aggregate amount in excess of the requested Competitive
Advance set forth in the Competitive Bid Request. Acceptance by a Borrower of a
Eurodollar Margin Rate Bid must be made prior to 8:30 a.m., California local
time, on the date which is three Business Days prior to the requested
Competitive Advance and acceptance by a Borrower of an Absolute Rate Bid must be
made prior to 8:30 a.m. on the date of the requested Competitive Advance.
Acceptance of a Competitive Bid by a Borrower shall be irrevocable upon
communication thereof to the Administrative Agent. The Administrative Agent
shall promptly notify each of the Lenders whose Competitive Bid has been
accepted by a Borrower by telephone, which notification shall promptly be
confirmed in writing delivered in person or by telecopier to such Lenders. Any
Competitive Bid not accepted by a Borrower by 8:30 a.m., in the case of a
Eurodollar Margin Bid, on the date which is three Business Days prior to the
proposed Competitive Advance or, in the case of an Absolute Rate Bid, on the
date of the proposed Competitive Bid, shall be deemed rejected.
(k) In the case of Eurodollar Margin Bids, the Administrative
Agent shall determine the Eurodollar Quoted Rate (as the case may be) on the
date which is two Eurodollar Business Days prior to the date of the proposed
Competitive Advance, and shall promptly thereafter notify Borrowers and the
Lenders whose Competitive Bids were accepted by a Borrower of such Eurodollar
Quoted Rate.
(l) A Lender whose Competitive Bid has been accepted by a
Borrower 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, California local 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 Designated Deposit Account.
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(m) The Administrative Agent shall notify Borrowers and the
Lenders promptly after any Competitive Advance is made of the amounts and
maturity of such Competitive Advances and the identity of the Lenders making
such Competitive Advances.
(n) The Competitive Advances made by a Lender to each Borrower
shall be evidenced by that Lender's Competitive Advance Note issued by that
Borrower.
2.6 SWING LINE. (a) The Swing Line Lender shall from time to time from
the Closing Date through the Business Day prior to the Maturity Date make Swing
Line Advances in Dollars to any Borrower in such amounts as that Borrower may
request, provided that (i) after giving effect to such Swing Line Advance, the
Swing Line Outstandings shall not exceed $50,000,000, (ii) after giving effect
to such Swing Line Advance, the Outstanding Obligations shall not exceed the
Commitment at any time, (iii) without the consent of all of the Lenders, no
Swing Line Advance may be made during the continuation of any Default or Event
of Default, (iv) without the consent of all of the Lenders, the aggregate
principal amount of the Outstanding Obligations of Marina and of each other
Borrower designated as such in accordance with Section 2.10 shall not exceed the
Aggregate Sublimit for that Borrower at any time, and (v) the Swing Line Lender
has not given at least twenty-four hours prior notice to the Parent that
availability under the Swing Line is suspended or terminated. Borrowers may
borrow, repay and reborrow under this Section. Unless notified to the contrary
by the Swing Line Lender, 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 any Borrower made to the Administrative Agent not later
than 1:00 p.m., California time, on the Business Day of the requested Swing Line
Advance (which telephonic request shall be promptly confirmed in writing by
telecopier). Promptly after receipt of such a request for a Swing Line Advance,
the Administrative Agent shall provide telephonic verification to the Swing Line
Lender that, after giving effect to such request, the Outstanding Obligations
shall not exceed the Commitment (and such verification shall be promptly
confirmed in writing by telecopier). Unless the Swing Line Lender otherwise
agrees, each repayment of a Swing Line Advance shall be in an amount which is an
integral multiple of $100,000. If a Borrower instructs the Swing Line Lender to
debit its demand deposit account at the Swing Line Lender in the amount of any
payment with respect to a Swing Line Advance, or the Swing Line Lender otherwise
receives
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repayment, after 3:00 p.m., California time, on a Business Day, such payment
shall be deemed received on the next Business Day. The Swing Line Lender shall
promptly notify the Administrative Agent of the Swing Loan Outstandings each
time there is a change therein.
(b) Swing Line Advances shall bear interest at a fluctuating
rate per annum equal to that applicable from time to time for Base Rate Loans.
Interest shall be payable on such dates, not more frequent than monthly, as may
be specified by the Swing Line Lender and in any event on the Maturity Date. The
Swing Line Lender shall be responsible for submitting invoices to the Borrowers
for such interest. The interest payable on Swing Line Advances shall be solely
for the account of the Swing Line Lender unless and until the Lenders fund their
participations therein pursuant to clause (d) of this Section.
(c) The Swing Line Advances shall be payable on demand made by
the Swing Line Lender and in any event on the Maturity Date.
(d) Upon the making of a Swing Line Advance, each Lender shall
be deemed to have purchased from the Swing Line Lender a participation therein
in an amount equal to that Lender's Pro Rata Share times the amount of the Swing
Line Advance. Upon demand made by the Swing Line Lender, each Lender shall,
according to its Pro Rata Share, promptly provide to the Swing Line Lender its
purchase price therefor in an amount equal to its participation therein. The
obligation of each Lender to so provide its purchase price to the Swing Line
Lender shall be absolute and unconditional (except only demand made by the Swing
Line Lender) and shall not be affected by the occurrence of a Default or Event
of Default; provided that no Lender shall be obligated to purchase its Pro Rata
Share of (i) Swing Line Advances to the extent that Swing Line Outstandings are
in excess of $10,000,000 and (ii) any Swing Line Advance made (absent the
consent of all of the Lenders) when the Swing Line Lender has written notice
that a Default or Event of Default has occurred and such Default or Event of
Default remains continuing. Each Lender that has provided to the Swing Line
Lender the purchase price due for its participation in Swing Line Advances shall
thereupon acquire a pro rata participation, to the extent of such payment, in
the claim of the Swing Line Lender against Borrowers for principal and interest
and shall share, in accordance with that pro rata participation, in any
principal payment made by Borrowers with respect to such claim and in any
interest payment made by Borrowers (but only with respect to periods subsequent
to the date such Lender paid the Swing Line Lender its purchase price) with
respect to such claim.
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(e) In the event that the Swing Line Outstandings are in
excess of $10,000,000 on ten consecutive Business Days then, on the next
Business Day (unless the relevant Borrower has made other arrangements
acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below
$10,000,000) that Borrower shall request a Committed Loan in an amount
sufficient to reduce the Swing Line Outstandings below $10,000,000. In addition,
upon any demand for payment of the Swing Line Outstandings by the Swing Line
Lender (unless Borrowers have made other arrangements acceptable to the Swing
Line Lender to reduce the Swing Line Outstandings to $0), the relevant Borrower
shall request a Committed Loan in an amount sufficient to repay all Swing Line
Outstandings (and, for this purpose, Section 2.1(d) shall not apply). In each
case, the Administrative Agent shall automatically provide the responsive
Advances made by each Lender to the Swing Line Lender (which the Swing Line
Lender shall then apply to the Swing Line Outstandings). In the event that any
Borrower fails to request a Loan within the time specified by Section 2.2 on any
such date, the Administrative Agent may, but shall not be required to, without
notice to or the consent of Borrowers, cause Advances to be made by the Lenders
to that Borrower under the 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 Advances to be made by the Lenders
pursuant to the three preceding sentences. The proceeds of such Advances shall
be paid by the Administrative Agent directly to the Swing Line Lender for
application to the Swing Line Outstandings.
2.7 VOLUNTARY INCREASE TO THE COMMITMENT.
(a) Provided that no Default or Event of Default then exists,
during the one year period following the Closing Date, Parent and the
Borrowers may, upon at least 30 days notice to the Administrative Agent
(which shall promptly provide a copy of such notice to the Lenders),
propose to ratably increase the aggregate amount of the Commitment and
the Short Term Commitment by an aggregate amount not to exceed
$300,000,000 (the amount of any such ratable increase of the Commitment
being referred to as the "Increased Commitment"). Each Lender party to
this Agreement at such time shall have the right (but no obligation),
for a period of 15 days following receipt of such notice, to elect by
notice to Parent and the Borrowers and the Administrative Agent to
increase its Commitment by a principal amount which
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bears the same ratio to the Increased Commitments as its then
Commitment bears to the aggregate Commitments then existing. Each
Lender which fails to respond to any such request shall be conclusively
deemed to have refused to consent to an increase in its Commitment.
(b) If any Lender party to this Agreement shall not elect to
increase its Commitment pursuant to clause (a) of this Section, Parent
and the Borrowers may designate another Person which qualifies as an
Eligible Assignee (which may be, but need not be, one or more of the
existing Lenders) which at the time agrees to (i) in the case of any
such Person that is an existing Lender, increase its Commitment and
(ii) in the case of any other such Person (an "Additional Lender"),
become a party to this Agreement. The sum of the increases in the
Commitments of the existing Lenders pursuant to this clause (b) plus
the Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Increased Commitments.
(c) An increase in the aggregate amount of the Commitments
pursuant to this Section shall become effective upon the receipt by the
Administrative Agent of an agreement in form and substance satisfactory
to the Administrative Agent signed by the Parent and the Borrowers, by
each Additional Lender and by each other Lender whose Commitment is to
be increased, setting forth the new Commitments of such Lenders and
setting forth the agreement of each Additional Lender to become a party
to this Agreement and to be bound by all the terms and provisions
hereof, together with such evidence of appropriate corporate
authorization on the part of Parent and the Borrowers and the
Additional Lenders with respect to the Increased Commitments as the
Administrative Agent may reasonably request.
2.8 VOLUNTARY REDUCTION OF COMMITMENT. 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 to the Administrative Agent,
voluntarily to reduce or to terminate, permanently and irrevocably, in aggregate
principal amounts in an integral multiple of $1,000,000 but not less than
$10,000,000, all or a portion of the then undisbursed portion of the Commitment,
provided that any such reduction or termination shall be accompanied by payment
of all accrued and unpaid commitment fees with respect to the portion of the
Commitment being reduced or terminated. The Administrative Agent shall promptly
notify the Lenders of any reduction of the Commitment under this Section.
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2.9 OPTIONAL TERMINATION OF COMMITMENT. Following the occurrence of a
Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the sixty day period immediately subsequent to the
LATER OF (a) such occurrence and (b) the earlier of (i) receipt of Borrowers'
written notice to the Administrative Agent of such occurrence and (ii) if no
such notice has been received by the Administrative Agent, the date upon which
the Administrative Agent and the Lenders have actual knowledge thereof, to
terminate the Commitment. In any such case the Commitment shall be terminated
effective on the date which is sixty days subsequent to the date of written
notice from the Administrative Agent to Borrowers thereof, and (i) to the extent
that there are then any Obligations outstanding, the same shall be immediately
due and payable, and (ii) to the extent that any Letters of Credit are then
outstanding, Borrowers shall provide cash collateral for the same.
2.10 ADDITIONAL BORROWERS. From time to time following the Closing Date
and when no Default or Event of Default exists, Parent, Company and Marina (and
each other Borrower then a party to this Agreement) may jointly designate one or
more additional Wholly-Owned Subsidiaries as additional co-borrowers under this
Agreement in accordance with the provisions of this Section. Prior to the
effectiveness of any such designation each such additional Borrower shall have
duly authorized, executed and delivered to the Administrative Agent each of the
following:
(a) an Election to Become a Borrower, setting forth the proposed
Aggregate Sublimit for that Borrower, together with such other
documents, certificates, resolutions, opinions and other assurances as
the Administrative Agent may reasonably require in connection
therewith; and
(b) Competitive Advance Notes, Committed Advance Notes and Swing Line
Documents;
Promptly following the submission of the foregoing documents, the Administrative
Agent shall inform the Lenders of the proposed designation and the proposed
Aggregate Sublimit. Unless the Requisite Lenders have objected in writing to the
proposed designee or Aggregate Sublimit within ten Business Days following such
notice from the Administrative Agent (which objection may be in the sole
discretion of each Lender), the Administrative Agent shall notify the Borrowers
that the appointment is accepted, whereupon the proposed new Borrower shall be a
Borrower for all purposes of this Agreement, with the Aggregate Sublimit set
forth in its Election to Become a Borrower.
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2.11 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Lender
no later than the Business Day prior to the 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 the relevant Borrower a
corresponding amount. If the Administrative Agent has made funds available to a
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 Borrowers and the relevant Borrower 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 that Borrower 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 Commitment or to prejudice any rights
which the Administrative Agent or Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
2.12 EXTENSION OF THE MATURITY DATE. The Maturity Date may be extended
for 364 day periods at the request of the Parent and with the written consent of
all of the Lenders (which may be withheld in the sole and absolute discretion of
each Lender) pursuant to this Section. Not earlier than January 15 of each year,
nor later than March 15 of each year, the Parent and the Borrowers may deliver
to the Administrative Agent and the Lenders a written request for a 364 day
extension of the Maturity Date together with a Certificate of a Responsible
Official signed by a Senior Officer on behalf of Parent and each Borrower
stating that the representations and warranties contained in Article 4 (other
than (i) 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
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not a violation of this Agreement, (ii) as otherwise disclosed by the Parent and
the Borrowers and approved in writing by the Requisite Lenders and (iii)
Sections 4.4(a), 4.6 (first sentence), and 4.15) shall be true and correct on
and as of the date of such Certificate. Each Lender shall notify the
Administrative Agent within 30 days following its receipt of such a Certificate
whether (in its sole and absolute discretion) it consents to such request and
the Administrative Agent shall, after receiving the notifications from all of
the Lenders or the expiration of such period, whichever is earlier, notify
Parent and the Borrowers and the Lenders of the results thereof. If all of the
Lenders have consented, then the Maturity Date shall, effective on the
then-current Maturity Date, be extended for 364 days from the then current
Maturity Date.
If Lenders holding at least 66 2/3% of the Commitment consent to the
request for extension, but one or more Lenders (each a "Non-Consenting Lender")
notify the Administrative Agent that it will not consent to the request for
extension (or fail to notify the Managing Agent in writing of its consent within
the required period), Parent and the Borrowers may (i) cause such Non-Consenting
Lender to be removed as a Lender under this Agreement pursuant to Section
11.14(a), (ii) voluntarily terminate the Pro Rata Share of Non-Consenting Lender
in accordance with Section 11.14(b), or (iii) utilize a combination of the
procedures described in clauses (i) and (ii) of this Section. If such removal is
accomplished by assignment to an Eligible Assignee which has consented to the
requested extension, then the request for extension shall be granted with the
effect as set forth above. If such removal is accomplished by a voluntary
reduction of the Commitment, then the Administrative Agent shall notify all of
the Lenders in writing thereof.
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,
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and before and after the commencement of any proceeding under any Debtor Relief
Law, with interest on overdue interest to bear 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, and on the date of any prepayment of the Committed Advance Notes
pursuant to Section 3.1(g), 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.
Each change in the interest rate under this Section 3.1(b) due to a change in
the Base Rate shall take effect simultaneously with the corresponding change in
the Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan having a
Eurodollar Period of three months or less shall be due and payable on the last
day of the related Eurodollar Period. Interest accrued on each other Eurodollar
Rate Loan shall be due and payable on the date which is three months after the
date such Eurodollar Rate Loan was made (and, in the event that all of the
Lenders have approved a Eurodollar Period of longer than 6 months, every three
months thereafter through the last day of the Eurodollar Period) and on the last
day of the related Eurodollar Period. Except as otherwise provided in Sections
3.1(d) and 3.9, the unpaid principal amount of any Eurodollar Rate Loan shall
bear interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan PLUS the Eurodollar Margin.
(d) During the existence of a Default or Event of Default, the
Requisite Lenders may determine that any or all then outstanding Eurodollar Rate
Loans shall be converted to Base Rate Loans. Such conversion shall be effective
upon notice to Borrowers from the Requisite Lenders (or from the Administrative
Agent on behalf of the Requisite Lenders) and shall continue so long as such
Default or Event of Default continues to exist.
(e) 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 the Eurodollar
Quoted Rate specified in the related Competitive Bid.
(f) If not sooner paid, the principal Indebtedness evidenced
by the Notes shall be payable as follows:
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(i) the principal amount of each Eurodollar Rate Loan
shall be payable on the last day of the Eurodollar Period for
such Loan;
(ii) the principal amount of each Competitive Advance
shall be payable on the maturity date specified in the related
Competitive Bid;
(iii) the amount, if any, by which the Outstanding
Obligations at any time exceed the Commitment shall be payable
immediately, and shall be applied to the Committed Advance
Notes; and
(iv) the principal Indebtedness evidenced by the
Committed Advance Notes shall in any event be payable on the
Maturity Date.
(g) The Committed Advance 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(g), (i) any partial prepayment shall be in an integral multiple of
$1,000,000 but not less than $10,000,000, (ii) the Administrative Agent shall
have received written notice of any prepayment by 9:00 a.m., California local
time on a Business Day on the date of prepayment in the case of a Base Rate
Loan, and three Business Days, in the case of a Eurodollar Rate Loan, 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
shall be accompanied by payment of interest accrued to the date of payment on
the amount of principal paid and (iv) any payment or prepayment of all or any
part of any Eurodollar Rate Loan on a day other than the last day of the
applicable Eurodollar Period shall be subject to Section 3.8(d).
(h) No Competitive Advance Note may be prepaid without the
prior written consent of the Lender making such Competitive Advance.
3.2 ARRANGEMENT FEE. On the Closing Date, Parent and the Borrowers
shall pay to the Administrative Agent, for the sole account of the Arranger, an
arrangement fee in the amount heretofore agreed upon by letter agreement among
Parent, the Borrowers and the Arranger. Such arrangement fee is for the services
of the Arranger in arranging the credit facilities under this Agreement and is
fully earned when paid. The arrangement fee is earned as of the date hereof and
is nonrefundable.
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3.3 UPFRONT FEES. On the Closing Date, Parent and the Borrowers shall
pay to the Administrative Agent, for the respective accounts of the Lenders,
upfront fees in the respective amounts set forth in a writing addressed to that
Lender by the Lead Arranger Such fees are for the credit facility committed 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 FACILITY FEES. On the last day of each Pricing Period, Borrowers
shall pay to the Administrative Agent, for the respective accounts of the
Lenders, pro rata according to their Pro Rata Share, a facility fee equal to (a)
the Facility Fee Rate per annum for that Pricing Period times (b) the average
daily amount by of the Commitment (whether drawn or undrawn) during that Pricing
Period.
3.5 LETTER OF CREDIT FEES. Concurrently with the issuance of each
Letter of Credit, Borrowers shall pay a letter of credit issuance fee to the
relevant Issuing Lender, for the sole account of that Issuing Lender, in an
amount set forth in a letter agreement between the Parent and each Issuing
Lender. Each letter of credit issuance fee is nonrefundable. On each Quarterly
Payment Date and on the Maturity Date, Borrowers shall also pay to the
Administrative Agent in arrears, for the ratable account of the Lenders in
accordance with their Pro Rata Share, letter of credit fees in an amount equal
to the Letter of Credit Fee per annum times the average daily Aggregate
Effective Amount of all Letters of Credit for the period from the Closing Date
or the most recent Quarterly Payment Date.
3.6 AGENCY FEES. Borrowers shall pay to the Administrative Agent an
agency fee in such amounts and at such times as heretofore agreed upon by letter
agreement among Parent, the Borrowers and the Administrative Agent. 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.
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3.7 INCREASED COMMITMENT COSTS. If any Lender shall determine that the
introduction after the Closing Date of any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change therein or any change in the
interpretation or administration thereof by any central bank or other
Governmental Agency charged with the interpretation or administration thereof,
or compliance by such Lender (or its Eurodollar Lending Office) or any
corporation controlling the Lender, with any request, guidelines 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 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 such Lender shall promptly give notice to
the Borrowers and the Agent of such determination. Thereafter, the Borrowers
shall pay to such Lender, within five Business Days following written demand
therefor (setting forth the additional amounts owed to such Lender and the basis
of the calculation thereof in reasonable detail), additional amounts sufficient
to compensate such Lender in light of such circumstances, to the extent
reasonably allocable to such obligations under this Agreement. Each Lender shall
afford treatment to Borrowers under this Section which is substantially similar
to that which such Lender affords to its other similarly situated customers.
3.8 EURODOLLAR COSTS AND RELATED MATTERS.
(a) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance shall:
(1) subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect
to any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Advances, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on any
Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, any of
its
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Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances, excluding, with respect to each
Creditor, and any Affiliate or Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in part
by its net income or capital and franchise taxes imposed on
it, (ii) any withholding taxes or other taxes based on net
income (other than withholding taxes and taxes based on net
income resulting from or attributable to any change in any
law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Agency) or (iii) any withholding taxes or other
taxes based on net income for any period with respect to which
it has failed to provide Borrowers with the appropriate form
or forms required by Section 11.21, to the extent such forms
are then required by applicable Laws;
(2) impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including,
without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System, but excluding the
Eurodollar Reserve Percentage taken into account in
calculating the Eurodollar Rate), special deposit, capital or
similar requirements against assets of, deposits with or for
the account of, or credit extended by, any Lender or its
Eurodollar Lending Office; or
(3) impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
materially affecting any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
materially affect any of the same;
and the result of any of the foregoing, as determined by such Lender, increases
the cost to such Lender or its Eurodollar Lending Office of making or
maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances or reduces the amount of any sum received or
receivable by such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Loans or
its obligation to make Eurodollar Rate Advances (assuming such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in
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the Designated Eurodollar Market), then, provided that such Lender makes demand
upon Borrowers (with a copy to the Administrative Agent) within 90 days
following the date upon which it becomes aware of any such event or
circumstance, Borrowers shall within five Business Days 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 Eurodollar Lending Office
had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
Market). Each of the Borrowers hereby jointly and severally (but as between
Borrowers, ratably) indemnifies each Lender against, and agrees to hold each
Lender harmless from and reimburse such Lender within five Business Days after
demand for (without duplication) all costs, expenses, claims, penalties,
liabilities, losses, legal fees and damages incurred or sustained by each Lender
in connection with this Agreement, or any of the rights, obligations or
transactions provided for or contemplated herein, as a result of the existence
or occurrence of any Special Eurodollar Circumstance. A statement of any Lender
claiming compensation under this clause and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of
any event of which it has actual knowledge, occurring after the Closing Date,
which will entitle such Lender to compensation pursuant to this Section and
agrees to designate a different Eurodollar Lending Office if such designation
will avoid the need for or reduce the amount of such compensation and will not,
in the judgment of such Lender, otherwise be materially disadvantageous to such
Lender. If any Lender claims compensation under this Section, Borrowers may at
any time, upon at least four Eurodollar 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 required by Section 3.8(d), pay in full the affected Eurodollar
Rate Advances of such Lender or request that such Eurodollar Rate Advances be
converted to Base Rate Advances. To the extent that any Lender which receives
any payment from Borrowers under this Section later receives any funds which are
identifiable as a reimbursement or rebate of such amount from any other Person,
such Lender shall promptly refund such amount to Borrowers.
(b) If the existence or occurrence of any Special Eurodollar
Circumstance shall, in the opinion of any Lender, make it unlawful, impossible
or impracticable for such Lender or its Eurodollar Lending Office to make,
maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict
the authority
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of such Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates based
upon the Eurodollar Rate, and such Lender shall so notify the Administrative
Agent, then such Lender's obligation to make Eurodollar Rate Advances shall be
suspended for the duration of such illegality, impossibility or impracticability
and the Administrative Agent forthwith shall give notice thereof to the other
Lenders and Borrowers. Upon receipt of such notice, the outstanding principal
amount of such Lender's Eurodollar Rate Advances, together with accrued interest
thereon, automatically shall be converted to Base Rate Advances on either (1)
the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Lender may lawfully continue to maintain and fund such
Eurodollar Rate Advances to such day(s) or (2) immediately if such Lender may
not lawfully continue to fund and maintain such Eurodollar Rate Advances to such
day(s), PROVIDED that in such event the conversion shall not be subject to
payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor
promptly to notify Borrowers of any event of which it has actual knowledge,
occurring after the Closing Date, which will cause that Lender to notify the
Administrative Agent under this Section 3.8(b), and agrees to designate a
different Eurodollar Lending Office if such designation will avoid the need for
such notice and will not, in the judgment of such Lender, otherwise be
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 Eurodollar
Rate Loan, 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 Eurodollar Rate Advances has
been suspended under this Section 3.8(b) shall promptly notify the
Administrative Agent and Borrowers of the cessation of the Special Eurodollar
Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated Eurodollar
Market generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being offered
to any Lender in the Designated Eurodollar Market for the applicable
Eurodollar Period; or
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(2) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the Administrative
Agent (i) does not represent the effective pricing to such Lenders for
deposits in Dollars in the Designated Eurodollar Market in the relevant
amount for the applicable Eurodollar Period, or (ii) will not
adequately and fairly reflect the cost to such Lenders of making the
applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to Borrowers
and the Lenders, whereupon until the Administrative Agent notifies Borrowers
that the circumstances giving rise to such suspension no longer exist, the
obligation of the Lenders to make any future Eurodollar Rate Advances shall be
suspended. If at the time of such notice there is then pending a Request for
Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be
deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Rate Advance,
(OTHER THAN as the result of a conversion required under Section 3.1(d) or
3.8(b)), on a day other than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceleration, or otherwise),
or upon the failure of any 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 Eurodollar Rate Loan in any Request for Loan, Borrowers shall pay to the
appropriate Lender within five Business Days after demand a prepayment fee or
failure to borrow fee, as the case may be, (determined as though 100% of the
Eurodollar Rate Advance had been funded in the Designated Eurodollar Market)
equal to the SUM of:
(1) principal amount of the Eurodollar Rate Advance
prepaid or not borrowed, as the case may be, times the quotient of (A)
the number of days between the date of prepayment or failure to borrow,
as applicable, and the last day in the applicable Eurodollar Period,
divided by (B) 360, times the applicable Interest Differential
(provided that the product of the foregoing formula must be a positive
number); plus
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee payable under
this Section 3.8(d) shall be conclusive in the absence of manifest error.
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3.9 DEFAULT RATE. If (a) any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to any Creditor
is not paid when due, then such overdue Obligations shall, or (b) if any Event
of Default has occurred and remains continuing, then at the option of the
Requisite Lenders, all of the Obligations shall, thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the sum of the Base
Rate plus 2%, to the fullest extent permitted by applicable Laws. Accrued and
unpaid interest on past due amounts (including, without limitation, 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 calculated with reference to the Reference Rate 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 Base Rate Loans calculated by
reference to the Federal Funds Rate, and on Eurodollar Rate 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. Each Borrower
acknowledges 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.
3.11 NON-BUSINESS DAYS. Subject to clause (b) of the definition of
"Eurodollar Period," if any payment to be made by 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 with respect to
Swing Line Obligations and payments pursuant to Sections 3.7, 3.8, 11.3, and
11.11) or on the Notes or under any other Loan Document shall be made without
setoff, counterclaim,
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recoupment or other deduction of any kind 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 11:00 a.m., California local time, on the day of payment (which must
be a Business Day), other than payments with respect to Swing Line Advances,
which must be received by 3:00 p.m., California time, on the day of payment
(which must be a Business Day). All payments received after these deadlines
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 11:00 a.m., California local time, on a Business Day and
not so made available to the account of a Lender on that Business Day, the
Administrative Agent shall reimburse that Lender for the cost to such Lender of
funding the amount of such payment at the Federal Funds Rate. All payments shall
be made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Committed
Loan shall be applied pro rata according to the outstanding Committed Advances
made by each Lender comprising such Committed Loan. Each payment or prepayment
of a Competitive Advance shall be applied to the Competitive Advance Note held
by the Lender which made such Competitive Advance.
(c) Each Lender shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to each of its
Notes and, subject to Section 10.6(g), such record shall, as against Borrowers,
be presumptive evidence absent manifest error of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall be liable to any Party
for any failure to keep such a record.
(d) Each payment of any amount payable by Borrowers 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, in the case of each Creditor, and any Affiliate or
Eurodollar Lending Office thereof, (i) taxes imposed on or measured in whole or
in part by its net income or capital and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on net income (other than withholding
taxes and
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taxes based on net income resulting from or attributable to any change in any
law, rule or regulation or any change in the interpretation or administration of
any law, rule or regulation by any Governmental Agency) or (iii) any withholding
taxes or other taxes based on net income for any period with respect to which it
has failed to provide Borrowers with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by applicable Laws,
(all such non-excluded taxes, assessments or other charges being hereinafter
referred to as "Taxes"). To the extent that Parent or any Borrower 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, Parent or that Borrower
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 Parent or the appropriate
Borrower.
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.
3.14 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Creditors not to require payment of any interest (including interest arising
under Section 3.9), 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 Creditor's right to require full
payment of any interest (including interest arising under Section 3.9), fee,
cost or other amount payable under any Loan Document on any other or subsequent
occasion.
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3.15 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE BY
BORROWERS. Unless the Administrative Agent shall have been notified by Borrowers
prior to the date on which any payment to be made by Borrowers hereunder is due
that Borrowers do not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that the appropriate Borrower has remitted such
payment when so due and the Administrative Agent may, in its discretion and in
reliance upon such assumption, make available to each Lender on such payment
date an amount equal to such Lender's share of such assumed payment. If that
Borrower has not in fact remitted such payment to the Administrative Agent, each
Lender shall forthwith on demand repay to the Administrative Agent the amount of
such assumed payment made available to such Lender, 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 at the Federal Funds Rate.
3.16 FEE DETERMINATION DETAIL. Each Creditor shall provide reasonable
detail to Parent and the Borrowers regarding the manner in which the amount of
any payment to that Creditor under Article 3 has been determined, concurrently
with demand for such payment.
3.17 SURVIVABILITY. All of the Parent's and the Borrowers' obligations
under Sections 3.7 and 3.8 shall survive for ninety days following the date on
which the Commitment is terminated and all Loans hereunder are fully paid.
Article 4
REPRESENTATIONS AND WARRANTIES
Parent and each Borrower represents and warrants to the Creditors, as
of the date hereof, as of the Closing Date, and as of the date of the making of
each Advance and the Issuance of each Letter of Credit that:
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4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Parent
and each of the Borrowers are duly formed, validly existing and in good standing
under the Laws of its jurisdiction of formation. Parent and each of the
Borrowers are duly qualified or registered to transact business and is in good
standing in each other jurisdiction in which the conduct of its business or the
ownership or leasing of its 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. Parent and each of the
Borrowers have all requisite corporate or partnership power (as applicable) and
authority to conduct their respective business, to own and lease their
respective Properties and to execute and deliver each Loan Document to which it
is a Party and to perform its Obligations. All outstanding shares of capital
stock of Parent and each of the Borrowers 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. Parent and
each of the Borrowers are in compliance with all Laws and other legal
requirements applicable to their respective business, have obtained all
authorizations, consents, approvals, orders, licenses and permits from, and have
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 their business, except where the failure so to
comply, file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS AND
GOVERNMENT REGULATIONS. The execution, delivery and performance by Parent and
each Borrower of the Loan Documents to which it is a Party have been duly
authorized by all necessary corporate or partnership action, as applicable, and
do not and will not:
(a) Require any consent or approval not heretofore
obtained of any 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 or bylaws, as applicable;
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(c) Result in or require the creation or imposition
of any Lien or Right of Others upon or with respect to any Property now
owned or leased or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such
Party, subject to obtaining the authorizations from, or filings with,
the Governmental Agencies described in Schedule 4.3;
(e) Result in a breach by such Party of or constitute
a default by such Party under, or cause or permit the acceleration of
any obligation owed under, any indenture or loan or credit agreement or
any other Contractual Obligation to which such Party is a party or by
which such Party or any of its Property is bound or affected;
and neither Parent, Borrowers nor any of their Significant Subsidiaries is in
violation of, or default under, any Requirement of Law or Contractual
Obligation, or any indenture, loan or credit agreement described in Section
4.2(e), in any respect that constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as set forth in Schedule
4.3 or previously obtained or made, no authorization, consent, approval, order,
license or permit from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by Parent, Borrowers of
the Loan Documents to which any of them is a Party. All authorizations from, or
filings with, any Governmental Agency described in Schedule 4.3 will be
accomplished as of the Closing Date or such other date as is specified in
Schedule 4.3.
4.4 SIGNIFICANT SUBSIDIARIES.
(a) Schedule 4.4 hereto correctly sets forth the names, form
of legal entity, percentage of shares of each class of capital stock issued and
outstanding, percentage of shares owned by Parent or a Significant Subsidiary
(specifying such owner) and jurisdictions of organization of each of the
Significant Subsidiaries of Parent. Unless otherwise indicated in Schedule 4.4,
as of the Closing Date all of the outstanding shares of capital stock, or all of
the units of equity interest,
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as the case may be, of each such Significant Subsidiary are owned of record and
beneficially by the Persons described therein, there are no outstanding options,
warrants or other rights to purchase capital stock of any such Significant
Subsidiary, and all such shares or equity interests so owned are duly
authorized, validly issued, fully paid, 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 and Rights of Others, except for Permitted
Encumbrances and Permitted Rights of Others.
(b) Each Significant Subsidiary of Parent is duly formed,
validly existing and in good standing under the Laws of its jurisdiction of
organization, is duly qualified to do business as a foreign organization and is
in good standing as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its properties makes such qualification
necessary (except where the failure to be so duly qualified and in good standing
does not constitute a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its Properties.
(c) Each Significant Subsidiary of Parent is in compliance
with all Laws and other requirements applicable to its business and has obtained
all authorizations, consents, approvals, orders, licenses, and permits from, and
each such Significant Subsidiary has accomplished all filings, registrations,
and qualifications with, or obtained exemptions from any of the foregoing from,
any Governmental Agency that are necessary for the transaction of its business,
except where the failure to be in such compliance, obtain such authorizations,
consents, approvals, orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 FINANCIAL STATEMENTS. Parent and Borrowers have furnished to the
Lenders the audited consolidated financial statements of Parent and its
Subsidiaries for the Fiscal Year ended December 31, 1998. The financial
statements described above fairly present in all material respects the financial
condition, results of operations and changes in financial position of Parent and
its Subsidiaries as of such dates and for such periods, in conformity with
Generally Accepted Accounting Principles, consistently applied.
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4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of the Closing
Date, Parent and its Subsidiaries do not have any material liability or material
contingent liability not reflected or disclosed in the financial statements
described in Section 4.5, other than liabilities and contingent liabilities
arising in the ordinary course of business since the date of such financial
statements. As of the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since December 31, 1998.
4.7 TITLE TO PROPERTY. Parent and its Subsidiaries have valid title to
the Property reflected in the financial statements described in Section 4.5,
other than immaterial items of Property and Property subsequently sold or
disposed of in the ordinary course of business, free and clear of all Liens and
Rights of Others, other than Liens or Rights of Others described in Schedule
4.7, as permitted by Section 6.4, and any other matters which do not have a
Material Adverse Effect.
4.8 LITIGATION. There are no actions, suits, proceedings or
investigations pending as to which Parent or any of its Subsidiaries have been
served or have received notice or, to the knowledge of Parent and the Borrowers,
threatened against or affecting Parent or any of its Subsidiaries or any
Property of any of them before any Governmental Agency in which there is any
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or results of operations of
Parent and its Subsidiaries, taken as a whole, or which in any manner draws into
question the validity or enforceability of the Loan Documents.
4.9 BINDING OBLIGATIONS. Each of the Loan Documents will, when executed
and delivered by Parent and the Borrowers party thereto, 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 or equitable principles relating to the granting of specific performance
and other equitable remedies as a matter of judicial discretion.
4.10 NO DEFAULT. No event has occurred and is continuing that is a
Default or Event of Default.
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4.11 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the
extent that noncompliance could reasonably be expected to have
a Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA) that could reasonably be expected to have a Material
Adverse Effect;
(iii) no "reportable event" (as defined in Section
4043 of ERISA) has occurred that could reasonably be expected
to have a Material Adverse Effect; and
(iv) neither Parent 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 Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that could
reasonably be expected to have a Material Adverse Effect.
4.12 REGULATIONS T, U AND X; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations T, U or X. Neither Parent nor any of its Subsidiaries
is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
4.13 DISCLOSURE. No written statement made by a Senior Officer of
Parent or any Borrower to any Creditor in connection with this Agreement,
including without limitation the statements made in the Confidential Offering
Memorandum, or in connection with any Loan, Advance or Letter of Credit 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.
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4.14 TAX LIABILITY. Parent and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Parent or any
of its Subsidiaries, except (a) such taxes, if any, as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes and tax returns so long
as no material item or portion of Property of Parent or any of its Subsidiaries
is in jeopardy of being seized, levied upon or forfeited.
4.15 PROJECTIONS. As of the Closing Date, to the best knowledge of
Parent and the Borrowers, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to Parent and
the Borrowers, and the Projections are (a) reasonably based on such assumptions
and (b) although a range of possible different assumptions and estimates might
also be reasonable, neither Parent nor the Borrowers are aware of any facts
which would lead them to believe that the assumptions and estimates on which the
Projections were based are not reasonable; provided that no representation or
warranty can be given that the projected results will be realized or with
respect to the ability of Parent and its Subsidiaries to achieve the projected
results and, while the Projections are necessarily presented with numerical
specificity, the actual results achieved during the periods presented may differ
from the projected results, and such differences may be material.
4.16 HAZARDOUS MATERIALS. Parent and the Borrowers have reasonably
concluded that Environmental Laws are unlikely to have a material adverse effect
on the business, financial position, results of operations or prospects of the
Parent and its Subsidiaries, considered as a whole.
4.17 GAMING LAWS. Parent and each of its Subsidiaries are in compliance
in all material respects with all Gaming Laws that are applicable to them and
their businesses.
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4.18 YEAR 2000 COMPLIANCE. Parent and its Subsidiaries have reviewed
the effect of the Year 2000 Issue on the computer software, hardware and
firmware systems and equipment containing embedded microchips owned or operated
by or for Parent and its Subsidiaries. The costs to Parent and its Subsidiaries
of any reprogramming required as a result of the Year 2000 Issue to permit the
proper functioning of such systems and equipment and the proper processing of
data, and the testing of such reprogramming, and of required systems changes are
not reasonably expected to result in a Default or Event of Default or to have a
material adverse effect on the business, financial position, results of
operations or prospects of Parent and its Subsidiaries, considered as a whole.
4.19 SOLVENCY. As of the Closing Date, and giving effect to the
transactions contemplated to occur on the Closing Date, Parent and each of its
Subsidiaries are Solvent.
Article 5
AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitment remains in force, Parent
and each Borrower shall, and shall cause each of their respective Subsidiaries
to, 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 where the
failure to so preserve and maintain the existence of any Subsidiary and such
authorizations would not constitute a Material Adverse Effect and except that a
merger permitted by Section 6.1 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.
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5.2 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
their respective depreciable 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 where the failure to maintain, preserve and
protect a particular item of depreciable Property would not have a Material
Adverse Effect.
5.3 MAINTENANCE OF INSURANCE. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with financially
sound and 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 Parent and its Subsidiaries
operate, and will furnish to the Administrative Agent upon request information
in reasonable detail as to the insurance so carried. Notwithstanding the
foregoing, Parent and its Subsidiaries may self-insure with respect to such
risks with respect to which companies of established reputation engaged in the
same general line of business in the same general area usually self-insure.
5.4 COMPLIANCE WITH LAWS. Comply in all material respects and within
the time period, if any, given for such compliance by the relevant Governmental
Agency or Agencies with enforcement authority, with all Laws and Requirements of
Law, including without limitation Hazardous Materials Laws, ERISA and all Gaming
Laws, except that Parent and its 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 requested (but not so as to materially
interfere with the business of the Parent 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, the
Parent and its Subsidiaries and to discuss the affairs, finances and accounts of
the Parent and its Subsidiaries with any of their officers, key employees or
accountants and, upon request, furnish promptly to the Administrative Agent or
any Lender true copies of all financial information made available to the senior
management of the Parent.
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5.6 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate records and
books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied, and in material
conformity with all applicable requirements of any Governmental Agency having
regulatory jurisdiction over Parent or any of its Subsidiaries.
5.7 USE OF PROCEEDS. Use the proceeds of Loans (a) on the Closing Date,
for retirement of all outstanding obligations under the Existing Harrah's Credit
Agreements, the Rio Credit Agreements, and related transactional expenses, and
(b) thereafter to refinance or defease the Existing Rio Indentures in accordance
with Section 5.8, for working capital and general corporate purposes of Parent
and its Subsidiaries including without limitation capital expenditures, share
repurchases, commercial paper backup and acquisitions of equity securities or
assets of other Persons, in each case to the extent not prohibited by the Loan
Documents.
5.8 EXISTING RIO INDENTURES. Not later than June 1, 1999, either (a)
repay the Indebtedness under the Rio Indentures in its entirety, or (b) provide
for the legal or covenant defeasance of the Indebtedness under the Rio
Indentures, or (c) deliver to the Administrative Agent a writing acceptable to
the Administrative Agent reserving from the available Commitment and the Short
Term Commitment an aggregate amount equal to the then remaining principal
balance of the Indebtedness under the Rio Indentures (with such reserve to
remain in place until the satisfaction or defeasance of such Indebtedness).
5.9 YEAR 2000 PREPARATIONS. Make all required systems changes by
December 31, 1999, in computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for Parent and
its Subsidiaries required as a result of the Year 2000 Issue to permit the
proper functioning of such computer systems and other equipment, except to the
extent that the failure to take any such action could not reasonably be expected
to result in a Default or Event of Default or to have a material adverse effect
on the business, financial position, results of operations or prospects of
Parent and its Subsidiaries, considered as a whole. At the request of any
Lender, Parent and Borrowers shall provide, and shall cause each of their
respective Subsidiaries to provide, to such Lender reasonable information with
respect to its compliance with this Section.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitment remains in force, Parent
and each Borrower shall not, and shall not permit any of their respective
Subsidiaries to, unless the Administrative Agent (with the written approval of
the Requisite Lenders) otherwise consents:
6.1 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Merge or consolidate
with or into any Person, or sell lease or otherwise transfer all or any
substantial part of the assets of Parent and its Subsidiaries, taken as a whole,
to any Person, except:
(a) mergers and consolidations of a Subsidiary of a
Borrower into that Borrower or a Subsidiary thereof (with that Borrower
or the Subsidiary as the surviving entity) or of Subsidiaries of the
Borrowers with each other;
(b) a merger or consolidation of a Borrower or any
Subsidiary thereof with any other Person, provided that (i) either (A)
the Borrower or the Subsidiary is the surviving entity, or (B) the
surviving entity is a corporation organized under the Laws of a State
of the United States of America and, as of the date of such merger or
consolidation, expressly assumes, by an instrument satisfactory in form
and substance to the Requisite Lenders, the Obligations of the relevant
Borrower or the Subsidiary, as the case may be, (ii) giving effect
thereto, no Default or Event of Default exists or would result
therefrom, and (iii) giving pro forma effect thereto, Borrowers are in
compliance with the covenants set forth in Sections 6.5 and 6.6.
6.2 HOSTILE TENDER OFFERS. Make any offer to purchase or acquire, or
consummate a purchase or acquisition of, 5% or more of the capital stock of any
corporation or other equity securities of any business entity if the board of
directors or management of such corporation or business entity has notified
Parent or any of its Subsidiaries in writing that it opposes such offer or
purchase and such notice has not been withdrawn or superseded.
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6.3 CHANGE IN NATURE OF BUSINESS. Make any material change in the
nature of the business of Parent and its Subsidiaries, taken as a whole, or
acquire more than 49% of the capital stock or other equity securities of any
Person which is engaged in a line of business other than the lines of business
reasonably related to or incidental to the business engaged in by Parent and its
Subsidiaries.
6.4 LIENS, NEGATIVE PLEDGES, SALE LEASEBACKS AND RIGHTS OF OTHERS.
Create, incur, assume or suffer to exist any Lien, Negative Pledge or Right of
Others of any nature upon or with respect to any of their respective Properties,
whether now owned or hereafter acquired, or enter into any Sale and Leaseback
with respect to any such Properties except:
(a) Permitted Encumbrances and Permitted Rights of Others;
(b) Liens and Negative Pledges under the Loan Documents and
under the Short Term Loan Agreement;
(c) other existing Liens, Negative Pledges and Rights of
Others existing on the Closing Date and disclosed in Schedule 4.7 (or
not required to be disclosed therein under Section 4.7) and any
renewals or extensions thereof; provided that the obligations secured
or benefitted thereby are not increased;
(d) Until the date which is ninety days following the Closing
Date, any Lien, Negative Pledge or Right of Others on shares of any
equity security or any warrant or option to purchase an equity security
or any security which is convertible into an equity security issued by
any Subsidiary of Parent that holds, directly or indirectly through a
holding company or otherwise, a license to conduct gaming under any
Gaming Law, and in the proceeds thereof; provided that this clause
shall apply only so long as the Gaming Laws of the relevant
jurisdiction provide that the creation of any restriction on the
disposition of any of such securities shall not be effective and, if
such Gaming Laws at any time cease to so provide, then this clause
shall be of no further effect; and provided further that if at any time
Parent or any of its Subsidiaries creates or suffers to
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exist a Lien or Negative Pledge covering such securities in favor of
the holder of any other Indebtedness, it will (subject to any approval
required under such Gaming Laws) concurrently grant a pari-passu Lien
or Negative Pledge likewise covering such securities in favor of the
Administrative Agent for the benefit of the Lenders;
(e) Liens on Property acquired or constructed by
Parent or any of its Subsidiaries, and in the proceeds thereof, that
(i) were in existence at the time of the acquisition or construction of
such Property or were created at or within 90 days after such
acquisition or construction, and (ii) secure (in the case of Liens not
in existence at the time of acquisition of the Property) only the
unpaid portion of the acquisition or construction price for such
Property, or monies borrowed that were used to pay such acquisition or
construction price;
(f) Liens securing Indebtedness (including Capital
Lease Obligations) that replaces or refinances Indebtedness secured by
Liens permitted under clause (e); provided that such Liens cover only
the same Property as the Liens securing the Indebtedness replaced or
refinanced;
(g) Liens, Negative Pledges and Rights of Others held
by joint venture partners and any assignees thereof, and lenders
thereto and any assignees thereof, with respect to the interests of
Parent and its Subsidiaries in that joint venture and the proceeds
thereof, provided that such Liens, Negative Pledges and Rights of
Others shall secure and relate only the obligations of such joint
venture;
(h) Liens, Negative Pledges and Rights of Others in
favor of counterparties to agreements, and assignees thereof, entered
into by Parent and its Subsidiaries in the ordinary course of business
on the interests of Parent and its Subsidiaries under such agreements
and the proceeds thereof, provided that such Liens, Negative Pledges
and Rights of Others shall secure and relate only to restrictions on
transfer of the rights of Parent and its Subsidiaries to the holders
thereof under the relevant agreement;
(i) Liens on Cash securing only Defeased Debt;
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(j) Liens not otherwise permitted by the foregoing
clauses of this Section encumbering assets of the Parent and its
Subsidiaries having an aggregate fair market value which is not in
excess of 10% of Net Tangible Assets at any time; and
(k) Subject to Section 5.8, the Negative Pledges set
forth with respect to Rio and its Subsidiaries contained in the
Existing Rio Indentures.
6.5 TOTAL DEBT RATIO. Permit the Total Debt Ratio to exceed 4.50:1.00
as of the last day of any Fiscal Quarter.
6.6 INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio to be
less than 3.00:1.00 as of the last day of any Fiscal Quarter.
6.7 SUBSIDIARY INDEBTEDNESS. Permit any Subsidiary of Parent which is
not a Borrower hereunder to create, assume, incur or suffer to exist any
Indebtedness or Contingent Obligations with respect to Indebtedness other than:
(a) Defeased Debt;
(b) secured Indebtedness (including Capital Lease Obligations)
and Contingent Obligations which are permitted by Sections 6.4(e) or
6.4(f);
(c) unsecured Indebtedness and Contingent Obligations which
were created, assumed or incurred by such Subsidiary prior to its
acquisition by Parent and its Subsidiaries (and not in anticipation of
such acquisition) but not any refinancings, renewals or extensions
thereof;
(d) letters of credit, surety bonds and other similar forms of
credit enhancement for such Subsidiaries incurred in the ordinary
course of their business; and
(e) Subject to Section 5.8, the Indebtedness evidenced by the
Existing Rio Indentures.
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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 other Obligation remains unpaid or unperformed, or any portion of
the Commitment remains in force, Parent and the Borrowers shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents, deliver to the Administrative Agent and the Lenders, at
Parent's and Borrowers' sole expense:
(a) As soon as practicable, and in any event within
45 days after the end of each Fiscal Quarter (other than the fourth
Fiscal Quarter in any Fiscal Year), the consolidated balance sheet of
Parent and its Subsidiaries as at the end of such Fiscal Quarter and
the consolidated statement of operations for each Fiscal Quarter, and
its statement of cash flows for the portion of the Fiscal Year ended
with such Fiscal Quarter and as at and for the portion of the Fiscal
Year ended with such Fiscal Quarter, all in reasonable detail. Such
financial statements shall be certified by a Senior Officer of Parent
as fairly presenting the financial condition, results of operations and
cash flows of Parent and its Subsidiaries in accordance with Generally
Accepted Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject
only to normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event prior to
the penultimate Business Day of February in each Fiscal Year, a
Certificate of a Responsible Official setting forth the Total Debt
Ratio as of the last day of the fourth Fiscal Quarter of the preceding
year, and providing reasonable detail as to the calculation thereof,
which calculations shall be based on the preliminary unaudited
financial statements of Parent and its Subsidiaries for such Fiscal
Quarter;
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(c) As soon as practicable, and in any event within
120 days after the end of each Fiscal Year, the consolidated balance
sheet of Parent 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 Parent and its Subsidiaries for such Fiscal
Year as at and for the Fiscal Year, all in reasonable detail. Such
financial statements shall be prepared in accordance with Generally
Accepted Accounting Principles, consistently applied, and such
consolidated balance sheet and consolidated statements shall be
accompanied by a report and opinion of independent public accountants
of recognized standing selected by Parent and reasonably satisfactory
to the Requisite Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards as at such date,
and shall not be subject to any qualifications or exceptions. Such
accountants' report and opinion 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 Parent's and Borrowers'
financial calculations as at the end of such Fiscal Year (which shall
accompany such certificate) under Section 6.5 and 6.6, have read such
Sections (including the definitions of all defined terms used therein)
and that nothing has come to the attention of such accountants in the
course of such examination that would cause them to believe that the
same were not calculated by Parent and the Borrowers 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 Year and by Fiscal Year
for the next four succeeding Fiscal Years, including for the first such
Fiscal Year, projected quarterly consolidated balance sheets, statement
of operations and statements of cash flow and, for the remaining four
Fiscal Years, projected annual consolidated condensed balance sheets
and statements of operations and cash flow, of Parent and its
Subsidiaries, all in reasonable detail;
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(e) Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the shareholders of Parent, and copies of all
annual, regular, periodic and special reports and registration
statements which Parent may file or be required to file with the
Securities and Exchange Commission under Sections 13 or 15(d) of the
Securities Exchange Act of 1934 and not otherwise required to be
delivered to the Lenders pursuant to other provisions of this Section;
(f) Promptly after the same are available, copies of
the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any
written communication to Parent or any of its Subsidiaries from any
Gaming Board advising it of a violation of or non-compliance with, any
Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by any Creditor, copies of
any other report or other document that was filed by Parent or any of
its Subsidiaries with any Governmental Agency;
(h) As soon as practicable, and in any event within
three Business Days after a Senior Officer becomes aware of the
existence of any condition or event which constitutes a 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 Parent or any of its
Subsidiaries are taking or propose to take with respect thereto;
(i) Promptly upon a Senior Officer becoming aware of
any litigation, governmental investigation or any proceeding (including
any litigation or proceeding by or subject to decision by any Gaming
Board) pending (i) against Parent or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect, (ii)
with respect to any material Indebtedness of Parent or any of its
Subsidiaries, or (iii) with respect to the Loan Documents, notice of
the existence of the same; and
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(j) Such other data and information as from time to
time may be reasonably requested by any Creditor through the
Administrative Agent.
7.2 COMPLIANCE CERTIFICATES. So long as any Advance remains unpaid, or
any other Obligation remains unpaid or unperformed, or any portion of the
Commitment remains outstanding, Parent and Borrowers shall deliver to the
Administrative Agent and the Lenders, at Parent's and Borrowers' sole expense,
concurrently with the financial statements required pursuant to Sections 7.1(a)
and 7.1(c), a Compliance Certificate signed on Parent's and Borrowers' behalf by
a Senior Officer.
Article 8
CONDITIONS
8.1 INITIAL ADVANCES, ETC. The obligation of each Lender to make the
initial Advance to be made by it, the obligation of the Swing Line Lender to
make Swing Line Advances and the obligation of the relevant Issuing Lenders to
issue the initial Letters of Credit, are each 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):
(1) at least one executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders, Parent
and each Borrower;
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(2) Committed Advance Notes executed by each Borrower
in favor of each Lender, each in a principal amount equal to
that Lender's Pro Rata Share provided that the Committed
Advance Notes issued by Marina to each Lender shall be in a
principal amount equal to that Lender's Pro Rata Share of
Marina's Aggregate Sublimit;
(3) Competitive Advance Notes executed by each
Borrower in favor of each Lender;
(4) the Swing Line Documents;
(5) the Parent Guaranty executed by Parent;
(6) with respect to the Parent and each other
Borrower, such documentation as the Administrative Agent may
require to establish the due organization, valid existence and
good standing of Parent and each Borrower, its authority to
execute, deliver and perform any Loan Documents to which it is
a Party, the identity, authority and capacity of each
Responsible Official thereof authorized to act on its behalf,
including certified copies of articles of incorporation and
amendments thereto, bylaws and amendments thereto,
certificates of good standing, certificates of corporate
resolutions, incumbency certificates and Certificates of
Responsible Officials;
(7) the Opinions of Counsel;
(8) a Certificate of a Responsible Official
certifying that the attached copies of the governing
indentures and agreements for the Existing Subordinated Debt,
the Existing Senior Notes and the Atlantic City Showboat Land
Debt are true copies;
(9) 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;
(10) a Certificate of a Responsible Official signed
on Parent's and the Borrowers' behalf by a Senior Officer
setting forth the Total Debt Ratio as of March 31, 1999 and
the Debt Rating as of the Closing Date;
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(11) a Certificate of a Responsible Official signed
on Parent's and the Borrowers' behalf by a Senior Officer
certifying that the conditions specified in Sections 8.1(e)
and 8.1(f) have been satisfied;
(12) a copy of the Parent's audited consolidated
annual financial statements for the Fiscal Year ended December
31, 1998; and
(13) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably
may require.
(b) The Borrowers shall have on the Closing Date
terminated the Existing Harrah's Credit Agreements and the Existing Rio
Credit Agreements and repaid each of the loans and terminated each of
the outstanding letters of credit and other credit accommodations made
thereunder (other than the Continuing Letters of Credit) pursuant to
arrangements acceptable to the Administrative Agent (including in the
case of the Existing Rio Credit Agreements the substantially concurrent
termination and reconveyance of all Liens in favor of the lenders
thereunder), and the proceeds of the initial Loans shall have been used
or shall concurrently be used to refinance the obligations of the
Borrowers thereunder.
(c) The arrangement fee, upfront fees and agency fees
payable pursuant to Sections 3.2, 3.3 and 3.6 shall have been paid.
(d) 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 the Parent
prior to the Closing Date, shall have been paid.
(e) The representations and warranties of Parent and
the Borrowers contained in Article 4 shall be true and correct.
(f) Parent, Borrowers and any other Parties shall be
in compliance with all the terms and provisions of the Loan Documents,
and after giving effect to the initial Advance no Default or Event of
Default shall have occurred and be continuing.
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8.2 ANY INCREASING ADVANCE, ETC. The obligation of each Lender to make
any Committed Advance which would increase the aggregate principal amount of the
outstanding Committed Advances, the obligation of the relevant Issuing Lender to
issue each Letter of Credit, the obligation of the Swing Line Lender to make
Swing Line Advances, and the obligation of each Lender to make any Competitive
Advance, is subject to the following conditions precedent:
(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 not a violation of the Loan
Documents and (ii) as disclosed by Parent and 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 (first
sentence), and 4.15) shall be true and correct on and as of the date of
the Advance as though made on that date;
(b) there shall not be then pending or threatened any
action, suit, proceeding or investigation against or affecting Parent
or any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall, in the case of a
Committed Advance, have timely received a Request for Loan 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) in
compliance with Article 2 (or, in the proper case, a Request for Letter
of Credit); and
(d) 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.
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:
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(a) Any Borrower (i) fails to pay any principal on
any Committed Advance Note or any Swing Line Advance, or any portion
thereof, on the date when due, (ii) fails to make any payment with
respect to any Letter of Credit when required by Section 2.4(e), or
(iii) fails to pay any principal on any Competitive Advance Note, or
any portion thereof on the date when due; or
(b) Parent or any Borrower fails 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) Parent or any Borrower fails, immediately upon
notice from the Administrative Agent, to comply with any of the
covenants contained in Article 6 (other than the covenant contained in
Section 6.3); or
(d) Parent or any Borrower fails to comply with
Section 7.1(h) in any respect that is materially adverse to the
interests of the Lenders; or
(e) Parent, any Borrower or any other Party fails to
perform or observe any other covenant or agreement (not specified in
clauses (a), (b), (c) or (d) above) contained in any Loan Document on
its part to be performed or observed within thirty Business Days after
the giving of notice by the Administrative Agent on behalf of the
Requisite Lenders of such Default; or
(f) Any representation or warranty of Parent or any
Borrower made in any Loan Document, or in any certificate or other
writing delivered by Parent or any Borrower pursuant to any Loan
Document, proves to have been incorrect when made or reaffirmed; or
(g) Parent or any of its Significant Subsidiaries (i)
fails to pay the principal, or any principal installment, of any
present or future indebtedness for borrowed money of $100,000,000 or
more including without limitation the Short Term Loan Agreement, or any
guaranty of present or future indebtedness for borrowed money of
$100,000,000 or more, on its part to be paid, when due (or within any
stated grace period), whether at the stated
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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 to occur, in connection with any present or future indebtedness
for borrowed money of $100,000,000 or more, or of any guaranty of
present or future indebtedness for borrowed money of $100,000,000 or
more, if as a result of such failure or sufferance any holder or
holders thereof (or an agent or trustee on its or their behalf) has the
right to declare such indebtedness due before the date on which it
otherwise would become due; or
(h) Any event occurs which gives the holder or
holders of any Subordinated Debt (or an agent or trustee on its or
their behalf) the right to declare such indebtedness due before the
date on which it otherwise would become due, or the right to require
the issuer thereof to redeem or purchase, or offer to redeem or
purchase, all or any portion of any Subordinated Debt; or
(i) Any Loan Document, at any time after its
execution and delivery and for any reason other than the agreement of
the Lenders or satisfaction in full of all the Obligations ceases to be
in full force and effect or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any
respect which, in any such event in the reasonable opinion of the
Requisite Lenders, is materially adverse to the interests of the
Lenders; or any Party thereto denies in writing that it has any or
further liability or obligation under any Loan Document, or purports in
writing to revoke, terminate or rescind same; or
(j) A final judgment against the Parent or any of its
Significant Subsidiaries is entered for the payment of money in excess
of $25,000,000 and, absent procurement of a stay of execution, such
judgment remains unsatisfied for thirty calendar days after the date of
entry of judgment, or in any event later than five days prior to the
date of any proposed sale thereunder; or any writ or warrant of
attachment or execution or similar process is issued or levied against
all or any material part of the Property of any such Person and is not
released, vacated or fully bonded within thirty calendar days after its
issue or levy; or
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(k) The Parent or any of its Significant Subsidiaries
institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or any 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 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 60 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 60
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 determination is made by a court of competent
jurisdiction that any Subordinated Debt is not subordinated in
accordance with its terms to the Obligations, provided that for so long
as such determination is effectively stayed during any pending appeal
the same shall not constitute an Event of Default; or
(n) Any Pension Plan maintained by the Parent or any
of its 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
(o) The occurrence of a License Revocation with
respect to a license issued to Parent or any of its Subsidiaries by any
Gaming Board of the States of New Jersey or Nevada with respect to
gaming operations at any gaming facility accounting for 5% or more of
the consolidated gross revenues of Parent and its Subsidiaries that
continues for thirty calendar days.
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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
Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance,
of any Event of Default other than an Event of Default described in
Section 9.1(k):
(1) the commitment to make Advances and all other
obligations of the Creditors and all rights of Parent,
Borrowers and any other Parties under the Loan Documents shall
be suspended without notice to or demand upon Parent or the
Borrowers , which are expressly waived by Parent and the
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
Commitment and make further Advances, which waiver or
determination shall apply equally to, and shall be binding
upon, all the Lenders; and
(2) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitment, demand that
Borrowers deposit cash collateral for all Letters of Credit in
the amount thereof with the Administrative Agent 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 Parent and the Borrowers.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(k):
(1) the commitment to make Advances and all other
obligations of the Creditors and all rights of Parent,
Borrowers and any other Parties under the Loan Documents shall
terminate without notice to or demand upon Parent or
Borrowers, which are expressly waived by
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Parent and Borrowers, except that all the Lenders may waive
the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to all the Lenders, to
reinstate the Commitment and make further Advances, which
determination shall apply equally to, and shall be binding
upon, all the Lenders; and
(2) 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
Parent and Borrowers, and Borrowers shall be obligated to
immediately deposit cash collateral for all Letters of Credit
with the Administrative Agent in the amount thereof.
(c) Upon the occurrence 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 Parent or Borrowers,
which are expressly waived by 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 Parent and
the Borrowers and any other Parties and such other rights and remedies
as are provided by Law or equity.
(d) The order and manner in which the Lenders' 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, shall be applied first to the costs and expenses (including
attorneys' fees and disbursements and the allocated costs of attorneys
employed by the Administrative Agent) 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
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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. 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.
Article 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Each Creditor hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms thereof or are reasonably incidental,
as determined by the Administrative Agent, thereto. This appointment and
authorization is intended solely for the purpose of facilitating the servicing
of the Obligations and does not constitute appointment of the Administrative
Agent as trustee for any Lender or as representative of any Lender for any other
purpose and, except as specifically set forth in the Loan Documents to the
contrary, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.
10.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America (and each
successor Administrative Agent) has the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it was not the
Administrative Agent, and the term "Lender" or "Lenders" includes Bank of
America in its individual capacity. Bank of America (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Parent, any Subsidiary thereof, or any Affiliate of Parent, as if it was not the
Administrative Agent and without any duty to account therefor to the Lenders.
Bank of America (and each successor Administrative Agent) need not account to
any other Bank for any monies received by it for reimbursement of its costs and
expenses as Administrative Agent hereunder, or for any monies received by it in
its capacity as a Lender hereunder. The Administrative Agent shall not be deemed
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to hold a fiduciary relationship with any Lender and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent.
10.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein hereafter 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 attorneys' fees and disbursements and other professional services and
the allocated costs of attorneys employed by the Administrative Agent or a
Lender), each Lender shall have an interest in the Lenders' interest in any
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.
10.4 LENDERS' CREDIT DECISIONS. Each Creditor agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys of any other
Creditor, and instead in reliance upon information supplied to it by or on
behalf of Parent and Borrowers and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Creditor also agrees that it shall, independently and
without reliance upon any other Creditor or the directors, officers, agents,
employees or attorneys of any other Creditor, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
10.5 ACTION BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent, the relevant Issuing Lender and
the Swing Line Lender may assume that no Default or Event of Default has
occurred and is continuing, unless they have received notice from a Parent or
any Borrower stating the nature of the Default or Event of Default or have
received notice from a Lender stating the nature of the Default or Event of
Default and that such Lender considers the Default or Event of Default to have
occurred and to be continuing.
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(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to act or not act upon the instructions
of the Requisite Lenders (or of all the Lenders, to the extent required by
Section 11.2) and those instructions shall be binding upon the Administrative
Agent and all the Lenders, provided that the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any Loan Document or
to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative
Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately give notice
thereof to the Lenders and shall act or not act upon the instructions of the
Requisite Lenders (or of all the Lenders, to the extent required by Section
11.2), provided that the Administrative Agent shall not be required to act or
not act if to do so would be contrary to any Loan Document or to applicable Law
or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that if
the Requisite Lenders (or all the Lenders, if required under Section 11.2) fail,
for five Business Days after the receipt of notice from the Administrative
Agent, to instruct the Administrative Agent, then the Administrative Agent, in
its sole discretion, may act or not act as it deems advisable for the protection
of the interests of the Creditors.
(e) The Administrative Agent shall have no liability to any
Creditor for acting, or not acting, as instructed by the Requisite Lenders (or
all the Lenders, if required under Section 11.2), notwithstanding any other
provision hereof.
10.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the Administrative
Agent nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
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(a) May treat the payee of any Note as the holder
thereof until the Administrative Agent receives notice of the
assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by the payee, and may treat each Lender as
the owner of that Lender's interest in the Obligations for all purposes
of this Agreement until the Administrative Agent receives notice of the
assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Lender.
(b) May consult with legal counsel (including
in-house legal counsel), accountants (including in-house accountants)
and other professionals or experts selected by it, or with legal
counsel, accountants or other professionals or experts for Parent
and/or its Subsidiaries or the Lenders, and shall not be liable for any
action taken or not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other professionals or
experts.
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents
or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan
Documents.
(d) Except to the extent expressly set forth in the
Loan Documents, shall have no duty to ask or inquire as to the
performance or observance by Parent or its Subsidiaries of any of the
terms, conditions or covenants of any of the Loan Documents or to
inspect any collateral or the Property, books or records of Parent or
its Subsidiaries.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any collateral.
(f) Will not incur any liability by acting or not
acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing believed
by it to be genuine and signed or sent by the proper party or parties.
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(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by Parent, Borrowers or
any Subsidiary thereof or paid or payable to or received or receivable
from any Lender under any Loan Document, including, without limitation,
principal, interest, commitment fees, Advances and other amounts;
provided that, promptly upon discovery of such an error in computation,
the Creditors (and, to the extent applicable, Parent and Borrowers)
shall make such adjustments as are necessary to correct such error and
to restore the parties to the position that they would have occupied
had the error not occurred.
10.7 INDEMNIFICATION. Each Lender shall, ratably in accordance with its
Pro Rata Share, indemnify and hold the Administrative Agent, the Lead Arranger
and their respective directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, attorneys' fees and
disbursements and allocated costs of attorneys employed by the Administrative
Agent or the Lead Arranger) that may be imposed on, incurred by or asserted
against it or them in any way relating to or arising out of the Loan Documents
(other than losses incurred by reason of the failure of Parent or Borrowers to
pay and perform the Obligations) or any action taken or not taken by it as
Administrative Agent and the Lead Arranger thereunder, except such as result
from their own gross negligence or willful misconduct. Without limitation on the
foregoing, each Lender shall reimburse the Administrative Agent and the Lead
Arranger upon demand for that Lender's Pro Rata Share of any out-of-pocket cost
or expense incurred by the Administrative Agent or the Lead Arranger in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
Parent, Borrowers or any other Party fails to do so upon demand.
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10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and
at the request of the Requisite Lenders shall, resign as Administrative Agent
upon thirty days notice to the Lenders, Parent and the Borrowers. If the
Administrative Agent resigns as Administrative Agent 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 approved by Parent and Borrowers (and such approval shall not be unreasonably
withheld). 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, Parent and
Borrowers, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated (except for any liabilities incurred prior to such termination).
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
11.11 and 11.23, 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 thirty 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 administrative agent as provided for
above.
10.9 NO OBLIGATIONS OF PARENT OR BORROWERS. Nothing contained in this
Article 10 shall be deemed to impose upon Parent or Borrowers 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 Parent and
Borrowers shall have no liability to any Creditor in respect of any failure by
any Creditor to perform any of its obligations to any other Creditor under 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 any Creditor 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 Creditors rights to assert
them in whole or in part in respect of any other Loan or Letter of Credit.
11.2 AMENDMENTS; CONSENTS. 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 Parent, Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
Parent or any Borrower is a party, signed by Parent and that Borrower 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,
no amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To forgive any principal Obligation, defer any
required payment of any Obligation, reduce the amount or rate of
interest payable on any Loan or Advance without the consent of the
affected Lender, increase the amount of the Commitment (except as set
forth in Section 2.7) or the Pro Rata Share of any Lender or decrease
the amount of any Letter of Credit Fee or facility fee payable to any
Lender, or reduce any other fee or amount payable to the Creditors
under the Loan Documents or to waive an Event of Default consisting of
the failure of any Borrower to pay when due principal, interest or any
facility fee or letter of credit fee;
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(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 facility fee or letter of credit
fee, or to extend the term of the Commitment (except as set forth in
Section 2.12);
(c) To amend the provisions of the definition of
"Requisite Lenders" or this Section 11.2 or to amend or waive Section
6.2;
(d) to release or subordinate the Parent Guaranty; or
(e) 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 11.2 shall apply equally to, and shall be binding upon, all of
the Creditors.
If, in connection with any proposed amendment, modification, supplement,
termination, waiver or consent to any of the provisions hereof as contemplated
by clauses (a) through (d), inclusive, of this Section 11.2, the consent of the
Required Lenders is obtained, but the consent of one or more of the other
Lenders is required and is not obtained, then the Borrowers shall have the right
to (i) replace such non-consenting Lender with one or more Eligible Assignees in
accordance with Section 11.14(a) if such Eligible Assignee consents to the
proposed amendment, modification, supplement, termination, waiver or consent, or
(ii) reduce the Commitment in accordance with Section 11.14(b) or any
combination of the foregoing, provided that each such non-consenting Lender
shall be either replaced as set forth in clause (i) or eliminated as set forth
in clause (ii).
11.3 COSTS, EXPENSES AND TAXES. Each Borrower shall pay within two
Business Days after demand, accompanied by an invoice therefor, the reasonable
costs and expenses of the Administrative Agent and the Lead Arranger in
connection with the negotiation, preparation, syndication, execution and
delivery of the Loan Documents and any amendment thereto or waiver thereof which
is requested by Borrowers or is entered into when any Default or Event of
Default exists. Following any Event of Default, each Borrower shall pay on
demand, accompanied by an invoice therefor, the reasonable costs and expenses of
the Administrative Agent and each of the other Creditors in connection with the
restructuring,
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reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement of the Loan Documents, and any matter related thereto. The
foregoing costs and expenses shall include filing fees, recording fees, title
insurance fees, appraisal fees, search fees, and other out-of-pocket expenses
and the reasonable fees and out-of-pocket expenses of any legal counsel
(including allocated costs of legal counsel employed by any Creditor),
independent public accountants and other outside experts retained by any of the
Creditors, whether or not such costs and expenses are incurred or suffered by
the Creditors in connection with or during the course of any bankruptcy or
insolvency proceedings of the Parent or any Subsidiary thereof. Such costs and
expenses shall also include, in the case of any amendment or waiver of any Loan
Document requested by the Parent or the Borrowers, the administrative costs of
the Administrative Agent reasonably attributable thereto. Each Borrower shall
pay any and all documentary and other taxes, excluding, in the case of each
Creditor and its Eurodollar Lending Office thereof, (i) taxes imposed on or
measured in whole or in part by its net income or capital and franchise taxes
imposed on it, (ii) any withholding taxes or other taxes based on net income
(other than withholding taxes and taxes based on net income resulting from or
attributable to any change following the Closing Date in any law, rule or
regulation or any change following the Closing Date in the interpretation or
administration of any law, rule or regulation by any governmental authority) or
(iii) any withholding taxes or other taxes based on net income for any period
with respect to which it has failed to provide the Parent 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 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 Creditors under this Section 11.3 shall bear interest from the
second Business Day following the date of demand for payment at the Default
Rate.
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11.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the Creditors
or any of them pursuant hereto or thereto may, or may be deemed to, make the
Creditors a partnership, an association, a joint venture or other entity, either
among themselves or with Parent, any Borrower or any Affiliate thereof. 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
attributable to any other Lender. Any Lender not in default may, if it desires,
assume in such proportion as a majority in interest of the nondefaulting Lenders
agree the obligations of any Lender in default, but is not obligated to do so.
11.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained herein or in any other Loan Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Loans hereunder and
the execution and delivery of the Notes, and have been or will be relied upon by
the Creditors, notwithstanding any investigation made by the Creditors or on
their behalf.
11.6 NOTICES. EXCEPT as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telecopied or delivered by overnight courier or otherwise to the
appropriate party at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party to any Loan
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section.
Except as otherwise expressly provided in any Loan Document, if any notice,
request, demand, direction or other communication required or permitted by any
Loan Document is given by mail it will be effective on the earlier of receipt or
the third calendar day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telecopier, when sent; or if given by
personal delivery, when delivered.
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11.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents will be
binding upon and inure to the benefit of Parent, Borrowers, the Creditors, and
their respective successors and assigns, except that Parent and Borrowers may
not assign their rights hereunder or thereunder or any interest herein or
therein without the prior written consent of all the Lenders (any purported
assignment by Parent or any Borrower in violation of this Section being void ab
initio). 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 such Notes must be
within the control of such Lender). Any Lender may at any time pledge its Notes
or any other instrument evidencing its rights as a Lender under this Agreement
to a Federal Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share and its Notes; provided that (i) such Eligible Assignee, if not then a
Lender or an Affiliate of the assigning Lender having a combined capital and
surplus in excess of $100,000,000, shall be approved by each of the
Administrative Agent (which approval shall not be unreasonably withheld) and the
Parent and the Borrowers (which approval shall not be unreasonably withheld and
will not be required if an Event
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of Default has occurred and remains continuing), (ii) such assignment shall be
evidenced by an Assignment Agreement, a copy of which shall be furnished to the
Administrative Agent, (iii) except in the case of an assignment to an Affiliate
of the assigning Lender, to another Lender or of the entire remaining Commitment
of the assigning Lender, the assignment shall not assign a Pro Rata Share which
is less than $5,000,000, and (iv) the effective date of any such assignment
shall be as specified in the Assignment Agreement, but not earlier than the date
which is five Business Days after the date the Administrative Agent has received
the Assignment Agreement. Upon the effective date of such Assignment Agreement,
the Eligible Assignee named therein shall be a Lender for all purposes of this
Agreement, with the Pro Rata Share therein set forth and, to the extent of such
Pro Rata Share, the assigning Lender shall be released from its further
obligations under this Agreement and the other Loan Documents. Each Borrower
agrees that it shall execute and deliver (against delivery by the assigning
Lender to the Borrowers of its Notes) to such assignee Lender, Notes evidencing
that assignee Lender's Pro Rata Share, and to the assigning Lender, Notes
evidencing the remaining balance Pro Rata Share retained by the assigning
Lender.
(c) By executing and delivering an Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other than the
representation and warranty that it is the legal and beneficial owner of the Pro
Rata Share being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Parent or its Subsidiaries or the performance by the Parent or its
Subsidiaries of the Obligations; (iii) it has received a copy of this Agreement
and the other Loan Documents, together with copies of the most recent financial
statements delivered pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment Agreement; (iv) it will, independently
and without reliance upon any other Creditor and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action
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under this Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement and the Loan
Documents as are delegated to the Administrative Agent by this Agreement; and
(vi) it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to it. After receipt of a completed Assignment
Agreement executed by any Lender and an Eligible Assignee, and receipt (except
in the case of the assignment to an Affiliate of the Assignor) of an assignment
fee of $3,500 from such Eligible Assignee, the Administrative Agent shall,
promptly following the effective date thereof, provide to Parent and the
Borrowers and the Lenders a revised Schedule 1.1 giving effect thereto.
(e) Each Lender may from time to time grant participations in
a portion of its Pro Rata Share or in any Competitive Advance, in each case to
one or more banks or other financial institutions (including another Lender);
provided, however, that (i) such Lender's obligations under the Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other financial institutions shall not be a Lender
hereunder for any purpose except, if the participation agreement so provides,
for the purposes of Sections 3.7, 3.8 and 11.11, but only to the extent that the
cost of such benefits to Parent and Borrowers does not exceed the cost which
Parent and the Borrowers would have incurred in respect of such Lender absent
the participation, (iv) Parent, the Borrowers and the other Creditors shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (v) the participation
interest shall not restrict an increase in the Commitment, or in the granting
Lender's Pro Rata Share, so long as the amount of the participation interest is
not affected thereby, and (vi) the consent of the holder of such participation
interest shall not be required for amendments or waivers of provisions of the
Loan Documents other than those which (A) extend the Maturity Date or any other
date upon which any payment of money is due to the Lender granting the
participation, (B) reduce the rate of interest on the Notes of such Lender, any
fee or any other monetary amount payable to that Lender, or (C) reduce the
amount of any installment of principal due under the Notes of that Lender.
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(f) Notwithstanding anything in this Section to the contrary,
the rights of the Lenders to make assignment of, and grant participations in,
their Pro Rata Share of the Commitment shall be subject to the approval of any
Gaming Board, to the extent required by applicable Gaming Laws.
(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent, Parent and the
Borrowers, the option to provide to the Borrowers all or any part of any Loan
that such Granting Lender would otherwise be obligated to make to the Borrowers
pursuant to Sections 2.1, 2.2, 2.3 or 2.5, provided that (i) nothing herein
shall constitute a commitment to make any Loan by any SPC and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Lender shall be obligated to make such Loan pursuant
to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender (and, if such Loan is a Competitive Advance,
shall be deemed to utilize the Commitments of all the Lenders) to the same
extent, and as if, such Loan were made by the Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
related Granting 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 senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof,
provided that the Granting Lender for each SPC hereby agrees to indemnify, save,
and hold harmless each other party hereto for any loss, cost, damage and expense
arising out of their inability to institute any such proceeding against its SPC.
In addition, notwithstanding anything to the contrary contained in this Section
11.8, any SPC may (i) with notice to, but without the prior written consent of,
Parent, the Borrowers or the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Lender or to any financial institutions providing liquidity
and/or credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or
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to support the securities (if any) issued by such SPC to fund such Loans (but
nothing contained herein shall be construed in derogation of the obligation of
the Granting Lender to make Loans hereunder), provided that neither the consent
of the SPC or of any such assignee shall be required for amendments or waivers
of provisions of the Loan Documents except for those amendments or waivers for
which the consent of participants is required under Section 11.8(e)(vi), and
(ii) disclose on a confidential basis (in the same manner described in Section
11.13) any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit or
liquidity enhancement to such SPC.
11.9 SHARING OF SETOFFS. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Parent, any Borrower, or otherwise, receives payment of the Obligations
held by it that is ratably more than any other Lender, through any means,
receives in payment of the Obligations held by that Lender, then, subject to
applicable Laws: (a) The Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Lender a participation
in the Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) Such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Lenders
share any payment obtained in respect of the Obligations ratably in accordance
with each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Parent, Borrowers or any Person claiming through or
succeeding to the rights of Parent or Borrowers, 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. Parent and each Borrower
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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.
11.10 INDEMNITY BY PARENT AND BORROWERS. Parent and each Borrower
jointly and severally (but as between Parent and Borrowers, ratably) agrees to
indemnify, save and hold harmless each of the Creditors and the Arranger and
their Affiliates, directors, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against: (a) Any and all claims,
demands, actions or causes of action (except a claim, demand, action, or cause
of action for any amount excluded from the definition of "Taxes" in Section
3.12(d)) if the claim, demand, action or cause of action arises out of or
relates to any act or omission (or alleged act or omission) of Parent, any
Borrower, its Affiliates or any of its officers, directors or shareholders
relating to the Commitment, the use or contemplated use of proceeds of any Loan
or Letter of Credit, or the relationship of Parent, Borrowers and the Creditors
under this Agreement; (b) Any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) Any and all liabilities,
losses, costs or expenses (including attorneys' fees and the allocated costs of
attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or cause of action;
PROVIDED that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Parent and Borrowers, but the failure to so promptly notify Parent or
Borrowers shall not affect Parent's and Borrowers' obligations under this
Section unless such failure materially prejudices Parent's or Borrowers' right
to participate in the contest of such claim, demand, action or cause of action,
as hereinafter provided. Such Indemnitee may (and shall, if requested by Parent
and the Borrowers in writing) contest the validity, applicability and amount of
such claim, demand, action or cause of action and shall permit Parent and the
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Parent or the Borrowers may be
liable for payment of indemnity hereunder shall give Parent and the
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Borrowers written notice of the terms of such proposed settlement or compromise
reasonably in advance of settling or compromising such claim or proceeding and
shall obtain Parent's and the Borrowers' prior consent (which shall not be
unreasonably withheld). In connection with any claim, demand, action or cause of
action covered by this Section against more than one Indemnitee, all such
Indemnitees shall be represented by the same legal counsel (which may be a law
firm engaged by the Indemnitees or attorneys employed by an Indemnitee or a
combination of the foregoing) selected by the Indemnitees; provided, that if
such legal counsel determines in good faith that representing all such
Indemnitees would or could result in a conflict of interest under Laws or
ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of the Parent and the Borrowers to any Indemnitee under
this Section shall survive the expiration or termination of this Agreement and
the repayment of all Loans and the payment and performance of all other
Obligations owed to the Lenders.
11.11 NONLIABILITY OF THE LENDERS. Parent and each Borrower
acknowledges and agrees that:
(a) Any inspections of any Property of Parent or its
Subsidiaries made by or through the Creditors are solely for purposes
of administration of this Agreement and Parent and the Borrowers are
not entitled to rely upon the same (whether or not such inspections are
at the expense of Parent and the Borrowers);
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(b) By accepting, furnishing or approving anything
required to be observed, performed, fulfilled or given to the Creditors
pursuant to the Loan Documents, none of the Creditors 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, furnishing or approval thereof
shall not constitute a warranty or representation to anyone with
respect thereto by the Creditors;
(c) The relationship among Parent, the Borrowers and
the Creditors is, and shall at all times remain, solely that of
borrowers, guarantors and lenders; none of the Creditors shall under
any circumstance be construed to be partners or joint venturers of
Parent, Borrowers or their Affiliates; none of the Creditors shall
under any circumstance be deemed to be in a relationship of confidence
or trust or a fiduciary relationship with Parent or its Affiliates, or
to owe any fiduciary duty to Parent or its Affiliates; none of the
Creditors undertakes or assumes any responsibility or duty to Parent or
its Affiliates to select, review, inspect, supervise, pass judgment
upon or inform Parent or its Affiliates of any matter in connection
with their Property or the operations of Parent or its Affiliates;
Parent 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 Parent, the 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 Parent and/or its Affiliates and
Parent and each Borrower hereby indemnifies and holds the Creditors
harmless from any such loss, damage, liability or claim.
11.12 NO THIRD PARTIES BENEFITTED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Parent, the Borrowers and the Creditors in connection with the Loans, Letters of
Credit and Swing Line Advances, and is made for the sole benefit of Parent, the
Borrowers, the Creditors, and the Creditors' successors and
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assigns, and, subject to Section 6.1 successors to Borrowers by permitted
merger. EXCEPT as provided in Sections 11.8 and 11.11, no other Person shall
have any rights of any nature hereunder or by reason hereof.
11.13 CONFIDENTIALITY. Each Creditor agrees to hold any confidential
information that it may receive from Parent and its Subsidiaries pursuant to
this Agreement in confidence, except for disclosure: (a) To Affiliates of that
Creditor and to other Creditors; (b) To legal counsel and accountants for Parent
and its Subsidiaries or any Creditor; (c) To other professional advisors to
Parent and its Subsidiaries or any Creditor, provided that the recipient has
accepted such information subject to a confidentiality agreement substantially
similar to this Section 11.13 or has notified such professional advisors of the
confidentiality of such information; (d) To regulatory officials having
jurisdiction over that Creditor; (e) To any Gaming Board having regulatory
jurisdiction over Parent or its Subsidiaries, provided that each Lender agrees
to use its best efforts to notify Parent and the Borrowers of any such
disclosure unless prohibited by applicable Laws; (f) As required by Law or legal
process (provided that the relevant Creditor shall endeavor, to the extent it
may do so under applicable Law, to give Parent and the Borrowers reasonable
prior notice thereof to allow Parent and the Borrowers to seek a protective
order) or in connection with any legal proceeding to which that Creditor, Parent
and any Borrower 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 Creditor'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 Parent or its Subsidiaries reasonably considered
by Parent and the Borrowers to be confidential, other than (i) information
previously filed with any Governmental Agency and available to the public, (ii)
information previously published in any public medium from a source other than,
directly or indirectly, that Lender, and (iii) information previously disclosed
to any Person not associated with Parent or its Affiliates without a
confidentiality agreement substantially similar to this Section. Nothing in this
Section shall be construed to create or give rise to any fiduciary duty on the
part of any Creditor to Parent or the Borrowers.
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11.14 REMOVAL OF A LENDER. Parent and the Borrowers shall have the
right to remove a Lender as a party to this Agreement pursuant to this Section
in the event that such Lender (a) refuses to consent to an extension of the
Maturity Date requested by Parent and the Borrowers in accordance with Section
2.12 which has been consented to by Lenders holding Pro Rata Share equal to or
greater than 66 2/3% of the Commitment, or (b) requests compensation under
Section 3.7 or Section 3.8 which has not been requested by all other Lenders, in
each case by written notice to the Administrative Agent and such Lender within
60 days following any such refusal or request, or (c) refuses to consent to
certain proposed changes, waivers, modifications, supplements, terminations,
waivers or consents with respect to this Agreement which have been approved by
the Required Lenders as provided in Section 11.2, provided that no Default or
Event of Default then exists, or (d) is the subject of a Disqualification. If
Parent and the Borrowers are entitled to remove a Lender pursuant to this
Section either:
(a) The Lender being removed shall within five
Business Days after such notice execute and deliver an Assignment
Agreement covering that Lender's Pro Rata Share in favor of one or more
Eligible Assignees designated by Parent and the Borrowers and
reasonably acceptable to the Administrative Agent, subject to payment
of a purchase price by such Eligible Assignee equal to all principal
and accrued interest, fees and other amounts payable to such Lender
under this Agreement through the date of the Assignment Agreement; or
(b) Parent and the Borrowers may reduce the
Commitment pursuant to Section 2.8 (and, for this purpose, the
numerical requirements of such Section shall not apply) by an amount
equal to that Lender's Pro Rata Share, pay and provide to such Lender
the amount required by clause (a) above and release such Lender from
its Pro Rata Share (subject, however, to the requirement that all
conditions set forth in Section 8.2 are met as of the date of such
reduction and the payment to the other Lenders of appropriate fees for
the assumption of that Lender's participation in all Letters of Credit
and Swing Line Advances then outstanding), in which case the percentage
Pro Rata Shares of the remaining Lenders shall be ratably increased
(but without any increase in the Dollar amount of the Pro Rata Shares
of such Lenders).
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11.15 FURTHER ASSURANCES. Parent and its Subsidiaries shall, at their
expense and without expense to the Creditors, do, execute and deliver such
further acts and documents as any Creditor from time to time reasonably requires
for the assuring and confirming unto the Creditors 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, together with the other Loan
Documents, comprises the complete and integrated agreement 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 California, without regard to the choice of
laws or conflicts of laws principles thereof.
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.
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11.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
11.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender, and each holder of
a participation interest herein, that is incorporated under the Laws of a
jurisdiction other than the United States of America or any state thereof shall
deliver to Parent (with a copy to the Administrative Agent), within twenty days
after the Closing Date (or after accepting an Assignment Agreement or receiving
a participation interest herein pursuant to Section 11.8, if applicable) two
duly completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Parent and the
Borrowers pursuant to this Agreement) or Form 4224 (relating to all payments to
be made to such Person by Parent and the Borrowers pursuant to this Agreement)
of the United States Internal Revenue Service or such other evidence (including,
if reasonably necessary, Form W-9) satisfactory to Parent and the Borrowers and
the Administrative Agent that no withholding under the federal income tax laws
is required with respect to such Person. Thereafter and from time to time, each
such Person shall (a) promptly submit to Parent (with a copy to the
Administrative Agent), such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as is
satisfactory to Parent and the Borrowers and the Administrative Agent of any
available exemption from, United States withholding taxes in respect of all
payments to be made to such Person by Parent and the Borrowers pursuant to this
Agreement and (b) 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 Eurodollar Lending Office, if
any) to avoid any requirement of applicable laws that Parent or the Borrowers
make any deduction or withholding for taxes from amounts payable to such Person.
11.22 GAMING BOARDS. The Creditors agree to cooperate with all Gaming
Boards in connection with the administration of their regulatory jurisdiction
over Parent and its Subsidiaries, including the provision of such documents or
other information as may be requested by any such Gaming Board relating to
Parent or any of its Subsidiaries or to the Loan Documents.
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11.23 NATURE OF THE BORROWERS' OBLIGATIONS. The Company hereby agrees
that it shall be liable for all of the Obligations on a joint and several basis,
notwithstanding which of the Borrowers may have directly received the proceeds
of any particular Loan or Advance or the benefit of a particular Letter of
Credit. Notwithstanding anything to the contrary set forth herein, the principal
liability of Marina and each Borrower hereafter designated under Section 2.10
for Loans, Swing Line Advances and Letters of Credit shall be limited to Loans
and Letters of Credit made to that Borrower and Letters of Credit issued for the
account of that Borrower under the Aggregate Sublimit of that Borrower. Each of
the Borrowers acknowledges and agrees that, for purposes of the Loan Documents,
Parent and its Subsidiaries constitute a single integrated financial enterprise
and that each receives a benefit from the availability of credit under this
Agreement. Borrowers each waive all defenses arising under the Laws of
suretyship, to the extent such Laws are applicable, in connection with their
obligations under this Agreement. Without limiting the foregoing, each Borrower
agrees to the Joint Borrower Provisions set forth in Exhibit L, incorporated by
this reference.
11.24 DESIGNATED SENIOR DEBT. Parent and each Borrower hereby
irrevocably designate the Obligations and this Agreement as "Designated Senior
Indebtedness" and "Senior Indebtedness" within the meanings given to those terms
in Section 1.1 of the Supplemental Indenture dated December 9, 1998 entered into
with respect to the Existing Subordinated Debt among the Company, Parent and IBJ
Schroeder Bank & Trust Company.
11.25 GAMING REGULATIONS. Each party to this Agreement hereby
acknowledges that the consummation of the transactions contemplated by the Loan
Documents is subject to applicable Gaming Laws (and Parent and Borrower
represent and warrant that all requisite approvals necessary thereunder to enter
into the transactions contemplated hereby have been duly obtained).
-112-
11.26 WAIVER OF RIGHT TO TRIAL BY JURY. EACH SIGNATORY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE SIGNATORIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH SIGNATORY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY SIGNATORY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
11.27 PURPORTED ORAL AMENDMENTS. PARENT AND EACH 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. PARENT AND EACH BORROWER
AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF ANY OF THE CREDITORS THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
-113-
Agreement to be duly executed as of the date first above written.
HARRAH'S ENTERTAINMENT, INC.
By: /s/ Charles L. Atwood
----------------------------------
Charles L. Atwood, Vice President
and Treasurer
HARRAH'S OPERATING COMPANY, INC.
By: /s/ Charles L. Atwood
----------------------------------
Charles L. Atwood, Vice President
and Treasurer
MARINA ASSOCIATES
By: Harrah's New Jersey, Inc.,
general partner
By: /s/ Charles L. Atwood
-------------------------------
Charles L. Atwood, authorized
signatory
By: Harrah's Atlantic City, Inc.,
general partner
By: /s/ Charles L. Atwood
-------------------------------
Charles L. Atwood, authorized
signatory
Address for notices for Parent and each
Borrower:
Harrah's Entertainment, Inc.
1023 Cherry Road
Memphis, Tennessee 38117
Attn: Charles L. Atwood, Vice President
and Treasurer
Telecopier: 901/ 762-8698
Telephone: 901/762-8852
-114-
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ Janice Hammond
---------------------------
Janice Hammond, Vice President
Address:
Bank of America National Trust
and Savings Association
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Janice Hammond
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Lender
By: /s/ Scott Faber
-----------------------------
Scott Faber, Vice President
Address:
Bank of America National Trust
and Savings Association
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Scott Faber, Vice President
Telecopier: (213) 228-3145
Telephone: (213) 228-2768
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby, Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
-115-
BANKERS TRUST COMPANY
By: /s/ Mary Kay Coyle
-----------------------------
Mary Kay Coyle
Title: Managing Director
--------------------------
Address for notices:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn.: Mary Kay Coyle
Facsimile: (212) 250-7218
Telephone: (212) 250-9094
-116-
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Paul J. Chakmak
-----------------------------
Paul J Chakmak
Title: Managing Director, CIBC
Oppenheimer Corp., AS AGENT
--------------------------
Address for notices:
CIBC Oppenheimer Corp.
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attn.: Sherry Hanamean
Facsimile: (770) 319-4955
Telephone: (770) 319-4856
With a copy to:
CIBC Oppenheimer Corp.
350 South Grand Avenue, Suite 2600
Los Angeles, California 90071
Attention: Carter Harned
Facsimile: (213) 346-0157
Telephone: (213)617-6216
-117
SOCIETE GENERALE
By: /s/ Donald L. Schubert
-----------------------------
Donald L. Schubert
Title: Managing Director
--------------------------
Address for notices:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn.: Donald Schubert, Managing Director
Facsimile: (310) 551-1537
Telephone: (310) 788-7104
-118-
COMMERZBANK AKTIENGESELLSCHAFT, LOS
ANGELES BRANCH
By: /s/ Christian Jagenberg
-----------------------------
Christian Jagenberg
Title: SVP and Manager
--------------------------
By: /s/ Werner Schmidbauer
-----------------------------
Title: Vice President
--------------------------
Address for notices:
Commerzbank AG - Los Angeles Branch
633 West Fifth Street, Suite 6600
Los Angeles, California 90071
Attn.: Werner Schmidbauer
Facsimile: (213) 623-0039
Telephone: (213) 623-8223
-119-
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Gary W. Wessels
-----------------------------
Gary W. Wessels
Title: Vice President
--------------------------
Address for notices:
PNC Bank, National Association
Two Tower Center Boulevard
East Brunswick, New Jersey 08816
Attn.: Denise D. Killen, Vice President
Facsimile: (732) 220-3270
Telephone: (732) 220-3262
-120-
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Sue Fuller
-----------------------------
Sue Fuller
Title: Vice President
Address for notices:
Wells Fargo Bank, National Association
One East First Street, Suite 300
Reno, Nevada 89501
Attn.: Sue Fuller, Vice President
Facsimile: (775) 334-5637
Telephone: (775) 334-5633
-121-
FLEET BANK N.A.
By: /s/ John F. Cullinan
-----------------------------
John F. Cullinan
Title: SVP
--------------------------
Address for notices:
Fleet Bank N.A.
3670 Route 9 South
Freehold, New Jersey 07728
Attn.: John F. Cullinan,
Senior Vice President
Facsimile: (732) 780-0754
Telephone: (732) 294-4306
-122-
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Mark A. Isley
-----------------------------
Mark A. Isley
Title: First Vice President
--------------------------
Address for notices:
The First National Bank of Chicago
One First National Plaza, 11th Floor
Chicago, Illinois 60670
Attn.: Robert Simon
Facsimile: (312) 732-4840
Telephone: (312) 732-8543
-123-
THE BANK OF NEW YORK
By: /s/ Lisa Y. Brown
-----------------------------
Lisa Y. Brown
Title: Vice President
--------------------------
Address for notices:
The Bank of New York
One Wall Street, 22nd Floor
New York, New York 10005
Attn.: Dawn Hertling
Facsimile: (212) 6399 or 6877
Telephone: (212) 635-6742
-124-
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
-----------------------------
F. C. H. Ashby
Title: Senior Manager Loan Operations
----------------------------
Address for notices:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attn.: Donna Gardner
Facsimile: (404) 888-8998
Telephone: (404) 877-1559
-125-
CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/ Diane M. Scott
-----------------------------
Diane M. Scott
Title: First Vice President and
Manager
--------------------------
Address for notices:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attn.: Penney Chu
Facsimile: (213) 623-3437
Telephone: (213) 362-5905
-126-
U.S. BANK NATIONAL ASSOCIATION
By: /s/ David Walquist
----------------------------
David Walquist
Title: Vice President
-------------------------
Address for domestic notices:
U.S. Bank National Association
2300 West Sahara, Suite 120
Las Vegas, Nevada 89102
Attn.: David Walquist, Vice President
Facsimile: (702) 386-3916
Telephone: (702) 386-3938
Address for eurodollar notices:
U.S. Bank National Association
CLS West - PL-7
555 S.W. Oak Street
Portland, Oregon 97204
Attn.: J. Ramirez
Facsimile: (503) 275-8181
Telephone: (503) 275-3259
-127-
WACHOVIA BANK, N.A.
By: /s/ Karin E. Reel
-----------------------------
Karin E. Reel
Title: Vice President
--------------------------
Address for notices:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn.: Karin E. Reel
Facsimile: (404) 332-5016
Telephone: (404) 332-5187
-128-
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ Alan S. Bookspan
-----------------------------
Alan S. Bookspan
Title: Director
--------------------------
By: /s/ Walter T. Duffy, III
-----------------------------
Walter T. Duffy, III
Title: Vice President
Address for notices:
Westdeutsche Landesbank Girozentrale
1211 Avenue of the Americas
New York, New York 10036
Attn.: Walter T. Duffy III, Vice
President
Facsimile: (212) 852-6148
Telephone: (212) 852-6095
-129-
FIRST SECURITY BANK, N.A.
By: /s/ Stephen L. Goalen
-----------------------------
Stephen L. Goalen
Title: Sr. Vice President
--------------------------
Address for domestic notices:
First Security Bank, N.A.
15 East 100 South - 2nd Floor
Salt Lake City, Utah 84111
Attn.: David P. Williams
Facsimile: (801) 246-5532
Telephone: (801) 246-5540
Address for eurodollar notices:
First Security Bank, N.A.
15 East 100 South - 2nd Floor
Salt Lake City, Utah 84111
Attn.: David P. Williams
Facsimile: (801) 246-5532
Telephone: (801) 246-5540
-130-
THE INDUSTRIAL BANK OF JAPAN, LIMITED
ATLANTA AGENCY
By: /s/ Koichi Hasegawa
-----------------------------
Koichi Hasegawa
Title: Senior Vice President and
Deputy General Manager
--------------------------
Address for notices:
The Industrial Bank of Japan, Limited,
Atlanta Agency
1251 Avenue of Americas
New York, New York 10020
Attn.: Michele Fuimo
Facsimile: (212) 282-4480
Telephone: (212) 282-4063
-131-
BANKBOSTON, N.A.
By: /s/ Patrick D. Bonebrake
-----------------------------
Patrick D. Bonebrake
Title: Vice President
--------------------------
Address for notices:
BankBoston, N.A.
100 Federal Street
MA 01-08-08
Boston, Massachusetts 02110
Attn.: Brian Nathan
Facsimile: (617) 434-4301
Telephone: (617) 434-8479
-132-
BANK OF HAWAII
By: /s/ Robert M. Wheeler, III
-----------------------------
Robert M. Wheeler, III
Title: Vice President
--------------------------
Address for notices:
Bank of Hawaii
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Attn.: Robert Wheeler, Vice President
Facsimile: (808) 537-8301
Telephone: (808) 537-8237
-133-
BANK OF SCOTLAND
By: /s/ Annie Chin Tat
-----------------------------
Annie Chin Tat
Title: Senior Vice President
--------------------------
Address for notices:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn.: Karen Workman, Banking Associate
Facsimile: (212) 687-4412
Telephone: (212) 450-0877
-134-
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: /s/ Warren G. Parham
-----------------------------
Warren G. Parham
Title: Vice President
--------------------------
Address for notices:
Banque Nationale De Paris, Houston Agency
333 Clay Street, Suite 3400
Houston, Texas 77002
Attn.: Donna Jo Rose
Facsimile: (713) 659-1414
Telephone: (713) 951-1240
-135-
COMERICA WEST INCORPORATED
By: /s/ Eoin P. Collins
-----------------------------
Eoin P. Collin
Account Officer
Address for notices:
Comerica West Incorporated
3980 Howard Hughes Parkway, Suite 350
Las Vegas, Nevada 89109
Attn.: Regina C. McGuire
Facsimile: (702) 791-2371
Telephone: (702) 791-4804
-136-
MICHIGAN NATIONAL BANK
By: /s/ Jeffrey W. Billig
-----------------------------
Jeffrey W. Billig
Title: Relationship Manager
--------------------------
Address for notices:
Michigan National Bank
27777 Inkster Road, 10-36
Farmington Hills, Michigan 48334
Attn.: Jeffrey W. Billig, Relationship
Manager
Facsimile: (248) 473-4345
Telephone: (248) 473-4329
-137-
THE SUMITOMO BANK, LIMITED
By: /s/ Gary P. Franke
-----------------------------
Gary P. Franke
Title: Vice President and Manager
--------------------------
Address for notices:
The Sumitomo Bank, Limited, New York
Branch
277 Park Avenue
New York, New York 10172
Attn.: Matthew Sullivan
Facsimile: (212) 224-5197
Telephone: (212) 224-4120
-138-
FIRST AMERICAN NATIONAL BANK, operating
as DEPOSIT GUARANTY NATIONAL BANK
By: /s/ Larry C. Ratzlaff
----------------------------
Larry C. Ratzlaff
Title: Senior Vice President
--------------------------
Address for notices:
First American National Bank, Operating
as Deposit Guaranty National Bank
210 East Capitol Street
Jackson, Mississippi 39201
Attn.: Larry C. Ratzlaff, Senior
Vice President
Facsimile: (601) 354-8315
Telephone: (601) 968-4749
-139-
ERSTE BANK
By: /s/ David Manheim
-----------------------------
David Manheim
Title: Assistant Vice President
Erste Bank New York Branch
--------------------------
By: /s/ John S. Runnion
-----------------------------
John S. Runnion
Title: First Vice President
--------------------------
Address for notices:
Erste Bank
West Building, 32nd Floor
280 Park Avenue
New York, New York 10017
Attn.: David Manheim, Assistant
Vice President
Facsimile: (212) 984-5627
Telephone: (212) 984-5633
-140-
FIRST HAWAIIAN BANK
By: /s/ Donald C. Young
-----------------------------
Donald C. Young
Title: Vice President
-------------------------
Address for notices:
First Hawaiian Bank
999 Bishop Street, 11th Floor
Honolulu, Hawaii 96813
Attn.: Brenda Deakins
Facsimile: (808) 525-5085
Telephone: (808) 525-8100
-141-
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ James H. Moore, Jr.
-----------------------------
James H. Moore, Jr.
Title: Vice President
--------------------------
Address for notices:
First Tennessee Bank National Association
165 Madison Avenue, 9th Floor
Memphis, Tennessee 38103-2723
Attn.: James H. Moore, Jr.,
Vice President
Facsimile: (901) 523-4267
Telephone: (901) 523-4108
-142-
HIBERNIA NATIONAL BANK
By: /s/ Ross S. Wales
-----------------------------
Ross S. Wales
Title: Vice President
--------------------------
Address for domestic notices:
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attn.: Lorie Ferguson, Commercial
Banking Dept.
Facsimile: (504) 533-2060
Telephone: (504) 533-5718
Address for eurodollar notices:
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attn.: Lorie Ferguson, Commercial
Banking Dept.
Facsimile: (504) 533-2060
Telephone: (504) 533-5718
-143-
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Bertram H. Tang
-----------------------------
Bertram H. Tang
Title: VP & Group Leader
--------------------------
Address for notices:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center, 48th Floor
New York, New York 10048
Attn.: Thomas Ho and
Bertram H. Tang, Vice
President & Group Leader
Facsimile: (212) 912-1879
Telephone: (212) 432-8845
-144-
EXHIBIT A
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") dated as of ____________, _____
is made with reference to that certain Five Year Loan Agreement dated as of
April 30, 1999 (as amended from time to time, the "Loan Agreement") by and among
Harrah's Entertainment, Inc., a Delaware corporation, as Guarantor, Harrah's
Operating Company, Inc., a Delaware corporation, Marina Associates, a New Jersey
general partnership (each a "Borrower" and collectively, the "Borrowers"), the
Lenders therein named, (collectively, the "Lenders" and individually, a
"Lender") and Bank of America National Trust and Savings Association, as
Administrative Agent and is entered into between the "Assignor" described below,
in its capacity as a Lender under the Loan Agreement, and the "Assignee"
described below.
Assignor and Assignee hereby represent, warrant and agree as follows:
1. DEFINITIONS. Capitalized terms defined in the Loan Agreement are
used herein with the meanings set forth for such terms in the Loan Agreement. As
used in this Agreement, the following capitalized terms shall have the meanings
set forth below:
"ASSIGNEE" means ___________________________________.
"ASSIGNED PRO RATA SHARE" means _________________% of the Commitment of
the Lenders under the Loan Agreement which equals $__________.
"ASSIGNOR" means _______________________
"EFFECTIVE DATE" means ___________, _____, the effective date of this
Agreement determined in accordance with Section 11.8 of the Loan Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The
Assignor represents and warrants to the Assignee as follows:
a. As of the date hereof, the Pro Rata Share of the
Assignor is ___________% of the Commitment (without giving effect to assignments
thereof which have not yet become effective). The Assignor is the legal and
beneficial owner of the Assigned Pro Rata Share and the Assigned Pro Rata Share
is free and clear of any adverse claim.
b. As of the date hereof, the outstanding principal
balance of Advances made by the Assignor under the Assignor's Note is
$____________________, and Assignor's ratable participation in outstanding
Letters of Credit is $_____________________.
c. The Assignor has full power and authority, and has
taken all action necessary, to execute and deliver this Agreement and any and
all other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in connection therewith; and
d. This Agreement constitutes the legal, valid and
binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of each Borrower or the performance by
each Borrower of the Obligations, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the
Loan Agreement or the execution, legality, validity, enforceability,
genuineness, or sufficiency of the Loan Agreement or any Loan Document other
than as expressly set forth above.
3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The
Assignee hereby represents and warrants to the Assignor as follows:
(a) The Assignee has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement, and any and all
other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in connection therewith;
(b) This Agreement constitutes the legal, valid and binding
obligation of the Assignee;
(c) The Assignee has independently and without reliance upon
the Administrative Agent or Assignor and based on such documents and information
as the Assignee has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. The Assignee will, independently and
-2-
without reliance upon the Administrative Agent or any Lender, and based upon
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Agreement;
(d) The Assignee has received copies of such of the Loan
Documents delivered pursuant to Section 8.1 of the Loan Agreement as it has
requested, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 of the Loan Agreement;
(e) The Assignee will perform in accordance with their
respective terms all of the obligations which by the terms of the Loan Agreement
are required to be performed by it as a Lender; and
(f) The Assignee is an Eligible Assignee.
4. ASSIGNMENT. On the terms set forth herein, the Assignor, as
of the Effective Date, hereby irrevocably sells, assigns and transfers to the
Assignee all of the rights and obligations of the Assignor under the Loan
Agreement, the other Loan Documents and the Assignor's Note to the extent of the
Assigned Pro Rata Share, and the Assignee irrevocably accepts such assignment of
rights and assumes such obligations from the Assignor on such terms and
effective as of the Effective Date. As of the Effective Date, the Assignee shall
have the rights and obligations of a "Lender" under the Loan Documents, except
to the extent of any arrangements with respect to payments referred to in
Section 5 hereof. Assignee hereby appoints and authorizes the Administrative
Agent to take such action and to exercise such powers under the Loan Agreement
as are delegated to the Administrative Agent by the Loan Agreement.
5. PAYMENT. On the Effective Date, the Assignee shall pay to
the Assignor, in immediately available funds, an amount equal to the purchase
price of the Assigned Pro Rata Share, as agreed between the Assignor and the
Assignee pursuant to a letter agreement of even date herewith. Such letter
agreement also sets forth the agreement between the Assignor and the Assignee
with respect to the amount of interest, fees, and other payments with respect to
the Assigned Pro Rata Share which are to be retained by the Assignor. Assignee
shall also pay to the Administrative Agent an assignment fee of $3,500 in
accordance with Section 11.8 of the Loan Agreement.
-3-
The Assignor and the Assignee hereby agree that if either
receives any payment of interest, principal, fees or any other amount under the
Loan Agreement, their respective Notes or any other Loan Documents which is for
the account of the other, it shall hold the same in trust for such party to the
extent of such party's interest therein and shall promptly pay the same to such
party.
6. PRINCIPAL, INTEREST, FEES, ETC. Any principal that would be
payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or for the account of the Assignor pursuant to the
Loan Agreement and the Note shall be payable to or for the account of the
Assignor and the Assignee, in accordance with their respective interests as
adjusted pursuant to this Agreement.
7. NOTES. The Assignor and the Assignee shall make appropriate
arrangements with each Borrower concurrently with the execution and delivery
hereof so that replacement Notes are issued to the Assignor and new Notes are
issued to the Assignee, in each case in principal amounts reflecting their Pro
Rata Shares of the Commitment or their outstanding Advances (as adjusted
pursuant to this Agreement).
8. FURTHER ASSURANCES. Concurrently with the execution of this
Agreement, the Assignor shall execute two counterpart original Requests for
Registration, in the form of Exhibit A to this Agreement, to be forwarded to the
Administrative Agent. The Assignor and the Assignee further agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, and the Assignor specifically agrees to cause the delivery of (i) two
original counterparts of this Agreement and (ii) the Request for Registration,
to the Administrative Agent for the purpose of registration of the Assignee as a
"Lender" pursuant to Section 11.8 of the Loan Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACTUAL OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF CALIFORNIA. FOR
ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT, THE ASSIGNEE HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA.
-4-
10. NOTICES. All communications among the parties or notices
in connection herewith shall be in writing, hand delivered or sent by registered
airmail, postage prepaid, or by telex, telegram or cable, addressed to the
appropriate party at its address set forth on the signature pages hereof. All
such communications and notices shall be effective upon receipt.
11. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or obligations
under this Agreement without the prior written consent of the Assignor and any
purported assignment, absent such consent, shall be void. Nothing contained in
this Section shall restrict the assignment by Assignee of its rights under the
Loan Documents following the Effective Date.
12. INTERPRETATION. The headings of the various sections
hereof are for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
-5-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
"Assignor"
________________________________________
By:_____________________________________
Its:____________________________________
Address: _______________________________
_______________________________
_______________________________
Telephone: _____________________________
Telecopier: ____________________________
"Assignee"
________________________________________
By:_____________________________________
Its:____________________________________
Address: _______________________________
_______________________________
_______________________________
Telephone: _____________________________
Telecopier: ____________________________
-6-
Exhibit A to Assignment Agreement
REQUEST FOR REGISTRATION
To: Bank of America National Trust and Savings Association, as
Administrative Agent, and Harrah's Entertainment, Inc., Harrah's
Operating Company, Inc. and Marina Associates
THIS REQUEST FOR REGISTRATION OF ASSIGNEE ("Request") is made as of the
date of the enclosed Assignment Agreement with reference to that certain Five
Year Loan Agreement, dated as of April 30, 1999 by and among Harrah's
Entertainment, Inc., a Delaware corporation, as Guarantor, Harrah's Operating
Company, Inc., a Delaware corporation, Marina Associates, a New Jersey general
partnership (each a "Borrower" and collectively, the "Borrowers"), the Lenders
therein named, (collectively, the "Lenders" and individually, a "Lender") and
Bank of America National Trust and Savings Association, as Administrative Agent
(as amended as of the date hereof, the "Loan Agreement").
The Assignor and Assignee described below hereby request that
Administrative Agent register the Assignee as a Lender pursuant to Section 11.8
of the Loan Agreement effective as of the Effective Date described in the
Assignment Agreement.
Enclosed with this Request are two counterpart originals of the
Assignment Agreement as well as the original Notes of each Borrower in favor of
the Assignor in the principal amount of $______________. The Assignor and
Assignee hereby jointly request that Administrative Agent cause each Borrower to
issue replacement Notes, dated as of the Effective Date, pursuant to Section
11.8 of the Loan Agreement in favor of Assignor in the principal amount of the
remainder of its Pro Rata Share of the Commitment and new Notes in favor of the
Assignee in the amount of the Assigned Pro Rata Share.
IN WITNESS WHEREOF, the Assignor and Assignee have executed this
Request for Registration by their duly authorized officers as of __________,
___________.
"Assignor" "Assignee"
________________________________ ________________________________
By:_____________________________ By:_____________________________
Its: ___________________________ Its: ___________________________
-7-
CONSENT OF ADMINISTRATIVE AGENT AND BORROWERS
[When Required Pursuant to Loan Agreement]
TO: The Assignor and Assignee referred to in the above Request for
Registration
When countersigned by each Borrower and Administrative Agent below,
this document shall certify that:
[ ] [WHEN REQUIRED PURSUANT TO SECTION 11.8(b)(i) OF THE Loan
Agreement:]
[1.] Borrowers have consented, pursuant to the terms of the Loan
Documents, to the assignment by the Assignor to the Assignee of the Assigned Pro
Rata Share.
[2.] Administrative Agent has registered the Assignee as a Lender under
the Loan Agreement, effective as of the Effective Date described above, with a
Pro Rata Share of the Commitment corresponding to the Assigned Pro Rata Share
and has adjusted the registered Pro Rata Share of the Commitment of the Assignor
to reflect the assignment of the Assigned Pro Rata Share.
Approved:
Harrah's Entertainment, Inc. Bank of America National Trust and Savings
Association, as Administrative Agent
By:________________________
Its:_______________________ By:_______________________
Harrah's Operating Company, Inc. Its:______________________
By:________________________
Its:_______________________
Marina Associates
By: Harrah's New Jersey,
Inc., general partner
By: __________________
Its: _________________
By: Harrah's Atlantic City,
Inc., general partner
By: __________________
Its: _________________
-8-
EXHIBIT B
COMMITTED ADVANCE NOTE
$_____________ April 30, 1999
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
___________________________________________ (the "Lender"), the principal amount
of _____________________________ Dollars ($___________________) or such lesser
aggregate amount of Committed Advances as may be made by the Lender as part of
the Loans pursuant to the Loan Agreement referred to below, together with
interest on the principal amount of each Committed Advance made hereunder as
part of the Loans and remaining unpaid from time to time from the date of each
such Committed Advance until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Five Year Loan Agreement dated as of April 30,
1999, by and among the undersigned, as a Borrower, the other Borrowers that are
parties thereto, the Lenders therein named and Bank of America National Trust
and Savings Association, as Administrative Agent (as amended from time to time,
the "Loan Agreement"). Terms defined in the Loan Agreement and not otherwise
defined herein are used herein with the meanings defined for those terms in the
Loan Agreement. This is one of the Committed Advance Notes referred to in the
Loan Agreement, and any holder hereof is entitled to all of the rights,
remedies, benefits and privileges provided for in the Loan Agreement as
originally executed or as it may from time to time be supplemented, modified or
amended. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Committed Advance Note
shall be payable as provided in the Loan Agreement and in any event on the
Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of Committed Advances from the date of each such Committed Advance until
payment in full and shall accrue and be payable at the rates and on the dates
set forth in the Loan Agreement both before and after default and before and
after maturity and judgment, with interest on overdue principal and interest to
bear interest at the rate set forth in Section 3.9 of the Loan Agreement, to the
fullest extent permitted by applicable Law.
Each payment hereunder shall be made to the Administrative Agent at the
Administrative Agent's Office for the account of the Lender in immediately
available funds not later than 11:00 a.m., California local time, on the day of
payment (which must be a Business Day). All payments received after 11:00 a.m.,
California local time, on any particular Business Day shall be deemed received
on the next succeeding Business Day. All payments shall be made in lawful money
of the United States of America.
The Lender shall use its best efforts to keep a record of Committed
Advances made by it as part of Loans and payments received by it with respect to
this Committed Advance Note, and such record shall, subject to Section 10.6(g)
of the Loan Agreement, be presumptive evidence, absent manifest error, of the
amounts owing under this Committed Advance Note.
The undersigned hereby promises to pay all costs and expenses of any
rightful holder hereof incurred in collecting the undersigned's obligations
hereunder or in enforcing or attempting to enforce any of such holder's rights
hereunder, including reasonable attorneys' fees and disbursements, whether or
not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Committed Advance Note shall be delivered to and accepted by the
Lender in the State of California, and shall be governed by, and construed and
enforced in accordance with, the local Laws thereof.
_______________________________,
a ______________________________
By: ____________________________
Title:__________________________
-2-
SCHEDULE OF COMMITTED ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Advance Period Principal Principal Made by
Paid Balance
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
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-3-
EXHIBIT C
COMPETITIVE ADVANCE NOTE
(FIVE YEAR LOAN AGREEMENT)
$____________ April 30, 1999
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
_____________________________________ (the "Lender"), the principal amount of
___________________________ Dollars ($__________) or such lesser aggregate
amounts as may be made as Competitive Advances pursuant to the Loan Agreement
hereinafter described, payable as hereinafter set forth. The undersigned
promises to pay interest on the principal amount hereof remaining unpaid from
time to time from the date hereof until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Five Year Loan Agreement dated as of April 30,
1999, among the undersigned, as a Borrower, the other Borrowers which are
parties thereto, the Lenders therein named and Bank of America National Trust
and Savings Association, as Administrative Agent (as amended from time to time
the "Loan Agreement"). Terms defined in the Loan Agreement and not otherwise
defined herein are used herein with the meanings defined for those terms in the
Loan Agreement. This is one of the Competitive Advance Notes referred to in the
Loan Agreement, and any holder hereof is entitled to all of the rights, benefits
and privileges provided for in the Loan Agreement as originally executed or as
it may from time to time be supplemented, modified or amended. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness of each Competitive Advance evidenced by
this Competitive Advance Note shall be payable on the maturity date specified in
the Competitive Bid relating to such Competitive Advance.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Competitive Advance hereunder from the date thereof until payment
in full and shall accrue and be payable at the rates and on the dates set forth
in the Competitive Bid relating to such Competitive Advance, both before and
after default and before and after maturity and judgment, with overdue principal
and interest to bear interest at the rate set forth in Section 3.9 of the Loan
Agreement, to the fullest extent permitted by applicable Laws.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Lender, in lawful money of the United States of America and in immediately
available funds not later than 11:00 A.M., California local time, on the day of
payment (which must be a Business Day). All payments received after 11:00 A.M.,
California local time, on any Business Day, shall be deemed received on the next
succeeding Business Day. The Lender shall use its best efforts to keep a record
of Competitive Advances made by it and payments of principal with respect to
this Competitive Advance Note, and such record shall, subject to Section 10.6(g)
of the Loan Agreement, be presumptive evidence, absent manifest error, of the
principal amount owing under this Competitive Advance Note.
The undersigned hereby promises to pay all costs and expenses of any
holder hereof incurred in collecting the undersigned's obligations hereunder or
in enforcing any of holder's rights hereunder, including attorneys' fees and
disbursements (including allocated costs of legal counsel employed by the
Administrative Agent or the holder), whether or not an action is filed in
connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality to the fullest extent permitted by applicable Laws.
This Competitive Advance Note shall be delivered to and accepted by the
Lender, or by the Administrative Agent on its behalf, in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the local Laws thereof.
HARRAH'S OPERATING COMPANY, INC.
By: ___________________________________
Charles L. Atwood, Vice President
and Treasurer
-2-
SCHEDULE OF
COMPETITIVE ADVANCES AND PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Advance Period Principal Principal Made by
Paid Balance
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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-3-
EXHIBIT D
COMPETITIVE BID
(FIVE YEAR LOAN AGREEMENT)
Bank of America National Trust and
Savings Association, as Administrative Agent
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Janice Hammond
Re: Competitive Bid Rate Loan Quote for
____________________ [Name of Borrower]
Dear Ladies and Gentlemen:
Reference is made to the Five Year Loan Agreement dated as of April 30,
1999 (as the same has been amended, modified or extended, the "Agreement";
capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Agreement) by and among Harrah's Entertainment,
Inc., a Delaware corporation, as Guarantor, Harrah's Operating Company, Inc., a
Delaware corporation, Marina Associates, a New Jersey general partnership (each
a "Borrower" and collectively, the "Borrowers"), the Lenders therein named,
(collectively, the "Lenders" and individually, a "Lender") and Bank of America
National Trust and Savings Association, as Administrative Agent
In response to the Competitive Bid Request from _________________ dated
____________, _____, we hereby make the following Competitive Bid on the
following terms:
1. Quoting Lender:
-----------------------------------------------------
2. Person to contact at Quoting Lender and telephone number:
Name:______________________ Telephone Number:______________
3. Borrowing date of proposed Competitive Advance:
_____________________________________________________1
- --------------
1 As specified in the related Competitive Bid Request
4. We hereby offer to make Competitive Advances in the following principal
amounts, for the following durations and at the following rates [insert
only one applicable rate on each line below]:
Duration of
Principal Competitive Absolute Eurodollar
Amount2 Advance3 Rate Bid4 Margin Bid5
---------- ----------- --------- -----------
$--------- ----------- ----------% -----------%
$--------- ----------- ----------% -----------%
$--------- ----------- ----------% -----------%
PROVIDED that the aggregate Maximum Competitive Advance for which this offer may
be accepted shall not exceed $________________.6
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Loan Agreement,
irrevocably obligate(s) us to make the Competitive Advance(s) for which any
offer(s) is (are) accepted, in whole or in part.
Very truly yours,
----------------------------
[Name of Lender]
Date:__________________ By:__________________________
Name:________________________
Title:_______________________
- --------------
2 Offers must be integral multiples of $1,000,000
3 As specified in the related Competitive Bid Request
4 As defined in the Loan Agreement
5 As defined in the Loan Agreement
6 Specify aggregate limitation if the sum of the individual offers
exceeds the aggregate amount the Quoting Lender is willing to lend
-2-
EXHIBIT E
COMPETITIVE BID REQUEST
(FIVE YEAR LOAN AGREEMENT)
This Competitive Bid Request is executed and delivered by
__________________, a ____________ __________________ ("Requesting Borrower") to
the Administrative Agent pursuant to the Five Year Loan Agreement (as the same
has been amended, modified or extended, the "Loan Agreement") dated as of April
30, 1999, among Requesting Borrower, as a Borrower, the other Borrowers that are
parties thereto (each a Borrower" and collectively, the "Borrowers"), Harrah's
Entertainment, Inc., a Delaware corporation, as Guarantor, the Lenders therein
named and Bank of America National Trust and Savings Association, as the
Administrative Agent. Any terms used herein and not defined herein shall have
the meanings defined in the Loan Agreement.
Requesting Borrower hereby gives notice pursuant to Section 2.5(b) of
the Loan Agreement that it requests Competitive Bids pursuant to Section 2.5 of
the Loan Agreement for the following proposed Competitive Advances:
Proposed Date of Competitive Advance:
Duration of Basis for
Competitive Interest Rate
Principal Amount1 Advance2 Calculation3
- ----------------- -------- ------------
- ----------------- -------- ------------
- ----------------- -------- ------------
- ----------------- -------- ------------
- ----------------- -------- ------------
- --------------
1 Each amount must be $10,000,000 or a larger integral multiple of $1,000,000.
2 Duration must be a period of not less than 14 nor more than 180 days. No
requested Competitive Advance shall have a maturity date subsequent to the
Maturity Date or is on a date other than a Business Day.
3 Specify whether interest rate bids are to be quoted as "Absolute Rate Bids" or
"Eurodollar Margin Bids".
In connection with the request, Requesting Borrower certifies that:
(a) Now, and as of the date of the requested Competitive Advance,
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 not a violation of the Loan Agreement and (ii) as disclosed by Borrowers and
approved in writing by the Requisite Lenders, each representation and warranty
made by each Borrower in Article 4 of the Loan Agreement (other than Sections
4.4(a), 4.6 (first sentence), 4.8, and 4.15) will be true and correct, both
immediately before and after giving effect to such Competitive Advance, as
though such representations and warranties were made on and as of that date;
(b) No Default or Event of Default presently exists or will have
occurred and be continuing as a result of the making of any Competitive Advance
which is the subject of this Competitive Bid Request; and
(c) There is not any action, suit, proceeding or investigation pending
as to which Parent or any of its Subsidiaries have been served or received
notice or, to the best knowledge of Borrowers, threatened against or affecting
Parent or any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect.
This Competitive Bid Request is executed on ________________, _______
on behalf of Requesting Borrower.
____________________________________,
a ______________ ____________
By: ___________________________________
___________________________________
Printed Name and Title
-2-
EXHIBIT F
COMPLIANCE CERTIFICATE
This Compliance Certificate (this "Certificate") is executed and
delivered by the undersigned to Bank of America National Trust and Savings
Association, as Agent (the "Agent"), pursuant to the Loan Agreements referred to
below to induce the Lenders described in the Loan Agreements to make certain
credit facilities available to Harrah's Operating Company, Inc., a Delaware
corporation (the "Company") and Marina Associates, a New Jersey general
partnership ("Marina"; Marina and the Company, each a "Borrower" and
collectively with the other parties from time to time a Borrower under the Loan
Agreements, the "Borrowers").
This Certificate is delivered with reference to the Five Year Loan
Agreement and the 364-Day Loan Agreement (as amended, supplemented or otherwise
modified from time to time, collectively, the "Loan Agreements"), each dated as
of April 30, 1999, among the Borrowers, Harrah's Entertainment, Inc., a Delaware
corporation (the "Parent") as Guarantor, the Agent and each of the several
financial institutions party to the Loan Agreements. The terms defined in the
Loan Agreements and not otherwise defined in this Certificate shall have the
meanings defined for them in the Loan Agreements. Section references herein
relate to the Loan Agreements unless stated otherwise.
This Certificate is delivered in accordance with Section 7.2 of the
Loan Agreements by a Senior Officer of the Borrowers and Parent. This
Certificate is delivered with respect to the Fiscal Quarter ended
_______________________ (the "Determination Date"). Computations indicating
compliance with Sections 6.5 and 6.6 of the Loan Agreements are set forth below:
1 SECTION 6.5 - TOTAL DEBT RATIO. As of the Determination Date, the Total
Debt Ratio was _______:1.00.
MAXIMUM PERMITTED RATIO: 4.50:1.00
Total Debt Ratio was calculated as follows (in each case determined in
accordance with GAAP):
(a) Total Debt as of the Determination Date
(as calculated on Appendix A hereto) $________
DIVIDED BY (b) EBITDA for the four Fiscal Quarter period ending on the
Determination Date (as calculated on Appendix A hereto) $________
EQUALS TOTAL DEBT RATIO [(a)/(b)] _____:1.00
2 SECTION 6.6 - INTEREST COVERAGE RATIO. As of the Determination Date,
the Interest Coverage Ratio was _______:1.00.
MINIMUM PERMITTED RATIO:
3.00:1.00
INTEREST COVERAGE RATIO was computed as follows (in each case
determined in accordance with GAAP):
(a) EBITDA for the four Fiscal Quarter period ending on the
Determination Date (as calculated on Appendix A hereto) $________
DIVIDED BY (b) Interest Expense for the same period (as calculated on
Appendix A hereto) $________
EQUALS INTEREST COVERAGE RATIO [(a)/(b)] $________
3 A review of the activities of the Borrowers and each of the other
Parties during the fiscal periods covered by this Certificate has been
made under the supervision of the undersigned, with a view to
determining whether during such fiscal periods the Borrowers and each
of the other Parties performed and observed all of their respective
Obligations. To the best knowledge of the undersigned, during the
fiscal periods covered by this Certificate, all covenants and
conditions set forth in the Loan Documents, including, without
limitation, those set forth in Articles 4, 5 and 6 of the Loan
Agreements, have been so performed and observed and no Default or Event
of Default has occurred and is continuing, with only the exceptions set
forth below (if none, so state), and in response to which the Borrowers
and the other Parties have taken or propose to take the following
actions (if none, so state):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-2-
4 The undersigned Senior Officer of the Borrowers and Parent certifies
that the calculations made and the information contained herein and in
each Appendix delivered herewith are derived from the books and records
of the Borrowers and the other Parties, as applicable, and that each
and every matter contained herein and therein correctly reflects those
books and records.
5 To the best knowledge of the undersigned no event or circumstance has
occurred that constitutes a Material Adverse Effect since the date the
most recent Compliance Certificate was executed and delivered, with the
exceptions set forth below (if none, so state):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Dated: _______________, ______
By __________________________________
Senior Officer of each
Borrower and Parent
-3-
APPENDIX A
TO
COMPLIANCE CERTIFICATE
PART 1
EBITDA - Component Calculations
- -------------------------------
The calculations below relate to the period from _______________ to
________________ (the "Test Period" for purposes of this Part 1 of Appendix A).
EBITDA for the Test Period is calculated as follows for the Parent and
its Subsidiaries on a combined basis, in each case as determined in
accordance with GAAP:1
(a) Consolidated net income of Parent and its Subsidiaries
for the Test Period ("Net Income") $_____________
PLUS (b) all accrued taxes on or measured by income to the
extent included in the determination of Net Income set forth
in (a) above $_____________
PLUS (c) amounts treated as expenses for interest to
the extent included in the determination of Net Income
set forth in (a) above $_____________
PLUS (d) amounts treated as expenses for depreciation
and amortization to the extent included in the
determination of Net Income set forth in (a) above
$_____________
PLUS (e) minority interest $_____________
PLUS (f) any extraordinary loss reflected in such Net Income
$-------------
MINUS (g) any extraordinary gain reflected in such Net
Income $_____________
PLUS (h) Pre-Opening Expenses during the Test Period
$_____________
PLUS (i) non-recurring cash charges during the Test
Period $_____________
-4-
EQUALS EBITDA [(a)+(b)+(c)+(d)+(e)+(f)-(g)+(h)+(i)]
$_____________
- --------------
1 provided that in computing EBITDA:
(a) for all periods ending on or prior to December 31, 1998, "EBITDA"
shall be computed on the basis of the combined operating results of Parent and
its Subsidiaries, Showboat and Rio as described on Schedule 1.3 of the Loan
Agreements.
(b) the operating results of each New Project which commences
operations and records not less than one full fiscal quarter's operations during
the relevant period shall be annualized; and
(c) EBITDA shall be adjusted, on a pro forma basis, to include the
operating results of each resort or casino property acquired by Parent and its
Consolidated Subsidiaries during the relevant period and to exclude the
operating results of each resort or casino property sold or otherwise disposed
of by Parent and its Subsidiaries, or whose operations are discontinued during
the relevant period.
PART 2
TOTAL DEBT - Component Calculation
- ----------------------------------
Total Debt as of the Determination Date is the SUM of the following
(without duplication):2
(a) the outstanding principal Indebtedness of Parent and its
Subsidiaries for borrowed money (including debt securities
issued by Parent or any of its Subsidiaries)
on the Determination Date $________
PLUS (b) the aggregate amount of
all Capital Lease Obligations of
Parent and its Subsidiaries
on the Determination Date $________
-5-
PLUS (c) all obligations in respect of
letters of credit or other similar
instruments for which Parent or any
of its Subsidiaries are account
parties or are otherwise obligated $________
PLUS (d) the aggregate amount of all Contingent
Obligations and other similar contingent
obligations of Parent and its Subsidiaries with
respect to any of the foregoing $________
PLUS (e) any obligations of Parent of any of its
Subsidiaries to the extent that the same are secured
by a Lien on any of the assets of Parent or its
Subsidiaries $________
EQUALS TOTAL DEBT [(a)+(b)+(c)+(d)+(e)] $________
- --------------
2 provided that in computing "Total Debt," the amount of any Contingent
Obligation or letter of credit shall be deemed to be zero unless and until (1)
in the case of obligations in respect of letters of credit, a drawing is made
with respect thereto, (2) in the case of any other Contingent Obligations,
demand for payment is made with respect thereto, or (3) Parent's independent
auditors have quantified the amount of Parent's and its Subsidiaries with
respect to letters of credit and Contingent Obligations as liabilities on
Parent's consolidated balance sheet in accordance with Generally Accepted
Accounting Principles (as opposed to merely noted in the footnotes to any such
balance sheet) and the amount of any such individual liability is in excess of
$50,000,000, in which case the amount thereof shall be deemed to be the amount
so quantified from time to time.
PART 3
INTEREST EXPENSE - Component Calculations
- -----------------------------------------
The calculations below relate to the period from ____________________ to
____________________ (the "Test Period" for purposes of this Part 3 of Appendix
A).
-6-
Interest Expense for the Test Period is calculated as follows:
(a) all interest, fees, charges and related expenses paid or
payable (without duplication) to a lender in connection with
borrowed money or the deferred purchase price of assets that
are considered "interest expense" under Generally Accepted
Accounting Principles $____________
plus (b) the portion of rent paid or payable (without
duplication) for the Test Period under Capital Lease
Obligations that should be treated as interest in accordance
with Financial Accounting Standards Board Statement No. 13
$____________
EQUALS INTEREST EXPENSE [(a)+(b)]
$____________
-7-
EXHIBIT G
Latham & Watkins Letterhead
April 30, 1999
To the Administrative Agents and
each of the Lenders party to each
of the Loan Documents referred
to below
Ladies and Gentlemen:
We have acted as special counsel to Harrah's Entertainment, Inc., a
Delaware corporation ("Parent"), Harrah's Operating Company, Inc., a Delaware
corporation (the "Company"), and Marina Associates, a New Jersey general
partnership ("Marina"), in connection with the execution and delivery by Parent,
the Company and Marina of (i) the Five-Year Loan Agreement dated as of April 30,
1999 (the "5-Year Agreement") among Parent, as Guarantor, the Company, Marina,
such other Subsidiaries that may become a Borrower pursuant to the terms
thereof, each lender whose name is set forth on the signature pages thereto and
each other lender from time to time party thereto (the "5-Year Lenders"),
Bankers Trust Company, as Syndication Agent, CIBC Oppenheimer Corp. and Societe
Generale, as Documentation Agents, Commerzbank AG, PNC Bank, National
Association and Wells Fargo Bank, N.A., as Co-Documentation Agents, and Bank of
America National Trust and Savings Association, as Administrative Agent (the
"5-Year Administrative Agent") and (ii) the 364-Day Loan Agreement dated as of
April 30, 1999 (the "364-Day Agreement" and, together with the 5-Year Agreement,
the "Agreements"), among Parent, as Guarantor, the Company, Marina, such other
Subsidiaries that may become a Borrower pursuant to the terms thereof, each
lender whose name is set forth on the signature pages thereto and each other
lender from time to time party thereto (the "364-Day Lenders" and, together with
the 5-Year Lenders, the "Lenders"), Bankers Trust Company, as Syndication Agent,
CIBC Oppenheimer Corp. and Societe Generale, as Documentation Agents,
Commerzbank AG, PNC Bank, National Association and Wells Fargo Bank, N.A., as
Co-Documentation Agents, and Bank of America National Trust and Savings
Association, as Administrative Agent (the "364-Day Administrative Agent" and,
together with the 5-Year Administrative Agent, the "Administrative Agents").
Capitalized terms used by not defined herein have the meanings assigned
to them in each of the Agreements.
In our capacity as such counsel, we have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction as being true
reproductions of originals of such documents, corporate records and other
instruments, and have obtained from public officials and from officers of the
Company, Parent, Marina and their respective Subsidiaries such certificates and
other representations and assurances, as we have deemed necessary or appropriate
for the purpose of the opinions stated below. We have examined, among other
things, the following:
(a) the Agreements.
(b) the Guaranty dated as of April 30, 1999, by Parent in
favor of the 5-Year Administrative Agent for the
benefit of the 5-Year Lenders;
(c) The Guaranty dated as of April 30, 1999, by Parent in
favor of the 364-Day Administrative Agent for the
benefit of the 364-Day Lenders;
(d) the Committed Advance Notes;
(e) the Competitive Advance Notes; and
(f) the Swing Line Notes.
The documents described in subsections (a)-(f) above are referred to
herein collectively as the "Loan Documents."
We have investigated such questions of law as we have deemed necessary
or appropriate for the purposes of the opinions stated herein. We are members of
the bar of the State of California, and we are opining herein as to the effect
on the subject transactions of the internal laws of the State of California, the
General Corporation Law of the State of Delaware and the federal laws of the
United States, and we express no opinion with respect to the applicability
thereto or the effect thereon, of the laws of any other jurisdiction (or, in the
case of Delaware, any laws other than the General Corporation Law of the State
of Delaware) or as to any matters of municipal law or the laws of any other
local agencies within any state.
-2-
On the basis of the foregoing, and in reliance thereon, and subject to
the limitations, qualifications and exceptions set forth below, we are of the
opinion that, as of the date hereof:
1. The execution, delivery and performance by each Borrower, Parent,
Harrah's Atlantic City, Inc., a New Jersey corporation ("Harrah's AC"), as
general partner of Marina, and Harrah's New Jersey, Inc., a New Jersey
corporation (together with Harrah's AC, the "Marina Partners"), as general
partner of Marina, of each of the Loan Documents to which such Borrower, Parent,
and the Marina Partners, as applicable, is a party (i) do not, in the case of
the Company, Parent and the Marina Partners, contravene any provisions of their
respective certificates of incorporation or by-laws, and, in the case of Marina,
contravene any provision of its partnership agreement and (ii) do not, to the
best of our knowledge, violate or constitute a default under, any applicable
provision of the laws of the State of California, the General Corporation Law of
the State of Delaware or the federal laws of the United States or any applicable
regulation under such laws or any other agreement of Parent, the Company,
Marina, the Marina Partners or any of their Subsidiaries which has been
identified to us by a responsible officer of Parent as an agreement which is
individually material to the business, properties or operations of Parent and
its Subsidiaries taken as a whole (each such agreement, a "Material Agreement"),
other than any such violations or defaults which would not, separately or in the
aggregate, have a material adverse effect on the validity or enforceability of
the Loan Documents or on the ability of any Borrower to perform its obligations
under the Loan Documents or have a material adverse effect on the business,
properties or operations of Parent and its Subsidiaries taken as a whole.
2. Assuming the due authorization, execution and delivery of each of
the Loan Documents by each of Parent, the Company and Marina, each of the Loan
Documents constitutes a legally valid and binding obligation of each of Parent,
the Company and Marina that is a party thereto, enforceable against them in
accordance with its terms.
3. At the time of consummation thereof, all consents and approvals of,
and filings and registrations with, and all other actions in respect of, all
United States federal, California and Delaware governmental agencies,
authorities or instrumentalities required in order to make or consummate the
loan transactions
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contemplated by the Loan Documents and enter into the Loan Documents have been
obtained, given, filed or taken and are or will be in full force and effect (or
effective judicial relief with respect thereto has been obtained).
Our opinions in paragraphs 1 and 3 above as to compliance with certain
laws, statutes, rules or regulations and with respect to the consents,
approvals, filings and other actions is based upon a review of those laws,
statutes, rules and regulations which, in our experience, are normally
applicable to loan transactions of the type contemplated by the Loan Documents
(other than Federal securities laws and California state securities or "blue
sky" laws, as to which we express no opinion in those paragraphs). We are not
opining as to any federal or state gaming laws, statutes, rules or regulations.
In rendering the opinions expressed in Paragraph 1 insofar as they
require interpretation of the Material Agreements, (i) we have assumed with your
permission that all courts of competent jurisdiction would enforce such
agreements as written but would apply the internal laws of the State of
California, without giving effect to any choice of law provisions contained
therein or any choice of law principles which would result in application of the
internal laws of any other state, (ii) to the extent that any questions of
legality or legal construction have arisen in connection with our review, we
have applied the laws of the State of California, in resolving such questions
and (iii) we express no opinion with respect to the effect of any action or
inaction, by any Party or Creditor under the Loan Documents or the Material
Agreements which may result in a breach or default under any Material Agreement.
We advise you that certain of the Material Agreements may be governed by other
laws, that such laws may vary substantially from the law assumed to govern for
purposes of this opinion, and that this opinion may not be relied upon as to
whether or not a breach or default would occur under the law actually governing
such Material Agreements.
The opinion expressed in paragraph 2 is further subject to the
following limitations, qualifications and exceptions:
(a) such opinion is subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, including, without limitation, the effect of
Section 548 of the federal Bankruptcy Code and comparable provisions of state
law;
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(b) enforceability of the Loan Documents is subject to the effect of
general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief regardless of
whether considered in a proceeding in equity or at law;
(c) certain rights, remedies and waivers contained in the Loan
Documents may be limited or rendered ineffective by applicable California laws
or judicial decisions governing such provisions, but such laws or judicial
decisions do not render the Loan Documents invalid or unenforceable as a whole;
(d) we express no opinion as to the validity or enforceability of any
provision of the Loan Documents that permit the Lenders to increase the rate of
interest or collect a late charge or prepayment premium in the event of a
delinquency or death.
(e) the unenforceability under certain circumstances of provisions to
the effect that rights or remedies are not exclusive, that every right or remedy
is cumulative and may be exercised in addition to or with any other right or
remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more other remedies, that any right or remedy may be
exercised without notice, or that failure to exercise or delay in exercising
rights or remedies will not operate as a waiver of any such right or remedy.
(f) the unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent acts or
where such indemnification is contrary to public policy or prohibited by law;
(g) the effect of Section 1717 of the California Civil Code, which
provides that, where a contract permits one party to the contract to recover
attorneys' fees, the prevailing party in any action to enforce any provision of
the contract shall be entitled to recover its reasonable attorneys' fees;
(h) the effect of California law, which provides that a court may
refuse to enforce, or may limit the application of, a contract or any clause
thereof which the court finds as a matter of law to have been unconscionable at
the time it was made or contrary to public policy;
-5-
(i) the effect of Section 631(d) of the California Code of Civil
Procedure, which provides that a court may, in its discretion upon just terms,
allow a trial by jury although there may have been a waiver of trial by jury;
(j) the enforceability of liquidated damages provisions of the Loan
Documents may be governed and restricted by Section 1671 of the California Civil
Code;
(k) we express no opinion as to the enforceability of the choice of law
provisions in the Loan Documents;
(l) we express no opinion with respect to the enforceability by a
federal court of any forum selection clause contained in any of the Loan
Documents; and
(m) we also advise you of California statutory provisions and case law
to the effect that, in certain circumstances, a surety may be exonerated if the
creditor materially alters the original obligation of the principal without the
consent of the guarantor, elects remedies for default that impair the
subrogation rights of the guarantor against the principal, or otherwise takes
any action without notifying the guarantor that materially prejudices the
guarantor. However, there is also authority to the effect that a guarantor may
validly waive such rights if the waivers are expressly set forth in the
guaranty. While we believe that a California court should hold that the explicit
language contained in the Loan Documents waiving all rights is enforceable, we
express no opinion with respect to the effect of (i) any modification to or
amendment of the obligations of any Party, Creditor or any other Person that
materially increases such obligations; (ii) any election of remedies by the
Administrative Agents or the Lenders following the occurrence of an event of
default under the Loan Documents, or (iii) any other action by the Agents or the
Lenders that materially prejudices the guarantor.
In connection with our opinions expressed herein, we assume, with your
permission, that each Lender and SPC is a member of a class of lenders which is
exempt or is otherwise exempt from California usury laws, including Section 1 of
Article XV of the California Constitution.
-6-
To the extent that the foregoing opinions may be dependent upon such
matters, we assume for the purposes of this opinion that each Person who is a
party to any of the Loan Documents is duly organized, validly existing and in
good standing, as applicable, under the laws of its jurisdiction of
organization; that each of the Loan Documents has been duly authorized, executed
and delivered by each such person party thereto and constitutes the legally
valid and binding obligation of each such Person (other than Parent and the
Borrowers), enforceable in accordance with its terms; and that each such Person
has the requisite corporate or other organizational power and authority to
perform its obligations under such agreements; and that all Parties to the Loan
Documents other than Parent and the Borrowers have complied with any applicable
requirement to file returns and pay taxes under the Franchise Tax Law of the
State of California. We are not expressing any opinion as to the effect of any
such Person's (other than Parent's and Borrower's) compliance with any state or
federal laws or regulations applicable to the transactions because of the nature
of such Person's business.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. At your request, we hereby consent to reliance hereon by any future
assigns of or participants in your interest in the Agreements as expressly
permitted by Section 11.8 of the Agreements, provided that this opinion speaks
only as of the date hereof and to its addresses and that we have no
responsibility or obligation to update this opinion, to consider its
applicability or correctness other than to its addresses, or to take into
account changes in law, facts or any other development of which we may later
become aware. We hereby consent to your furnishing this opinion to your auditors
and to regulatory officials having jurisdiction over you.
Very truly yours,
/s/ Latham & Watkins
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EXHIBIT G
E. O. ROBINSON, JR.'S LETTERHEAD
HARRAH'S ENTERTAINMENT, INC.
April 30, 1999
To the Administrative Agents and
each of the Lenders party to each
of the Loan Documents referred
to below
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Harrah's
Entertainment, Inc., a Delaware corporation ("Parent"), and Harrah's Operating
Company, Inc., a Delaware corporation (the "Company"), and in that capacity, I
have acted as counsel to Parent, the Company and Marina Associates, a New Jersey
general partnership ("Marina"), in connection with the execution and delivery by
Parent, the Company and Marina of (i) the Five-Year Loan Agreement dated as of
April 30, 1999 (the "5-Year Agreement") among Parent, as Guarantor, the Company,
Marina, such other Subsidiaries that may become a Borrower pursuant to the terms
thereof, each lender whose name is set forth on the signature pages thereto and
each other lender from time to time party thereto (the "5-Year Lenders"),
Bankers Trust Company, as Syndication Agent, CIBC Oppenheimer Corp. and Societe
Generale, as Documentation Agents, Commerzbank AG, PNC Bank, National
Association and Wells Fargo Bank, N.A., as Co-Documentation Agents, and Bank of
America National Trust and Savings Association, as Administrative Agent (the
"5-Year Administrative Agent) and (ii) the 364-Day Loan Agreement dated as of
April 30, 1999 (the "364-Day Agreement" and, together with the 5-Year Agreement,
the "Agreements"), among Parent, as Guarantor, the Company, Marina, such other
Subsidiaries that may become a Borrower pursuant to the terms thereof, each
lender whose name is set forth on the signature pages thereto and each other
lender from time to time party thereto (the "364-Day Lenders" and, together with
the 5-Year Lenders, the "Lenders"), Bankers Trust Company, as Syndication Agent,
CIBC Oppenheimer Corp. and Societe Generale, as Documentation Agents,
Commerzbank AG, PNC Bank, National Association and Wells Fargo Bank, N.A., as
Co-Documentation Agents, and Bank of America National Trust and Savings
Association, as Administrative Agent (the "364-Day
Administrative Agent" and, together with the 5-Year Administrative Agent, the
"Administrative Agents").
Capitalized terms used but not defined herein have the meanings
assigned to them in each of the Agreements.
In that connection, I, or members of my staff, have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to my satisfaction as being true
reproductions of originals of such documents, corporate records and other
instruments, and have obtained from public officials and from other officers of
the Company, Parent, Marina and their Subsidiaries such certificates and other
representations and assurances as I have deemed necessary or appropriate for the
purposes of the opinions stated below.
I have investigated such questions of law as I have deemed necessary or
appropriate for the purpose of the opinions stated herein. I am a member of the
bar of the States of Tennessee and New York, and my opinions below are limited
to the effect on the subject transactions of the laws of the States of Tennessee
and New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States.
Upon the basis of the foregoing and in reliance thereon, I am of the
opinion that, as of the date hereof:
1. Each of Parent, the Company, Harrah's Atlantic City, Inc., a New
Jersey corporation ("Harrah's AC"), and Harrah's New Jersey, Inc., a New Jersey
corporation (together with Harrah's AC, the "Marina Partners"), is a duly
organized and validly existing corporation, in good standing under the laws of
the jurisdiction of its organization, and has all corporate power to execute,
deliver and perform its obligations under the Loan Documents.
2. Marina is a general partnership validly existing under the laws of
the State of New Jersey, and has all partnership power to execute, deliver and
perform its obligations under the Loan Documents.
3. The execution, delivery, and performance by Parent, each Borrower
and the Marina Partners of each of the Loan Documents to which it is a party (i)
have been duly authorized by all necessary corporate or partnership, as
applicable, action by
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Parent, each Borrower and the Marina Partners, as applicable, and (ii) do not
violate any judgment, order or decree binding upon any of them, other than any
such violations which would not, separately or in the aggregate, have an adverse
effect on the validity or enforceability of any of the Loan Documents or on the
ability of Parent, either Borrower or the Marina Partners to perform its
obligations under the Loan Documents or have a material adverse effect on the
value of the business, properties or operations of Parent and its Subsidiaries
taken as a whole. Each of Parent, the Company, the Marina Partners and Marina
has duly executed and delivered each Loan Document to which it is a party.
4. There does not exist any judgment, order or injunction prohibiting
or imposing material adverse conditions upon the consummation of the
transactions contemplated by the Loan Documents or the performance by Parent,
either Borrower or the Marina Partners of its obligations under the respective
Loan Documents.
5. There are no actions, suits or proceedings pending, or, to the best
of my knowledge, threatened, against Parent or any of its Subsidiaries with
respect to the Loan Documents or the transactions contemplated thereby or that
restrains, permits or imposes adverse conditions upon, or seeks to restrain,
prevent or impose adverse conditions upon, the Loan Documents or any such
transaction.
This opinion is furnished by me, as General Counsel of the Company and
Parent, to you for your benefit (and the benefit of your assigns) in connection
with the above transactions. This opinion may not be relied upon by you for any
other purpose or furnished to (unless otherwise required to be so furnished by
applicable law or judicial process), quoted to or relied upon by any other
Person for any purpose without my prior written consent.
Very truly yours,
/s/ E. O. Robinson, Jr.
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EXHIBIT H
GUARANTY
This GUARANTY ("Guaranty"), dated as of April 30, 1999, is made by
Harrah's Entertainment, Inc., a Delaware corporation ("Guarantor") in favor of
Bank of America National Trust and Savings Association, as Administrative Agent
for the benefit of the Lenders that are party to the Loan Agreement referred to
below, with reference to the following facts:
RECITALS
A. Pursuant to the Five Year Loan Agreement dated as of April 30, 1999
by and among Harrah's Entertainment, Inc., as Guarantor, Harrah's Operating
Company, Inc., a Delaware corporation, Marina Associates, a New Jersey general
partnership, and such other Subsidiaries that become Borrowers pursuant thereto
(collectively with Harrah's Operating Company, Inc. and Marina Associates, the
"Borrowers" and each, a "Borrower"), the Lenders therein named (collectively,
the "Lenders" and individually, a "Lender") and Bank of America National Trust
and Savings Association, as Administrative Agent (as such agreement may from
time to time be extended, modified, renewed, restated, supplemented or amended,
the "Loan Agreement"), the Lenders are making certain credit facilities
available to Borrowers.
B. As a condition to the availability of such credit facilities,
Guarantor is required to enter into this Guaranty and to guaranty the Guarantied
Obligations as hereinafter provided.
C. Guarantor expects to realize direct and indirect benefits as the
result of the availability of the aforementioned credit facilities to Borrowers.
AGREEMENT
NOW, THEREFORE, in order to induce Lender to extend the aforementioned
credit facilities, and for other good and valuable consideration, the receipt
and adequacy of which hereby are acknowledged, Guarantor hereby represents,
warrants, covenants, agrees and guaranties as follows:
1. DEFINITIONS. This Guaranty is the Parent Guaranty referred to in the
Loan Agreement and is one of the Loan Documents. Terms defined in the Loan
Agreement and not otherwise defined in this Guaranty shall have the meanings
given those terms in the Loan Agreement when used herein and such definitions
are incorporated herein as though set forth in full. In addition, as used
herein, the following terms shall have the meanings respectively set forth after
each:
"GUARANTIED OBLIGATIONS" means all Obligations of Borrowers or any
Party at any time and from time to time owed to Lender under one or
more of the Loan Documents (but not including Obligations owed to
Lender under this Guaranty), 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
bankruptcy or insolvency proceeding by or against Borrowers or any of
them, Guarantor or any other Person.
"GUARANTOR" means Harrah's Entertainment, Inc., a Delaware corporation.
"LENDER"means the Administrative Agent (acting as the Administrative
Agent and/or on behalf of the Lenders) and the Lenders, and each of
them, and any one or more of them. Subject to the terms of the Loan
Agreement, any right, remedy, privilege or power of Lender shall be
exercised by the Administrative Agent on behalf of the Lenders.
"GUARANTY" means this Guaranty, and any extensions, modifications,
renewals, restatements, reaffirmations, supplements or amendments
hereof.
2. GUARANTY OF GUARANTIED OBLIGATIONS. Guarantor hereby irrevocably,
unconditionally guaranties and promises to pay and perform on demand upon the
occurrence of any Event of Default the Guarantied Obligations and each and every
one of them, including all amendments, modifications, supplements, renewals or
extensions of any of them, whether such amendments, modifications, supplements,
renewals or extensions are evidenced by new or additional instruments, documents
or agreements or change the rate of interest on any Guarantied Obligation or the
security therefor, or otherwise.
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3. NATURE OF GUARANTY. This Guaranty is irrevocable and continuing in
nature and relates to any Guarantied Obligations now existing or hereafter
arising. This Guaranty is a guaranty of prompt and punctual payment and
performance and is not merely a guaranty of collection.
4. RELATIONSHIP TO OTHER AGREEMENTS. Nothing herein shall in any way
modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by Guarantor or in connection with
the Guarantied Obligations, but each and every term and condition hereof shall
be in addition thereto. All provisions contained in the Loan Agreement or any
other Loan Document that apply to Loan Documents generally are fully applicable
to this Guaranty and are incorporated herein by this reference.
5. SUBORDINATION OF INDEBTEDNESS OF BORROWERS TO GUARANTOR TO THE
GUARANTIED Obligations. Guarantor agrees that:
(a) Any indebtedness of Borrowers now or hereafter owed to
Guarantor hereby is subordinated to the Guarantied Obligations.
(b) If Lender so requests, upon the occurrence and during the
continuance of any Event of Default, any such indebtedness of Borrowers
now or hereafter owed to Guarantor shall be collected, enforced and
received by Guarantor as trustee for Lender and shall be paid over to
Lender in kind on account of the Guarantied Obligations, but without
reducing or affecting in any manner the obligations of Guarantor under
the other provisions of this Guaranty.
(c) Should Guarantor fail to collect or enforce any such
indebtedness of Borrowers now or hereafter owed to Guarantor and pay
the proceeds thereof to Lender in accordance with Section 5(b) hereof,
Lender as Guarantor's attorney-in-fact may do such acts and sign such
documents in Guarantor's name as Lender considers necessary or
desirable to effect such collection, enforcement and/or payment.
6. STATUTES OF LIMITATIONS AND OTHER LAWS. Until the Guarantied
Obligations shall have been paid and performed in full, all the rights,
privileges, powers and remedies granted to Lender hereunder shall continue to
exist and may be exercised by Lender at any time and from time to time
irrespective of the fact that any of the Guarantied Obligations may have become
barred by any statute of limitations. Guarantor expressly waives the benefit of
any and all statutes of limitation, and any and all Laws providing for exemption
of property from execution or for evaluation and appraisal upon foreclosure, to
the maximum extent permitted by applicable Laws.
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7. WAIVERS AND CONSENTS. Guarantor acknowledges that the obligations
undertaken herein involve the guaranty of obligations of Persons other than
Guarantor and, in full recognition of that fact, consents and agrees that Lender
may, at any time and from time to time, without notice or demand, and without
affecting the enforceability or continuing effectiveness hereof: (a) supplement,
modify, amend, extend, renew, accelerate or otherwise change the time for
payment or the terms of the Guarantied Obligations or any part thereof,
INCLUDING any increase or decrease of the rate(s) of interest thereon; (b)
supplement, modify, amend or waive, or enter into or give any agreement,
approval or consent with respect to, the Guarantied Obligations or any part
thereof, or any of the Loan Documents to which Guarantor is not a party or any
additional security or guaranties, or any condition, covenant, default, remedy,
right, representation or term thereof or thereunder; (c) accept new or
additional instruments, documents or agreements in exchange for or relative to
any of the Loan Documents or the Guarantied Obligations or any part thereof; (d)
accept partial payments on the Guarantied Obligations; (e) receive and hold
additional security or guaranties for the Guarantied Obligations or any part
thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or enforce any security or
guaranties, and apply any security and direct the order or manner of sale
thereof as Lender in its sole and absolute discretion may determine; (g) release
any Person from any personal liability with respect to the Guarantied
Obligations or any part thereof; (h) settle, release on terms satisfactory to
Lender or by operation of applicable Laws or otherwise liquidate or enforce any
Guarantied Obligations and any security or guaranty therefor in any manner,
consent to the transfer of any security and bid and purchase at any sale; and/or
(i) consent to the merger, change or any other restructuring or termination of
the corporate existence of Borrowers, or any of them, Guarantor or any other
Person, and correspondingly restructure the Guarantied Obligations, and any such
merger, change, restructuring or termination shall not affect the liability of
Guarantor or the continuing effectiveness hereof, or the enforceability hereof
with respect to all or any part of the Guarantied Obligations; provided that
nothing herein shall waive, alter, diminish or modify any rights of the
Borrowers under the Loan Documents, including, without limitation, the rights of
the Borrowers to agree to any amendments or modifications of the Loan Documents.
Upon the occurrence and during the continuance of any Event of Default,
Lender may enforce this Guaranty independently as to Guarantor and independently
of any other remedy or security
-4-
Lender at any time may have or hold in connection with the Guarantied
Obligations. Guarantor expressly waives any right to require Lender to marshal
assets in favor of Guarantor, and agrees that Lender may proceed against
Borrowers or any of them, or upon or against any security or remedy, before
proceeding to enforce this Guaranty, in such order as it shall determine in its
sole and absolute discretion. Lender may file a separate action or actions
against Borrowers, or any of them, and/or Guarantor without respect to whether
action is brought or prosecuted with respect to any security or against any
other Person, or whether any other Person is joined in any such action or
actions. Guarantor agrees that Lender, Borrowers, or any of them, and any
Affiliates of any Borrower may deal with each other in connection with the
Guarantied Obligations or otherwise, or alter any contracts or agreements now or
hereafter existing between any of them, in any manner whatsoever, all without in
any way altering or affecting the security of this Guaranty. Lender's rights
hereunder shall be reinstated and revived, and the enforceability of this
Guaranty shall continue, with respect to any amount at any time paid on account
of the Guarantied Obligations which thereafter shall be required to be restored
or returned by Lender upon the bankruptcy, insolvency or reorganization of
Borrowers, or any of them, or any other Person, or otherwise, all as though such
amount had not been paid. The rights of Lender created or granted herein and the
enforceability of this Guaranty with respect to Guarantor at all times shall
remain effective to guaranty the full amount of all the Guarantied Obligations
even though the Guarantied Obligations, or any part thereof, or any security or
guaranty therefor, may be or hereafter may become invalid or otherwise
unenforceable as against Borrowers or any other guarantor or surety and whether
or not Borrowers shall have any personal liability with respect thereto.
Guarantor expressly waives any and all defenses now or hereafter arising or
asserted by reason of (a) any disability or other defense of Borrowers, or any
of them, with respect to the Guarantied Obligations, (b) the unenforceability or
invalidity of any security or guaranty for the Guarantied Obligations or the
lack of perfection or continuing perfection or failure of priority of any
security for the Guarantied Obligations, (c) the cessation for any cause
whatsoever of the liability of Borrowers, or any of them (other than by reason
of the full payment and performance of all Guarantied Obligations), (d) any
failure of Lender to marshal assets in favor of Borrowers or any other Person,
(e) except as otherwise provided in this Guaranty, any failure of Lender to give
notice of sale or other disposition of collateral to Guarantor or any other
Person or any defect in any notice that may be given in connection with any sale
or disposition of collateral, (f) any failure of Lender to comply with
-5-
applicable Laws in connection with the sale or other disposition of any
collateral or other security for any Guarantied Obligation, including without
limitation, any failure of Lender to conduct a commercially reasonable sale or
other disposition of any collateral or other security for any Guarantied
Obligation, (g) any act or omission of Lender or others that directly or
indirectly results in or aids the discharge or release of Borrowers, or any of
them, or the Guarantied Obligations or any security or guaranty therefor by
operation of law or otherwise, (h) any Law which provides that the obligation of
a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety's or
guarantor's obligation in proportion to the principal obligation, (i) any
failure of Lender to file or enforce a claim in any bankruptcy or other
proceeding with respect to any Person, (j) the election by Lender, in any
bankruptcy proceeding of any Person, of the application or non-application of
Section 1111(b)(2) of the United States Bankruptcy Code, (k) any extension of
credit or the grant of any Lien under Section 364 of the United States
Bankruptcy Code, (l) any use of cash collateral under Section 363 of the United
States Bankruptcy Code, (m) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of any Person, (n)
the avoidance of any Lien in favor of Lender for any reason, (o) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of the Guarantied
Obligations (or any interest thereon) in or as a result of any such proceeding,
(p) to the extent permitted, the benefits of any form of one-action rule, or (q)
any action taken by Lender that is authorized by this Section or any other
provision of any Loan Document. Guarantor expressly waives all setoffs and
counterclaims and all presentments, demands for payment or performance, notices
of nonpayment or nonperformance, protests, notices of protest, notices of
dishonor and all other notices or demands of any kind or nature whatsoever with
respect to the Guarantied Obligations, and all notices of acceptance of this
Guaranty or of the existence, creation or incurrence of new or additional
Guarantied Obligations.
8. CONDITION OF BORROWERS AND BORROWERS' SUBSIDIARIES. Guarantor
represents and warrants to Lender that Guarantor has established adequate means
of obtaining from Borrowers' Subsidiaries, on a continuing basis, financial and
other information pertaining to the businesses, operations and condition
(financial and otherwise) of Borrowers and Borrowers' Subsidiaries and their
Properties, and Guarantor now is and hereafter will be completely familiar with
the businesses, operations and condition (financial and otherwise) of Borrowers
-6-
and Borrowers' Subsidiaries and their Properties. Guarantor hereby expressly
waives and relinquishes any duty on the part of Lender (should any such duty
exist) to disclose to Guarantor any matter, fact or thing related to the
businesses, operations or condition (financial or otherwise) of Borrowers or
Borrowers' Subsidiaries or their Properties, whether now known or hereafter
known by Lender during the life of this Guaranty. With respect to any of the
Guarantied Obligations, Lender need not inquire into the powers of Borrowers or
any their Subsidiaries or the officers or employees acting or purporting to act
on their behalf, and all Guarantied Obligations made or created in good faith
reliance upon the professed exercise of such powers shall be secured hereby.
9. LIENS ON REAL PROPERTY. In the event that all or any part of the
Guarantied Obligations at any time are secured by any one or more deeds of trust
or mortgages or other instruments creating or granting Liens on any interests in
real Property, Guarantor authorizes Lender, upon the occurrence of and during
the continuance of any Event of Default, at its sole option, without notice or
demand and without affecting any Guarantied Obligations of Guarantor, the
enforceability of this Guaranty, or the validity or enforceability of any Liens
of Lender on any collateral, to foreclose any or all of such deeds of trust or
mortgages or other instruments by judicial or nonjudicial sale. Guarantor
expressly waives all rights and defenses to the enforcement of this Guaranty or
any rights of Lender created or granted hereby or to the recovery by Lender
against Borrowers, or any of them, Guarantor or any other Person liable therefor
of any deficiency after a judicial or nonjudicial foreclosure or sale because
all or any part of the Guarantied Obligations is secured by real Property. This
means, among other things: (1) Lender may collect from any Guarantor without
first foreclosing on any real or personal Property collateral pledged by
Borrowers and (2) if the Lender forecloses on any real Property collateral
pledged by Borrowers: (A) The amount of the Guarantied Obligations may be
reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price and (B) the
Lender may collect from any Guarantor even if the Lender, by foreclosing on the
real Property collateral, has destroyed any right any Guarantor may have to
collect from Borrowers. This is an unconditional and irrevocable waiver of any
rights and defenses any Guarantor may have because all or any part of the
Guarantied Obligations is secured by real Property. Guarantor expressly waives
any defenses or benefits that may be derived from California Code of Civil
Procedure ss.ss. 580a, 580b, 580d or 726, or comparable provisions of the Laws
of any other jurisdiction, including, without limitation, NRS
-7-
Section 40.430 and judicial decisions relating thereto, and NRS Sections 40.451,
40.455, 40.457 and 40.459, and all other suretyship defenses it otherwise might
or would have under California Law or other applicable Law. Guarantor expressly
waives any right to receive notice of any judicial or nonjudicial foreclosure or
sale of any real Property or interest therein subject to any such deeds of trust
or mortgages or other instruments and any Guarantor's or any other Person's
failure to receive any such notice shall not impair or affect Guarantor's
Obligations or the enforceability of this Guaranty or any rights of Lender
created or granted.
10. WAIVER OF RIGHTS OF SUBROGATION. Notwithstanding anything to the
contrary elsewhere contained herein or in any other Loan Document to which
Guarantor is a Party, Guarantor hereby expressly waives with respect to any
Borrower and its successors and assigns (including any surety) and any other
Person which is directly or indirectly a creditor of any Borrower or any surety
for any Borrower, any and all rights at Law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or to any other rights
that could accrue to a surety against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party accommodated, or
to a holder or transferee against a maker, and which Guarantor may have or
hereafter acquire against any Borrower or any other such Person in connection
with or as a result of Guarantor's execution, delivery and/or performance of
this Guaranty or any other Loan Document to which Guarantor is a party.
Guarantor agrees that it shall not have or assert any such rights against any
Borrower or its successors and assigns or any other Person (including any
surety) which is directly or indirectly a creditor of any surety for any
Borrower, either directly or as an attempted setoff to any action commenced
against Guarantor by any Borrower (as borrower or in any other capacity), Lender
or any other such Person. Guarantor hereby acknowledges and agrees that this
waiver is intended to benefit Borrowers and Lender and shall not limit or
otherwise affect Guarantor's liability hereunder, under any other Loan Document
to which Guarantor is a party, or the enforceability hereof or thereof.
11. UNDERSTANDINGS WITH RESPECT TO WAIVERS AND CONSENTS. Guarantor
warrants and agrees that each of the waivers and consents set forth herein are
made with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which Guarantor otherwise
may have against Borrowers, Lender or others, or
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against any collateral, and that, under the circumstances, the waivers and
consents herein given are reasonable and not contrary to public policy or Law.
Guarantor acknowledges that it has either consulted with legal counsel regarding
the effect of this Guaranty and the waivers and consents set forth herein, or
has made an informed decision not to do so. If this Guaranty or any of the
waivers or consents herein are determined to be unenforceable under or in
violation of applicable Law, this Guaranty and such waivers and consents shall
be effective to the maximum extent permitted by Law.
12. REPRESENTATIONS AND WARRANTIES. Guarantor hereby makes each and
every representation and warranty applicable to Guarantor set forth in Article 4
of the Loan Agreement as if set forth in full herein.
13. COSTS AND EXPENSES. After an Event of Default, Guarantor agrees to
pay to Lender all costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Lender in the enforcement or
attempted enforcement of this Guaranty, whether or not an action is filed in
connection therewith, and in connection with any waiver or amendment of any term
or provision hereof. All advances, charges, costs and expenses, including
reasonable attorneys' fees and disbursements (including the reasonably allocated
cost of legal counsel employed by Lender), incurred or paid by Lender in
exercising any right, privilege, power or remedy conferred by this Guaranty, or
in the enforcement or attempted enforcement thereof, shall be subject hereto and
shall become a part of the Guarantied Obligations and shall be paid to Lender by
Guarantor, after an Event of Default and immediately upon demand, together with
interest thereon at the rate(s) provided for under the Loan Agreement.
14. CONSTRUCTION OF THIS GUARANTY. This Guaranty is intended to give
rise to absolute and unconditional obligations on the part of Guarantor; hence,
in any construction hereof, notwithstanding any provision of any loan document
to the contrary, this Guaranty shall be construed strictly in favor of Lender in
order to accomplish its stated purpose.
15. LIABILITY. Notwithstanding anything to the contrary elsewhere
contained herein or in any Loan Document to which Guarantor is a Party, the
aggregate liability of Guarantor hereunder for payment and performance of the
Guarantied Obligations shall not exceed an amount which, in the aggregate, is
$1.00 less than that amount which if so paid or performed would constitute or
result in a "fraudulent transfer", "fraudulent conveyance", or terms of similar
import, under
-9-
applicable state or federal Law, including without limitation, Section 548 of
the United States Bankruptcy Code. The liability of Guarantor hereunder is
independent of any other guaranties at any time in effect with respect to all or
any part of the Guarantied Obligations, and Guarantor's liability hereunder may
be enforced regardless of the existence of any such guaranties. Any termination
by or release of any guarantor in whole or in part shall not affect the
continuing liability of Guarantor hereunder, and no notice of any such
termination or release shall be required. The execution hereof by Guarantor is
not founded upon an expectation or understanding that there will be any other
guarantor of the Guarantied Obligations.
16. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER EXPRESSLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE LOAN
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. GUARANTOR AND LENDER AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS GUARANTY, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS
OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS. ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
17. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO THE CONFLICT OF LOCAL LAWS OR CHOICE OF LAW PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly
authorized officer as of the date first written above.
"Guarantor"
HARRAH'S ENTERTAINMENT, INC.,
a Delaware corporation
By:____________________________________
Charles L. Atwood, Vice President and
Treasurer
Address:
Harrah's Entertainment, Inc.
1023 Cherry Road
Memphis, Tennessee 38117
Attn: Charles L. Atwood, Vice
President and Treasurer
Telecopier: 901/ 762-8698
Telephone: 901/762-8852
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EXHIBIT I
REQUEST FOR LETTER OF CREDIT
(FIVE YEAR LOAN AGREEMENT)
1. This Request for Letter of Credit is executed and delivered by
__________________________ ("Requesting Borrower"), to ______________________
("Issuing Lender") and to Bank of America National Trust and Savings
Association, as the Administrative Agent ("Administrative Agent") pursuant to
the Five Year Loan Agreement (as amended, modified or extended, the "Loan
Agreement") dated as of April 30, 1999, among Requesting Borrower, as a
Borrower, the other Borrowers that are parties thereto (each a "Borrower" and
collectively, the "Borrowers"), Harrah's Entertainment, Inc., a Delaware
corporation, as Guarantor, the Lenders therein named, and Administrative Agent.
Any terms used herein and not defined herein shall have the meanings defined in
the Loan Agreement.
2. Requesting Borrower hereby requests that the Issuing Lender issue a
Letter of Credit as follows:
(a) Amount of Letter of Credit: $_______________.
(b) Date of Issuance: ________________, ____.
(c) Type of Letter of Credit (Check one box only):
/__/ Commercial Letter of Credit
/__/ Standby Letter of Credit
(d) Beneficiary under Letter of Credit:
Name: _______________________________
Address: _____________________________
_____________________________
_____________________________
(e) Expiry Date: __________________, _____.
(f) Purpose of Letter of Credit:
________________________________________________
________________________________________________.
(g) Additional Information/Terms: __________________
________________________________________________
3. The requested Letter of Credit is (check one box only):
/__/ a new Letter of Credit in addition to Letters
of Credit already outstanding.
/__/ a supplement, modification, amendment, renewal, or
extension to or of the following outstanding
Letter(s) of Credit: [IDENTIFY]
4. In connection with the issuance of the Letter of Credit requested
herein, Requesting Borrower represents, warrants and certifies to the Lenders
that:
(a) Now and as of the date of the issuance of the requested
Letter of Credit, except (i) for representations and warranties which
expressly speak as of a particular date or which are no longer true and
correct as a result of a change permitted by the Loan Agreement or (ii)
as disclosed by Borrowers and approved in writing by the Requisite
Lenders, each representation and warranty made by each Borrower in
Article 4 of the Loan Agreement (other than Sections 4.4(a), 4.6 (first
sentence), 4.8 and 4.15) will be true and correct, both immediately
before such Letter of Credit is issued and after giving effect to such
Letter of Credit, as though such representations and warranties were
made on and as of the date of such Letter of Credit;
(b) There is not any action, suit, proceeding or investigation
pending as to which Parent or any of its Subsidiaries have been served
or received notice or, to the best knowledge of Borrowers, threatened
against or affecting Parent or any of its Subsidiaries or any Property
of any of them before any Governmental Agency that constitutes a
Material Adverse Effect; and
(c) Now and as of the date of the requested Letter of Credit,
no Default or Event of Default presently exists or will have occurred
and be continuing as a result of the issuance of the Letter of Credit.
5. Attached hereto is an Application for Letter of Credit on the form
provided to Requesting Borrower by the Issuing Lender.
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6. This Request for Letter of Credit is executed on __________,
_______, by a Responsible Official of Requesting Borrower. The undersigned, in
such capacity, hereby certifies each and every matter contained herein to be
true and correct.
_________________________________,
a ____________ ______________
By:______________________________
Title:___________________________
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EXHIBIT J
REQUEST FOR LOAN
FIVE YEAR LOAN AGREEMENT
1. This Request for Loan is executed and delivered by _______________
("Requesting Borrower"), to Bank of America National Trust and Savings
Association, as the Administrative Agent ("Administrative Agent") pursuant to
the Five Year Loan Agreement (as amended, modified or extended, the "Loan
Agreement") dated as of April 30, 1999, among Requesting Borrower, as a
Borrower, the other Borrowers that are parties thereto (each a "Borrower" and
collectively, the "Borrowers"), Harrah's Entertainment, Inc., a Delaware
corporation, as Guarantor, the Lenders therein named, and Administrative Agent.
Any terms used herein and not defined herein shall have the meanings defined in
the Loan Agreement.
2. Borrower hereby requests that the Lenders make a Committed Loan
pursuant to the Loan Agreement as follows:
(a) AMOUNT OF REQUESTED COMMITTED LOAN:
$_________________________
(b) FUNDING DATE OF COMMITTED LOAN:
__________________________
(c) TYPE OF COMMITTED LOAN (Check one box only):
/__/ BASE RATE
/__/ EURODOLLAR RATE FOR A EURODOLLAR PERIOD OF
________ MONTHS
3. In connection with the request, Borrower certifies that:
(a) If this Request for Loan is for a Committed Loan which
will increase the principal amount outstanding under the Notes, now and
as of the date of the requested Committed Loan, except (i) for
representations and warranties which speak as of a particular date or
are no longer true and correct as a result of a change which is
permitted by the Loan Agreement and (ii) as disclosed by Borrowers and
approved in writing by the Requisite Lenders, each representation and
warranty made by each Borrower in Article 4 of the Loan Agreement
(other than Sections 4.4(a), 4.6 (first sentence), 4.8, 4.15) will be
true and correct, both immediately before and after giving effect to
such Committed Loan, as though such representations and warranties were
made on and as of that date; and
(b) There is not any action, suit, proceeding or
investigation pending as to which Parent or any of its Subsidiaries
have been served or received notice or, to the best knowledge of
Borrowers, threatened against or affecting Parent or any of its
Subsidiaries or any Property of any of them before any Governmental
Agency that constitutes a Material Adverse Effect.
4. This Request is executed on _________________ on behalf of
Requesting Borrower.
_________________________________,
a ____________ ______________
By:______________________________
Title:___________________________
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EXHIBIT K
ELECTION TO BECOME A BORROWER
Bank of American National Trust and Savings Association,
as Administrative Agent under each of the Loan Agreements described below
555 South Flower Street
Los Angeles, California 90071
Ladies and Gentlemen:
The undersigned, ___________________________, a ______________
____________ ("Subsidiary") refers to the Five Year Loan Agreement and the
364-Day Loan Agreement (as amended, modified or extended, the "Loan Agreements")
each dated as of April 30, 1999, among Harrah's Entertainment, Inc., a Delaware
corporation ("Parent"), as Guarantor, Harrah's Operating Company, Inc., a
Delaware corporation ("Company"), Marina Associates, a New Jersey general
partnership ("Marina") (each a "Borrower" and collectively, the "Borrowers"),
the Lenders therein named, and Administrative Agent. Any terms used herein and
not defined herein shall have the meanings defined in the Loan Agreements.
Subsidiary, desiring to incur Loans under the Loan Agreements, hereby
elects, pursuant to the provisions of Section 2.10 of each of the Loan
Agreements, to become a Borrower for the purposes of the Loan Agreements,
effective from the date hereof. Subsidiary confirms that it is a Wholly-Owned
Subsidiary under the Loan Agreements and confirms that the representations and
warranties set forth in Article 4 of the Loan Agreements are true and correct as
to Subsidiary, and Subsidiary hereby agrees to comply with all the obligations
of a Borrower under, and to be bound in all respects by the terms of, the Loan
Agreements as if Subsidiary an original signatory thereto. Subsidiary proposes
the following Aggregate Sublimit:
PROPOSED AGGREGATE SUBLIMIT FOR SUBSIDIARY:
$____________________
Subsidiary, concurrenty with its execution hereof, is deliverying the
appropriate executed documents, certificates, resolutions, opinions, Competitive
Advance Note, Committed Advanced Notes and Swing Line Documents required by
Sections 2.10(a) and (b) of the Loan Agreements.
Subsidiary shall, at its own expense, execute and deliver such further
documents, certificates, resolution, opinions and other assurances as the
Administrative Agent may reasonably request in connection herewith. All notices
and other communications provided for under the Loan Agreement may be sent to
the address set forth below.
Very truly yours,
Address:
__________________________ By: ___________________________
__________________________ Title: _________________________
__________________________
Acknowledged and Agreed: [additional Borrowers:]
Harrah's Entertainment, Inc. ____________________________
By:__________________________ By:_________________________
Its:__________________________ Its:________________________
Harrah's Operating Company, Inc. ____________________________
By:__________________________ By:_________________________
Its:__________________________ Its:________________________
Marina Associates
By: Harrah's New Jersey, Inc.,
general partner
By: ________________________
Its: _______________________
By: Harrah's Atlantic City, Inc.,
general partner
By: ________________________
Its: ________________________
-2-
EXHIBIT L
JOINT BORROWER PROVISIONS
Reference is made to the Five Year Loan Agreement ( the "Loan
Agreement") among Harrah's Operating Company, Inc., a Delaware corporation
("Company"), Marina Associates, a New Jersey general partnership ("Marina" and
together with the Company and such other Subsidiaries that become Borrowers
pursuant thereto, "Borrowers"), Harrah's Entertainment, Inc., a Delaware
corporation ("Parent"), as Guarantor, the Lenders therein named, and Bank of
America National Trust and Savings Association, as Administrative Agent. These
Joint Borrower Provisions are attached to and made a part of the Loan Agreement
as Exhibit L thereto. Capitalized terms used herein are used with the meanings
set forth for those terms in the Loan Agreement. Borrowers each agree that:
1. REQUESTS FOR LOANS AND LETTERS OF CREDIT. Requests for Loans and
Letters of Credit may be made by any Borrower, and the Administrative Agent and
the Lenders are authorized to honor and rely upon any such request or any
instructions received from any responsible official of any Borrower. It is
expressly agreed and understood by each Borrower that the Administrative Agent
and the Lenders shall have no responsibility to inquire into the apportionment,
allocation or disposition of any Loans or Letters of Credit made to any
Borrower.
2. ACKNOWLEDGMENT AND INDEMNITY RE JOINT HANDLING. It is understood and
agreed that the handling of this credit facility on a joint borrowing basis as
set forth in this Agreement is as an accommodation to Borrowers and at the
request of Borrowers, and that the Administrative Agent and the Lenders shall
incur no liability to any Borrower or any other Person as a result thereof. To
induce the Administrative Agent and the Lenders to do so, and in consideration
thereof, each of the Borrowers hereby agrees to indemnify the Administrative
Agent and each Lender and hold them harmless from and against any and all
liabilities, expenses, losses, damages and/or claims of damage or injury
asserted against them by any Borrower or by any other Person arising from or
incurred by reason of the joint handling of the financing arrangements provided
in the Loan Agreement, reliance by the Administrative Agent and the Lenders on
any requests or instructions from any Borrower, or any other similar action
taken by the Administrative Agent or any Lender under the Loan Documents.
3. REPRESENTATION AND WARRANTY. Each Borrower represents and warrants
to the Administrative Agent and each Lender that (i) it has established adequate
means of obtaining, on a continuing basis, financial and other information
pertaining to the business, operations and condition (financial and otherwise)
of Parent and its Subsidiaries and their Property, and (ii) it now is and
hereafter will be completely familiar with the business, operations and
condition (financial and otherwise) of such Persons and their Property. Each
Borrower hereby waives and relinquishes any duty on the part of the
Administrative Agent or any Lender to disclose to it any matter, fact or thing
relating to the business, operations or condition (financial or otherwise) of
Borrowers, Parent, its Subsidiaries or their Property, whether now or hereafter
known by the Administrative Agent or any Lender during the term of the Loan
Agreement.
4. WAIVERS AND CONSENTS. Each of the Borrowers consents and agrees that
the Administrative Agent and the Lenders may, at any time and from time to time,
without notice or demand to any of them, and without affecting the
enforceability or continuing effectiveness hereof:
a. supplement, modify, amend, extend, renew, accelerate, or
otherwise change the time for payment or the terms of the Obligations
or any part thereof, including any increase or decrease of the rate(s)
of interest thereon;
b. supplement, modify, amend or waive, or enter into or give
any agreement, approval or consent with respect to, the Obligations or
any part thereof or any of the Loan Documents or any additional
security or guaranties, or any condition, covenant, default, remedy,
right, representation or term thereof or thereunder;
c. accept new or additional instruments, documents or
agreements in exchange for or relative to any of the Loan Documents or
the Obligations or any part thereof;
d. accept partial payments on the Obligations;
e. receive and hold additional security or guaranties for the
Obligations or any part thereof;
-2-
f. release, reconvey, terminate, waive, abandon, fail to
perfect, subordinate, exchange, substitute, transfer and/or enforce any
security or guaranties, and apply any security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in
their sole and absolute discretion may determine;
g. release any Person from any personal liability with respect
to the Obligations or any part thereof;
h. settle, release on terms satisfactory to the Administrative
Agent and the Lenders or by operation of applicable Laws or otherwise
liquidate or enforce any Obligations and any security or guaranty
therefor in any manner, consent to the transfer of any security and bid
and purchase at any sale; and/or
i. consent to the merger, change or any other restructuring or
termination of the corporate existence of Borrowers, or any of them,
any guarantor or any other Person, and correspondingly restructure the
Obligations, and any such merger, change, restructuring or termination
shall not affect the liability of any Person or the continuing
effectiveness hereof or the enforceability hereof with respect to all
or any part of the Obligations;
provided that nothing herein shall waive, alter, diminish or modify any rights
of the Borrowers under the Loan Documents, including without limitation, the
rights of the Borrowers to agree to any amendments or modifications of the Loan
Documents.
Upon the occurrence and during the continuance of any Event of Default,
the Administrative Agent and the Lenders may enforce the Loan Agreement and the
other Loan Documents independently as to each Borrower and independently of any
other remedy or security the Administrative Agent or any Lender at any time may
have or hold in connection with the Obligations. Each Borrower expressly waives
any right to require the Administrative Agent or any Lender to marshal assets in
favor of Borrowers, and agrees that the Administrative Agent and Lenders may
proceed against Borrowers, or any of them, or upon any security or remedy before
proceeding to enforce this Loan Agreement, in such order as they shall determine
in their sole and absolute discretion. The Administrative Agent (with the
consent of the Requisite Lenders) may file a separate action or actions against
Borrowers, or any of them, and/or any guarantor without respect to any Borrower,
-3-
whether action is brought or prosecuted with respect to any other security or
against any other Person, or whether any other Person is joined in any such
action or actions. Each Borrower agrees that the Administrative Agent and the
Lenders may deal with each Borrower or themselves other in connection with the
Obligations or otherwise, or alter any contracts or agreements now or hereafter
existing between any of them, in any manner whatsoever, all without in any way
altering or affecting the security of the Loan Documents. Borrowers expressly
waive the benefit of any statute(s) of limitations affecting their liability
under the Loan Documents or the enforcement of the Obligations or any Liens
created or granted therein. The Administrative Agent and the Lenders' rights
hereunder shall be reinstated and revived, and the enforceability of this Loan
Agreement shall continue, with respect to any amount at any time paid on account
of the Obligations which thereafter shall be required to be restored or returned
by them upon the bankruptcy, insolvency or reorganization of Borrowers, or any
of them, or any other Person, or otherwise, all as though such amount had not
been paid. The rights of Lender created or granted under the Loan Documents and
their enforceability at all times shall remain effective to secure the full
amount of all the Obligations, even though the Obligations, including any part
thereof or any other security or guaranty therefor, may be or hereafter may
become invalid or otherwise unenforceable as against Borrowers or any guarantor
or surety and whether or not such other Persons shall have any personal
liability with respect thereto. Each Borrower expressly waives any and all
defenses now or hereafter arising or asserted by reason of (a) any disability or
other defense of any of the other such Persons with respect to the Obligations,
(b) the unenforceability or invalidity of any security or guaranty for the
Obligations or the lack of perfection or continuing perfection or failure of
priority of any security for the Obligations, (c) the cessation for any cause
whatsoever of the liability of Borrowers, or any of them (other than by reason
of the full payment and performance of all Obligations), (d) any failure of the
Administrative Agent or any Lender to marshal assets in favor of Borrowers or
any other Person, (e) except as otherwise provided in the Loan Documents, any
failure of the Administrative Agent or any Lender to give notice of sale or
other disposition of collateral to any Borrower or any other Person or any
defect in any notice that may be given in connection with any sale or
disposition of collateral, (f) any failure of the Administrative Agent or any
Lender to comply with applicable Laws in connection with the sale or other
disposition of any collateral or other security for any Obligation, including
without limitation any failure of the Administrative Agent or any
-4-
Lender to conduct a commercially reasonable sale or other disposition of any
collateral or other security for any Obligation, (g) any act or omission of the
Administrative Agent or any Lender or others that directly or indirectly results
in or aids the discharge or release of Borrowers or any of them, or any other
Person or the obligations or any other security or guaranty therefor by
operation of Law or otherwise, (h) any Law which provides that the obligation of
a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety's or
guarantor's obligation in proportion to the principal obligation, (i) any
failure of the Administrative Agent or any Lender to file or enforce a claim in
any bankruptcy or other proceeding with respect to any Person, (j) the election
by the Administrative Agent or any Lender, in any bankruptcy proceeding of any
Person, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code, (k) any extension of credit or the grant of any
Lien under Section 364 of the United States Bankruptcy Code, (l) any use of cash
collateral under Section 363 of the United States Bankruptcy Code, (m) any
agreement or stipulation with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person, (n) the avoidance of any Lien in favor
of the Administrative Agent or any Lender for any reason, (o) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of the Obligations
(or any interest thereon) in or as a result of any such proceeding, (p) to the
extent permitted, the benefits of any form of one-action rule, or (q) any action
taken by Lender that is authorized by these Joint Borrower Provisions or any
other provision of any Loan Documents. Each Borrower expressly waives all
setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of
protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever with respect to the Obligations, and all notices of acceptance
of the Loan Agreement or of the existence, creation or incurrence of new or
additional Obligations.
5. LIENS ON REAL PROPERTY. In the event that all or any part of the
Obligations at any time are secured by any one or more deeds of trust or
mortgages or other instruments creating or granting Liens or any interests in
real Property, each of the Borrowers authorizes the Administrative Agent and
each Lender, upon the occurrence of and during the continuance of any Event of
Default, at their sole option, without notice or demand and
-5-
without affecting any Obligations of any such Person, the enforceability of the
Loan Documents, or the validity or enforceability of any Liens of the
Administrative Agent or any Lender on any collateral, to foreclose any or all of
such deeds of trust or mortgages or other instruments by judicial or nonjudicial
sale. Each Borrower expressly waives all rights and any defenses to the
enforcement of the Loan Documents or any rights of the Administrative Agent or
any Lender created or granted thereby or to the recovery by the Administrative
Agent and the Lenders against Borrowers, or any of them, any guarantor or any
other Person liable therefor of any deficiency after a judicial or nonjudicial
foreclosure or sale, even though such a foreclosure or sale because all or any
part of the Obligations is secured by real Property. This means, among other
things: (1) Administrative Agent and each Lender may collect from any Borrower,
any guarantor or any other Person without first foreclosing on any real or
personal Property collateral pledged by any Borrower, any other Party, any
guarantor or any other Person. (2) If Administrative Agent or any Lender
forecloses on any real Property collateral pledged by Borrowers, any guarantor
or any other Person: (A) The amount of the Obligations may be reduced only by
the price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price. (B) Administrative Agent and each
Lenders may collect from Borrowers, any guarantor or any other Person even if
the Administrative Agent or any Lender, by foreclosing on the real Property
collateral, has destroyed any right any guarantor, any other Party or any other
Person may have to collect from any Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses any Borrower may have because all
or any part of the Obligations is secured by real Property. Each of the
Borrowers expressly waives any defenses or benefits that may be derived from
California Code of Civil Procedure ss.ss. 580a, 580b, 580d or 726, or comparable
provisions of the Laws of any other jurisdiction, including, without limitation,
NRS Section 40.430 and judicial decisions relating thereto, and NRS Sections
40.451, 40.455, 40.457 and 40.459, and all other suretyship defenses it
otherwise might or would have under California Law or other applicable Law. Each
Borrower expressly waives any right to receive notice of any judicial or
nonjudicial foreclosure or sale of any real Property or interest therein subject
to any such deeds of trust or mortgages or other instruments and any guarantor's
or any other Person's failure to receive any such notice shall not impair or
affect each Borrower's Obligations or the enforceability of the Joint Borrower
Provisions or any rights of Administrative Agent or Lenders created or granted.
-6-
6. WAIVER OF RIGHTS OF SUBROGATION. Notwithstanding anything to the
contrary elsewhere contained herein or in any other Loan Document to which any
Borrower is a party, Borrowers hereby waive with respect each other and their
respective successors and assigns (including any surety) and any other Person
which is directly or indirectly a creditor of any Borrower or any surety for any
Borrower, any and all rights at Law or in equity, to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or to any other rights
that could accrue to a surety against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party accommodated, or
to a holder or transferee against a maker and which any Borrower may have or
hereafter acquire against each other or any other party in connection with or as
a result of their execution, delivery and/or performance of this Loan Agreement
or any other Loan Document to which any of them is a party. Borrowers agree that
they shall not have or assert any such rights against one another or their
respective successors and assigns or any other Person (including any surety)
which is directly or indirectly a creditor of any surety for any Borrower,
either directly or as an attempted setoff to any action commenced against any
other Person comprising any Borrower (as a Borrower or in any other capacity) or
any other party. Each Borrower hereby acknowledges and agrees that this waiver
is intended to benefit of Borrowers and Lenders and shall not limit or otherwise
affect any of their liabilities hereunder, under any other Loan Document to
which any of them is a party, or the enforceability hereof or thereof.
7. UNDERSTANDINGS WITH RESPECT TO WAIVERS AND CONSENTS. Borrowers, and
each of them, warrant and agree that each of the waivers and consents set forth
herein are made with full knowledge of their significance and consequences, with
the understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which they otherwise may
have against each other, the Administrative Agent, the Lenders or others, or
against any collateral, and that, under the circumstances, the waivers and
consents herein given are reasonable and not contrary to public policy or Law.
Each Borrower acknowledges that it has either consulted with legal counsel
regarding the effect of the Loan Documents and the waivers and consents set
forth therein, or has made an informed decision not to do so. If the Loan
Documents or any of the waivers or consents herein are determined to be
unenforceable under or in violation of applicable Law, such waivers and consents
shall be effective to the maximum extent permitted by Law.
-7-
SCHEDULE 1.1
HARRAH'S ENTERTAINMENT, INC.
FIVE YEAR LOAN AGREEMENT
$1,300,000,000 SENIOR CREDIT FACILITY
BANKS AMOUNT PRO RATA SHARE
ADMINISTRATIVE AGENT
Bank of America National Trust and Savings Association 121,875,000.00 9.37500%
SYNDICATION AGENT
Bankers Trust Company 93,437,500.00 7.18750%
DOCUMENTATION AGENTS
Canadian Imperial Bank of Commerce 93,437,500.00 7.18750%
Societe Generale 93,437,500.00 7.18750%
CO-DOCUMENTATION AGENTS
Commerzbank AG - Los Angeles Branch 81,250,000.00 6.25000%
PNC Bank, National Association 81,250,000.00 6.25000%
Wells Fargo Bank, National Association 81,250,000.00 6.25000%
SENIOR MANAGING AGENT
Fleet Bank N.A 81,250,000.00 6.25000%
MANAGING AGENT
The First National Bank of Chicago 60,937,500.00 4.68750%
CO-AGENTS
The Bank of New York 40,625,000.00 3.12500%
The Bank of Nova Scotia 40,625,000.00 3.12500%
Credit Lyonnais Los Angeles Branch 40,625,000.00 3.12500%
U.S. Bank National Association 40,625,000.00 3.12500%
Wachovia Bank, N.A 40,625,000.00 3.12500%
Westdeutsche Landesbank Girozentrale 40,625,000.00 3.12500%
LENDERS
First Security Bank, N.A 28,437,500.00 2.18750%
The Industrial Bank of Japan, Limited, Atlanta Agency 24,375,000.00 1.87500%
BankBoston, N.A 20,312,500.00 1.56250%
Bank of Hawaii 20,312,500.00 1.56250%
Bank of Scotland 20,312,500.00 1.56250%
BANKS AMOUNT PRO RATA SHARE
Banque Nationale de Paris, Houston Agency 20,312,500.00 1.56250%
Comerica West Incorporated 20,312,500.00 1.56250%
Michigan National Bank 20,312,500.00 1.56250%
The Sumitomo Bank, Limited 20,312,500.00 1.56250%
First American National Bank, operating as Deposit Guaranty National Bank 16,250,000.00 1.25000%
Erste Bank 12,187,500.00 0.93750%
First Hawaiian Bank 12,187,500.00 0.93750%
First Tennessee Bank National Association 12,187,500.00 0.93750%
Hibernia National Bank 12,187,500.00 0.93750%
The Dai-Ichi Kangyo Bank, Ltd. 8,125,000.00 0.62500%
TOTAL $1,300,000,000.00 100.00000%
SCHEDULE 1.2
Harrah's Entertainment, Inc.
Continuing Letters of Credit
Date Expiration
Issued Bank Purpose Amount Date
R 23-Jul-93 Credit Lyonnais Sec Pac TTEE for Syphus 490,000 28-Apr-00
R 23-Jul-93 Credit Lyonnais Sec Pac TTEE for Dougal 570,000 28-Apr-00
R 5-Oct-93 First Tennessee Risk Mgt - TN self ins 350,000 7-Oct-99
R 8-Nov-93 Bankers Trust Risk Mgt - Nevada ins 2,297,000 8-Nov-99
R 25-Feb-94 First Tennessee Risk Mgt - Miss 250,000 25-Feb-00
R 27-Jun-94 Bankers Trust LC Replacement-Risk Mgt-Gen'l & auto Liab
5,572,941 27-Jun-99
R 6-Jul-94 Bankers Trust LC Replacement-Risk Mgt-Aster
720,619 6-Jul-99
R 1-Nov-94 Bankers Trust Embassy-MO self ins (HOC obligation)
200,000 1-Nov-99
R 1-Nov-94 Bankers Trust Maryland Hts-MO self ins 425,000 1-Nov-99
R 1-Nov-94 Bankers Trust Harrah's NKC-MO self ins 425,000 1-Nov-99
R 18-May-96 Bankers Trust Aster losses 750,000 18-May-99
R 23-Jan-96 Bankers Trust Aster Ins-property Ins program
382,049 23-Jan-00
R 9-Feb-96 FNBC U.S. Army Corp of Engineers- Shreveport
5,000,000 2-Feb-00
R 12-Nov-97 Bankers Trust TCGE (Cherokee) 10,000,000 12-Nov-99
R 20-Jan-96 Bankers Trust Construction in Las Vegas (w/Sands)
152,717 20-Jan-00
1-Dec-98 Bankers Trust Shamrock Holdings Group 50,000 30-May-99
27-Jan-99 Bankers Trust Airlines Reporting Corporation
70,000 27-Jan-00
----------
Total Under Credit Facility
27,705,326
==========
Schedule 1.3
COMBINED HARRAH'S SHOWBOAT AND RIO EBITDA
First Quarter, 1998 $149,401,000
Second Quarter 1998 $172,983,000
Third Quarter, 1998 $184,543,000
Fourth Quarter, 1998 $135,071,000
Schedule 4.3
GOVERNMENT APPROVALS
Approval by the Nevada Gaming Commission upon the recommendation of the Nevada
State Gaming Control Board of all restrictions on the transfer of and agreements
not to encumber the stock or other equity securities of Harrah's Las Vegas, Inc.
and Harrah's Laughlin, Inc.
SCHEDULE 4.4
SIGNIFICANT SUBSIDIARIES
Red River Entertainment of Shreveport
Partnership in Commendam
- --------------------------------------
Type of Entity: Partnership
Jurisdiction: Louisiana
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Shreveport Investment Company, Inc. - 99%;
Harrah's Shreveport Management Company, Inc. - 1%
Harrah's Shreveport Investment Company, Inc.
- --------------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Harrah's Shreveport Management Company, Inc.
- --------------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Showboat Marina Casino Partnership
- ----------------------------------
Type of Entity: Partnership
Jurisdiction: Indiana
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Showboat Marina Partnership - 99%
Showboat Marina Partnership
- ---------------------------
Type of Entity: Partnership
Jurisdiction: Indiana
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Showboat Indiana Investment Limited Partnership - 45%
Showboat Indiana Investment Limited Partnership
- -----------------------------------------------
Type of Entity: Limited Partnership
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Showboat Operating Company - 99%
Showboat Operating Company
- --------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Showboat, Inc. - 100%
Showboat, Inc.
- --------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Showboat Australia Pty. Limited
- -------------------------------
Type of Entity: Corporation
Jurisdiction: Australia
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Showboat, Inc. - 50%; Showboat Development
Company - 50%
Showboat Development Company
- ----------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Showboat, Inc. - 100%
Harrah's Tunica Corporation
- --------------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
-2-
Harrah's New Jersey, Inc.
- -------------------------
Type of Entity: Corporation
Jurisdiction: New Jersey
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Harrah's Atlantic City, Inc.
- ----------------------------
Type of Entity: Corporation
Jurisdiction: New Jersey
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Harrah's Laughlin, Inc.
- --------------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Harrah's Las Vegas, Inc.
- ------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Harrah's Noth Kansas City Corporation
- -------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
-3-
Harrah's Maryland Heights Corporation
- -------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Des Plaines Development Limited Partnership
- -------------------------------------------
Type of Entity: Limited Partnership
Jurisdiction: Illinois
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Illinois Corporation
- - 80%
Harrah's Illinois Corporation
- -----------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Harrah's Vicksburg Corporation
- ------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Tunica Partners II L.P.
- -----------------------
Type of Entity: Limited Partnership
Jurisdiction: Mississippi
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Tunica Corporation - 83%; Harrah's Vicksburg
Corporation - 17%
-4-
Harrah's Crescent City Investment Company
- -----------------------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Operating Company,
Inc. - 100%
Rio Properties, Inc.
- --------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Rio Hotel & Casino, Inc. - 100%
Rio Hotel & Casino, Inc.
- ------------------------
Type of Entity: Corporation
Jurisdiction: Nevada
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): [Harrah's Operating Company,
Inc. - 100%]
Marina Associates
- -----------------
Type of Entity: General Partnership
Jurisdiction: New Jersey
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Atlantic City, Inc. - 48.65%; Harah's New
Jersey, Inc. - 51.34%
Harrah's Operating Company, Inc.
- --------------------------------
Type of Entity: Corporation
Jurisdiction: Delaware
% of Shares issued and outstanding: 100%
% of Shares owned by Parent or a Significant Subsidiary
(and name of that owner): Harrah's Entertainment, Inc.
- - 100%
-5-
SCHEDULE 4.7
EXISTING LIENS, NEGATIVE PLEDGES AND RIGHTS OF OTHERS
Lien on River Secco Golf Course pursuant to Construction Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as of July 2,
1996, among Seven Hills Golf Limited Partnership, as Trustor, Nevada Title
Insurance Company, as Trustee, and Orex USA Corporation, as beneficiary, and
that certain Assumption Agreement and Modification of Loan Agreement dated as of
September 11, 1997, among Orex USA Corporation, as Lender, Seven Hills Golf
Limited Partnership, as Borrower, and Rio Development Company, Inc., as Buyer.
Mortgage and Security Agreement dated January 29, 1998 securing
$100,000,000 loan to Showboat Land LLC in favor of Column Financial, Inc.
Lien on Cash Deposited to Defease (a) $58,300,000 aggregate face amount
principal amount of Showboat's First Mortgage Bonds due 2008, and (b) the
$2,400,000 aggregate outstanding principal amount of Showboat's Senior
Subordinated Notes due 2009.
Rights of countersigning partners to acquire partnership interests granted
in Limited Partnership Agreement of Des Plaines Development Limited Partnership
dated February 28, 1992, between Harrah's Illinois Corporation and John Q.
Hammons; First Amendment to Limited Partnership Agreement of Des Plaines Limited
Partnership dated as of October 5, 1992, and as further amended.
Rights of countersigning partners to acquire partnership interests granted
in Partnership Agreement dated November 2, 1995, by and between Harrah's
Maryland Heights Corporation and Players MH, L.P. regarding the Riverside Joint
Venture; First Amendment to Partnership Agreement dated June 28, 1996; Second
Amendment to Partnership Agreement dated October 16, 1996.
Settlement Agreement dated October 29, 1998 by and among Harrah's
Entertainment, Inc., Harrah's Operating Company, Inc., Harrah's New Orleans
Management Company and the NOLDC Shareholders, including Stock Option for each
NOLDC Shareholder to acquire from Harrah's Entertainment, Inc. shares of Class B
stock of JCC Holding Company equal to 3% (in the aggregate) of the equity of JCC
Holding Company outstanding as of the specified plan consummation date.
Right granted to George Novogroder to purchase 8.140% of Waterfront
Entertainment and Development, Inc. (and 1.5% of any Borrower's or its
Affiliates interest in a gaming venture in Cook County, Illinois) as set forth
in the Repurchase Agreement dated as of February 26, 1999, between Harrah's
Operating Company Inc. and George Novogroder.
Right granted to Barry Porter to purchase 5.43% of Waterfront Entertainment
and Development, (and 1.0005% of any of Borrower's or its Affiliate's interest
in a gaming venture in Cook County, Illinois) as set forth in the Repurchase
Agreement dated as of February 26, 1999, between Harrah's Operating Company,
Inc., and Barry Porter.
Right granted to the Estate of Nikos Kefalidis to purchase 5.430% of
Waterfront Entertainment and Development, Inc. (and 1.0005% of any of Borrower's
or its Affiliate's interest in a gaming venture in Cook County, Illinois) as set
forth in the Repurchase Agreement dated as of February 26, 1999, between
Harrah's Operating Company, Inc., and the Estate of Nikos Kefalidis, deceased.
Rights of counterparty to acquire partnership interests granted in
Partnership Agreement dated April 22, 1994 by and between Showboat Australia
Pty. Limited and Leighton Properties Limited.
-2-