Exhibit 4.6
EXECUTION
$1,000,000,000 SHORT TERM CREDIT AGREEMENT
dated as of
August 31, 1999
among
PARK PLACE ENTERTAINMENT CORPORATION
The Lenders, Documentation Agents, Co-Arrangers and Senior Managing Agents
Referred to Herein
and
BANK OF AMERICA, N.A.
as Administrative Agent
--------------------------------------
BANC OF AMERICA SECURITIES LLC.
Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS .......................................................... 1
1.01 Definitions ..................................................... 1
1.02 Accounting Terms and Determinations ............................. 16
1.03 Types of Borrowings ............................................. 16
ARTICLE II
THE CREDITS .......................................................... 17
2.01 Commitments to Lend ............................................. 17
2.02 Notice of Committed Borrowings .................................. 17
2.03 RESERVED ........................................................ 18
2.04 RESERVED ........................................................ 18
2.05 Conversion and Continuation of Committed Loans .................. 18
2.06 Notice to Lenders; Funding of Loans ............................. 18
2.07 Notes ........................................................... 19
2.08 Interest Rates .................................................. 20
2.09 Upfront Fees .................................................... 21
2.10 Facility Fees ................................................... 21
2.11 Mandatory Reduction of Commitments .............................. 21
2.12 Optional Termination or Reduction of Commitments by the Borrower. 21
2.13 Optional Termination of Commitments by the Lenders .............. 22
2.14 Scheduled Termination of Commitments ............................ 22
2.15 Extensions of the Termination Date .............................. 22
2.16 Optional Prepayments ............................................ 23
2.17 General Provisions as to Payments ............................... 23
2.18 Funding Losses .................................................. 24
2.19 Computation of Interest and Fees ................................ 24
2.20 Withholding Tax Exemption ....................................... 25
2.21 RESERVED ........................................................ 25
2.22 Regulation D Compensation ....................................... 25
ARTICLE III
CONDITIONS ........................................................... 26
3.01 Borrowings ...................................................... 26
3.02 Effectiveness ................................................... 27
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES ....................................... 28
4.01 Corporate Existence and Power ................................... 28
4.02 Corporate and Governmental Authorization; Contravention ......... 28
4.03 Binding Effect .................................................. 28
4.04 Financial Information ........................................... 28
4.05 Litigation ...................................................... 29
4.06 Compliance with ERISA ........................................... 29
4.07 Taxes ........................................................... 29
4.08 Significant Subsidiaries ........................................ 29
4.09 Not an Investment Company ....................................... 30
4.10 Environmental Matters ........................................... 30
4.11 Full Disclosure ................................................. 30
4.12 Solvency ........................................................ 30
4.13 Gaming Laws ..................................................... 30
ARTICLE V
COVENANTS ............................................................ 32
5.01 Information ..................................................... 32
5.02 Maintenance of Property; Insurance .............................. 34
5.03 Conduct of Business and Maintenance of Existence ................ 34
5.04 Compliance with Laws ............................................ 35
5.05 Inspection of Property, Books and Records ....................... 35
5.06 Negative Pledge ................................................. 35
5.07 Consolidations, Mergers and Sales of Assets ..................... 36
5.08 Hostile Tender Offers ........................................... 36
5.09 Use of Proceeds ................................................. 37
5.10 Leverage Ratio .................................................. 37
5.11 Interest Coverage Ratio ......................................... 37
ARTICLE VI
DEFAULTS ............................................................. 39
6.01 Events of Default ............................................... 39
6.02 Notice of Default ............................................... 41
6.03 RESERVED ........................................................ 41
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ARTICLE VII
THE AGENTS ........................................................... 42
7.01 Appointment and Authorization ................................... 42
7.02 Agents and Affiliates ........................................... 42
7.03 Action by Agents ................................................ 42
7.04 Consultation with Experts ....................................... 42
7.05 Liability of Agent .............................................. 42
7.06 Indemnification ................................................. 43
7.07 Credit Decision ................................................. 43
7.08 Successor Agent ................................................. 43
7.09 Agents' Fees .................................................... 43
ARTICLE VIII
CHANGE IN CIRCUMSTANCES .............................................. 44
8.01 Basis for Determining Interest Rate Inadequate or Unfair ........ 44
8.02 Illegality ...................................................... 44
8.03 Increased Cost and Reduced Return ............................... 45
8.04 Base Rate Loans Substituted for Affected Fixed Rate Loans ....... 46
ARTICLE IX
MISCELLANEOUS ........................................................ 48
9.01 Notices ......................................................... 48
9.02 No Waivers ...................................................... 48
9.03 Expenses; Documentary Taxes; Indemnification .................... 48
9.04 Amendments and Waivers .......................................... 49
9.05 Successors and Assigns .......................................... 49
9.06 Collateral ...................................................... 53
9.07 California Law; Submission to Jurisdiction ...................... 53
9.08 Counterparts; Integration ....................................... 53
9.09 Several Obligations ............................................. 53
9.10 Sharing of Set-Offs ............................................. 54
9.11 WAIVER OF JURY TRIAL ............................................ 54
9.12 Confidentiality ................................................. 54
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Schedules:
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Schedule 1 - Pricing Schedule
Exhibits:
---------
Exhibit A - Compliance Certificate
Exhibit B - Form of Note
Exhibit C - Pricing Certificate
Exhibit D - Form of Notice of Committed Borrowing
Exhibit E - Extension Agreement
Exhibit F - Opinion of Xxxxxx & Xxxxxxx (upon Caesars Acquisition)
Exhibit G - Opinion of Xxxxx Cummis Radin Tischman Xxxxxxx & Xxxxx, P.A.
(Effective Date)
Exhibit H - Opinion of Xxxxxx & Xxxxxxx (Effective Date)
Exhibit I - Assignment and Assumption Agreement
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$1,000,000,000 SHORT TERM CREDIT AGREEMENT
$1,000,000,000 SHORT TERM CREDIT AGREEMENT dated as of August 31,
1999, among PARK PLACE ENTERTAINMENT CORPORATION, the Lenders listed on the
signature pages hereto, and BANK OF AMERICA, N.A., as Administrative Agent.
THE BANK OF NOVA SCOTIA, DEUTSCHE BANK XXXX XXXXX, and XXXXXXX XXXXX CAPITAL
CORPORATION, are Documentation Agents and Co-Arrangers hereunder, and THE BANK
OF NEW YORK, FIRST UNION NATIONAL BANK and SG, are Senior Managing Agents
hereunder.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"Administrative Agent" means Bank of America, N.A. in its capacity as
administrative agent for the Lenders hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
"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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"Agents" mean, collectively, the Administrative Agent, the
Documentation Agents and Co-Arrangers and the Senior Managing Agents, and
"Agent" means any of them.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Authorized Officer" means any of the controller, the treasurer or the
chief financial officer of the Borrower.
"Bank of America" means Bank of America, N.A., 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 Loan" means a Committed Loan made or to be made by a Lender
as a Base Rate Loan in accordance with the applicable Notice of Committed
Borrowing or pursuant to Article VIII.
"Base Rate Margin" has the meaning set forth on Schedule 1.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means Park Place Entertainment Corporation, a Delaware
corporation, and its successors.
"Borrowing" means the aggregation of Loans of one or more Lenders to
be made to the Borrower pursuant to Article II on a single date and, in the case
of Fixed Rate Borrowings, for a single Interest Period.
"Caesars" means, Xxxxxxx Xxxxx, Inc., a Florida corporation.
"Caesars Acquisition" means the acquisition by the Borrower of
Caesars, Sheraton Tunica, and Starwood's interests in Metropolitan Entertainment
Group, a Canadian partnership, pursuant to the Caesars Acquisition Agreement.
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"Caesars Acquisition Agreement" means the Stock Purchase Agreement
dated as of April 27, 1999 among Starwood, ITT Sheraton Corporation, Starwood
Canada Corp, Caesars, Sheraton Desert Inn Corporation, Sheraton Tunica and
the Borrower.
"Change of Control" means the occurrence of a Rating Decline in
connection with any of the following events: (i) upon any merger or
consolidation of the Borrower 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 the Borrower, 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 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 the Borrower normally entitled to vote in
the election of directors of the Borrower, (iii) when, during any period of
12 consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period (together with any new directors
whose election by the board of directors of the Borrower or whose nomination
for election by the stockholders of the Borrower 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 the Borrower, or (iv) the sale or disposition, whether
directly or indirectly, by the Borrower of all or substantially all of its
assets.
"Combined Pro Forma Financial Statements" means the combined pro
forma financial statements of the Gaming Segment of Hilton and the Grand
Assets for the twelve month period ended December 31, 1998 heretofore
delivered by the Borrower to the Administrative Agent and each Lender.
"Commitment" means, as to each Lender, the commitment of that
Lender to make Loans in each case as such amount may be reduced from time to
time pursuant to Section 2.12, 2.13 or 2.14. The aggregate amount of the
Commitments under this Agreement as of the Effective Date is $1,000,000,000.
As of the Effective Date, each Lender has made a Commitment which is equal to
the amount of the Note issued to that Lender on the Effective Date.
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"Committed Loan" means a loan made or to be made by a Lender
pursuant to Section 2.01.
"Compliance Certificate" means a certificate, substantially in the
form of Exhibit A, properly completed and signed by an Authorized Officer.
"Consolidated Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date, PROVIDED that Consolidated Debt shall exclude any Debt of the Borrower
or a Subsidiary as to which cash and cash equivalents sufficient to provide
for payment in full of such Debt at its scheduled maturity or at an earlier
date at which it shall have been or may be called for redemption shall have
been irrevocably deposited in trust for the benefit of the holders of such
Debt or a representative of such holders, which deposit shall have resulted
in the legal or in-substance defeasance thereof.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period before (i) income taxes, (ii) interest expense, (iii)
depreciation and amortization, (iv) minority interest, (v) extraordinary
losses or gains, (vi) Pre-Opening Expenses, (vii) transactional expenses
associated with the Spin-Off Transaction, and (viii) nonrecurring non-cash
charges, PROVIDED that, in calculating "Consolidated EBITDA":
(a) for that portion of any period occurring prior to December 31,
1998, "Consolidated EBITDA" shall be computed on the basis of the
operating results of the Gaming Segment and the Grand Assets for such
periods reflected in the Combined Pro Forma Financial Statements.
(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) Consolidated EBITDA shall be adjusted, on a pro forma basis, to
include the operating results of each resort or casino property acquired
by the Borrower 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 the Borrower and its
Subsidiaries, or whose operations are discontinued during the relevant
period.
"Consolidated Interest Expense" means, for any period, net interest
expense of the Borrower and its Consolidated Subsidiaries for such period,
determined in accordance with generally accepted accounting principles,
PROVIDED that for that portion of any period occurring prior to December 31,
1998, "Consolidated Interest Expense" shall be computed on the basis
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of the net interest expense allocated to the Borrower and its Consolidated
Subsidiaries and shown on the Combined Pro Forma Financial Statements.
"Consolidated Net Income" means, for any period, the consolidated
net income of the Borrower and its Consolidated Subsidiaries for such period,
provided that for that portion of any period occurring prior to December 31,
1998, such consolidated net income shall be the consolidated net income of
the Gaming Segment and the Grand Assets for such periods reflected in the
Combined Pro Forma Financial Statements.
"Consolidated Net Tangible Assets" means the total amount of assets
of the Borrower and its Consolidated Subsidiaries, after deducting therefrom
(a) all current liabilities of the Borrower and its Consolidated 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 the Borrower prepared in
accordance with generally accepted accounting principles.
"Consolidated Net Worth" means at any date the consolidated
stockholders, equity of the Borrower and its Consolidated Subsidiaries
determined as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower
in its consolidated financial statements as of such date.
"Covered Subsidiary" means at any time any Subsidiary of the
Borrower that has consolidated assets in an amount greater than $5,000,000.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising
in the ordinary course of business, (iv) all obligations of such Person as
lessee which are capitalized in accordance with generally accepted accounting
principles, (v) all indebtedness or other obligations secured by a
contractual Lien on any asset of such Person, whether or not such
indebtedness or other obligations are otherwise an obligation of such Person,
and (vi) all Guarantees made by such Person (including by way of provision of
letters of credit or other contingent obligations) with respect to
indebtedness or other obligations of any other Person which constitute "Debt"
of a type or class described in clauses (i) through (v) of this definition.
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"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Documentation Agents and Co-Arrangers" means, collectively, The Bank of
Nova Scotia, Deutsche Bank Xxxx Xxxxx and Xxxxxxx Xxxxx Capital Corporation,
when acting in their capacities as documentation agents and co-arrangers
hereunder. The capacity of the Documentation Agents and Co-Arrangers is
titular in nature, and the Documentation Agents and Co-Arrangers shall have
no obligations or liabilities under the Loan Documents by reason of acting in
such capacity.
"Dollars" and the sign "$" mean lawful money of the United States.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City or Los Angeles are authorized
or required by law to close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified
in its Administrative Questionnaire as its Domestic Lending Office) or such
other office as such Lender may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.02.
"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 $500,000,000 or more, (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 $500,000,000 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 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) is otherwise exempt from
withholding of tax on interest and delivers
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Form W-8 ECI pursuant to Section 2.20 at the time of any assignment pursuant
to Section 9.05.
"Environmental Laws" means any and all statutes, regulations, permits,
licenses or other governmental restrictions relating to the environment or to
releases of petroleum or petroleum products, chemicals or toxic or hazardous
substances or wastes into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Euro-Dollar Lending office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan made or to be made by a Lender
as a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth on Schedule 1.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System with deposits exceeding five billion Dollars in respect of
"eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate
on Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any bank
to United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
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"Existing Short Term Credit Agreement" means the Short Term Credit
Agreement dated as of December 31, 1998 among the Borrower, the lenders
therein named and the Administrative Agent, acting under its former name,
Bank of America National Trust and Savings Association, as amended.
"Facility Fee Rate" has the meaning set forth in Section 2.10.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of l%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business
Day next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to The Bank of New York on
such day on such transactions as determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Dollar Loans.
"Gaming Board" means, collectively, (a) the Nevada Gaming Commission,
(b) the Nevada State Gaming Control Board, (c) the New Jersey Casino Control
Commission, (d) the New Jersey Division of Gaming Enforcement, (e) the
Mississippi Gaming Commission, and (f) any other Governmental Agency that
holds regulatory, licensing or permit authority over gambling, gaming or
casino activities conducted by the Borrower or its Subsidiaries within its
jurisdiction.
"Gaming Laws" means all laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling, gaming or
casino activities conducted by the Borrower or its Subsidiaries within its
jurisdiction.
"Gaming Segment" means the gaming segment (as "segment" is used in
Regulation S-K and Regulation S-X of the Securities and Exchange Commission)
of Hilton which, prior to December 31, 1998, was comprised of assets and
operations owned and conducted by the Borrower and its Subsidiaries following
December 31, 1998.
"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 (including any Gaming
Board) or (c) any court or administrative tribunal of competent jurisdiction.
-8-
"Grand" means Grand Casinos, Inc., a Minnesota corporation, and its
successors.
"Grand Agreement" means the Agreement and Plan of Merger dated as of
June 30, 1998 among Hilton, the Borrower (under its former name, Gaming Co.,
Inc.), Gaming Acquisition Corporation, a Minnesota corporation, and GCI
Lakes, Inc., a Minnesota corporation and Grand, as amended as of December 31,
1998.
"Grand Assets" means the assets of Grand and its Subsidiaries retained
by Grand following the Lakes Spin-off pursuant to the Grand Distribution
Agreement, including without limitation the assets described on Schedule 1 to
the Grand Distribution Agreement, and acquired by the Borrower and its
Subsidiaries pursuant to the merger between the Borrower and Grand pursuant
to the Grand Agreement, including without limitation the resort casino
properties commonly known as (a) the Grand Casino Tunica, in Tunica,
Mississippi, (b) the Grand Casino Gulfport, in Gulfport, Mississippi, and (c)
the Grand Casino Biloxi, in Biloxi, Mississippi.
"Grand Distribution Agreement" means the Distribution Agreement dated as
of December 31, 1998 by and between Grand and GCI Lakes, Inc., together with
the agreements attached as Exhibits thereto.
"Granting Lender" has the meaning set forth in Section 9.05(f).
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Debt
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the holder of such Debt
of the payment thereof or to protect such holder against loss in respect
thereof (in whole or in part), including by way of provision of letters of
credit or other contingent obligations with respect thereto, provided that
the term Guarantee shall not include (x) endorsements for collection or
deposit in the ordinary course of business or (y) performance or completion
guarantees. The term "Guarantee" used as a verb has a corresponding meaning.
"Hilton" means Hilton Hotels Corporation, a Delaware corporation.
"Hilton Distribution Agreement" means the Distribution Agreement dated
as of December 31, 1998 by and between Hilton and the Borrower, together with
the agreements attached as Exhibits thereto.
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"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Coverage Ratio" means, as of each date of determination, the
ratio of (a) Consolidated EBITDA for the four fiscal quarters ending on that
date, to (b) Consolidated Interest Expense for the same period.
"Interest Period" means, with respect to each Euro-Dollar Borrowing, the
period commencing on the date of such Borrowing and ending one week or 1, 2,
3 or 6 months thereafter, as the Borrower may elect in the applicable Notice
of Committed Borrowing or Notice of Conversion/Continuation; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day in a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (a)(iii) below, end on the last
Euro-Dollar Business Day in the calendar month which is the last calendar
month which commences in such Interest Period; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date, or, if such date is
not a Euro-Dollar Business Day, then on the next preceding Euro-Dollar
Business Day.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"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.
"Lakes Spin-Off" means the contribution of all assets of Grand and its
Subsidiaries other than the Grand Assets to GCI Lakes, Inc. and the
corresponding distribution of the shares of GCI Lakes, Inc. to the
shareholders of Grand described in the Grand Agreement.
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"Lead Arranger and Sole Book Manager" means Banc of America Securities
LLC. Following the date of this Agreement, the Lead Arranger and Sole Book
Manager shall have no obligations or liabilities under the Loan Documents.
"Lender" means each lender listed on the signature pages hereof and each
Lender which accepts an assignment pursuant to Section 9.05, and their
respective successors.
"Leverage Ratio" means, as of any date of determination, the ratio of
(a) Consolidated Debt on such date to (b) Consolidated EBITDA for the period
of four consecutive fiscal quarters ending on such date.
"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 the Borrower and
its Subsidiaries.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to
such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and "Loans" means
Base Rate Loans or Euro-Dollar Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes and each other
instrument, document or agreement now or hereafter executed by the parties in
furtherance of this Agreement.
"London Interbank Offered Rate" means, as to the Interest Period
applicable to each Euro-Dollar Loan, the average rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum
at which deposits in Dollars are offered to the Administrative Agent in the
London interbank market at approximately 11:00 A.M. (London time) two
Euro-Dollar Business Days before the first day of such Interest Period in an
amount approximately equal to the principal amount of the Euro-Dollar Loan of
the Administrative Agent to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
"Margin Adjustment" has the meaning set forth in the Schedule 1.
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"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group
during such five year period.
"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) 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. Without limitation, the Paris Hotel & Casino
located in Las Vegas, Nevada, is a "New Project."
"Non-Recourse Debt" means Debt in respect of which the recourse of the
holder of such Debt is limited to the assets securing such Debt and such Debt
does not constitute the general obligation of the Borrower or any Subsidiary.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit B hereto, evidencing the obligation of the Borrower to repay
the Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.02).
"Notice of Committed Borrowing" has the meaning set forth in Section
2.02.
"Notice of Conversion\Continuation" has the meaning set forth in Section
2.05.
"Other Credit Agreements" means, collectively, the $2,000,000,000 Short
Term Credit Agreement of even date herewith among the Borrower, the lenders
therein named, and Bank of America, N.A., as Administrative Agent, and the
Five Year Credit Agreement dated as of December 31, 1998 among the Borrower,
the lenders therein named and Bank of America National Trust and Savings
Association, as Administrative Agent, in each case as at any time amended.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pre-Opening Expenses" means, with respect to any fiscal period, the
amount of expenses (OTHER THAN Consolidated Interest Expense) incurred with
respect to capital projects which are classified as "pre-opening expenses" on
the applicable financial statements of the Borrower and its Subsidiaries for
such period (or, with respect to that portion of any period occurring prior
to December 31, 1998, the Combined Pro Forma Financial Statements), prepared
in accordance with generally accepted accounting principles.
"Pricing Certificate" means a Pricing Certificate substantially in the
form of Exhibit C hereto, properly completed and signed by an Authorized
Officer of the Borrower.
"Pricing Period" means (a) the period beginning on the Effective Date
and ending on August 31, 1999, and (b) each period of three months beginning
on the first day of each March, June, September and December and ending on
the last day of the succeeding May, August, November and February.
"Public Notice" means, without limitation, any filing or report made in
accordance with the requirements of the Securities and Exchange Commission
(or any successor), any press release or public announcement made by the
Borrower or any written notice the Borrower gives to the Administrative Agent
or the Lenders.
"Rating Agencies" means S&P and Xxxxx'x.
"Rating Decline" means the occurrence on any date on or within 90 days
after the date of the first public notice of (i) the occurrence of an event
described in clauses (i)-(v) of the definition of "Change of Control" or (ii)
the intention by the Borrower to effect such an event (which 90-day period
shall be extended so long as the rating of the senior debt of the Borrower is
under publicly announced consideration for possible downgrade by any of the
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Rating Agencies) of a decrease in the rating of the senior debt of the
Borrower by any of the Rating Agencies to below Investment Grade.
"Reference Rate" means the rate of interest publicly announced from time
to time by Bank of America in San Francisco, California, 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.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding at least 51% of the sum of the aggregate unpaid principal
amount of the Loans.
"Revolving Credit Period" means the period from and including the date
of the consummation of the Caesars Acquisition to but not including the
Termination Date.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., and its successors.
"Senior Managing Agents" means The Bank of New York, First Union
National Bank and SG, in each case in their capacity as Senior Managing
Agents hereunder. The capacity of the Senior Managing Agents is titular in
nature, and the Senior Managing Agents shall have no obligations or
liabilities under the Loan Documents by reason of acting in such capacity.
"Sheraton Tunica" means Sheraton Tunica Corporation, a Delaware
corporation.
"Significant Subsidiary" means each Subsidiary of the Borrower at any
time having (i) at least "10% of the total consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the most
recent fiscal quarter of the Borrower) or (ii) at least 10% of the
consolidated revenues of the Borrower and its Subsidiaries for the fiscal
year of the Borrower then most recently ended.
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"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.
"SPC" has the meaning set forth in Section 9.05(f).
"Spin-Off Transaction" means (a) the contribution by Hilton of the
assets and operations of the Gaming Segment, including without limitation the
assets described on Schedule 1 to the Hilton Distribution Agreement, to the
Borrower and its Subsidiaries pursuant to the Hilton Distribution Agreement
and the substantially concurrent distribution of shares in the Borrower to
the shareholders in Hilton, (b) the execution of the First Supplemental
Indenture to the Borrower's Indenture dated as of April 15, 1997, and the
Debt Assumption Agreement between the Borrower and Hilton, in each case
substantially in the form previously delivered to the Administrative Agent
prior to December 31, 1998, and (c) the merger of the Borrower with Grand
pursuant to the Grand Agreement, each of which occurred as of December 31,
1998.
"Starwood" means Starwood Hotels & Resorts Worldwide, Inc., a Maryland
corporation.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are
at the time directly or indirectly owned by the Borrower.
"Termination Date" means August 28, 2000 or such later date to which the
Revolving Credit Period shall have been extended pursuant to Section 2.15,
or, if such day is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day.
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"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair
market value of all Plan assets allocable to such liabilities under Title IV
of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary
all of the shares of capital stock or other ownership interests of which
(except directors, qualifying shares) are at the time directly or indirectly
owned by the Borrower.
"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.
1.02 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Borrower's
independent public accountants and disclosed in such financial statements)
with the most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Lenders; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
wishes to amend any covenant in Article V to eliminate the effect of any
change in generally accepted accounting principles on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
1.03 TYPES OF BORROWINGS. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans comprising such
Borrowing (E.G., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article II under
which participation therein is determined (I.E., a "Committed Borrowing" is a
Borrowing under Section 2.01 in which all Lenders participate in proportion
to their commitments).
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ARTICLE II
THE CREDITS
2.01 COMMITMENTS TO LEND. During the Revolving Credit Period each
Lender severally agrees, on the terms and conditions set forth in this
Agreement, to lend to the Borrower pursuant to this Section from time to time
amounts such that (a) the aggregate principal of Committed Loans by such
Lender at any one time outstanding shall not exceed the amount of its
Commitment, (b) the aggregate principal outstanding amount of all Committed
Loans shall not exceed the aggregate Commitments, and (c) no Committed Loans
shall be made until each of the conditions set forth in Section 3.01 are
satisfied. Each Borrowing under this Section shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of $1,000,000; and
each Committed Borrowing shall be made from the several Lenders ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay, or to the extent permitted by
Section 2.17, prepay Loans and reborrow at any time on or prior to the
Termination Date under this Section. The Committed Loans shall mature, and
the principal amount thereof shall be due and payable, on the Termination
Date.
2.02 NOTICE OF COMMITTED BORROWINGS. The Borrower shall give the
Administrative Agent notice (a "Notice of Committed Borrowing"),
substantially in the form of Exhibit D hereto, not later than 8:30 A.M.
(California local time) on (y) the date of each Base Rate Borrowing and (z)
the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing;
(b) the aggregate amount of such Borrowing;
(c) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans; and
(d) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Not more than twelve Committed Borrowings which are Euro-Dollar Borrowings
having different Interest Periods shall be outstanding at any time.
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2.03 RESERVED.
2.04 RESERVED.
2.05 CONVERSION AND CONTINUATION OF COMMITTED LOANS. Subject to the
provisions of this Article II governing the making of Euro-Dollar Loans, the
Borrower shall have the option at any time (i) to convert all or any part of
its outstanding Committed Loans equal to $10,000,000 and integral multiples
of $1,000,000 in excess of that amount from Loans bearing interest at a rate
determined by reference to one basis to Committed Loans bearing interest at a
rate determined by reference to an alternative basis or (ii) upon the
expiration of any Interest Period applicable to a Euro-Dollar Loan, to
continue all or any portion of such Loan equal to $1,000,000 and integral
multiples of $100,000 in excess of that amount as a Euro-Dollar Loan;
PROVIDED, HOWEVER, that a Euro-Dollar Loan may only be converted into a Base
Rate Loan on the expiration date of an Interest Period applicable thereto.
The Borrower shall deliver, to the Administrative Agent, notice of
any such conversion or continuation, substantially in the form of Exhibit D
(each a "Notice of Conversion/Continuation"), no later than 8:30 A.M.
(California local time) at least one Domestic Business Day in advance of the
proposed conversion date (in the case of a conversion to a Base Rate Loan)
and at least three Euro-Dollar Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a
continuation of, a Euro-Dollar Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day in the case of Base Rate Loans and a Euro-Dollar Business Day,
in the case of conversion to or continuation of Euro-Dollar Loans), (ii) the
amount and type of the Loan to be converted/continued, (iii) the nature of
the proposed conversion/continuation, (iv) in the case of a conversion to, or
a continuation of, a Euro-Dollar Loan, the requested Interest Period, and (v)
in the case of a conversion to, or a continuation of, a Euro-Dollar Loan,
that no Default or Event of Default has occurred and is continuing.
2.06 NOTICE TO LENDERS; FUNDING OF LOANS.
(a) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of
such Lender's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 11:00 A.M. (California local time) on the
date of each Borrowing, if such Borrowing is to be made in Dollars, each
Lender participating therein shall (except as provided in subsection (c)
of this Section) make available its
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share of such Borrowing in Dollars, in federal or other funds
immediately available to the Administrative Agent at its address
referred to in Section 9.01. Unless the Administrative Agent determines
that any applicable condition specified in Article III has not been
satisfied, the Administrative Agent will make the funds so received from
the Lenders available to the Borrower at the Administrative Agent's
aforesaid address or place.
(c) If any Lender makes a new Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Loan
from such Lender, such Lender shall apply the proceeds of its new Loan
to make such repayment and only an amount equal to the difference (if
any) between the amount being borrowed and the amount being repaid shall
be made available by such Lender to the Administrative Agent as provided
in subsection (b), or remitted by the Borrower to the Administrative
Agent as provided in Section 2.17, as the case may be.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available to the Administrative Agent on the date of
such Borrowing in accordance with subsections (b) and (c) of this
Section 2.06 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made
such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at (i)
in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.08 and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's Loan included in such Borrowing for purposes of this Agreement.
If the Borrower pays interest under this subsection (d) at the Federal
Funds Rate and the Federal Funds Rate is higher than the interest rate
applicable thereto pursuant to Section 2.08, the applicable Lender shall
pay the Borrower the difference between such rates.
2.07 NOTES.
(a) The Committed Loans of each Lender shall be evidenced by
a single Note payable to the order of such Lender for the account of its
Applicable Lending Office in an amount equal to such Lender's Commitment.
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(b) RESERVED.
(c) Upon receipt of each Lender's Note pursuant to Section
3.02(b), the Administrative Agent shall forward such Note to such
Lender. Each Lender shall record the date, amount, type and maturity of
each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such
Lender so elects in connection with any transfer or enforcement of its
Note, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Lender to
make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Lender is
hereby irrevocably authorized by the Borrower so to endorse its Note and
to attach to and make a part of its Note a continuation of any such
schedule as and when required.
2.08 INTEREST RATES. (a) Each Base Rate Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the Base Rate
for such day PLUS any applicable Base Rate Margin. Such interest shall be
payable on the last Domestic Business Day of each calendar quarter in arrears
and on the Termination Date. Any overdue principal of or interest on any Base
Rate Loan shall, at the option of the Required Lenders, bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
sum of the Base Rate PLUS any applicable Base Rate Margin PLUS 2% per annum.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of (a) the Euro-Dollar Margin
for such day plus (b) the applicable London Interbank Offered Rate for such
Interest Period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof.
(c) Any overdue principal of or interest on any Euro-Dollar Loan
shall, at the option of the Required Lenders, bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Euro-Dollar Margin for such day plus the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such period of
time not longer than 6 months as the Administrative Agent may elect) deposits
in Dollars in an amount approximately equal to such overdue payment due to
the Administrative Agent are offered to the Administrative Agent in the
London interbank market for the applicable period determined as provided
above by (ii) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the
circumstances described in
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clause (a) or (b) of Section 8.01 shall exist, at a rate per annum equal to the
sum of 2% plus the rate applicable to Base Rate Loans for such day).
(d) RESERVED.
(e) RESERVED.
(f) The Administrative Agent shall determine in accordance with the
provisions of this Agreement, each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower
and the participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
2.09 UPFRONT FEES. On the Effective Date, the Borrower shall pay to
the Administrative Agent for the account of each Lender non-refundable
upfront fees in the amounts set forth in letter agreements between each
Lender and the Lead Arranger and Sole Book Manager and advised by the Lead
Arranger and Sole Book Manager to the Borrower.
2.10 FACILITY FEES. The Borrower shall pay to the Administrative
Agent for the account of the Lenders ratably facility fees at the Facility
Fee Rate determined daily in accordance with the Schedule 1 (the "Facility
Fee Rate"). Such facility fee shall accrue from and including the Effective
Date to but excluding the Termination Date (or earlier date of termination of
the Commitments in their entirety), on the daily aggregate amount of the
Commitments (whether used or unused). Facility fees shall be payable
quarterly in arrears on the first day of each March, June, September and
December and upon the date of termination of the Commitments in their
entirety, and are non-refundable.
2.11 MANDATORY REDUCTION OF COMMITMENTS. Concurrently with the
issuance by the Borrower of any Debt in the public debt markets (excluding
loans under this Agreement and the Other Credit Facilities), (a) the Borrower
shall repay any outstanding principal balance of the Notes in an amount equal
to the net cash proceeds to Borrower of the Debt so issued, and (b) the
Commitments shall be automatically and ratably reduced, without further
action by the parties, by the amount of such net cash proceeds.
2.12 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS BY THE
BORROWER. During the Revolving Credit Period, the Borrower may, upon at least
five Domestic Business Days' notice to the Administrative Agent, (i)
terminate the Commitments at any time, if no Loans are outstanding at such
time or (ii) ratably and permanently reduce from time to time by an aggregate
amount of $25,000,000 or any larger amount in multiples of $1,000,000, the
aggregate amount of the Commitments in excess of the the aggregate
outstanding principal balance of the Loans.
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2.13 OPTIONAL TERMINATION OF COMMITMENTS BY THE LENDERS. Following
the occurrence of a Change of Control, the Required 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 the Borrower's 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 all of the Commitments. In any such
case the Commitments shall be terminated effective on the date which is sixty
days subsequent to the date of written notice from the Administrative Agent
to the Borrower thereof, and, to the extent that there is then any Debt
evidenced by the Notes, the same shall be immediately due and payable.
2.14 SCHEDULED TERMINATION OF COMMITMENTS. The Commitments shall
terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
2.15 EXTENSIONS OF THE TERMINATION DATE. The Termination Date may
be extended, in the manner set forth in this Section, for a period of 364
days after the date on which the Termination Date would otherwise have
occurred. If the Borrower wishes to extend the Termination Date, it shall
give written notice to that effect to the Administrative Agent not less than
90 days nor more than 150 days following the delivery to the Administrative
Agent of the audited annual financial statements of the Borrower in
accordance with Section 5.01(a), whereupon the Administrative Agent shall
notify each of the Lenders of such notice. Each Lender will respond to such
request, whether affirmatively or negatively, within the period which ends
upon the later of (i) 30 days following the Borrower's request, or (ii) 45
days prior to the then effective Termination Date (the "Response Date"). If a
Lender or Lenders respond negatively or fail to timely respond to such
request (each non-responding Lender being conclusively deemed to refuse to
consent to the extension), but such non-extending Lender(s) have
Commitment(s) aggregating less than 33 1/3% of the aggregate amount of the
Commitments, the Borrower shall, for a period of 60 days following the
Response Date, have the right, with the assistance of the Administrative
Agent, to seek a mutually satisfactory substitute financial institution or
financial institutions (which may be one or more of the Lenders) to assume
the Commitment(s) of such non-extending Lender(s). Not later than the third
Domestic Business Day prior to the end of such 60-day period, the Borrower
shall, by notice to the Lenders through the Administrative Agent, either (i)
terminate, effective on the third Domestic Business Day after the giving of
such notice, the Commitment(s) of such non-extending Lender(s), whereupon the
Lenders who have consented to the extension shall continue with their
commitments unaffected to lend subject to the terms of this Agreement to the
new Termination Date, or (ii) designate one or more new financial
institutions reasonably acceptable to the Administrative Agent to assume the
Commitments of such non-extending Lenders, whereupon the aggregate amount of
such Commitment(s) shall be assumed by such substitute financial institution
or financial institutions within such 60-day period or
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(iii) withdraw its request for an extension of the Termination Date, in which
case the Commitments shall continue unaffected. The failure of the Borrower
to timely take the actions contemplated by clause (i) or (ii) of the
preceding sentence shall be deemed a withdrawal of its request for an
extension as contemplated by clause (iii) whether or not notice to such
effect is given, and in no event shall the Termination Date be extended
unless each Lender which has not consented to the proposed extension has been
either replaced or terminated as set forth above. So long as Lenders having
Commitment(s) totaling not less than 66 2/3% of the aggregate amount of the
Commitment(s) shall have responded affirmatively to such a request, and such
request is not withdrawn in accordance with the preceding sentence, then,
subject to receipt by the Administrative Agent of counterparts of an
Extension Agreement in substantially the form of Exhibit E duly completed and
signed by the Borrower and each of the affirmatively responding Lenders, the
Termination Date shall be extended, effective on such extension date, for a
period of 364 days to the date stated in such Extension Agreement.
2.16 OPTIONAL PREPAYMENTS.
(a) Subject in the case of any Euro-Dollar Borrowing to
Section 2.18, the Borrower may, upon at least one Domestic Business
Day's notice to the Administrative Agent, prepay any Base Rate
Borrowing, or upon at least three Euro-Dollar Business Days' notice to
the Administrative Agent, with respect to any Euro-Dollar Borrowing,
prepay any Euro-Dollar Borrowing, in each case in whole at any time, or
from time to time in part in amounts aggregating $10,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Lenders included in such Borrowing.
(b) RESERVED.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Lender of
the contents thereof and of such Lender's ratable share (if any) of such
prepayment and such notice shall not thereafter be revocable by the
Borrower.
2.17 GENERAL PROVISIONS AS TO PAYMENTS.
(a) The Borrower shall make each payment of principal of, and
interest on, Loans and of fees hereunder, in Dollars not later than
11:00 A.M. (California local time) on the date when due, in Federal or
other immediately available funds, to the Administrative Agent at its
address referred to in Section 9.01, without offset or counterclaim. The
Administrative Agent will promptly distribute to each Lender its ratable
share of each such payment received by the Administrative Agent for
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the account of the Lenders, in Dollars and in the type of funds received
by the Administrative Agent. Whenever any payment of principal of, or
interest on, the Base Rate Loans or of fees shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be
due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the
next preceding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that the Borrower
shall not have so made such payment, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate.
2.18 FUNDING LOSSES. If the Borrower makes any payment of principal
with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow any Fixed Rate Loans
after notice has been given to any Lender in accordance with Section 2.06(a),
the Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties,
but excluding loss of margin for the period after any such payment or failure
to borrow, provided that such Lender shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
2.19 COMPUTATION OF INTEREST AND FEES. Interest based on the
Reference Rate and all fees hereunder shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and paid for the actual number
of days elapsed (including the first day but excluding the last day). All
other interest shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
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2.20 WITHHOLDING TAX EXEMPTION. At least five Domestic Business
Days prior to the first date on which interest or fees are payable hereunder
for the account of any Lender, each Lender that is not incorporated under the
laws of the United States of America or a state thereof agrees that it will
deliver to each of the Borrower and the Administrative Agent two duly
completed copies of United States Internal Revenue Service Form W-8 ECI,
certifying in either case that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes.
Each Lender which so delivers a Form W-8 ECI further undertakes to
deliver to each of the Borrower and the Administrative Agent two additional
copies of such form (or a successor form) on or before the date that such
form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each case
certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the
Borrower and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
2.21 RESERVED.
2.22 REGULATION D COMPENSATION. Each Lender may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of
such Lender at a rate per annum determined by such Lender up to but not
exceeding the excess of (i) (A) the applicable London Interbank Offered Rate
divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
applicable London Interbank Offered Rate. Any Lender wishing to require
payment of such additional interest (x) shall so notify the Borrower and the
Agent, in which case such additional interest on the Euro-Dollar Loans of
such Lender shall be payable to such Lender at the place indicated in such
notice with respect to each Interest Period commencing at least three
Euro-Dollar Business Days after the giving of such notice and (y) shall
notify the Borrower at least five Euro-Dollar Business Days prior to each
date on which interest is payable on the Euro-Dollar Loans of the amount then
due it under this Section.
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ARTICLE III
CONDITIONS
3.01 BORROWINGS. The obligation of any Lender to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02;
(b) immediately after such Borrowing, the sum of the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(c) immediately before and after such Borrowing, no Default
or Event of Default shall have occurred and be continuing;
(d) the representations and warranties of the Borrower
contained in this Agreement (except the representations and warranties
set forth in Section 4.04(b) and Section 4.05, in each case as to any
matter which has theretofore been disclosed in writing by the Borrower
to the Lenders) shall be true on and as of the date of such Borrowing;
(e) in the case of the initial Committed Loans, the Caesars
Acquisition shall have been consummated, or shall concurrently be
consummated, in accordance with the terms of the Caesars Acquisition
Agreement; and
(f) in the case of the initial Committed Loans, the
Administrative Agent shall have received a supplemental opinion of
Xxxxxx & Xxxxxxx (or other legal counsel selected by the Borrower and
reasonably acceptable to the Administrative Agent), substantially in the
form of Exhibit F hereto, and a certificate of the Borrower stating that
all conditions precedent to the Caesars Acquisition set forth in the
Caesars Acquisition Agreement have been satisfied or waived by the
parties thereto and that the Caesars Acquisition has been consummated in
material compliance with applicable laws.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
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3.02 EFFECTIVENESS. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.04):
(a) receipt by the Administrative Agent of counterparts
hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received,
receipt by the Administrative Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party);
(b) receipt by the Administrative Agent for the account of
each Lender of a duly executed Note dated on or before the Effective
Date complying with the provisions of Section 2.05;
(c) receipt by the Administrative Agent of an opinion of
Xxxxxx & Xxxxxxx, substantially in the form of Exhibit G, and an opinion
of Xxxxx Cummis Radin Tischman Xxxxxxx & Xxxxx, P.A., substantially in
the form of Exhibit H;
(d) arrangements satisfactory to the Administrative Agent for
the repayment of all loans (if any) outstanding under the Existing Short
Term Credit Agreement and the termination of the lending commitments
thereunder;
(e) receipt by the Administrative Agent of all documents it
may reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrower, the Administrative
Agent and each Lender of the effectiveness of this Agreement, and such notice
shall be conclusive and binding on all parties hereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
4.01 CORPORATE EXISTENCE AND POWER. The Borrower (a) is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, (b) has all corporate powers and authority and all material
governmental licenses (including, without limitation, any such license issued
by a Gaming Board), authorizations, consents and approvals required to own
its property and assets and carry on its business as now conducted and (c) is
duly qualified as a foreign corporation and in good standing in each
jurisdiction where the ownership, leasing and operation of its property or
the conduct of its business requires such qualification.
4.02 CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
execution, delivery and performance by the Borrower of this Agreement and the
Notes are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any Governmental Agency and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
4.03 BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of the Borrower and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations
of the Borrower, in each case enforceable in accordance with their respective
terms.
4.04 FINANCIAL INFORMATION.
(a) The Combined Pro Forma Financial Statements fairly present in
all material respects, in conformity with generally accepted accounting
principles, the pro forma combined financial position of the Gaming
Segment and the divisions of Grand owning the Grand Assets as of the
dates and for the periods therein stated.
(b) Since December 31, 1998, there has been no material adverse
change in the business, financial position, results of operations or
prospects of the Gaming Segment and the Grand Assets, or in the
operations of the Borrower and its Consolidated Subsidiaries, considered
as a whole.
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4.05 LITIGATION. Except as disclosed in the Borrower's form 10-K report
for the year ended December 31, 1998 or in its 10-Q reports dated March 31,
and June 30, 1999, there is no action, suit or proceeding pending against, or
to the knowledge of the Borrower threatened against or affecting, the
Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could materially adversely affect
the business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries or which in any
manner draws into question the validity or enforceability of this Agreement
or the Notes. Without limiting the generality of the foregoing, with respect
to those litigation matters described above as reported in the Borrower's
aforementioned form 10-K or 10-Q reports, (a) the disclosure contained
therein was accurate as of the date of thereof, and (b) since such date there
has been no material adverse development.
4.06 COMPLIANCE WITH ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV or ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA.
4.07 TAXES. The United States Federal income tax returns of Hilton and
its Subsidiaries and of Grand and its Subsidiaries have been filed through
the fiscal year ended December 31, 1997. The Borrower and its Significant
Subsidiaries have filed all United States Federal income tax returns and
other material tax returns which are required to be filed by them and have
paid or agreed to settlements of all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any Subsidiary, except
for such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. The charges, accruals and reserves on
the books of the Borrower and its Significant Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
4.08 SIGNIFICANT SUBSIDIARIES. Each of the Significant Subsidiaries (a)
is a corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation, (b) has all corporate
powers and authority and all material governmental licenses (including,
without limitation, any such license issued by a Gaming Board),
authorizations, consents and approvals required to own its property and
assets and
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carry on its business as now conducted and (c) is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the ownership,
leasing and operation of its property or the conduct of its business requires
such qualification, and the failure to be so qualified would have a material
adverse effect on the Borrower and its Subsidiaries.
4.09 NOT AN INVESTMENT COMPANY. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
4.10 ENVIRONMENTAL MATTERS. The Borrower has 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
Borrower and its Consolidated Subsidiaries, considered as a whole.
4.11 FULL DISCLOSURE. All information heretofore furnished by Hilton,
Grand and the Borrower to the Agents or to any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the
Administrative Agent or any Lender will be, taken as a whole, true and
accurate in all material respects on the date as of which such information is
stated or certified. The Borrower has disclosed to the Lenders in writing or
by means of its filings with the Securities and Exchange Commission any and
all facts which materially and adversely affect or may affect (to the extent
the Borrower can now reasonably foresee), the business, operations or
financial position of the Borrower and its Consolidated Subsidiaries, taken
as a whole, or the ability of the Borrower to perform its obligations under
this Agreement. With respect to any projections or forecasts provided, such
projections or forecasts represent, as of the date thereof, management's best
estimates based on reasonable assumptions and all available information, but
are subject to the uncertainty inherent in all projections and forecasts.
4.12 SOLVENCY. Giving effect hereto, as of the Effective Date, the
Borrower and its Significant Subsidiaries are, on a consolidated basis,
Solvent.
4.13 GAMING LAWS. The Borrower and its Subsidiaries are in material
compliance with all applicable Gaming Laws.
4.14 YEAR 2000. The Borrower and its Subsidiaries have reviewed the
effect of the Year 2000 Issue on the computer software, hardware and firmware
systems and equipment contained embedded microchips owned or operated by or
for the Borrower and its Subsidiaries. The costs to the Borrower 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 to have
a material
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adverse effect on the business, financial position, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries, considered as a
whole.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid:
5.01 INFORMATION. The Borrower will deliver to the Administrative Agent
(who shall promptly distribute the same to the Lenders or advise the Lenders
thereof):
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, the consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of income and cash
flows for such fiscal year, setting forth in each case in comparative
form the figures as of the end of and for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange
Commission by Xxxxxx Xxxxxxxx LLP or other independent public accountants
of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for such quarter and for
the portion of the Borrower's fiscal year ended at the end of such
quarter, setting forth in the case of such statements of income and cash
flows in comparative form the figures for the corresponding quarter and
the corresponding portion of the Borrower's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by
an Authorized Officer;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a Compliance
Certificate (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.06, 5.10 and 5.11 on the date of such
financial statements, and (ii) stating whether any Default exists on the
date of such Compliance Certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe
that any Default existed on the date of such
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statements and (ii) confirming the calculations set forth in the
officer'scertificate delivered simultaneously therewith;
(e) as soon as available and in any event not later than the last
day of February of each year, a completed Pricing Certificate as of
December 31 of the prior year;
(f) within five Domestic Business Days of any officer of the
Borrower obtaining knowledge of any Default, if such Default is then
continuing, a certificate of an Authorized Officer setting forth the
details thereof and the action which the Borrower is taking or proposes
to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K (or their equivalents) which the Borrower shall have filed with
the Securities and Exchange Commission;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer, any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041 (c) of
ERISA, a copy of such notice and other information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
setting forth details as to such occurrence and action, if any,
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which the Borrower or applicable member of the ERISA Group is required
or proposes to take;
(j) forthwith, notice of any change of which the Borrower becomes
aware in the rating by S&P or Xxxxx'x, of the Borrower's outstanding
senior unsecured long-term debt securities; and
(k) from time to time such additional information regarding the
financial position or business of the Borrower and its subsidiaries as
the Administrative Agent, at the request of any Lender, may reasonably
request.
5.02 MAINTENANCE OF PROPERTY; INSURANCE.
(a) The Borrower will keep, and will cause each Significant
Subsidiary to keep, all property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted, except
where failure to do so would not have a material adverse effect on the
business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
(b) The Borrower will, and will cause each of its Significant
Subsidiaries to, maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such
amounts and against at least such risks (and with such risk retention) as
are usually insured against in the same general area by companies of
established repute engaged in the same or a similar business and will
furnish to the Lenders, upon request from the Administrative Agent,
information presented in reasonable detail as to the insurance so carried.
Notwithstanding the foregoing, the Borrower may self-insure with respect
to such risks with respect to which companies of established repute
engaged in the same or similar business in the same general area usually
self-insure.
5.03 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The Borrower will
continue, and will cause each Significant Subsidiary to continue, to engage
in business of the same general type conducted by the Borrower and its
Significant Subsidiaries as of the Effective Date, and will preserve, renew
and keep in full force and effect, and will cause each Subsidiary to
preserve, renew and keep in full force and effect their respective corporate
existence and their respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that nothing in this
Section 5.03 shall prohibit (i) the merger of a Subsidiary into the Borrower
or the merger or the consolidation of a Subsidiary with or into another
Person if the corporation surviving such consolidation or merger is a
Subsidiary and if, in each case, after giving effect thereto, no Default
shall have occurred and
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be continuing or (ii) the termination of the corporate existence of any
Subsidiary if (A) the Borrower in good faith determines that such termination
is in the best interest of the Borrower and (B) such termination is not
materially disadvantageous to the Lenders.
5.04 COMPLIANCE WITH LAWS. The Borrower will comply, and cause each
Significant Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of any
Governmental Agency (including, without limitation, Environmental Laws,
Gaming Laws and ERISA and, in each case, the rules and regulations
thereunder) except where the necessity of compliance therewith is contested
in good faith by appropriate proceedings.
5.05 INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Borrower will keep,
and will cause each Significant Subsidiary to keep, proper books of record
and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and
will permit, and will cause each Significant Subsidiary to permit,
representatives of any Lender at such Lender's expense to visit and inspect
any of their respective properties, to examine and make abstracts from any of
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as
may reasonably be desired.
5.06 NEGATIVE PLEDGE. None of the Borrower, any Covered Subsidiary or
any Significant Subsidiary will create, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by it, except:
(a) Liens existing as of the Effective Date;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset (other than Liens created to finance or
refinance the cost of acquiring the equity interests and other assets
acquired or to be acquired pursuant to the Caesars Acquisition Agreement)
securing Debt incurred or assumed for the purpose of financing all or any
part of the cost of acquiring or constructing such asset (it being
understood that, for this purpose, the acquisition of a Person is also an
acquisition of the assets of such Person); PROVIDED THAT the Lien
attaches to such asset concurrently with or within 180 days after the
acquisition thereof, or such longer period, not to exceed 12 months, due
to the Borrower's inability to retain the requisite governmental
approvals with respect to such acquisition; provided further that, in the
case of real estate, (i) the Lien attaches within 12 months after the
latest of the acquisition thereof, the completion of construction thereon
or the commencement of full operation thereof and (ii) the Debt so
secured does not exceed
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the sum of (x) the purchase price of such real estate plus (y) the costs
of such construction;
(d) any Lien on any asset of any corporation or other business
entity (including without limitation the Persons acquired pursuant to the
Caesars Acquisition Agreement) existing at the time such corporation or
other business entity is merged or consolidated with or into the Borrower
or a Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not
increased (other than to cover any transaction costs of such refinancing,
extension, renewal or refunding) and is not secured by any additional
assets;
(g) Liens securing Debt of a Subsidiary to the Borrower or another
Subsidiary; and
(h) Liens not otherwise permitted by the foregoing clauses of this
Section encumbering assets of the Borrower and its Consolidated
Subsidiaries having an aggregate fair market value which is not in excess
of 10% of Consolidated Net Tangible Assets (determined, in each case, by
reference to the most recent date for which the Borrower has delivered
its financial statements under Section 5.01(a)).
5.07 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower and its
Subsidiaries will not (i) consolidate or merge with or into any other Person
or (ii) sell, lease or otherwise transfer all or any substantial part of the
assets of the Borrower and its Subsidiaries, taken as a whole, to any other
Person, or (iii) acquire all or substantially all of the assets of, or more
than 49% of the capital stock or other equity securities of, any Person which
is not engaged in the same general lines of business as the Borrower and its
Subsidiaries, if, giving effect to such consolidation, merger, sale or
acquisition, the Borrower is not in pro forma compliance with the covenants
set forth in Sections 5.10 and 5.11; PROVIDED that, notwithstanding the
foregoing, the Borrower may merge with another Person only if (A) the
Borrower is the corporation surviving such merger, and (B) immediately after
giving effect to such merger, no Default shall have occurred and be
continuing.
5.08 HOSTILE TENDER OFFERS. The Borrower and its Subsidiaries will not
make any offer to purchase or acquire, or prosecute, pursue or consummate a
purchase or acquisition of, 5% or more of the capital stock of any
corporation or other business entity, if
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the board of directors or other equivalent governing body of such corporation
or business entity has notified the Borrower or its relevant Subsidiaries
that it opposes such offer or purchase and such notice has not been withdrawn
or superseded.
5.09 USE OF PROCEEDS. The proceeds of the Loans made under this
Agreement will be used by the Borrower for general corporate purposes,
including but not limited to (a) to finance a portion of the purchase price
payable in connection with the Caesars Acquisition and related transactional
and other expenses associated herewith, and (b) for working capital
(including without limitation refinancing of obligations under either of the
Other Credit Agreements), capital expenditures, the back stop of commercial
paper and the acquisition of full-service hotel\casino, casino and
casino\resort properties (including without limitation the Caesars
Acquisition). None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
any "margin stock" within the meaning of Regulation U other than "margin
stock" issued by the Borrower which is retired upon purchase or for any
purpose which violates Section 5.08.
5.10 LEVERAGE RATIO. The Leverage Ratio will not, as of the last day of
any fiscal quarter of the Borrower described in the matrix below, exceed the
ratio set forth opposite that fiscal quarter:
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
September 30, 1999 4.75:1.00
December 31, 1999 through and 5.25:1.00
including June 30, 2000
September 30, 2000 and
December 31, 2000 4.75:1.00
Later Fiscal Quarters, if any 4.50:1.00.
5.11 INTEREST COVERAGE RATIO. The Interest Coverage Ratio shall not, as
of the last day of any fiscal quarter of the Borrower, be less than 3.00:1.00.
5.12 YEAR 2000. The Borrower shall promptly and in any event by December
31, 1999 make, and shall cause each of its Subsidiaries to make, all required
systems changes in computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for the
Borrower 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 to have a material adverse
effect on the business, financial
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position, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole. At the request of any
Lender, the Borrower shall provide, and shall cause each of its Subsidiaries
to provide, to such Lender reasonable assurance of its compliance with the
preceding sentence.
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ARTICLE VI
DEFAULTS
6.01 EVENTS OF DEFAULT. If one or more of the following events ("Events of
Default") shall have occurred and be continuing:
(a) the Borrower shall fail to (i) pay when due any principal of
any Loan under this Agreement, or (ii) pay within five days of the due
date thereof any interest, fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.06 to 5.11, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 7 days after written notice thereof has
been given to the Borrower by the Administrative Agent, which notice
shall be delivered to the Borrower by the Administrative Agent at the
request of any Lender;
(d) any representation, warranty, certification or statement made
or deemed made by the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Covered Subsidiary or any Significant
Subsidiary shall fail to make any payment in respect of any Debt (other
than the Notes and Non-Recourse Debt) when due or within any applicable
grace period and the aggregate principal amount of such Debt is in
excess of $100,000,000;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Debt (other than Non-Recourse Debt)
in excess of $100,000,000 of the Borrower or any Covered Subsidiary or
any Significant Subsidiary or enables or entitles the holder of such
Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Borrower or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
or shall consent to any such relief or to the appointment of or taking
possession by any such
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official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 60 days; or an order for relief shall be
entered against the Borrower or any Significant Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer, any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $25,000,000;
(j) a judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a
period of 30 days;
(k) the occurrence of a License Revocation with respect to a
license issued to the Borrower or any of its Subsidiaries by any Gaming
Board of the States of Mississippi, New Jersey or Nevada with respect to
gaming operations at any gaming facility accounting for five percent
(5%) or more of the consolidated gross revenues of the Borrower and its
Subsidiaries that continues for thirty calendar days;
then, and in every such event, the Administrative Agent shall (i) if
requested by the Required Lenders, by notice to the Borrower terminate the
Commitments and they shall thereupon terminate, and (ii) if requested by the
Required Lenders, by notice to the Borrower declare the
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Loans (together with accrued interest thereon) to be, and the Loans (together
with accrued interest thereon) shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; PROVIDED that in the case of any
of the Events of Default specified in clause (g) or (h) above with respect to
the Borrower, without any notice to the Borrower or any other act by the
Administrative Agent or the Lenders, the Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
6.02 NOTICE OF DEFAULT. The Administrative Agent shall give notice
to the Borrower under Section 6.01(c) promptly upon being requested to do so
by any Lender and shall thereupon notify all the Lenders thereof.
6.03 RESERVED.
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ARTICLE VII
THE AGENTS
7.01 APPOINTMENT AND AUTHORIZATION. Each Lender irrevocably appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to
such Agent by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto.
7.02 AGENTS AND AFFILIATES. Bank of America and the other Agents
shall each have the same rights and powers under this Agreement as any other
Lender and each may exercise or refrain from exercising the same as though it
were not an Agent, and Bank of America and the other Agents and their
respective affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with, the Borrower or any Subsidiary or
Affiliate of the Borrower as if they were not Agents hereunder.
7.03 ACTION BY AGENTS. The obligations of the Agents hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Administrative Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
7.04 CONSULTATION WITH EXPERTS. Each Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
7.05 LIABILITY OF AGENT. Neither any Agent nor any of their
respective affiliates nor any of the respective directors, officers, agents
or employees of any of the foregoing shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request
of the Required Lenders or (ii) in the absence of its own gross negligence or
willful misconduct. Neither any Agent nor any of their respective affiliates
nor any of the respective directors, officers, agents or employees of any of
the foregoing shall be responsible for or have any duty to ascertain, inquire
into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition specified in Article III,
except in the case of the Administrative Agent receipt of items required to
be delivered to it; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Administrative Agent shall incur no liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission or similar
writing) believed by it to be genuine or to be signed by the proper party or
parties.
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7.06 INDEMNIFICATION. Each Lender shall, ratably in accordance with
its Commitment, indemnify the Administrative Agent, its affiliates and its
directors, officers, agents and employees (to the extent not reimbursed by
the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that
such indemnitee may suffer or incur in connection with the Administrative
Agent's role under this Agreement or any related action taken or omitted by
such indemnitee hereunder.
7.07 CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Lead
Arranger and Sole Book Manager or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Lead Arranger and Sole Book Manager or any other
Lender, 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 any action under this Agreement.
7.08 SUCCESSOR AGENT. The Administrative Agent may resign at any
time subject to the appointment of a successor Agent by giving notice to the
Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent with the consent of the
Borrower, which consent shall not be unreasonably withheld or delayed;
provided that no such consent shall be required if the successor Agent is a
Lender. If no successor Agent shall have been so appointed, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation, then the retiring Agent may, on behalf of the
Lenders, and without the Borrower's consent, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance of its appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
7.09 AGENTS' FEES. The Borrower shall pay to each Agent for its own
account fees in the amounts and at the times previously agreed upon between
the Borrower and such Agent.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
8.01 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. If on
or prior to the first day of any Interest Period for any Fixed Rate
Borrowing:
(a) the Administrative Agent is advised by the Required Lenders
that deposits in Dollars and in the required amounts are not being
offered to the Lenders in the relevant market for such Interest Period,
or
(b) in the case of a Committed Borrowing, Lenders having 50%
or more of the aggregate amount of the Commitments advise the
Administrative Agent that the London Interbank Offered Rate, as
determined by the Administrative Agent, will not adequately and fairly
reflect the cost to such Lenders of funding their Euro-Dollar Loans for
such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer
exist, the obligations of the Lenders to make Euro-Dollar Loans shall be
suspended. Unless the Borrower notifies the Administrative Agent at least two
Domestic Business Days before the date of any Fixed Rate Borrowing for which
a Notice of Borrowing has previously been given that it elects not to borrow
on such date, such Fixed Rate Borrowing shall instead be made as a Base Rate
Borrowing. The Administrative Agent shall promptly notify the Lenders of any
election by the Borrower pursuant to the preceding sentence.
8.02 ILLEGALITY. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by any Lender (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Lender (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Lender
to make Euro-Dollar Loans shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the sole judgment of such Lender, be
otherwise disadvantageous to such
-44-
Lender. If such Lender shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans to maturity and
shall so specify in such notice, the Borrower shall immediately prepay in
full the then outstanding principal amount of each such Euro-Dollar Loan,
together with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Lender (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Lenders), and such Lender shall make such a Base Rate Loan.
8.03 INCREASED COST AND REDUCED RETURN.
(a) If on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans, or
shall change the basis of taxation of payments to any Lender (or
its Applicable Lending Office) of the principal of or interest on
its Fixed Rate Loans or any other amounts due under this Agreement
in respect of its Fixed Rate Loans or its obligation to make Fixed
Rate Loans (except for changes in the rate of tax on the overall
net income of such Lender or its Applicable Lending Office imposed
by the jurisdiction in which such Lender's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding,
with respect to any Euro-Dollar Loan any such requirement included
in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender (or its Applicable Lending Office) or shall impose on any
Lender (or its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank market
any other condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans;
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and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making or maintaining any
Fixed Rate Loan, or to reduce the amount of any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed by
such Lender to be material, then, within 15 days after demand by such
Lender (with a copy to the Administrative Agent), the Borrower shall pay
to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction.
(b) If, after the date hereof, any Lender shall have determined
that any applicable law, rule or regulation regarding capital adequacy
(irrespective of the actual timing of the adoption or implementation
thereof and including, without limitation, any law or regulation adopted
pursuant to the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices) or any change therein, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any
Lender (or its Applicable Lending Office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on capital of such Lender (or
its Parent) as a consequence of such Lender's obligations hereunder to a
level below that which such Lender (or its Parent) could have achieved
but for such law, regulation, change or compliance (taking into
consideration its policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time,
within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender (or its
Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate
of any Lender claiming compensation under this Section and setting forth
the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount,
such Lender may use any reasonable averaging and attribution methods.
8.04 BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE LOANS. If
(i) the obligation of any Lender to make Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Lender has demanded compensation under
Section 8.03(a) and the
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Borrower shall, by at least five Euro-Dollar Business Days, prior notice to
such Lender through the Administrative Agent, have elected that the
provisions of this Section shall apply to such Lender, then, unless and until
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Lender as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the
related Fixed Rate Loans of the other Lenders), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Base Rate Loans instead.
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ARTICLE IX
MISCELLANEOUS
9.01 NOTICES. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telex, telecopy or
similar writing) and shall be given to such party: (x) in the case of the
Borrower or the Administrative Agent, at its address or telex or telecopier
number set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or telex or telecopier number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address or telex or telecopier number as such party may hereafter specify for
the purpose by notice to the Administrative Agent and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answer back is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered or received at the address specified in this Section; provided
that notices to the Administrative Agent under Article II or Article VIII
shall not be effective until received.
9.02 NO WAIVERS. No failure or delay by the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9.03 EXPENSES; DOCUMENTARY TAXES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses of the Administrative Agent and the Lead Arranger and Sole Book
Manager, including reasonable fees and disbursements of counsel for the
Administrative Agent (including the allocated fees and expenses of any
internal counsel), in connection with the preparation of this Agreement
and all related documents, the negotiation, closing and syndication of
this Agreement and the Loans, and in connection with any waiver,
amendment or consent hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all
reasonable out-of-pocket expenses incurred by the Administrative Agent
or any Lender, including fees and disbursements of counsel (including
the allocated fees and expenses of any internal counsel), in connection
with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom. The Borrower shall
indemnify each Lender against any transfer taxes, documentary taxes,
mortgage
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recording taxes, assessments or charges made by any governmental
authority by reason of the execution and delivery or enforcement of this
Agreement and the Notes.
(b) The Borrower agrees to indemnify each Agent, the Lead
Arranger and Sole Book Manager and each Lender, their respective
affiliates and the respective directors, officers, agents and employees
of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel (including the allocated
fees and expenses of any internal counsel), which may be incurred by
such Indemnitee in connection with any investigative, administrative or
judicial proceeding (whether or not such Indemnitee shall be designated
a party thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans
hereunder; provided that no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
9.04 AMENDMENTS AND WAIVERS. No amendment or waiver of the terms of this
Agreement or the other Loan Documents shall be made or be effective unless
such amendment or waiver is in writing and is signed by the Borrower and the
Required Lenders (and, if the rights or duties of the Administrative Agent
are affected thereby, by the Administrative Agent); provided that no such
amendment or waiver shall, unless signed by all the Lenders, (i) increase or
decrease the amount of the Commitment of any Lender without the consent of
that Lender (except for a ratable decrease in the Commitments of all Lenders)
or subject any Lender to any additional obligation, (ii) reduce the principal
of or rate of interest on any Loan or interest thereon or any fees hereunder,
(iii) postpone the date fixed for any payment of principal of or interest on
any Loan or interest thereon or any fees hereunder, or the Termination Date
(except as contemplated by Section 2.15), (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
percentage of Lenders, which shall be required for the Lenders or any of them
to take any action under this Section or any other provision of this
Agreement, (v) render more restrictive the ability of any Lender to assign or
grant participations in its Commitment under Section 9.05, or (vi) waive or
amend the condition set forth in Section 3.01(e).
9.05 SUCCESSORS AND ASSIGNS.
(a) This Agreement and the other Loan Documents to which the
Borrower is a party will be binding upon and inure to the benefit of
Borrower, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, EXCEPT that the Borrower may not
assign its rights hereunder or thereunder or any interest herein or
therein without the prior written consent of all the Lenders. Each
Lender represents that it is not acquiring its Note with a view to the
distribution thereof
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within the meaning of the Securities Act of 1933, as amended (subject to
any require-ment that disposition of such Note must be within the
control of such Lender). Any Lender may at any time pledge its Note 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 date which is sixty days
following the Effective Date, each Lender may assign to one or more
Eligible Assignees all or any portion of its Commitment; PROVIDED that
(i) such Eligible Assignee, if not then a Lender or an Affiliate of the
assigning Lender, shall be approved by each of the Administrative Agent
and (if no Event of Default then exists) Borrower (neither of which
approvals shall be unreasonably withheld or delayed), (ii) such
assign-ment shall be evidenced by an Assignment and Assumption Agreement
substantially in the form of Exhibit I, a copy of which shall be
furnished to the Administrative Agent as hereinbelow provided, (iii)
EXCEPT in the case of an assignment to an Affiliate of the assigning
Lender, to another Lender or of the entire remaining Commitment of the
assigning Lender, the assignment shall not assign a portion of the
Commitments that is equivalent to less than $5,000,000, and (iv) the
effective date of any such assignment shall be as specified in the
Assignment and Assumption Agreement, but not earlier than the date which
is five Banking Days after the date the Administrative Agent has
received the Assignment and Assumption Agreement. Upon the effective
date of the Assignment and Assumption Agreement, the Eligible Assignee
named therein shall be a Lender for all purposes of this Agreement, with
the Commitment therein set forth and, to the extent of such Commitment,
the assigning Lender shall be released from its further obligations
under this Agreement. Borrower agrees that they shall execute and
deliver (against delivery by the assigning Lender to the Borrower of its
Note) to such assignee Lender, a Note evidencing that assignee Lender's
Commitment, and to the assigning Lender, a Note evidencing the remaining
Commitment retained by the assigning Lender.
(c) By executing and delivering an Assignment and Assumption
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 Commitment 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 Borrower or the performance by the
Borrower of its obligations under this Agreement; (iii) it has received
a copy of this Agreement,
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together with copies of the most recent financial statements delivered
pursuant to Section 5.01 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Assumption Agreement; (iv) it will,
independently and without reliance upon the Administrative Agent or any
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) it appoints and
authorizes the Administrative Agent to take such action and to exercise
such powers under this Agreement as are delegated to the Administrative
Agent by this Agreement; and (vi) it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each
Assignment and Assumption Agreement delivered to it and a register (the
"Register") of the names and address of each of the Lenders and the
Commitment held by each Lender, giving effect to each Assignment and
Assumption Agreement. The Register shall be available during normal
business hours for inspection by the Borrower upon reasonable prior
notice to the Administrative Agent. The Administrative Agent shall
promptly confirm to any requesting Lender the amount of its Commitment
set forth in the Register. After receipt of a completed Assignment and
Assumption Agreement executed by any Lender and an Eligible Assignee,
and receipt of an assignment fee of $3,500 from such Lender or Eligible
Assignee, the Administrative Agent shall, promptly following the
effective date thereof, provide to the Borrower and the affected Lenders
confirmation of the changes in their respective Commitments. The
Borrower, the Administrative Agent and the Lenders shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners
of the Commitments listed therein for all purposes hereof, and no
assignment or transfer of any Commitment shall be effective, in each
case unless and until an Assignment and Assumption Agreement effecting
the assignment or transfer thereof shall have been accepted by the
Administrative Agent and recorded in the Register as provided above.
Prior to such recordation, all amounts owed with respect to the
applicable Commitment shall be owed to the Lender listed in the Register
as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority
or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitment.
(e) Each Lender may from time to time grant participations in its
Commitment to one or more Lenders, other financial institutions or a
special purpose trust; PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating Lenders or
other
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financial institutions shall not be a Lender hereunder for any purpose
except, if the participation agreement so provides, for the purposes of
Sections 2.22, 8.03 and 9.03 but only to the extent that the cost of
such benefits to the Borrower does not exceed the cost which the
Borrower would have incurred in respect of such Lender absent the
participation, (iv) the Borrower, the Administrative Agent and the other
Lenders 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 be expressed as a
percentage of the granting Lender's Commitment as it then exists and
shall not restrict an increase in the Commitments, or in the granting
Lender's Commitment, 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 result in (A)
a decrease in fees, interest rate spreads or principal payable to the
holder of such participation, (B) increase the Commitment of the
granting Lender and thereby increase the funding requirements of the
holder of such a participation, or (C) extend the Termination Date.
(f) 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 and the Borrower the option to provide all or any part of any
Committed Loan that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPC, (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, and (iii) except as expressly
set forth herein, the rights of any such SPC shall be derivative of the
rights of the Granting Lender, and each SPC shall be subject to all of
the restrictions upon the Granting Lender herein contained. Each SPC
shall be conclusively presumed to have made arrangements with its
Granting Lender for the exercise of voting and other rights hereunder in
a manner which is acceptable to the SPC, and the Administrative Agent,
the Lenders and the Borrower and each other party shall be entitled to
rely upon and deal solely with the Granting Lender with respect to Loans
made by or through its SPC. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender 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
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bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States
or any State thereof with respect to any claim arising out of or related
to this Agreement. In addition, notwithstanding anything to the contrary
contained in this Section 9.05, each SPC may, at any time, without
regard to the period required by Section 9.05(b)(iv), (i) with notice
to, but without the prior written consent of, the Borrower, the Borrower
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 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), and (ii) disclose on a confidential basis 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. This Section 9.05(f) may not be
amended without the consent of all SPC's then designated to the
Administrative Agent in accordance with the foregoing provisions of this
Section.
9.06 COLLATERAL. Each of the Lenders represents to each Agent and each of
the other Lenders that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
9.07 CALIFORNIA LAW; SUBMISSION TO JURISDICTION. This Agreement and each
Note shall be construed in accordance with and governed by the laws of the
State of California. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Central District of
California and of any California State court sitting in Los Angeles,
California for purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Borrower
irrevocably, waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
9.08 COUNTERPARTS; INTEGRATION. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
9.09 SEVERAL OBLIGATIONS. The obligations of the Lenders hereunder are
several. Neither the failure of any Lender to carry out its obligations
hereunder nor the failure of this Agreement to be duly authorized, executed
and delivered by any Lender shall relieve
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any other Lender of its obligations hereunder (or affect the rights hereunder
of such other Lender). No Lender shall be responsible for the obligations of,
or any action taken or omitted by, any other Lender hereunder.
9.10 SHARING OF SET-OFFS. Each Lender agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the proportion received
by any other Lender in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Lenders shall be
shared by the Lenders pro rata; PROVIDED that nothing in this Section shall
impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness under
the Notes. The Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in a Note,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
9.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND THE BANKS
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
9.12 CONFIDENTIALITY. The Lenders hereby agree to hold any confidential
information that they may receive from Borrower or its Subsidiaries pursuant
to this Agreement in confidence, except for disclosure: (a) to their
respective Affiliates and to other parties to this Agreement; (b) to legal
counsel and accountants for any such party; (c) to other professional
advisors to any such party, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially similar to
this paragraph or has notified such professional advisors of the
confidentiality of such information; (d) to regulatory officials having
jurisdiction over that Lender; (e) to any Gaming Board; (f) as required by
law or legal process (provided that the Lender shall endeavor, to the extent
it may do so under applicable law, to give the Borrower reasonable prior
notice thereof to allow the Borrower to seek a protective order) or in
connection with any legal proceeding to which that Lender and the 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 Lender's interests hereunder or a participation interest
in its Note, provided that the recipient has accepted such information
subject to a confidentiality agreement substantially similar to this
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Section. For purposes of the foregoing, "confidential information" shall mean
any information respecting the Borrower or its Subsidiaries reasonably
considered by them 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 by the Borrower or
[Remainder of this page intentionally left blank]
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its Subsidiaries to any person not associated therewith 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 Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
PARK PLACE ENTERTAINMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx, CFA
Vice President and Assistant Treasurer
Address for Notices:
Park Place Entertainment Corporation
0000 Xxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, CFA
Telephone: 702/000-0000
Telecopier: 702/699-5216
E-Mail: xxxxxxxxx@xxxxxxxx.xxx
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BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, Vice President
Address for Notices:
Bank of America, N.A.
Entertainment/Media Group
Agency Management
Corporate & Investment Banking
CA9-706-11-03
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx X. Xxxxx, Principal
Address for Notices:
Bank of America, N.A.
Credit Products - LA 3283
Entertainment & Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Principal
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America, N.A.
000 Xxxxx Xxxxxx Xxxxxx (LA-5777)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-57- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
BANKERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
Title: Principal
-----------------------------------
Address for notices:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, Mail Stop 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-58- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ [ILLEGIBLE]
--------------------------------------
Title: Vice President
-----------------------------------
Address for notices:
Xxxxxxx Xxxxx Capital Corporation
North Tower - WFC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-59- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
THE BANK OF NOVA SCOTIA
By: /s/ [ILLEGIBLE]
--------------------------------------
Title: [ILLEGIBLE]
----------------------------------
Address for notices:
The Bank of Nova Scotia
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx Xxxxxxxxxx, Relationship Manager
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-60- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
THE BANK OF NEW YORK
By: /s/ [ILLEGIBLE]
--------------------------------------
[ILLEGIBLE]
Title: Vice President
-----------------------------------
Address for notices:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000 or 6877
Telephone: (000) 000-0000
-61- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
Title: Senior Vice President
-----------------------------------
Address for notices:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn.: Xxxx Xxxx, Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-62- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
SOCIETE GENERALE
By: /s/ Xxxx X. Xxx
--------------------------------------
Xxxx X. Xxx
Title: Vice President
-----------------------------------
Address for notices:
Societe Generale
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Tequlla English
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-63- LENDER'S SIGNATURE PAGE
$1,000,000,000 CREDIT FACILITY
Schedule 1 - Pricing Schedule - $1,000,000,000 Short Term Facility
This Schedule 1 is attached to and made a part of the
$1,000,000,000 Short Term Credit Agreement dated as of August 31, 1999 among
Park Place Entertainment Corporation, a Delaware corporation, the Lenders,
Documentation Agents and Co-Arrangers, and Senior Managing Agents referred to
therein, Bank of America National Trust and Savings Association, as
Administrative Agent, and Banc of America Securities, LLC as Lead Arranger
and Sole Book Manager (the "Credit Agreement"). Capitalized terms used in
this Schedule 1 are used with the meanings set forth for those terms in the
Credit Agreement.
The "Euro-Dollar Margin," "Base Rate Margin," and "Facility Fee
Rate" referred to in the Credit Agreement shall be determined for any day on
the basis of the Status (as defined below) of the Borrower as of that date,
provided, that in the event that the Borrower fails to deliver any Compliance
Certificate or Pricing Certificate on the date when required by Section 5.01,
and it is ultimately determined that the Status of the Borrower would have
been changed on the basis of such delivery, then (a) the rate at which
interest and facility fees accrue under the Credit Agreement shall be
increased in accordance with this Schedule, with retroactive effect to the
first day of the Pricing Period to which such Compliance Certificate relates,
and (b) the Borrower shall, within 10 Business Days of a request by the
Administrative Agent, make such additional payments to the Lenders through
the Administrative Agent as are required to give effect to such increased
interest rates and facility fees in respect of any payments previously made
by the Borrower. As of each date of determination, the Euro-Dollar Margin and
Facility Fee Rates shall equal the percentages set forth below under the
column corresponding to the Status that exists on such day, PROVIDED that the
Euro-Dollar Margin shall be increased or decreased by the "Margin Adjustment"
described below:
----------------------------------------------------------------------------------
Xxxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
X II III IV V VI
----------------------------------------------------------------------------------
Facility Fee Rate 0.080% 0.100% 0.125% 0.150% 0.200% 0.250%
----------------------------------------------------------------------------------
Euro-Dollar Margin 0.520% 0.650% 0.875% 0.975% 1.175% 1.500%
----------------------------------------------------------------------------------
The "Base Rate Margin" shall, as of each date of determination, be
the percentage, not less than 0.000% per annum, which is equal to the then
prevailing Euro-Dollar Margin (after adjustment upwards or downwards by the
Margin Adjustment), MINUS 1.250%.
As of each date of determination, the Status of the Borrower shall
be determined on the basis of:
(a) the Borrower's Debt Rating as of that date; or
(b) from and after March 1, 2000 the Leverage Ratio as of the last
day of the fiscal quarter of the Borrower ending immediately prior to
the first day of the
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Pricing Period in which such date of determination occurs (the
"Applicable Leverage Ratio");
whichever such criteria yields the more favorable pricing to
the Borrower according to the following standards:
"Level I Status" exists at any date if, at such date, either
(x) the Debt Rating assigned by S&P is A- or higher or the Debt Rating
assigned by Xxxxx'x is A3 or higher, or (y) the Applicable Leverage
Ratio is less than 1.50:1.
"Level II Status" exists at any date if, at such date, (i)
either (x) the Debt Rating assigned by S&P is BBB+ or higher or the Debt
Rating assigned by Xxxxx'x is Baa1 or higher, or (y) the Applicable
Leverage Ratio is less than 2.25:1 and (ii) Level I Status does not
exist.
"Level III Status" exists at any date, if, at such date, (i)
either (x) the Debt Rating assigned by S&P is BBB or higher or the Debt
Rating assigned by Xxxxx'x is Baa2 or higher, or (y) the Applicable
Leverage Ratio is less than 3.00:1 and (ii) neither Level I Status nor
Level II Status exists.
"Level IV Status" exists at any date, if, at such date, (i)
either (x) the Debt Rating assigned by S&P is BBB- or higher or the Debt
Rating Assigned by Xxxxx'x is Baa3 or higher, or (y) the Applicable
Leverage Ratio is less than 3.75:1 and (ii) none of Level I Status,
Level II Status or Level III Status exists.
"Level V Status" exists at any date, if, at such date, (i)
either (x) the Debt Rating assigned by S&P is BB+ or higher or the Debt
Rating assigned by Xxxxx'x is Ba1 or higher or (y) the Applicable
Leverage Ratio is less than 4.25:1 and (ii) none of Level I Status,
Level II Status, Level III Status or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, no
such other Status exists.
For purposes of this Schedule, the following terms have the
following meanings, subject to the final two paragraphs of this Schedule:
"Margin Adjustment" means, (a) as of any date of determination when
the Applicable Leverage Ratio is in excess of 3.50:1 but equal to or less
than 4.00:1, an incremental interest margin of 0.075% per annum to be added
to the Euro-Dollar Margin in determining the rate applicable to Euro-Dollar
Loans, (b) as of any date of determination when the Applicable Leverage Ratio
is in excess of 4.00:1 but equal to or less than 4.75:1, an incremental
interest margin of 0.150% per annum to be added to the Euro-Dollar Margin in
determining the rate applicable to Euro-Dollar Loans, (c) as of any date of
determination when the Applicable Leverage Ratio is in excess of 4.75:1, an
incremental interest margin of 0.225% per annum to be added to the
Euro-Dollar Margin in determining the rate applicable to Euro-
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Dollar Loans, and (d) as of any date of determination when the Applicable
Leverage Ratio is less than 2.00:1, a deduction of 0.075% per annum to be
subtracted from the Euro-Dollar Margin in determining the rate applicable to
Euro-Dollar Loans.
"Debt Rating" means, as of any date of determination, the rating
assigned by the Rating Agencies to the senior unsecured long-term debt
securities of the Borrower without third-party credit enhancement (and any
rating assigned to any other debt security of the Borrower shall be
disregarded) as of the close of business on such date, provided that (a)
during the period between the Effective Date and March 31, 2000, to the
extent that no such credit rating has been assigned, a credit rating of BBB-
shall be assumed, (b) if such securities receive a split-rating and the
rating differential is one level, the higher of the two ratings will apply
(e.g. A-/Baa1 results in Level I Status and A-/Baa2 results in Level II
Status), and (c) if the Borrower is split-rated and the ratings differential
is more than one level, the average of the two ratings (or the higher of any
two intermediate ratings) shall be used (e.g. A-/Baa2 results in Level II
Status, as does A-/Baa3).
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