\n I Less than 2.75 to 1.00 At least BBB+ or Baa1<\/p>\n II Equal to or greater than 2.75 to 1.00 but BBB or Baa2
\n less than 3.50 to 1.00<\/p>\n
III Equal to or greater than 3.50 to 1.00 but BBB- or Baa3
\n less than 4.00 to 1.00<\/p>\n
IV Equal to or greater than 4.00 to 1.00 but BB+ or Ba1
\n less than 4.50 to 1.00<\/p>\n
V Equal to or greater than 4.50 to 1.00 BB or Ba2 or lower
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
provided that in the event that the then prevailing Debt Ratings are “split
\n ——–
\n ratings” and to the extent that the applicable Pricing Level is then based
\n upon the Debt Ratings, Borrower will receive the benefit of the higher Debt
\n Rating, unless the split is a “double split rating” (in which case the
\n ——
\n intermediate Pricing Level will apply) or a “triple split rating” (in which
\n case the Pricing Level below that applicable to the higher Debt Rating will
\n apply).<\/p>\n
-23-<\/p>\n
“Pricing Period” means (a) the period commencing on the date hereof
\n ————–
\n and ending on August 16, 2000, and (b) the subsequent concurrent quarterly
\n periods of approximately 90 days each commencing on each November 16,
\n February 16, May 16 and August 16.<\/p>\n
“Prime Rate” means the rate of interest publicly announced from time
\n ———-
\n to time by Bank of America, as its “prime rate.” It is a rate set by Bank
\n of America based upon various factors including Bank of America’s costs and
\n desired return, general economic conditions and other factors, and is used
\n as a reference point for pricing some loans, which may be priced at, above,
\n or below such announced rate. Any change in the Prime Rate announced by
\n Bank of America shall take effect at the opening of business on the day
\n specified in the public announcement of such change.<\/p>\n
“Principal Resort Casino Properties” means The MGM Grand Hotel and
\n ———————————-
\n Casino, the Bellagio Hotel and Casino, and the Mirage Resort Hotel and
\n Casino.<\/p>\n
“Pro Rata Share” means, with respect to each Bank, the percentage of
\n ————–
\n the Commitment, the Loans (except for Competitive Advances), the Letters of
\n Credit and the Swing Line Advances held by that Bank (or by a SPC for which
\n that Bank is the Granting Bank). As of the Closing Date, each Bank has
\n been informed by the Lead Arranger of the amount and percentage of its Pro
\n Rata Share. The percentage Pro Rata Share of each Bank (but without the
\n consent of that Bank not the dollar amount thereof) is subject to
\n adjustment pursuant to any Assignment Agreement executed in accordance with
\n Section 11.8.<\/p>\n
“Projections” means the financial projections for Borrower and its
\n ———–
\n Subsidiaries attached hereto as Schedule 4.17 prepared on behalf of
\n Borrower and heretofore distributed to the Banks.<\/p>\n
“Property” means any interest in any kind of property or asset, whether
\n ——–
\n real, personal or mixed, or tangible or intangible.<\/p>\n
“Quarterly Payment Date” means each September 30, December 31, March 31
\n ———————-
\n and June 30.<\/p>\n
“Real Property” means, as of any date of determination, all real
\n ————-
\n Property then or theretofore owned, leased or occupied by Borrower or any
\n of its Restricted Subsidiaries.<\/p>\n
“Regulations D, T, U and X” means Regulations D, T, U and X, as at any
\n ————————-
\n time amended, of the Board of Governors of the Federal Reserve System, or
\n any other regulations in substance substituted therefor.<\/p>\n
“Related Swap Agreement” means a Swap Agreement between Borrower and a
\n ———————-
\n Bank or an Affiliate of a Bank (but, in the case of any such Affiliate,
\n only to the extent that the same expressly relates to the Obligations).<\/p>\n
“Request for Letter of Credit” means a written request for a Letter of
\n —————————-
\n Credit substantially in the form of Exhibit H, signed by a Responsible
\n Official of Borrower or a Co-Borrower, on its behalf, and properly
\n completed to provide all information required to be included therein.<\/p>\n
-24-<\/p>\n
“Request for Loan” means a written request for a Loan substantially in
\n —————-
\n the form of Exhibit I, signed by a Responsible Official of Borrower or a
\n Co-Borrower, on its behalf, and properly completed to provide all
\n information required to be included therein.<\/p>\n
“Requirement of Law” means, as to any Person, the articles or
\n ——————
\n certificate of incorporation and by-laws or other organizational or
\n governing documents of such Person, and any Law, or judgment, award,
\n decree, writ or determination of a Governmental Agency, in each case
\n applicable to or binding upon such Person or any of its Property or to
\n which such Person or any of its Property is subject.<\/p>\n
“Requisite Banks” means (a) as of any date of determination if the
\n —————
\n Commitment is then in effect, Banks having Pro Rata Shares which are, in
\n the aggregate, a majority of the Pro Rata Shares of the Commitment then in
\n effect and (b) as of any date of determination if the Commitment has then
\n been terminated and there are then any Obligations outstanding, Banks or
\n other creditors holding a majority of the Outstanding Obligations.<\/p>\n
“Responsible Official” means (a) when used with reference to a Person
\n ——————–
\n other than an individual, any officer or manager of such Person, general
\n partner of such Person, officer of a corporate or limited liability company
\n general partner of such Person, officer of a corporate or limited liability
\n company general partner of a partnership that is a general partner of such
\n Person, or any other responsible official thereof duly acting on behalf
\n thereof, and (b) when used with reference to a Person who is an individual,
\n such Person, provided that for the purposes of this Agreement and the other
\n ——–
\n Loan Documents, each Responsible Official of Borrower shall be deemed to
\n also be a Responsible Official of each Co-Borrower, and each Responsible
\n Official of a Co-Borrower shall also be deemed to be a Responsible Official
\n of Borrower and any other Co-Borrowers. The Banks shall be entitled to
\n conclusively rely upon any document or certificate that is signed or
\n executed by a Responsible Official of Borrower or any of its Restricted
\n Subsidiaries as having been authorized by all necessary corporate, limited
\n liability company, partnership and\/or other action on the part of Borrower
\n or such Restricted Subsidiary.<\/p>\n
“Restricted Subsidiary” means each Subsidiary of Borrower other than
\n ——————— —–
\n the Australia Companies, Detroit Temporary, Monorail, Subsidiaries formed
\n under the Laws of foreign nations whose only tangible assets are located in
\n foreign nations, and pure holding companies for such foreign Subsidiaries
\n (including without limitation MGM Grand South Africa, Inc., a Nevada
\n corporation) owning as their sole asset the stock or other securities and
\n obligations thereof. As of the Closing Date, Victoria Partners, a Nevada
\n general partnership, is 50% owned by Borrower, and is therefore not a
\n Subsidiary of Borrower.<\/p>\n
“Senior Officer” means the (a) chief executive officer or manager, (b)
\n ————–
\n president, (c) executive vice president, (d) senior vice president, (e)
\n chief financial officer, (f) treasurer, (g) assistant treasurer, (h)
\n secretary, or (i) assistant secretary of Borrower or any Co-Borrower.<\/p>\n
“Solvent” means, as to any Person, that (a) the sum of the assets of
\n ——-
\n such Person, both at a fair valuation and at present fair saleable value,
\n exceeds its liabilities, including its probable liability in respect of
\n contingent liabilities, (b) such Person will have sufficient capital with
\n which to conduct its business as presently conducted and as proposed to be
\n conducted and <\/p>\n
-25-<\/p>\n
(c) such Person has not incurred debts, and does not intend to incur debts,
\n beyond its ability to pay such debts as they mature.<\/p>\n
“South African Companies” mean MGM Grand South Africa PTY Ltd., a
\n ———————–
\n South African corporation, and MGM South Africa, Inc., a Nevada
\n corporation.<\/p>\n
“SPC” means, as to each Bank, one or more special purpose funding
\n —
\n vehicles maintained or established by that Bank.<\/p>\n
“Special Eurodollar Circumstance” means the application or adoption
\n ——————————-
\n after the Closing Date of any Law or interpretation, or any change therein
\n or thereof, or any change in the interpretation or administration thereof
\n by any Governmental Agency, central bank or comparable authority charged
\n with the interpretation or administration thereof, or compliance by any
\n Bank or its Eurodollar Lending Office with any request or directive
\n (whether or not having the force of Law) of any such Governmental Agency,
\n central bank or comparable authority, or the existence or occurrence of
\n circumstances affecting the Designated Eurodollar Market generally that are
\n beyond the reasonable control of the Banks.<\/p>\n
“Standby Letter of Credit” means each Letter of Credit that is not a
\n ————————
\n Commercial Letter of Credit.<\/p>\n
“Standby Letter of Credit Fee” means as of each date of determination,
\n —————————-
\n the rate set forth below (expressed in basis points) opposite the Pricing
\n Level then in effect.<\/p>\n
Pricing Level Standby Letter of Credit Fee
\n ————- —————————-<\/p>\n
I 60.0
\n II 82.5
\n III 105.0
\n IV 137.5
\n V 157.5.<\/p>\n
“Subordinated Obligations” means unsecured Indebtedness of Borrower
\n ————————
\n (but not Indebtedness of any Subsidiary of Borrower), which:<\/p>\n
(a) does not require amortization prior to the Maturity Date;<\/p>\n
(b) is governed by agreements which contain no representations,
\n warranties, covenants, defaults and other provisions which are more
\n restrictive upon, or onerous to, Borrower and its Restricted
\n Subsidiaries than the provisions of the Loan Documents; and<\/p>\n
(c) is subordinated in right of payment to the Obligations
\n pursuant to subordination provisions which are acceptable to the
\n Requisite Banks in the exercise of their sole discretion<\/p>\n
provided that (i) Borrower shall provide the Banks with a form of indenture
\n ——–
\n proposed to govern future Subordinated Obligations which has been
\n reasonably approved by the Administrative <\/p>\n
-26-<\/p>\n
Agent and, unless the Requisite Banks have objected to the form thereof
\n within ten Banking Days following the delivery thereof to the Banks, the
\n provisions thereof shall be deemed acceptable to the Banks in connection
\n with any issuance of Subordinated Obligations, and (ii) in the event that
\n the terms of any proposed Subordinated Obligations to be issued by Borrower
\n deviate, in any material respect, from the terms of the indenture referred
\n to above, Borrower shall provide to the Administrative Agent (and the
\n Administrative Agent shall promptly deliver to the Banks) a revised form of
\n such indenture which, if not objected to within five Banking Days following
\n the delivery thereof to the Banks, shall be deemed acceptable to the Banks
\n in connection with any issuance following such date of Subordinated
\n Obligations.<\/p>\n
“Subsidiary” means, as of any date of determination and with respect
\n ———-
\n to any Person, any corporation, limited liability company or partnership
\n (whether or not, in either case, characterized as such or as a “joint
\n venture”), whether now existing or hereafter organized or acquired: (a) in
\n the case of a corporation or limited liability company, of which a majority
\n of the securities having ordinary voting power for the election of
\n directors or other governing body (other than securities having such power
\n only by reason of the happening of a contingency) are at the time
\n beneficially owned by such Person and\/or one or more Subsidiaries of such
\n Person, or (b) in the case of a partnership, of which a majority of the
\n partnership or other ownership interests are at the time beneficially owned
\n by such Person and\/or one or more of its Subsidiaries.<\/p>\n
“Swap Agreement” means a written agreement between Borrower and one or
\n ————–
\n more financial institutions providing for “swap”, “cap”, “collar” or other
\n interest rate protection with respect to any Indebtedness.<\/p>\n
“Swing Line” means the revolving line of credit established by the
\n ———-
\n Swing Line Bank in favor of Borrower and the Co-Borrowers pursuant to
\n Section 2.6.<\/p>\n
“Swing Line Bank” means Bank of America, acting through its Las Vegas
\n —————
\n Commercial Banking Division.<\/p>\n
“Swing Line Documents” means the promissory note and any other
\n ——————–
\n documents executed by Borrower and each Co-Borrower in favor of the Swing
\n Line Bank in connection with the Swing Line.<\/p>\n
“Swing Line Loans” and Swing Line Advances” mean loans made by the
\n —————- ——————-
\n Swing Line Bank to Borrower or the Co-Borrowers pursuant to Section 2.6.<\/p>\n
“Swing Line Outstandings” means, as of any date of determination, the
\n ———————–
\n aggregate principal Indebtedness of Borrower and the Co-Borrowers on all
\n Swing Line Loans then outstanding.<\/p>\n
“Syndication Agent” has the meaning set forth in the Preamble to this
\n —————–
\n Agreement. The Syndication Agent shall have no duties under this Agreement
\n or the Loan Documents other than those arising in its capacity as a Bank.<\/p>\n
“S&P” means Standard & Poor’s Ratings Group (a division of McGraw
\n —
\n Hill, Inc.).<\/p>\n
-27-<\/p>\n
“to the best knowledge of” means, when modifying a representation,
\n ————————
\n warranty or other statement of any Person, that the fact or situation
\n described therein is known by the Person (or, in the case of a Person
\n other than a natural Person, known by a Responsible Official of that
\n Person) making the representation, warranty or other statement, or with
\n the exercise of reasonable due diligence under the circumstances (in
\n accordance with the standard of what a reasonable Person in similar
\n circumstances would have done) would have been known by the Person (or,
\n in the case of a Person other than a natural Person, would have been
\n known by a Responsible Official of that Person).<\/p>\n
“type”, when used with respect to any Loan or Advance, means the
\n —-
\n designation of whether such Loan or Advance is a Base Rate Loan or
\n Advance, or a Eurodollar Rate Loan or Advance.<\/p>\n
“Unrelated Person” means any Person other than (i) an employee stock
\n —————- —– —-
\n ownership plan or other employee benefit plan covering the employees of
\n Borrower and its Subsidiaries or (ii) an Affiliate of any Person or
\n group of related Persons which as of the date of this Agreement is the
\n beneficial owner of 25% or more (in the aggregate) of the outstanding
\n common stock of Borrower.<\/p>\n
“Unrestricted Subsidiary” means each Subsidiary of Borrower which is
\n ———————–
\n not a Restricted Subsidiary. As of the date hereof, MGM Grand Detroit
\n II, LLC, The MGM Grand Bally’s Monorail, LLC, the Australia Companies
\n and South African Companies are Unrestricted Subsidiaries.<\/p>\n
1.2 Use of Defined Terms. Any defined term used in the plural
\n ——————–
\nshall refer to all members of the relevant class, and any defined term used in
\nthe singular shall refer to any one or more of the members of the relevant
\nclass.<\/p>\n
1.3 Accounting Terms – Fiscal Periods. All accounting terms not
\n ———————————
\nspecifically defined in this Agreement shall be construed in conformity with,
\nand all financial data required to be submitted by this Agreement shall be
\nprepared in conformity with, Generally Accepted Accounting Principles applied on
\na consistent basis, except as otherwise specifically prescribed herein. In the
\n ——
\nevent that Generally Accepted Accounting Principles or Borrower’s Fiscal Year or
\nFiscal Quarters change during the term of this Agreement such that the covenants
\ncontained in Sections 6.8 and 6.9 would then be calculated for different
\nperiods, in a different manner or with different components, (a) Borrower, the
\nCo-Borrowers and the Banks agree to amend this Agreement in such respects as are
\nnecessary to conform those covenants as criteria for evaluating Borrower’s
\nfinancial condition to substantially the same criteria as were effective prior
\nto such change in Fiscal Year, Fiscal Quarters or in Generally Accepted
\nAccounting Principles and (b) Borrower and the Co-Borrowers shall be deemed to
\nbe in compliance with the covenants contained in the aforesaid Sections if and
\nto the extent that Borrower and the Co-Borrowers would have been in compliance
\ntherewith for the pre-existing fiscal periods and under Generally Accepted
\nAccounting Principles as in effect immediately prior to such change, but shall
\nhave the obligation to deliver each of the materials described in Article 7 to
\nthe Creditors, on the dates therein specified, with financial data presented for
\nits pre-existing fiscal periods and in a manner which conforms with Generally
\nAccepted Accounting Principles as in effect immediately prior to such change.<\/p>\n
1.4 Rounding. Any financial ratios required to be maintained by
\n ——–
\nBorrower and the Co-Borrowers pursuant to this Agreement shall be calculated by
\ndividing the appropriate component by the <\/p>\n
-28-<\/p>\n
other component, carrying the result to one place more than the number of places
\nby which such ratio is expressed in this Agreement and rounding the result up or
\ndown to the nearest number (with a round-up if there is no nearest number) to
\nthe number of places by which such ratio is expressed in this Agreement.<\/p>\n
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
\n ———————-
\nAgreement, either as originally existing or as the same may from time to time be
\nsupplemented, modified or amended, are incorporated herein by this reference. A
\nmatter disclosed on any Schedule shall be deemed disclosed on all Schedules.<\/p>\n
1.6 Miscellaneous Terms. In the Loan Documents, the term “or” is
\n ——————-
\ndisjunctive; the term “and” is conjunctive. The term “shall” is mandatory; the
\nterm “may” is permissive. Masculine terms also apply to females; feminine terms
\nalso apply to males. The term “including” is by way of example and not
\nlimitation.<\/p>\n
-29-<\/p>\n
Article 2
\n LOANS AND LETTERS OF CREDIT
\n —————————<\/p>\n
2.1 Committed Loans-General.
\n ———————– <\/p>\n
(a) Subject to the terms and conditions set forth in this
\n Agreement, at any time and from time to time from the Closing Date through
\n the Banking Day immediately prior to the Maturity Date, each Bank shall,
\n pro rata according to that Bank’s Pro Rata Share of the then applicable
\n Commitment, make Committed Advances to Borrower or to any Co-Borrower under
\n the Commitment in such amounts as Borrower or any Co-Borrower may request
\n that (i) do not result in the Outstanding Obligations being in excess of
\n the then effective Commitment, and (ii) in the case of Committed Advances
\n made to a Co-Borrower, are directly used to finance the development,
\n construction or operation of hotel\/casino properties owned by that Co-
\n Borrower. Subject to the limitations set forth herein, the Committed
\n Advances by each Bank under its Pro Rata Share of the Commitment may be
\n prepaid without premium or penalty. The Administrative Agent shall
\n promptly provide the Borrower with a written report allocating the
\n Obligations requested by Borrower and each Co-Borrower.<\/p>\n
(b) Subject to the next sentence, each Loan consisting of
\n Committed Advances shall be made pursuant to a Request for Loan which shall
\n specify the requested (i) date of such Loan, (ii) type of Loan, (iii)
\n amount of such Loan, and (iv) in the case of a Eurodollar Rate Loan, the
\n Eurodollar Period for such Loan. Unless the Administrative Agent, in its
\n sole and absolute discretion, has notified Borrower to the contrary, a Loan
\n consisting of Committed Advances may be requested by telephone by a
\n Responsible Official of Borrower or the relevant Co-Borrower, in which case
\n Borrower or the relevant Co-Borrower shall confirm such request by promptly
\n delivering a Request for Loan in person or by telecopier conforming to the
\n preceding sentence to the Administrative Agent. The Administrative Agent
\n shall incur no liability whatsoever hereunder in acting upon any telephonic
\n request purportedly made by a Responsible Official of Borrower, and
\n Borrower hereby agrees to indemnify each Creditor from any loss, cost,
\n expense or liability as a result of so acting.<\/p>\n
(c) Promptly following receipt of a Request for Loan, the
\n Administrative Agent shall notify each Bank by telephone or telecopier (and
\n if by telephone, promptly confirmed by telecopier) of the date and type of
\n the Loan, any applicable Eurodollar Period, and that Bank’s Pro Rata Share
\n of the Loan. Not later than 11:00 a.m., California local time, on the date
\n specified for any Loan (which must be a Banking Day), each Bank shall make
\n its Pro Rata Share of the Committed Loan in immediately available funds
\n available to the Administrative Agent at the Administrative Agent’s Office.
\n Upon satisfaction or waiver of the applicable conditions set forth in
\n Article 8, all Committed Advances shall be credited on that date in
\n immediately available funds to the Deposit Account for Borrower or that Co-
\n Borrower.<\/p>\n
(d) Unless the Requisite Banks otherwise consent, each Committed
\n Loan shall be in an integral multiple of $1,000,000 which is not less than
\n $5,000,000.<\/p>\n
-30-<\/p>\n
(e) The Committed Advances made by each Bank shall be evidenced
\n by that Bank’s Committed Advance Note.<\/p>\n
(f) A Request for Loan shall be irrevocable upon the
\n Administrative Agent’s first notification thereof.<\/p>\n
(g) If no Request for Loan (or telephonic request for Loan
\n referred to in the second sentence of Section 2.1(b), if applicable) has
\n been made within the requisite notice periods set forth in Section 2.2 or
\n 2.3 prior to the end of the Eurodollar Period for any Eurodollar Rate Loan,
\n then on the last day of such Eurodollar Period, such Eurodollar Rate Loan
\n shall be automatically converted into a Base Rate Loan in the same amount.<\/p>\n
(h) If a Loan is to be made on the same date that another Loan is
\n due and payable:<\/p>\n
(i) the Banks shall make available to the Administrative
\n Agent (or the Administrative Agent shall make available to the Banks)
\n the net amount of funds giving effect to both such Loans and the
\n effect for purposes of this Agreement shall be the same as if separate
\n transfers of funds had been made with respect to each such Loan; and<\/p>\n
(ii) in the case where the same Party is the primary
\n borrower of both such Loans, Borrower or the relevant Co-Borrower
\n shall make available to the Administrative Agent (or the
\n Administrative Agent shall make available to such Party) the net
\n amount of funds giving effect to both such Loans and the effect for
\n purposes of this Agreement shall be the same as if separate transfers
\n of funds had been made with respect to each such Loan.<\/p>\n
2.2 Base Rate Loans. Each request by Borrower or any Co-Borrower
\n —————
\nfor a Base Rate Loan shall be made pursuant to a Request for Loan (or telephonic
\nor other request for loan referred to in the second sentence of Section 2.1(b),
\nif applicable) received by the Administrative Agent, at the Administrative
\nAgent’s Office, not later than 9:15 a.m. California local time, on the date
\n(which must be a Banking Day) of the requested Base Rate Loan. All Committed
\nLoans shall constitute Base Rate Loans unless properly designated as a
\nEurodollar Rate Loan pursuant to Section 2.3.<\/p>\n
2.3 Eurodollar Rate Loans.
\n ——————— <\/p>\n
(a) Each request by Borrower or any Co-Borrower for a Eurodollar
\n Rate Loan shall be made pursuant to a Request for Loan (or telephonic or
\n other request for Loan referred to in the second sentence of Section
\n 2.1(b), if applicable) received by the Administrative Agent, at the
\n Administrative Agent’s Office, not later than 10:00 a.m., California local
\n time, at least three Eurodollar Banking Days before the first day of the
\n applicable Eurodollar Period.<\/p>\n
(b) On the date which is two Eurodollar Banking Days before the
\n first day of the applicable Eurodollar Period, the Administrative Agent
\n shall confirm its determination of <\/p>\n
-31-<\/p>\n
the applicable Eurodollar Rate (which determination shall be conclusive in
\n the absence of manifest error) and promptly shall give notice of the same
\n to Borrower and any relevant Co-Borrowers and the Banks by telephone or
\n telecopier (and if by telephone, promptly confirmed by telecopier).<\/p>\n
(c) Unless the Administrative Agent and the Requisite Banks
\n otherwise consent, no more than twenty-five Eurodollar Rate Loans shall be
\n outstanding at any one time.<\/p>\n
(d) No Eurodollar Rate Loan may be requested during the
\n continuation of a Default or Event of Default.<\/p>\n
(e) Nothing contained herein shall require any Bank to fund any
\n Eurodollar Rate Advance in the Designated Eurodollar Market.<\/p>\n
2.4 Letters of Credit.
\n —————– <\/p>\n
(a) Subject to the terms and conditions hereof, at any time and
\n from time to time from the Closing Date through the Banking Day immediately
\n prior to the Maturity Date, the Issuing Bank shall issue such Letters of
\n Credit under the Commitment as Borrower or any Co-Borrower may request by a
\n Request for Letter of Credit; provided that (i) giving effect to all such
\n ——–
\n Letters of Credit, the Outstanding Obligations do not exceed the then
\n applicable Commitment, (ii) the Aggregate Effective Amount under all
\n outstanding Letters of Credit shall not exceed $150,000,000, and (iii) each
\n Letter of Credit issued for the account of a Co-Borrower shall be directly
\n used to support the development, construction or operation of hotel\/casino
\n properties owned by that Co-Borrower. As of the Closing Date, each of the
\n Existing Letters of Credit shall be deemed to be issued and outstanding
\n hereunder as a Letter of Credit, and each of the Banks shall be deemed to
\n have purchased a ratable participation therein in accordance with the terms
\n of this Section. Each Letter of Credit shall be in a form reasonably
\n acceptable to the Issuing Bank. Unless all the Banks otherwise consent in
\n a writing delivered to the Administrative Agent, no Letter of Credit shall
\n have a term which exceeds one year or extends beyond the Maturity Date.<\/p>\n
(b) Each Request for Letter of Credit shall be submitted to the
\n Issuing Bank, with a copy to the Administrative Agent, at least five
\n Banking Days prior to the date upon which the related Letter of Credit is
\n proposed to be issued. The Administrative Agent shall promptly notify the
\n Issuing Bank whether such Request for Letter of Credit, and the issuance of
\n a Letter of Credit pursuant thereto, conforms to the requirements of this
\n Agreement. Upon issuance of a Letter of Credit, the Issuing Bank shall
\n promptly notify the Administrative Agent, and the Administrative Agent
\n shall promptly notify the Banks, of the amount and terms thereof.<\/p>\n
(c) Upon the issuance of a Letter of Credit, each Bank shall be
\n deemed to have purchased at par a pro rata participation in such Letter of
\n Credit from the Issuing Bank in an amount equal to that Bank’s Pro Rata
\n Share. Without limiting the scope and nature of each Bank’s participation
\n in any Letter of Credit, to the extent that the Issuing Bank has not been
\n reimbursed by Borrower or the relevant Co-Borrower for any payment required
\n to be made by <\/p>\n
-32-<\/p>\n
the Issuing Bank under any Letter of Credit, each Bank shall, pro rata
\n according to its Pro Rata Share, pay the purchase price for such
\n participation to the Issuing Bank through the Administrative Agent promptly
\n upon demand therefor. The obligation of each Bank to so pay the
\n participation purchase price to the Issuing Bank shall be absolute and
\n unconditional and shall not be affected by the occurrence of an Event of
\n Default or any other occurrence or event. Any such payment of the purchase
\n price shall not relieve or otherwise impair the obligation of Borrower or
\n the relevant Co-Borrower to reimburse the Issuing Bank for the amount of
\n any payment made by the Issuing Bank under any Letter of Credit together
\n with interest as hereinafter provided.<\/p>\n
(d) Borrower and each Co-Borrower jointly and severally agree to
\n pay to the Issuing Bank through the Administrative Agent an amount equal to
\n any payment made by the Issuing Bank with respect to each Letter of Credit
\n within one Banking Day after written demand made by the Issuing Bank
\n therefor, together with interest on such amount from the date of any
\n payment made by the Issuing Bank at the rate applicable to Base Rate Loans
\n for three Banking Days and thereafter at the Default Rate, provided that,
\n ——–
\n anything to the contrary herein notwithstanding, the liability of Detroit
\n shall be limited to those Letters of Credit which are used, directly or
\n indirectly, to finance the design, development, construction or operation
\n of the Detroit Project or which are actually issued to or for the account
\n of Detroit. The principal amount of any such payment shall be used to
\n reimburse the Issuing Bank for the payment made by it under the Letter of
\n Credit and, to the extent that the Banks have not reimbursed the Issuing
\n Bank pursuant to Section 2.4(c), the interest amount of any such payment
\n shall be for the account of the Issuing Bank. Each Bank that has paid the
\n participation purchase price to the Issuing Bank pursuant to Section 2.4(c)
\n shall thereupon acquire a pro rata participation, to the extent of such
\n payment, in the claim of the Issuing Bank against Borrower and the Co-
\n Borrowers for reimbursement of principal and interest under this Section
\n 2.4(d) and shall share, in accordance with that pro rata participation, in
\n any principal payment made by Borrower or the relevant Co-Borrowers with
\n respect to such claim and in any interest payment made by Borrower or the
\n relevant Co-Borrowers (but only with respect to periods subsequent to the
\n date such Bank paid the participation purchase price to the Issuing Bank)
\n with respect to such claim.<\/p>\n
(e) Borrower or the relevant Co-Borrower may, pursuant to a
\n Request for Loan, request that Committed Advances be made pursuant to
\n Section 2.1(a) to provide funds for the payment required by Section 2.4(d)
\n and, for this purpose, the conditions precedent set forth in Article 8
\n shall not apply. The proceeds of such Advances shall be paid directly to
\n the Issuing Bank to reimburse it for the payment made by it under the
\n Letter of Credit.<\/p>\n
(f) If Borrower or the relevant Co-Borrower fails to make the
\n payment required by Section 2.4(d) on a timely basis then, in lieu of the
\n payment of the participation purchase price to the Issuing Bank under
\n Section 2.4(c), the Issuing Bank may (but is not required to), without
\n notice to or the consent of Borrower or any Co-Borrower, instruct the
\n Administrative Agent to cause Committed Advances to be made by the Banks
\n under their Pro Rata Shares of the Commitment in an aggregate amount equal
\n to the amount paid by the Issuing Bank with respect to that Letter of
\n Credit and, for this purpose, the conditions precedent set <\/p>\n
-33-<\/p>\n
forth in Article 8 shall not apply. The proceeds of such Advances shall be
\n paid directly to the Issuing Bank to reimburse it for the payment made by
\n it under the Letter of Credit.<\/p>\n
(g) The issuance of any supplement, modification, amendment,
\n renewal, or extension to or of any Letter of Credit shall be treated in all
\n respects the same as the issuance of a new Letter of Credit, except that
\n the Issuing Bank’s issuance fees shall be payable as set forth in the
\n letter agreement referred to in Section 3.5.<\/p>\n
(h) The obligation of Borrower and each Co-Borrower to pay to
\n the Issuing Bank the amount of any payment made by the Issuing Bank under
\n any Letter of Credit shall be absolute, unconditional, and irrevocable,
\n subject only to performance by the Issuing Bank of its obligations to
\n Borrower and each Co-Borrower under Uniform Commercial Code Section 5109.
\n Without limiting the foregoing, the obligations of Borrower and each Co-
\n Borrower to the Issuing Bank shall not be affected by any of the following
\n circumstances:<\/p>\n
(i) any lack of validity or enforceability of the Letter
\n of Credit, this Agreement, or any other agreement or instrument
\n relating thereto;<\/p>\n
(ii) any amendment or waiver of or any consent to
\n departure from the Letter of Credit, this Agreement, or any other
\n agreement or instrument relating thereto, with the consent of Borrower
\n and the Co-Borrowers;<\/p>\n
(iii) the existence of any claim, setoff, defense, or
\n other rights which Borrower or any Co-Borrower may have at any time
\n against the Issuing Bank, the Administrative Agent or any Bank, any
\n beneficiary of the Letter of Credit (or any persons or entities for
\n whom any such beneficiary may be acting) or any other Person, whether
\n in connection with the Letter of Credit, this Agreement, or any other
\n agreement or instrument relating thereto, or any unrelated
\n transactions;<\/p>\n
(iv) any demand, statement, or any other document
\n presented under the Letter of Credit proving to be forged, fraudulent,
\n invalid, or insufficient in any respect or any statement therein being
\n untrue or inaccurate in any respect whatsoever so long as any such
\n document appeared to comply with the terms of the Letter of Credit;<\/p>\n
(v) payment by the Issuing Bank in good faith under the
\n Letter of Credit against presentation of a draft or any accompanying
\n document which does not strictly comply with the terms of the Letter
\n of Credit;<\/p>\n
(vi) the existence, character, quality, quantity,
\n condition, packing, value or delivery of any Property purported to be
\n represented by documents presented in connection with any Letter of
\n Credit or any difference between any such Property and the character,
\n quality, quantity, condition, or value of such Property as described
\n in such documents;<\/p>\n
-34-<\/p>\n
(vii) the time, place, manner, order or contents of
\n shipments or deliveries of Property as described in documents
\n presented in connection with any Letter of Credit or the existence,
\n nature and extent of any insurance relative thereto;<\/p>\n
(viii) the solvency or financial responsibility of any
\n party issuing any documents in connection with a Letter of Credit;<\/p>\n
(ix) any failure or delay in notice of shipments or
\n arrival of any Property;<\/p>\n
(x) any error in the transmission of any message
\n relating to a Letter of Credit not caused by the Issuing Bank, or any
\n delay or interruption in any such message;<\/p>\n
(xi) any error, neglect or default of any correspondent
\n of the Issuing Bank in connection with a Letter of Credit (but without
\n prejudice to any claim by Borrower or any Co-Borrower against such
\n correspondent);<\/p>\n
(xii) any consequence arising from acts of God, war,
\n insurrection, civil unrest, disturbances, labor disputes, emergency
\n conditions or other causes beyond the control of the Issuing Bank;<\/p>\n
(xiii) so long as the Issuing Bank in good faith determines
\n that the contract or document appears to comply with the terms of the
\n Letter of Credit, the form, accuracy, genuineness or legal effect of
\n any contract or document referred to in any document submitted to the
\n Issuing Bank in connection with a Letter of Credit; and<\/p>\n
(xiv) where the Issuing Bank has acted in good faith and
\n observed general banking usage, any other circumstances whatsoever.<\/p>\n
(i) The Issuing Bank shall be entitled to the protection
\naccorded to the Administrative Agent pursuant to Article 10, mutatis mutandis.
\n ——- ——– <\/p>\n
(j) The Uniform Customs and Practice for Documentary Credits, as
\npublished in its most current version by the International Chamber of Commerce,
\nshall be deemed a part of this Section and shall apply to all Letters of Credit
\nto the extent not inconsistent with applicable Law.<\/p>\n
2.5 Competitive Advances.
\n ——————– <\/p>\n
(a) Subject to the terms and conditions hereof, at any time and from
\ntime to time from the Closing Date through and including the Maturity Date, each
\nBank may in its sole and absolute discretion make Competitive Advances to
\nBorrower or to any Co-Borrower pursuant to Competitive Bids accepted by Borrower
\nor the <\/p>\n
-35-<\/p>\n
relevant Co-Borrower in such principal amounts as Borrower or the relevant Co-
\nBorrower may request pursuant to a Competitive Bid Request that do not result in
\nthe aggregate outstanding principal Indebtedness evidenced by the Competitive
\nAdvance Notes being in excess of the Maximum Competitive Outstandings Amount,
\nprovided that after giving effect to the making of each Competitive Advance, the
\n——–
\nOutstanding Obligations shall not exceed the Commitment. Each Competitive
\nAdvance made to a Co-Borrower shall be directly used to finance the development,
\nconstruction or operation of hotel\/casino properties owned by that Co-Borrower.
\nNo Competitive Advance made by any Bank shall relieve that Bank of its Pro Rata
\nShare of the undrawn Commitment.<\/p>\n
(b) Borrower or the relevant Co-Borrower shall request Competitive
\nAdvances by submitting Competitive Bid Requests to the Administrative Agent,
\nwhich specify the relevant date, amount and maturity of the proposed Competitive
\nAdvance and whether the Competitive Bid requested is an Absolute Rate Bid or a
\nEurodollar Margin Bid, or both. Borrower and each Co-Borrower may submit
\ntelephonic requests for Competitive Advances. Any Competitive Bid Request made
\nby telephone shall promptly be confirmed by the delivery to Administrative Agent
\nin person or by telecopier of a written Competitive Bid Request. The
\nAdministrative Agent shall incur no liability whatsoever hereunder in acting
\nupon any telephonic Competitive Bid Request purportedly made by a Responsible
\nOfficial of Borrower, which hereby agrees to indemnify the Administrative Agent
\nfrom any loss, cost, expense or liability as a result of so acting. The
\nCompetitive Bid Request must be received by the Administrative Agent not later
\nthan 9:00 a.m., California local time, on a Banking Day that is at least one
\nBanking Day prior to the date of the proposed Competitive Advance if an Absolute
\nRate Bid is requested; if a Eurodollar Margin Bid is requested, it must be
\nreceived by the Administrative Agent five Banking Days prior to the date of the
\nproposed Competitive Advance.<\/p>\n
(c) Unless the Administrative Agent otherwise agrees, in its sole and
\nabsolute discretion, no Competitive Bid Request may be submitted within the five
\nBanking Day period following submission of another Competitive Bid Request.<\/p>\n
(d) Each Competitive Bid Request must be made for a Competitive
\nAdvance of at least $10,000,000 and shall be in an integral multiple of
\n$1,000,000.<\/p>\n
(e) No Competitive Bid Request shall be made for a Competitive
\nAdvance with a maturity of less than 14 days or more than 180 days, or with a
\nmaturity date subsequent to the Maturity Date.<\/p>\n
(f) The Administrative Agent shall, promptly after receipt of a
\nCompetitive Bid Request, notify the Banks thereof by telephone and provide the
\nBanks a copy thereof by telecopier. Any Bank may, by written notice to the
\nAdministrative Agent (with a copy to Borrower and the Co-Borrowers), advise the
\nAdministrative Agent that it elects not to be so notified of Competitive Bid
\nRequests, in which case the Administrative Agent shall not notify such Bank of
\nthe Competitive Bid Request.<\/p>\n
(g) Each Bank receiving a Competitive Bid Request may, in its sole
\nand absolute discretion, make or not make a Competitive Bid responsive to the
\nCompetitive Bid Request. Each Competitive Bid shall be submitted to the
\nAdministrative Agent not later than 7:30 a.m. (or, in the case of the Bank which
\nis also the Administrative Agent, not later than 7:15 a.m.) California local
\ntime, in the case of a Eurodollar Margin Bid, on the date which is four Banking
\nDays prior to the requested <\/p>\n
-36-<\/p>\n
Competitive Advance and, in the case of an Absolute Rate Bid, on the date of the
\nrequested Competitive Advance. Any Competitive Bid received by the
\nAdministrative Agent after 7:30 a.m. (or 7:15 a.m. in the case of the Bank which
\nis also the Administrative Agent) on such date shall be disregarded for purposes
\nof this Agreement. Any Competitive Bid made by telephone shall promptly be
\nconfirmed by the delivery to the Administrative Agent in person or by telecopier
\nof a written Competitive Bid. The Administrative Agent shall incur no liability
\nwhatsoever hereunder in acting upon any telephonic Competitive Bid purportedly
\nmade by a Responsible Official of a Bank, each of which hereby agrees to
\nindemnify the Administrative Agent from any loss, cost, expense or liability as
\na result of so acting with respect to that Bank.<\/p>\n
(h) Each Competitive Bid shall specify the fixed interest rate or the
\nmargin over the Eurodollar Rate, as applicable, for the offered Maximum
\nCompetitive Advance set forth in the Competitive Bid. The Maximum Competitive
\nAdvance offered by a Bank in a Competitive Bid may be less than the Competitive
\nAdvance requested by Borrower or the relevant Co-Borrower in the Competitive Bid
\nRequest, but, if so, shall be an integral multiple of $1,000,000. Any
\nCompetitive Bid which offers an interest rate other than a fixed interest rate
\n —– —-
\nor a margin over the Eurodollar Rate, is in a form other than set forth in
\nExhibit E or which otherwise contains any term, condition or provision not
\ncontained in the Competitive Bid Request shall be disregarded for purposes of
\nthis Agreement. A Competitive Bid once submitted to the Administrative Agent
\nshall be irrevocable until 8:30 a.m. California local time, in the case of a
\nEurodollar Margin Bid, on the date which is three Banking Days prior to the
\nrequested Competitive Advance and, in the case of an Absolute Rate Bid, on the
\ndate of the proposed Competitive Advance set forth in the related Competitive
\nBid Request, and shall expire by its terms at such time unless accepted by
\nBorrower or the relevant Co-Borrower prior thereto.<\/p>\n
(i) Promptly after 7:30 a.m. California local time, in the case of a
\nEurodollar Margin Bid, on the date which is four Banking Days prior to the date
\nof the proposed Competitive Advance and, in the case of an Absolute Rate Bid, on
\nthe date of the proposed Competitive Advance, the Administrative Agent shall
\nnotify Borrower or the relevant Co-Borrower of the names of the Banks providing
\nCompetitive Bids to the Administrative Agent at or before 7:30 a.m. on that date
\n(or 7:15 a.m. in the case of the Bank which is also the Administrative Agent)
\nand the Maximum Competitive Advance and fixed interest rate or margin over the
\nEurodollar Rate set forth by each such Bank in its Competitive Bid. The
\nAdministrative Agent shall promptly confirm such notification in writing
\ndelivered in person or by telecopier to Borrower or the relevant Co-Borrower.<\/p>\n
(j) Borrower or the relevant Co-Borrower may, in its sole and
\nabsolute discretion, reject any or all of the Competitive Bids. If Borrower or
\nthe relevant Co-Borrower accepts any Competitive Bid, the following shall apply:
\n(a) Borrower or the relevant Co-Borrower must accept all Absolute Rate Bids at
\nall lower fixed interest rates before accepting any portion of an Absolute Rate
\nBid at a higher fixed interest rate, (b) Borrower or the relevant Co-Borrower
\nmust accept all Eurodollar Margin Bids at all lower margins over the Eurodollar
\nRate before accepting any portion of a Eurodollar Margin Bid at a higher margin
\nover the Eurodollar Rate, (c) if two or more Banks have submitted a Competitive
\nBid at the same fixed interest rate or margin, then Borrower or the relevant Co-
\nBorrower must accept either all of such Competitive Bids or accept such
\nCompetitive Bids in the same proportion as the Maximum Competitive Advance of
\neach Bank bears to the aggregate Maximum Competitive Advances of all such Banks,
\nand (d) Borrower and the Co-Borrower may not accept Competitive Bids for an
\naggregate amount in excess of the requested Competitive Advance set forth in the
\nCompetitive<\/p>\n
-37-<\/p>\n
Bid Request. Borrower or the relevant Co-Borrower must accept (i) each
\nEurodollar Margin Rate Bid prior to 8:30 a.m. on the date which is three Banking
\nDays prior to the requested Competitive Advance and (iii) each Absolute Rate Bid
\nprior to 8:30 a.m. on the date of the requested Competitive Advance or shall be
\ndeemed to have rejected the offered Competitive Advances. Acceptance of a
\nCompetitive Bid by Borrower or a Co-Borrower shall be irrevocable upon
\ncommunication thereof to the Administrative Agent. The Administrative Agent
\nshall promptly notify each of the Banks whose Competitive Bid has been accepted
\nby Borrower or the relevant Co-Borrower by telephone, which notification shall
\npromptly be confirmed in writing delivered in person or by telecopier to such
\nBanks.<\/p>\n
(k) In the case of Eurodollar Margin Bids, the Administrative
\nAgent shall determine the Eurodollar Rate (as the case may be) on the date which
\nis two Eurodollar Banking Days prior to the date of the proposed Competitive
\nAdvance, and shall promptly thereafter notify Borrower or the relevant Co-
\nBorrower and the Banks whose Competitive Bids were accepted by Borrower or the
\nrelevant Co-Borrower of such Eurodollar Rate.<\/p>\n
(l) A Bank whose Competitive Bid has been accepted shall make the
\nCompetitive Advance in accordance with the Competitive Bid Request and with its
\nCompetitive Bid, subject to the applicable conditions set forth in this
\nAgreement by making funds immediately available to the Administrative Agent at
\nthe Administrative Agent’s Office in the amount of such Competitive Advance not
\nlater than 12:00 noon, California local time, on the date set forth in the
\nCompetitive Bid Request. The Administrative Agent shall then promptly credit
\nthe Competitive Advance in immediately available funds to the relevant Deposit
\nAccount.<\/p>\n
(m) The Administrative Agent shall notify Borrower and the Banks
\npromptly after any Competitive Advance is made of the amounts and maturity of
\nsuch Competitive Advances and the identity of the Banks making such Competitive
\nAdvances.<\/p>\n
(n) The Competitive Advances made by each Bank shall be evidenced
\nby that Bank’s Competitive Advance Note.<\/p>\n
2.6 Swing Line. (a) Subject to the terms and conditions set forth
\n ———-
\nherein, from the Closing Date through the day prior to the Maturity Date the
\nSwing Line Bank shall make Swing Line Loans to Borrower and each of the Co-
\nBorrowers in such amounts as they may request which do not result in the
\nOutstanding Obligations being in excess of the then effective Commitment,
\nprovided that (i) after giving effect to each Swing Line Loan, the Swing Line
\n——–
\nOutstandings shall not exceed $50,000,000, (ii) without the consent of all of
\nthe Banks, no Swing Line Loan may be made during the continuation of an Event of
\nDefault and (iii) the Swing Line Bank has not given at least twenty-four hours
\nprior notice to Borrower and the Co-Borrowers that availability under the Swing
\nLine is suspended or terminated. Borrower and the Co-Borrowers may borrow,
\nrepay and reborrow under this Section. Unless notified to the contrary by the
\nSwing Line Bank, borrowings under the Swing Line may be made in amounts which
\nare integral multiples of $100,000 upon telephonic request by a Responsible
\nOfficial of Borrower or the relevant Co-Borrower made to the Administrative
\nAgent not later than 3:00 p.m., California local time, on the Banking Day of the
\nrequested borrowing (which telephonic request shall be promptly confirmed in
\nwriting by telecopier), provided that if the requested Swing Line Loan is to be
\n ——–
\ncredited to an account which is not with the Swing Line Bank, the request must
\nbe submitted by 11:30 a.m., California local time. Promptly after receipt of
\nsuch a request for borrowing, <\/p>\n
-38-<\/p>\n
the Administrative Agent shall provide telephonic verification to the Swing Line
\nBank that, after giving effect to such request, the Outstanding Obligations will
\nnot exceed the Commitment (and such verification shall be promptly confirmed in
\nwriting by telecopier). Unless notified to the contrary by the Swing Line Bank,
\neach repayment of a Swing Line Loan shall be in an amount which is an integral
\nmultiple of $100,000. If Borrower or the relevant Co-Borrower instructs the
\nSwing Line Bank to debit its demand deposit account at the Swing Line Bank in
\nthe amount of any payment with respect to a Swing Line Loan, or the Swing Line
\nBank otherwise receives repayment, after 3:00 p.m., California local time, on a
\nBanking Day, such payment shall be deemed received on the next Banking Day. The
\nSwing Line Bank shall promptly notify the Administrative Agent of the Swing Loan
\nOutstandings each time there is a change therein or if it suspends or terminates
\navailability under the Swing Line.<\/p>\n
(b) Swing Line Loans shall bear interest at a fluctuating rate per
\nannum equal to the Base Rate plus the Base Rate Margin minus one percent per
\n —- —–
\nannum. Interest shall be payable on such dates, not more frequent than monthly,
\nas may be specified by the Swing Line Bank and in any event on the Maturity
\nDate. The Swing Line Bank shall be responsible for invoicing Borrower for such
\ninterest. Interest payable on Swing Line Loans is solely for the account of the
\nSwing Line Bank (subject to clause (d) below).<\/p>\n
(c) The Swing Line Loans shall be payable within five Banking Days
\nafter demand made by the Swing Line Bank and in any event on the Maturity Date
\nor any earlier date when all other Obligations are due.<\/p>\n
(d) Upon the making of a Swing Line Loan in accordance with Section
\n2.6(a), each Bank shall be deemed to have purchased from the Swing Line Bank a
\nparticipation therein in an amount equal to that Bank’s Pro Rata Share times the
\n —–
\namount of the Swing Line Loan. Upon demand made by the Swing Line Bank through
\nthe Administrative Agent, each Bank shall, according to its Pro Rata Share,
\npromptly provide to the Swing Line Bank its purchase price therefor in an amount
\nequal to its participation therein. The obligation of each Bank to so provide
\nits purchase price to the Swing Line Bank shall be absolute and unconditional
\n(subject only to the making of a demand upon that Bank by the Swing Line Bank)
\nand shall not be affected by the occurrence of a Default or Event of Default;
\nprovided that no Bank shall be obligated to purchase its Pro Rata Share of (i)
\n——–
\nSwing Line Loans to the extent that Swing Line Outstandings are in excess of
\n$50,000,000 or to the extent that the sum of the Indebtedness evidenced by the
\n —
\nNotes plus the Aggregate Effective Amount of all outstanding Letters of Credit
\n —-
\nplus the Swing Line Outstandings exceeds the Commitment (as in effect on the
\n—-
\ndate of the making of the related Swing Line Loan) and (ii) any Swing Line Loan
\nmade (absent the consent of all of the Banks) during the continuation of an
\nEvent of Default. Each Bank that has provided to the Swing Line Bank the
\npurchase price due for its participation in Swing Line Loans shall thereupon
\nacquire a pro rata participation, to the extent of such payment, in the claim of
\nthe Swing Line Bank against Borrower and the Co-Borrowers for principal and
\ninterest and shall share, in accordance with that pro rata participation, in any
\nprincipal payment made by Borrower or the Co-Borrowers with respect to such
\nclaim and in any interest payment made by Borrower or the Co-Borrowers (but only
\nwith respect to periods subsequent to the date such Bank paid the Swing Line
\nBank its purchase price) with respect to such claim.<\/p>\n
(e) Upon any demand for payment of the Swing Line Outstandings by the
\nSwing Line Bank (unless Borrower or the relevant Co-Borrower has made other
\narrangements acceptable to<\/p>\n
-39-<\/p>\n
the Swing Line Bank to reduce the Swing Line Outstandings to $0), Borrower or
\nthe relevant Co-Borrower shall request a Loan pursuant to Section 2.1(a)
\nsufficient to repay all Swing Line Outstandings (and, for this purpose, Section
\n2.1(d) shall not apply). In each case, the Administrative Agent shall
\nautomatically provide the respective Committed Advances made by each Bank to the
\nSwing Line Bank (which the Swing Line Bank shall then apply to the Swing Line
\nOutstandings). In the event that Borrower and the Co-Borrowers fail to request a
\nLoan within the time specified by Section 2.2 on any such date, the
\nAdministrative Agent may, but is not required to, without notice to or the
\nconsent of Borrower or the Co-Borrowers, cause Committed Advances to be made by
\nthe Banks under the Commitment in amounts which are sufficient to reduce the
\nSwing Line Outstandings as required above. The conditions precedent set forth in
\nArticle 8 shall not apply to Advances to be made by the Banks pursuant to the
\nthree preceding sentences but the Banks shall not be obligated to make such
\nAdvances to the extent that the conditions set forth in Section 2.6(a)(i), (ii)
\nand (iii) were not satisfied as to any Swing Line Loan which is part of such
\nSwing Line Outstandings. The proceeds of such Advances shall be paid directly to
\nthe Swing Line Bank for application to the Swing Line Outstandings.<\/p>\n
2.7 Co-Borrowers. Atlantic City and Detroit are each hereby
\n ————
\ndesignated as joint and several direct Co-Borrowers under this Agreement, with
\nthe right to request Loans and Letters of Credit through the Administrative
\nAgent directly from the Banks and the Issuing Bank, subject to the terms and
\nconditions set forth herein, provided that (a) each Loan and Letter of Credit
\n ——– —-
\nmade hereunder to Atlantic City, Detroit or any other Co-Borrower shall be used
\nsolely and directly to finance the development, construction or operation of
\nhotel\/casino properties owned by that Co-Borrower, and (b) the liability of
\nDetroit is limited to that portion of the Obligations which are used, directly
\nor indirectly, to finance the design, development, construction or operation of
\nthe Detroit Project or which are actually borrowed or received by Detroit. From
\ntime to time following the Closing Date, Borrower may designate one or more
\nGuarantors to be joint and several direct Co-Borrowers hereunder by written
\nrequest to the Administrative Agent accompanied by (a) an executed Assumption
\nAgreement and Notes executed by the designated Guarantor, (b) a certificate of
\ngood standing of the designated Guarantor in the jurisdiction of its
\nincorporation, (c) a certified corporate authority resolution covering the
\nexecution and delivery of the Assumption Agreement and Notes, (d) a written
\nconsent to the Assumption Agreement executed by each other Guarantor, and (e) an
\nappropriate written legal opinion similar to the Opinions with respect to the
\nCo-Borrower and the Assumption Agreement. The Administrative Agent shall
\npromptly notify the Banks of such request, together with copies of such of the
\nforegoing as any Bank may request and the designated Guarantor shall become a
\nCo-Borrower hereunder.<\/p>\n
2.8 Voluntary Reduction of Commitment. Borrower and the Co-
\n ———————————
\nBorrowers shall have the right, at any time and from time to time, without
\npenalty or charge, upon at least three Banking Days’ prior written notice by a
\nResponsible Official of Borrower and the Co-Borrowers to the Administrative
\nAgent, voluntarily to reduce, permanently and irrevocably, in aggregate
\nprincipal amounts in an integral multiple of $1,000,000 but not less than
\n$5,000,000, or to terminate, all or a portion of the then undisbursed portion of
\nthe Commitment; provided that the Commitment may not be so reduced below an
\n ——–
\namount equal to the sum of (i) the aggregate principal amount outstanding under
\n — —
\nthe Notes, plus (ii) the Aggregate Effective Amount of all outstanding Letters
\n —-
\nof Credit plus (c) the Swing Line Outstandings. The Administrative Agent shall
\n —-
\npromptly notify the Banks of any reduction or termination of the Commitment
\nunder this Section.<\/p>\n
-40-<\/p>\n
2.9 Optional Termination of Commitment. Following the occurrence
\n ———————————-
\nof a Change in Control, the Requisite Banks may in their sole and absolute
\ndiscretion elect to terminate the Commitment during the sixty day period
\nimmediately subsequent to the later of (a) such occurrence or (b) the earlier of
\n —– — ——-
\n(i) receipt of written notice to the Administrative Agent of the Change in
\nControl from Borrower and the Co-Borrowers, or (ii) if no such notice has been
\nreceived by the Administrative Agent, the date upon which the Administrative
\nAgent has actual knowledge thereof. In the event that the Banks elect to so
\nterminate the Commitment, the Commitment shall be terminated effective on the
\ndate which is sixty days subsequent to written notice from the Administrative
\nAgent to Borrower and the Co-Borrowers thereof.<\/p>\n
2.10 Extension of Maturity Date. At any time following the one
\n ————————–
\nyear anniversary of the Closing Date, the Maturity Date may be extended for one
\nyear at Borrower’s and the Co-Borrowers’ election with the written consent of
\nall of the Banks (which may be withheld in the sole and absolute discretion of
\neach Bank). Not earlier than 60 days prior to the then current Maturity Date,
\nand provided that Borrower and the Co-Borrowers are then in compliance with
\n ——–
\nSection 7.1, Borrower and the Co-Borrowers may deliver to the Administrative
\nAgent who will deliver to each of the Banks a written request for a one year
\nextension of the Maturity Date together with a Certificate of a Responsible
\nOfficial signed by a Senior Officer on behalf of Borrower and the Co-Borrowers
\nstating that the representations and warranties contained in Article 4 (other
\n —–
\nthan representations and warranties which expressly speak as of a particular
\n—-
\ndate or are no longer true and correct as a result of a change which is not a
\nviolation of this Agreement) are true and correct on and as of the date of such
\nCertificate. Within 30 days following the delivery of such Certificate, but in
\nany event not sooner than 45 nor later than 15 days prior to the then current
\nMaturity Date, each Bank shall notify the Administrative Agent whether (in its
\nsole and absolute discretion) it consents to such request. Each Bank which
\nfails to respond to any such request for extension shall be deemed to have
\nrefused to consent thereto. After receiving the notifications from all of the
\nBanks or the expiration of such period, whichever is earlier, the Administrative
\nAgent shall notify Borrower, the Co-Borrower and the Banks of the results
\nthereof.<\/p>\n
If all of the Banks have consented to the extension then the Maturity
\nDate shall be extended for one year.<\/p>\n
If Banks holding at least 66 2\/3% of the Commitment consent to the
\nrequest for extension, but other Banks (each a “Non-Consenting Bank”) notify the
\nAdministrative Agent that they will not consent to the request for extension (or
\nfail to notify the Administrative Agent in writing of their consent to the
\nextension), Borrower and the Co-Borrowers may cause all of the Non-Consenting
\nBanks to be removed as Banks under this Agreement pursuant to Section 11.27,
\nprovided that such removal shall be accomplished by assignment to one or more
\n——–
\nEligible Assignees which are willing to consent to the request for extension and
\nnot by reduction of the amount of Commitment. In the event that sufficient
\nEligible Assignees can be identified to assume the Pro Rata Shares of the Non-
\nConsenting Banks, then the request for extension shall be granted with the
\neffect as set forth above.<\/p>\n
2.11 Administrative Agent’s Right to Assume Funds Available for
\n ———————————————————-
\nAdvances. Unless the Administrative Agent shall have been notified by any
\n——–
\nBank no later than 10:00 a.m. on the Banking Day of the proposed funding by the
\nAdministrative Agent of any Loan that such Bank does not intend to make
\navailable to the Administrative Agent such Bank’s portion of the total amount of
\nsuch Loan, the Administrative Agent may assume that such Bank has made such
\namount available to the <\/p>\n
-41-<\/p>\n
Administrative Agent on the date of the Loan and the Administrative Agent may,
\nin reliance upon such assumption, make available to Borrower or the relevant Co-
\nBorrower a corresponding amount. If the Administrative Agent has made funds
\navailable to Borrower or a Co-Borrower based on such assumption and such
\ncorresponding amount is not in fact made available to the Administrative Agent
\nby such Bank, the Administrative Agent shall be entitled to recover such
\ncorresponding amount on demand from such Bank. If such Bank does not pay such
\ncorresponding amount forthwith upon the Administrative Agent’s demand therefor,
\nthe Administrative Agent promptly shall notify Borrower or that Co-Borrower who
\nshall pay such corresponding amount to the Administrative Agent. The
\nAdministrative Agent also shall be entitled to recover from such Bank interest
\non such corresponding amount in respect of each day from the date such
\ncorresponding amount was made available by the Administrative Agent to Borrower
\nor the Co-Borrowers to the date such corresponding amount is recovered by the
\nAdministrative Agent, at a rate per annum equal to the daily Federal Funds Rate.
\nNothing herein shall be deemed to relieve any Bank from its obligation to
\nfulfill its share of the Commitment or to prejudice any rights which the
\nAdministrative Agent, Borrower or any Co-Borrower may have against any Bank as a
\nresult of any default by such Bank hereunder.<\/p>\n
2.12 Release and Reattachment of Collateral. (a) Each of the
\n ————————————–
\nBanks hereby consents to the release on the Closing Date of the Liens granted by
\nthe Collateral Documents described in the Old Loan Agreement. The
\nAdministrative Agent is hereby authorized and directed by each of the Banks to
\nexecute and deliver to Borrower and its Subsidiaries all such termination
\nstatements, mortgage releases, terminations of deeds of trust, terminations of
\nLiens, and other instruments, documents and agreements as may be necessary or
\ndesirable, or which Borrower may reasonably request, to accomplish the purposes
\nof this Section or evidence the effects hereof.<\/p>\n
(b) If a Collateral Event occurs and if either (x) the MGM Senior
\nNotes or the Mirage Senior Notes then require the granting of Liens in any
\nassets of Borrower or any of its Restricted Subsidiaries or (y) any such MGM
\nSenior Notes or Mirage Senior Notes are in fact granted any Liens by Borrower,
\nthe Co-Borrowers or any of the Restricted Subsidiaries, then Borrower and the
\n —-
\nCo-Borrowers shall, and shall cause each of the Restricted Subsidiaries to,
\npromptly and in any event within thirty days following the occurrence of such
\nCollateral Event and in any event not later than the granting of any Liens in
\nsuch collateral any MGM Senior Notes, the Mirage Senior Notes or any trustee
\ntherefor, grant perfected Liens in the same collateral to secure the Obligations
\n(including any Related Swap Agreements) equally, ratably and on a pari passu
\n ———-
\nbasis, provided that Borrower and the Restricted Subsidiaries shall not be
\n ——–
\nobligated to provide Liens in any Property to the extent that Gaming Laws
\nprohibit the granting of Liens in such Property to the Administrative Agent and
\nthe MGM Senior Notes unless and until all required approvals of Gaming Boards
\nthereto are obtained. In such event, Borrower shall, and shall cause each
\nRestricted Subsidiary to, use its best efforts to obtain all necessary consents
\nfrom the applicable Gaming Boards to grant a perfected Lien on such Property
\nsecuring the Obligations and, upon receipt of all consents needed to grant such
\na perfected Lien, shall promptly take all action (or cause the Restricted
\nSubsidiaries to take all action) reasonably necessary in order to grant and
\nperfect such a Lien. The Liens granted pursuant to this clause (b) shall be (i)
\nequal, ratable and pari passu with any Liens securing the MGM Senior Notes, (ii)
\ngranted concurrently with the granting of any Liens in favor of the MGM Senior
\nNotes or the Mirage Senior Notes (whichever first occurs), and (iii) granted
\npursuant to instruments, documents and agreements which are reasonably
\nacceptable to the Administrative Agent and no less favorable to the
\nAdministrative Agent and the other Creditors than those granted to the MGM
\nSenior Notes or the Mirage Senior Notes (whichever is most favorable to the<\/p>\n
-42-<\/p>\n
holders thereof). While each of the Liens contemplated by this clause (b) shall
\nbe equal, ratable and pari passu in the manner described above, it is
\n —- —–
\nacknowledged that the same may subordinate to certain prior Liens in favor of
\ncreditors other than the holders of the MGM Senior Notes and the Mirage Senior
\nNotes permitted pursuant to Section 6.7. In connection with the granting of any
\nsuch Liens, Borrower and its Restricted Subsidiaries shall provide to the
\nAdministrative Agent (y) policies of title insurance on customary terms and
\nconditions, to the extent that policies of title insurance on the corresponding
\nProperty are provided to the holders of the MGM Senior Notes (and in an insured
\namount that bears the same proportion to the principal amount of the Commitment
\nas the insured amount in the policies provided to the holders of the MGM Senior
\nNotes bears to the aggregate amount of the MGM Senior Notes), and (z) legal
\nopinions and other assurances as the Administrative Agent may reasonably
\nrequest.<\/p>\n
(c) If, following any Collateral Event, Borrower and its Restricted
\nSubsidiaries are then entitled to the release of all of the equal, ratable and
\npari passu Liens described in clause (b) above securing the MGM Senior Notes and
\n—- —–
\nthe Mirage Senior Notes, and provided that no Default or Event of Default has
\n ——–
\nthen occurred and remains continuing, Borrower and the Co-Borrowers may in their
\nsole discretion request that the Administrative Agent release any Liens securing
\nthe Obligations in accordance with this clause (c). Borrower and the Co-
\nBorrowers shall submit any request under this Section in the form of a
\nCertificate, in form and substance acceptable to the Administrative Agent,
\nsigned by a Senior Officer of Borrower and each Co-Borrower certifying that no
\nDefault or Event of Default exists, together with a written consent to the
\nrelease of collateral executed by each Guarantor and such other supporting
\ninformation as the Administrative Agent may request, including evidence
\nreasonably satisfactory to the Administrative Agent that the Mirage Senior
\nNotes, the MGM Senior Notes and the creditors under the Other Loan Agreements
\nshall previously or concurrently release all Liens held by such creditors.
\nPromptly upon receipt of such a Certificate, the Administrative Agent shall
\nprovide a copy thereof to the Banks and, unless the Requisite Banks contest the
\naccuracy thereof within five Banking Days, shall (i) execute and deliver to
\nBorrower and its Subsidiaries reconveyances and releases of such Liens, and (ii)
\nreturn to the Persons legally entitled thereto, all collateral pledged in
\nsupport of the Obligations, all at the sole expense of Borrower and the Co-
\nBorrowers (a “Collateral Release”), in each case subject to the requirement that
\nthe Liens held by the Mirage Senior Notes, the MGM Senior Notes and the
\ncreditors under the Other Loan Agreements are previously or concurrently
\nreleased. No Collateral Release shall constitute or be construed as a release
\n(or to require the release) of the Guaranty.<\/p>\n
2.13 Senior Indebtedness. The Obligations shall be and hereby are
\n ——————-
\ndesignated as “Senior Indebtedness” with respect to all Subordinated Obligations
\nand all payments with respect to any Subordinated Obligations shall be subject
\nto Section 6.1.<\/p>\n
-43-<\/p>\n
Article 3
\n PAYMENTS AND FEES
\n —————–<\/p>\n
3.1 Principal and Interest.
\n ———————- <\/p>\n
(a) Interest shall be payable on the outstanding daily
\n unpaid principal amount of each Advance from the date thereof until payment
\n in full is made and shall accrue and be payable at the rates set forth or
\n provided for herein before and after Default, before and after maturity,
\n before and after judgment, and before and after the commencement of any
\n proceeding under any Debtor Relief Law, with interest on overdue interest
\n at the Default Rate to the fullest extent permitted by applicable Laws.<\/p>\n
(b) Interest accrued on each Base Rate Loan on the first
\n Banking Day of each Fiscal Quarter shall be due and payable on that day.
\n Except as otherwise provided in Section 3.9, the unpaid principal amount of
\n ——
\n any Base Rate Loan shall bear interest at a fluctuating rate per annum
\n equal to the Base Rate plus the applicable Base Rate Margin. Each change in
\n —-
\n the interest rate under this Section 3.1(b) due to a change in the Base
\n Rate shall take effect simultaneously with the corresponding change in the
\n Base Rate.<\/p>\n
(c) Interest accrued on each Eurodollar Rate Loan which is
\n for a term of three months or less shall be due and payable on the last day
\n of the related Eurodollar Period. Interest accrued on each other Eurodollar
\n Rate Loan shall be due and payable on the date which is three months after
\n the date such Eurodollar Rate Loan was made (and, in the event that all of
\n the Banks have approved a Eurodollar Period of longer than six months,
\n every three months thereafter through the last day of the Eurodollar
\n Period) and on the last day of the related Eurodollar Period. Except as
\n ——
\n otherwise provided in Section 3.9, the unpaid principal amount of any
\n Eurodollar Rate Loan shall bear interest at a rate per annum equal to the
\n Eurodollar Rate for that Eurodollar Rate Loan plus the applicable
\n —-
\n Eurodollar Margin.<\/p>\n
(d) Interest accrued on each Competitive Advance shall be
\n due and payable on the maturity date of the Competitive Advance. Except as
\n otherwise provided in Section 3.9, the unpaid principal amount of each
\n Competitive Advance shall bear interest at the fixed interest rate or the
\n margin over the Eurodollar Rate specified in the related Competitive Bid.<\/p>\n
(e) If not sooner paid, the principal Indebtedness evidenced
\n by the Notes shall be payable as follows:<\/p>\n
(i) the amount, if any, by which the Outstanding
\n Obligations at any time exceed the then applicable Commitment, shall
\n be payable immediately;<\/p>\n
(ii) the principal amount of each Competitive Advance
\n shall be payable on the maturity date specified in the related
\n Competitive Bid; and<\/p>\n
-44-<\/p>\n
(iii) the principal Indebtedness evidenced by the Notes
\n shall in any event be payable on the Maturity Date.<\/p>\n
(f) The Notes may, at any time and from time to time,
\n voluntarily be paid or prepaid in whole or in part without premium or
\n penalty, except that with respect to any voluntary prepayment under this
\n ——
\n Section 3.1(f), (i) any partial prepayment shall be not less than
\n $5,000,000, or in integral multiples of $1,000,000 which are in excess of
\n $5,000,000, (ii) the Administrative Agent shall have received written
\n notice of any prepayment by 9:00 a.m., California local time, on the
\n Banking Day prior to the date of prepayment (which must be a Banking Day)
\n in the case of a Base Rate Loan, and, in the case of a Eurodollar Rate
\n Loan, three Banking Days before the date of prepayment, which notice shall
\n identify the date and amount of the prepayment and the Loan(s) being
\n prepaid, (iii) each prepayment of principal on any Eurodollar Rate Loan
\n shall be accompanied by payment of interest accrued to the date of payment
\n on the amount of principal paid and (iv) any payment or prepayment of all
\n or any part of any Eurodollar Rate Loan on a day other than the last day of
\n the applicable Eurodollar Period shall be subject to Section 3.8(e).
\n Promptly following receipt of a notice of prepayment under clause (ii)
\n above, the Administrative Agent shall notify each Bank by telephone or
\n telecopier (and if by telephone, promptly confirmed by telecopier) of the
\n date and amount thereof.<\/p>\n
(g) No Competitive Advance Note may be prepaid without the
\n prior written consent of the Bank making such Competitive Advance.<\/p>\n
(h) Each payment of principal by Borrower or Co-Borrower
\n hereunder shall be applied ratably to the Advances made to Borrower or that
\n Co-Borrower which are then due and payable, provided that if the
\n ——–
\n Obligations are then accelerated or have deemed to have been accelerated,
\n each payment of principal hereunder shall be applied ratably to the
\n outstanding Advances.<\/p>\n
3.2 Lead Arranger’s Fees. On the date hereof, Borrower shall pay
\n ——————–
\nto Lead Arranger through the Administrative Agent underwriting fees in the
\namount heretofore agreed upon by letter agreement between Borrower and the Lead
\nArranger. These fees are for the services of the Lead Arranger in arranging the
\ncredit facilities under this Agreement and are fully earned when paid and are
\nnonrefundable.<\/p>\n
3.3 Upfront Fees. On the date hereof, Borrower shall pay to the
\n ————
\nAdministrative Agent, for the account of each Bank, upfront fees in an amount
\nequal to (a) that Bank’s allocated Pro Rata Share of the Commitment times (b) a
\n —–
\nfee percentage based upon the amount of the offered commitment of that Bank to
\nthe credit facilities described herein, as set forth in a written confirmation
\ndelivered to that Bank by the Lead Arranger, provided that the fee percentage
\n ——–
\nfor Bank of America shall be as set forth in a letter agreement with Bank of
\nAmerica. Such upfront fees are for the credit facilities committed by each Bank
\nunder this Agreement and are fully earned when paid. The upfront fees paid to
\neach Bank are solely for its own account and are nonrefundable.<\/p>\n
3.4 Facility Fees. During the period between April 10, 2000 and
\n ————-
\nthe date which is the earlier of (a) May 25, 2000 or (b) the day prior to the
\nClosing Date no facility fees shall accrue. <\/p>\n
-45-<\/p>\n
Thereafter, for a forty-five day period (unless the Closing Date occurs or has
\nearlier occurred), Borrower and the Co-Borrowers shall pay to the Administrative
\nAgent, for the ratable accounts of the Banks pro rata according to their Pro
\nRata Share, a facility fee equal to one half of the Facility Fee Rate in effect
\nfrom time to time times the principal amount of the Commitment. In any event,
\n —–
\nfrom the Closing Date, Borrower and the Co-Borrowers shall pay to the
\nAdministrative Agent, for the ratable accounts of the Banks pro rata according
\nto their Pro Rata Share, a facility fee equal to the full Facility Fee Rate in
\neffect from time to time times the principal amount of the Commitment. The
\n —–
\nfacility fees shall be payable quarterly in arrears on each Quarterly Payment
\nDate, on the Maturity Date upon the date of any partial reduction or termination
\nof the Commitment pursuant to Sections 2.8, 2.9 or 11.27.<\/p>\n
3.5 Letter of Credit Fees. With respect to each Letter of Credit,
\n ———————
\nBorrower and the Co-Borrowers shall pay the following fees:<\/p>\n
(a) concurrently with the issuance of each Standby Letter of
\n Credit, a letter of credit issuance fee to the Issuing Bank for the
\n sole account of the Issuing Bank, in an amount set forth in a letter
\n agreement between Borrower and the Issuing Bank;<\/p>\n
(b) concurrently with the issuance of each Standby Letter of
\n Credit, to the Administrative Agent for the ratable account of the
\n Banks in accordance with their Pro Rata Share, a standby letter of
\n credit fee in an amount equal to the applicable Standby Letter of
\n Credit Fee per annum as of the date of such issuance times the face
\n —–
\n amount of such Standby Letter of Credit through the termination or
\n expiration of such Standby Letter of Credit, which the Administrative
\n Agent shall promptly pay to the Banks; and<\/p>\n
(c) concurrently with each issuance, negotiation, drawing or
\n amendment of each Commercial Letter of Credit, to the Issuing Bank for
\n the sole account of the Issuing Bank, issuance, negotiation, drawing
\n and amendment fees in the amounts set forth from time to time as the
\n Issuing Bank’s published scheduled fees for such services.<\/p>\n
Each of the fees payable with respect to Letters of Credit under this Section is
\nearned when due and is nonrefundable.<\/p>\n
3.6 Agency Fees. On the Closing Date and annually thereafter,
\n ———–
\nBorrower and the Co-Borrowers shall pay to the Administrative Agent an agency
\nfee in such amounts as heretofore agreed upon by letter agreement between
\nBorrower and Bank of America and the Lead Arranger. The agency fee is for the
\nservices to be performed by the Administrative Agent in acting as Administrative
\nAgent and is fully earned on the date paid. The agency fee paid to the
\nAdministrative Agent is solely for its own account and is nonrefundable.<\/p>\n
3.7 Increased Commitment Costs. If any Bank shall determine in
\n ————————–
\ngood faith that the introduction after the Closing Date of any applicable law,
\nrule, regulation or guideline regarding capital adequacy, or any change therein
\nor any change in the interpretation or administration thereof by any central
\nbank or other Governmental Agency charged with the interpretation or
\nadministration thereof, or compliance by such Bank (or its Eurodollar Lending
\nOffice) or any corporation controlling the Bank, with any request, guideline or
\ndirective regarding capital adequacy (whether or not having the force of <\/p>\n
-46-<\/p>\n
Law) of any such central bank or other authority, affects or would affect the
\namount of capital required or expected to be maintained by such Bank or any
\ncorporation controlling such Bank and (taking into consideration such Bank’s or
\nsuch corporation’s policies with respect to capital adequacy and such Bank’s
\ndesired return on capital) determines in good faith that the amount of such
\ncapital is increased, or the rate of return on capital is reduced, as a
\nconsequence of its obligations under this Agreement, then, within ten Banking
\nDays after demand of such Bank, Borrower and the Co-Borrowers shall pay to such
\nBank, from time to time as specified in good faith by such Bank, additional
\namounts sufficient to compensate such Bank in light of such circumstances, to
\nthe extent reasonably allocable to such obligations under this Agreement,
\nprovided that Borrower and the Co-Borrowers shall not be obligated to pay any
\n——–
\nsuch amount which arose prior to the date which is ninety days preceding the
\ndate of such demand or is attributable to periods prior to the date which is
\nninety days preceding the date of such demand. Each Bank’s determination of such
\namounts shall be conclusive in the absence of manifest error. Any request for
\ncompensation by a Bank under this Section shall set forth the basis upon which
\nit has been determined that such an amount is due from Borrower and the Co-
\nBorrowers, a calculation of the amount due, and a certification that the
\ncorresponding costs or diminished rate of return on capital have been incurred
\nor sustained by the Bank. If Borrower and the Co-Borrowers become obligated to
\npay a material amount under this Section to any Bank, that Bank will be subject
\nto removal in accordance with Section 11.27; provided that Borrower and the Co-
\n ——–
\nBorrowers shall have paid such amount to that Bank and that Borrower and the Co-
\nBorrowers, within the thirty day period following the date of such payment,
\nshall have notified that Bank in writing of their intent to so remove the Bank.<\/p>\n
3.8 Eurodollar Costs and Related Matters.
\n ———————————— <\/p>\n
(a) In the event that any Governmental Agency imposes on any
\n Bank any reserve or comparable requirement (including any emergency,
\n ———
\n supplemental or other reserve) with respect to the Eurodollar Obligations
\n of that Bank, Borrower or the relevant Co-Borrower shall pay that Bank
\n within five Banking Days after demand all amounts necessary to compensate
\n such Bank (determined as though such Bank’s Eurodollar Lending Office had
\n funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
\n Market) in respect of the imposition of such reserve requirements. The
\n Bank’s determination of such amount shall be conclusive in the absence of
\n manifest error.<\/p>\n
(b) If, after the date hereof, the existence or occurrence
\n of any Special Eurodollar Circumstance:<\/p>\n
(1) shall subject any Bank or its Eurodollar Lending Office
\n to any tax, duty or other charge or cost with respect to any
\n Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
\n Advances or its obligation to make Eurodollar Rate Advances, or shall
\n change the basis of taxation of payments to any Bank attributable to
\n the principal of or interest on any Eurodollar Rate Advance or any
\n other amounts due under this Agreement in respect of any Eurodollar
\n Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or
\n its obligation to make Eurodollar Rate Advances, excluding (i) taxes
\n ———
\n imposed on or measured in whole or in part by its overall net income,
\n gross income or gross receipts, (ii) franchise taxes imposed by (A)
\n any jurisdiction (or political subdivision thereof) in which it is
\n organized or maintains its principal office or Eurodollar Lending
\n Office or (B) any jurisdiction (or political <\/p>\n
-47-<\/p>\n
subdivision thereof) in which it is “doing business,” and (iii) any
\n withholding taxes or other taxes based on gross income imposed by the
\n United States of America for any period with respect to which it has
\n failed to provide Borrower with the appropriate form or forms required
\n by Section 11.21, to the extent such forms are then available under
\n applicable Laws;<\/p>\n
(2) shall impose, modify or deem applicable any reserve not
\n applicable or deemed applicable on the date hereof (including any
\n ———
\n reserve imposed by the Board of Governors of the Federal Reserve
\n System, special deposit, capital or similar requirements against
\n assets of, deposits with or for the account of, or credit extended by,
\n any Bank or its Eurodollar Lending Office); or<\/p>\n
(3) shall impose on any Bank or its Eurodollar Lending
\n Office or the Designated Eurodollar Market any other condition
\n affecting any Eurodollar Rate Advance, any of its Notes evidencing
\n Eurodollar Rate Advances, its obligation to make Eurodollar Rate
\n Advances or this Agreement, or shall otherwise affect any of the same;<\/p>\n
and the result of any of the foregoing, as determined in good faith by such
\n Bank, increases the cost to such Bank or its Eurodollar Lending Office of
\n making or maintaining any Eurodollar Rate Advance or in respect of any
\n Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
\n Advances or its obligation to make Eurodollar Rate Advances or reduces the
\n amount of any sum received or receivable by such Bank or its Eurodollar
\n Lending Office with respect to any Eurodollar Rate Advance, any of its
\n Notes evidencing Eurodollar Rate Advances or its obligation to make
\n Eurodollar Rate Advances (assuming such Bank’s Eurodollar Lending Office
\n had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
\n Market), then, within five Banking Days after demand by such Bank (with a
\n copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay
\n to such Bank such additional amount or amounts as will compensate such Bank
\n for such increased cost or reduction (determined as though such Bank’s
\n Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in
\n the Designated Eurodollar Market). A statement of any Bank claiming
\n compensation under this subsection and setting forth in reasonable detail
\n the additional amount or amounts to be paid to it hereunder shall be
\n conclusive in the absence of manifest error.<\/p>\n
(c) If, after the date hereof, the existence or occurrence
\n of any Special Eurodollar Circumstance shall, in the good faith opinion of
\n any Bank, make it unlawful or impossible for such Bank or its Eurodollar
\n Lending Office to make, maintain or fund its portion of any Eurodollar Rate
\n Advance or materially restrict the authority of such Bank to purchase or
\n sell, or to take deposits of, Dollars in the Designated Eurodollar Market,
\n or to determine or charge interest rates based upon the Eurodollar Rate,
\n and such Bank shall so notify the Administrative Agent, then such Bank’s
\n obligation to make Eurodollar Rate Advances shall be suspended for the
\n duration of such illegality or impossibility and the Administrative Agent
\n forthwith shall give notice thereof to the other Banks and Borrower. Upon
\n receipt of such notice, the outstanding principal amount of such Bank’s
\n Eurodollar Rate Advances, together with accrued interest thereon,
\n automatically shall be converted to Base Rate Advances on either (1) the
\n last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
\n Advances if such Bank may lawfully continue to maintain and fund such
\n Eurodollar Rate Advances to such <\/p>\n
-48-<\/p>\n
day(s) or (2) immediately if such Bank may not lawfully continue to fund
\n and maintain such Eurodollar Rate Advances to such day(s), provided that in
\n ——–
\n such event the conversion shall not be subject to payment of a prepayment
\n fee under clause (e) of this Section. Each Bank agrees to endeavor promptly
\n to notify Borrower of any event of which it has actual knowledge, occurring
\n after the Closing Date, which will cause that Bank to notify the
\n Administrative Agent under this Section, and agrees to designate a
\n different Eurodollar Lending Office if such designation will avoid the need
\n for such notice and will not, in the good faith judgment of such Bank,
\n otherwise be materially disadvantageous to such Bank. In the event that any
\n Bank is unable, for the reasons set forth above, to make, maintain or fund
\n its portion of any Eurodollar Rate Loan or Advance, such Bank shall fund
\n such amount as a Base Rate Advance for the same period of time, and such
\n amount shall be treated in all respects as a Base Rate Advance. Any Bank
\n whose obligation to make Eurodollar Rate Advances has been suspended under
\n this Section shall promptly notify the Administrative Agent and Borrower of
\n the cessation of the Special Eurodollar Circumstance which gave rise to
\n such suspension.<\/p>\n
(d) If, with respect to any proposed Eurodollar Rate Loan:<\/p>\n
(1) the Administrative Agent reasonably determines that, by
\n reason of circumstances affecting the Designated Eurodollar Market
\n generally that are beyond the reasonable control of the Banks,
\n deposits in Dollars (in the applicable amounts) are not being offered
\n to any Bank in the Designated Eurodollar Market for the applicable
\n Eurodollar Period; or<\/p>\n
(2) the Requisite Banks advise the Administrative Agent that
\n the Eurodollar Rate as determined by the Administrative Agent (i) does
\n not represent the effective pricing to such Banks for deposits in
\n Dollars in the Designated Eurodollar Market in the relevant amount for
\n the applicable Eurodollar Period, or (ii) will not adequately and
\n fairly reflect the cost to such Banks of making the applicable
\n Eurodollar Rate Advances;<\/p>\n
then the Administrative Agent forthwith shall give notice thereof to
\n Borrower and the Banks, whereupon until the Administrative Agent notifies
\n Borrower that the circumstances giving rise to such suspension no longer
\n exist, the obligation of the Banks to make any future Eurodollar Rate
\n Advances shall be suspended unless (but only if clause (2) above is the
\n ——
\n basis for such suspension) Borrower and each Co-Borrower notify the
\n Administrative Agent in writing that they elect to pay the Enhanced
\n Eurodollar Margin with respect to all Eurodollar Rate Loans made during
\n such period.<\/p>\n
(e) Upon payment or prepayment of any Eurodollar Rate
\n Advance (other than as the result of a conversion required under clause (c)
\n —– —-
\n of this Section) on a day other than the last day in the applicable
\n Eurodollar Period (whether voluntarily, involuntarily, by reason of
\n acceleration, or otherwise), or upon the failure of Borrower or any Co-
\n Borrower (for a reason other than the failure of a Bank to make an Advance)
\n to borrow on the date or in the amount specified for a Eurodollar Rate
\n Advance in any Request for Loan or Request for Competitive Bids, or upon
\n the failure of Borrower or any Co-Borrower to prepay a Eurodollar Rate Loan
\n or Advance on the date specified in a notice of prepayment delivered to the
\n Administrative Agent <\/p>\n
-49-<\/p>\n
pursuant to Section 3.1(e), Borrower and the Co-Borrowers shall pay to the
\n appropriate Bank within ten Banking Days after demand a prepayment fee,
\n failure to borrow fee or failure to prepay fee, as the case may be
\n (determined as though 100% of that Bank’s Eurodollar Rate Advance had been
\n funded in the Designated Eurodollar Market), equal to the sum of:
\n — — <\/p>\n
(1) the principal amount of the Eurodollar Rate Advance
\n prepaid or not borrowed or prepaid, as the case may be, times [the
\n —–
\n number of days from and including the date of prepayment or failure to
\n borrow or prepay, as applicable, to but excluding the last day in the
\n applicable Eurodollar Period], divided by 360, times the applicable
\n ——- —–
\n Interest Differential (provided that the product of the foregoing
\n ——–
\n formula must be a positive number); plus
\n —-<\/p>\n
(2) all out-of-pocket expenses incurred by the Bank
\n reasonably attributable to such payment, prepayment or failure to
\n borrow.<\/p>\n
Each Bank’s determination of the amount of any prepayment fee, failure to
\n borrow fee or failure to prepay fee payable under this Section shall be
\n conclusive in the absence of manifest error.<\/p>\n
(f) Each Bank agrees to endeavor promptly to notify Borrower
\n of any event of which it has actual knowledge, occurring after the Closing
\n Date, which will entitle such Bank to compensation pursuant to clause (a)
\n or clause (b) of this Section, and agrees to designate a different
\n Eurodollar Lending Office if such designation will avoid the need for or
\n reduce the amount of such compensation and will not, in the good faith
\n judgment of such Bank, otherwise be materially disadvantageous to such
\n Bank. Any request for compensation by a Bank under this Section shall set
\n forth the basis upon which it has been determined that such an amount is
\n due from Borrower and the Co-Borrowers, a calculation of the amount due,
\n and a certification that the corresponding costs have been incurred by the
\n Bank.<\/p>\n
(g) If any Bank claims compensation or is excused from
\n making or continuing Eurodollar Rate Loans or Advances under this Section:<\/p>\n
(i) Borrower and the Co-Borrowers may at any time,
\n upon at least four Eurodollar Banking Days’ prior notice to the
\n Administrative Agent and such Bank and upon payment in full of the
\n amounts provided for in this Section through the date of such payment
\n plus any prepayment fee (subject to clause (c) of this Section)
\n —-
\n required by clause (e) of this Section, pay in full the affected
\n Eurodollar Rate Advances of such Bank or request that such Eurodollar
\n Rate Advances be converted to Base Rate Advances; and<\/p>\n
(ii) In the case where Borrower and the Co-Borrowers
\n become obligated to pay a material amount under this Section to any
\n Bank, that Bank will be subject to removal in accordance with Section
\n 11.27; provided that Borrower and the Co-Borrowers shall have paid
\n ——–
\n such amount to that Bank and that Borrower and the Co-Borrowers,
\n within the thirty day period following the date of such payment, shall
\n have notified that Bank in writing of their intent to so remove the
\n Bank.<\/p>\n
-50-<\/p>\n
3.9 Late Payments. If any installment of principal or interest or
\n ————-
\nany fee or cost or other amount payable under any Loan Document to the
\nAdministrative Agent or any Bank is not paid when due, it shall thereafter bear
\ninterest at a fluctuating interest rate per annum at all times equal to the rate
\notherwise payable with respect thereto plus 2% per annum (or, in the case of any
\n —-
\nObligations which do not bear stated interest, at the rate then otherwise
\napplicable to Base Rate Loans plus 2% per annum), to the fullest extent
\n —-
\npermitted by applicable Laws. Accrued and unpaid interest on past due amounts
\n(including interest on past due interest) shall be compounded monthly, on the
\n———-
\nlast day of each calendar month, to the fullest extent permitted by applicable
\nLaws.<\/p>\n
3.10 Computation of Interest and Fees. Computation of interest on
\n ——————————–
\nBase Rate Loans shall be calculated on the basis of a year of 365 or 366 days,
\nas the case may be, and the actual number of days elapsed; computation of
\ninterest on Eurodollar Rate Loans, Competitive Advances and all fees under this
\nAgreement shall be calculated on the basis of a year of 360 days and the actual
\nnumber of days elapsed. Borrower and the Co-Borrowers acknowledge that such
\nlatter calculation method will result in a higher yield to the Banks than a
\nmethod based on a year of 365 or 366 days. Interest shall accrue on each Loan
\nfor the day on which the Loan is made; interest shall not accrue on a Loan, or
\nany portion thereof, for the day on which the Loan or such portion is paid. Any
\nLoan that is repaid on the same day on which it is made shall bear interest for
\none day. Notwithstanding anything in this Agreement to the contrary, interest in
\nexcess of the maximum amount permitted by applicable Laws shall not accrue or be
\npayable hereunder or under the Notes, and any amount paid as interest hereunder
\nor under the Notes which would otherwise be in excess of such maximum permitted
\namount shall instead be treated as a payment of principal.<\/p>\n
3.11 Non-Banking Days. If any payment to be made by Borrower or any
\n —————-
\nother Party under any Loan Document shall come due on a day other than a Banking
\nDay, payment shall instead be considered due on the next succeeding Banking Day
\nand the extension of time shall be reflected in computing interest and fees.<\/p>\n
3.12 Manner and Treatment of Payments.
\n ——————————– <\/p>\n
(a) Each payment hereunder (except payments pursuant to Sections
\n ——
\n 3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under any other Loan
\n Document shall be made to the Administrative Agent, at the Administrative
\n Agent’s Office, for the account of each of the Banks or the Administrative
\n Agent, as the case may be, in immediately available funds not later than
\n 12:00 noon (other than payments with respect to Swing Line Loans, which
\n —–
\n must be paid directly to the Swing Line Bank and received by 3:00 p.m.),
\n California local time, on the day of payment (which must be a Banking Day).
\n All payments received after such time, on any Banking Day, shall be deemed
\n received on the next succeeding Banking Day. The amount of all payments
\n received by the Administrative Agent for the account of each Bank shall be
\n immediately paid by the Administrative Agent to the applicable Bank in
\n immediately available funds and, if such payment was received by the
\n Administrative Agent by 12:00 noon, California local time, on a Banking Day
\n and not so made available to the account of a Bank on that Banking Day, the
\n Administrative Agent shall reimburse that Bank for the cost to such Bank of
\n funding the amount of such payment at the Federal Funds Rate. All payments
\n shall be made in lawful money of the United States of America.<\/p>\n
-51-<\/p>\n
(b) Each payment or prepayment on account of any Loan shall
\n be applied pro rata according to the outstanding Advances made by each Bank
\n comprising such Loan.<\/p>\n
(c) Each Bank shall use its best efforts to keep a record
\n (which may be in tangible or electronic or other intangible form) of
\n Advances made by it and payments received by it with respect to each of its
\n Notes and, subject to Section 10.6(g), such record shall, as against
\n Borrower and the Co-Borrowers, be presumptive evidence of the amounts
\n owing. Notwithstanding the foregoing sentence, the failure by any Bank to
\n keep such a record shall not affect Borrower’s and the Co-Borrowers’ joint
\n and several obligations to pay the Obligations.<\/p>\n
(d) Each payment of any amount payable by Borrower or any
\n other Party under this Agreement or any other Loan Document shall be made
\n free and clear of, and without reduction by reason of, any taxes,
\n assessments or other charges imposed by any Governmental Agency, central
\n bank or comparable authority, excluding (i) taxes imposed on or measured in
\n ———
\n whole or in part by overall net income, gross income or gross receipts,
\n (ii) franchise taxes imposed on any Bank by (A) any jurisdiction (or
\n political subdivision thereof) in which it is organized or maintains its
\n principal office or Eurodollar Lending Office or (B) any jurisdiction (or
\n political subdivision thereof) in which it is “doing business”, (iii) any
\n withholding taxes or other taxes based on gross income imposed by the
\n United States of America that are not attributable to any change in any Law
\n or the interpretation or administration of any Law by any Governmental
\n Agency and (iv) any withholding tax or other taxes based on gross income
\n imposed by the United States of America for any period with respect to
\n which it has failed to provide Borrower with the appropriate form or forms
\n required by Section 11.21, to the extent such forms are then available
\n under applicable Laws (all such non-excluded taxes, assessments or other
\n charges being hereinafter referred to as “Taxes”). To the extent that
\n Borrower or any other Party is obligated by applicable Laws to make any
\n deduction or withholding on account of Taxes from any amount payable to any
\n Bank under this Agreement, they shall (i) make such deduction or
\n withholding and pay the same to the relevant Governmental Agency and (ii)
\n pay such additional amount to that Bank as is necessary to result in that
\n Bank’s receiving a net after-Tax amount equal to the amount to which that
\n Bank would have been entitled under this Agreement absent such deduction or
\n withholding. If and when receipt of such payment results in an excess
\n payment or credit to that Bank on account of such Taxes, that Bank shall
\n promptly refund such excess to Borrower or the relevant Party. If Borrower
\n or any such Party becomes obligated to pay a material amount under this
\n Section to any Bank, that Bank will be subject to removal in accordance
\n with Section 11.27; provided that Borrower or the relevant Party shall have
\n ——–
\n paid such amount to that Bank and that Borrower and the Co-Borrowers,
\n within the thirty day period following the date of such payment, shall have
\n notified that Bank in writing of their intent to so remove the Bank.<\/p>\n
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
\n —————
\nobligate any Bank to obtain the funds for any Loan or Advance in any particular
\nplace or manner or to constitute a representation by any Bank that it has
\nobtained or will obtain the funds for any Loan or Advance in any particular
\nplace or manner, provided that each Bank which is not a bank under the laws of
\n ——–
\nthe United States or any state thereof severally represents and warrants that it
\nhas obtained the funds for its Advances in compliance with applicable Laws and
\nthat the making of its Advances will not constitute “prohibited transactions” as
\nsuch term is defined in ERISA.<\/p>\n
-52-<\/p>\n
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
\n —————————————
\nAdministrative Agent or any Bank not to require payment of any interest<\/p>\n
(including interest at the Default Rate), fee, cost or other amount payable
\n———-
\nunder any Loan Document, or to calculate any amount payable by a particular
\nmethod, on any occasion shall in no way limit or be deemed a waiver of the
\nAdministrative Agent’s or such Bank’s right to require full payment of any
\ninterest (including interest at the Default Rate), fee, cost or other amount
\n ———
\npayable under any Loan Document, or to calculate an amount payable by another
\nmethod that is not inconsistent with this Agreement, on any other or subsequent
\noccasion.<\/p>\n
3.15 Administrative Agent’s Right to Assume Payments Will be Made by
\n —————————————————————
\nBorrower and the Co-Borrowers. Unless the Administrative Agent shall have
\n—————————–
\nbeen notified by Borrower and the Co-Borrowers prior to the date on which any
\npayment to be made by Borrower and the Co-Borrowers hereunder is due that
\nBorrower and the Co-Borrowers do not intend to remit such payment, the
\nAdministrative Agent may, in its discretion, assume that Borrower and the Co-
\nBorrowers have remitted such payment when so due and the Administrative Agent
\nmay, in its discretion and in reliance upon such assumption, make available to
\neach Bank on such payment date an amount equal to such Bank’s share of such
\nassumed payment. If Borrower and the Co-Borrowers have not in fact remitted
\nsuch payment to the Administrative Agent, each Bank shall forthwith on demand
\nrepay to the Administrative Agent the amount of such assumed payment made
\navailable to such Bank, together with interest thereon in respect of each day
\nfrom and including the date such amount was made available by the Administrative
\nAgent to such Bank to the date such amount is repaid to the Administrative Agent
\nat the Federal Funds Rate.<\/p>\n
3.16 Fee Determination Detail. The Administrative Agent and any
\n ————————
\nBank shall provide reasonable detail to Borrower and the Co-Borrowers regarding
\nthe manner in which the amount of any payment to the Creditors, or that Bank,
\nunder Article 3 has been determined, concurrently with demand for such payment.<\/p>\n
3.17 Survivability. All of Borrower’s and the Co-Borrowers’
\n ————-
\nobligations under Sections 3.7 and 3.8 shall survive for ninety days following
\nthe date on which the Commitment is terminated, all Obligations hereunder are
\nfully paid and all Letters of Credit have expired.<\/p>\n
-53-<\/p>\n
Article 4
\n REPRESENTATIONS AND WARRANTIES
\n ——————————-<\/p>\n
Borrower and each Co-Borrower represents and warrants to the Banks on
\nthe date hereof and as of the Closing Date that:<\/p>\n
4.1 Existence and Qualification; Power; Compliance With Laws.
\n ——————————————————–
\nBorrower is a corporation duly formed, validly existing and in good standing
\nunder the Laws of Delaware. Each of the Guarantors is a corporation duly
\nformed, validly existing and in good standing under the Laws of its state of
\nformation. Borrower and each of the Guarantors are duly qualified or registered
\nto transact business and are in good standing in each other jurisdiction in
\nwhich the conduct of their business or the ownership or leasing of their
\nProperties makes such qualification or registration necessary, except where the
\n ——
\nfailure so to qualify or register and to be in good standing would not
\nconstitute a Material Adverse Effect. Borrower and each Guarantor have all
\nrequisite corporate or other organizational power and authority to conduct their
\nbusiness, to own and lease their Properties and to execute and deliver each Loan
\nDocument to which each is a Party and to perform the Obligations. All
\noutstanding shares of the capital stock of Borrower are duly authorized, validly
\nissued, fully paid and non-assessable, and no holder thereof has any enforceable
\nright of rescission under any applicable state or federal securities Laws.
\nBorrower is in compliance with all Requirements of Law applicable to its
\nbusiness as at present conducted, has obtained all authorizations, consents,
\napprovals, orders, licenses and permits from, and has accomplished all filings,
\nregistrations and qualifications with, or obtained exemptions from any of the
\nforegoing from, any Governmental Agency that are necessary for the transaction
\nof its business as at present conducted, except where the failure so to comply,
\n ——
\nfile, register, qualify or obtain exemptions does not constitute a Material
\nAdverse Effect.<\/p>\n
4.2 Authority; Compliance With Other Agreements and Instruments and
\n —————————————————————
\nGovernment Regulations. The execution, delivery and performance by Borrower,
\n———————-
\neach Co-Borrower and each Guarantor of the Loan Documents to which it is a
\nParty, and the execution, delivery and performance of the Mirage Merger
\nAgreement by the parties thereto, have been duly authorized by all necessary
\ncorporate or other organizational action, and do not and will not:<\/p>\n
(a) Require any consent or approval not heretofore obtained
\n of any member, partner, director, stockholder, security holder or creditor
\n of such party (except, in the case of Mirage and its Subsidiaries, as
\n otherwise contemplated by the Mirage Merger Agreement, each of which
\n consents and approvals will have been obtained as of the Closing Date);<\/p>\n
(b) Violate or conflict with any provision of such party’s
\n charter, articles of incorporation, operating agreement or bylaws, as
\n applicable;<\/p>\n
(c) Result in or require the creation or imposition of any
\n Lien upon or with respect to any Property of Borrower and its Restricted
\n Subsidiaries (after giving effect to the transfers of assets contemplated
\n by the Mirage Merger Agreement) other than certain rights of first refusal
\n and options to purchase Property now owned by Mirage and its Subsidiaries
\n which are contemplated by the Mirage Merger Agreement;<\/p>\n
-54-<\/p>\n
(d) Violate any Requirement of Law applicable to such Party,
\n subject to obtaining the authorizations from, or filings with, the
\n Governmental Agencies described in Schedule 4.3; and<\/p>\n
(e) Result in a breach of or constitute a default under, or
\n cause or permit the acceleration of any obligation owed under, any
\n indenture or loan or credit agreement or any other Contractual Obligation
\n to which such party is a party or by which such party or any of its
\n Property is bound or affected (except for the acceleration and payment in
\n cash therefor of certain options to purchase equity securities of Mirage
\n and the acceleration of certain compensation obligations of former
\n employees of Mirage and other similar events which would not have a
\n material adverse effect upon Mirage and its Subsidiaries taken as a whole);<\/p>\n
and neither Borrower, the Co-Borrowers nor any Guarantor is in violation of, or
\ndefault under, any Requirement of Law or Contractual Obligation, or any
\nindenture, loan or credit agreement described in Section 4.2(e), in any respect
\nthat constitutes a Material Adverse Effect.<\/p>\n
4.3 No Governmental Approvals Required. Except as set forth in
\n ———————————- ——
\nSchedule 4.3 or previously obtained or made, no authorization, consent,
\napproval, order, license or permit from, or filing, registration or
\nqualification with, any Governmental Agency is or will be required to authorize
\nor permit under applicable Laws the execution, delivery and performance by
\nBorrower and its Restricted Subsidiaries of the Loan Documents to which it is a
\nParty. Except as set forth in Schedule 4.3, all authorizations from, or filings
\n ——
\nwith, any Governmental Agency described in Schedule 4.3 will be accomplished as
\nof the Closing Date. The Banks acknowledge that Atlantic City is not presently
\nrequired to hold any gaming licenses.<\/p>\n
4.4 Subsidiaries.
\n ———— <\/p>\n
(a) Schedule 4.4 hereto correctly sets forth the names, form
\n of legal entity, ownership and jurisdictions of organization of all
\n Subsidiaries of Borrower. Except as described in Schedule 4.4, Borrower
\n does not own any capital stock, equity interest or debt security which is
\n convertible, or exchangeable, for capital stock or equity interests in any
\n Person. Unless otherwise indicated in Schedule 4.4, all of the outstanding
\n shares of capital stock, or all of the units of equity interest, as the
\n case may be, of each Subsidiary are owned of record and beneficially by
\n Borrower, there are no outstanding options, warrants or other rights to
\n purchase capital stock of any such Subsidiary, and all such shares or
\n equity interests so owned are duly authorized, validly issued, fully paid
\n and non-assessable, and were issued in compliance with all applicable state
\n and federal securities and other Laws, and are free and clear of all Liens,
\n except for Permitted Encumbrances.
\n —— <\/p>\n
(b) Each Restricted Subsidiary of Borrower is a business
\n entity duly formed, validly existing and in good standing under the Laws of
\n its jurisdiction of organization, is duly qualified to do business as a
\n foreign organization and is in good standing as such in each jurisdiction
\n in which the conduct of its business or the ownership or leasing of its
\n Properties makes such qualification necessary (except where the failure to
\n ——
\n be so duly qualified and in good standing does not constitute a Material
\n Adverse Effect), and has all requisite power and authority to conduct its
\n business and to own and lease its Properties.<\/p>\n
-55-<\/p>\n
(c) Each Restricted Subsidiary of Borrower is in compliance
\n with all Requirements of Law applicable to its business and has obtained
\n all authorizations, consents, approvals, orders, licenses, and permits
\n from, and each such Restricted Subsidiary has accomplished all filings,
\n registrations, and qualifications with, or obtained exemptions from any of
\n the foregoing from, any Governmental Agency that are necessary for the
\n transaction of its business, except where the failure to be in such
\n ——
\n compliance, obtain such authorizations, consents, approvals, orders,
\n licenses, and permits, accomplish such filings, registrations, and
\n qualifications, or obtain such exemptions, does not constitute a Material
\n Adverse Effect.<\/p>\n
4.5 Financial Statements. Borrower and the Co-Borrowers have
\n ——————–
\nfurnished to the Banks (a) the audited consolidated and consolidating financial
\nstatements of Borrower and its Subsidiaries for the Fiscal Year ended December
\n31, 1999, and (b) the audited consolidated financial statements of Mirage and
\nits Subsidiaries for the Fiscal Year ended December 31, 1999. The financial
\nstatements described in clause (a) above fairly present in all material respects
\nthe financial condition, results of operations and changes in financial position
\nof Borrower and its Subsidiaries as of such dates and for such periods in
\nconformity with Generally Accepted Accounting Principles, consistently applied.
\nTo the best knowledge of Borrower, the financial statements described in clause
\n(b) above fairly present in all material respects, in conformity with generally
\naccepted accounting principles, the consolidated financial position of Mirage as
\nof the dates and for the periods therein stated.<\/p>\n
4.6 No Other Liabilities; No Material Adverse Changes. Borrower
\n ————————————————-
\nand its Subsidiaries do not have any material liability or material contingent
\nliability required under Generally Accepted Accounting Principles to be
\nreflected or disclosed and not reflected or disclosed in the financial
\nstatements described in Section 4.5(a), other than liabilities and contingent
\nliabilities arising in the ordinary course of business since the date of such
\nfinancial statements. As of the Closing Date, no circumstance or event has
\noccurred that constitutes a Material Adverse Effect since December 31, 1999.<\/p>\n
4.7 Title to Property. As of December 31, 1999, Borrower and its
\n —————–
\nSubsidiaries have valid title to the Property reflected in the financial
\nstatements described in Section 4.5(b), other than immaterial items of Property,
\nfree and clear of all Liens, other than Permitted Encumbrances, and Liens
\n —– —-
\ndescribed in Schedule 4.7 or permitted by Section 6.7. As of the Closing Date,
\nand giving effect to the consummation of the Mirage Merger Agreement, Borrower
\nand its Subsidiaries shall have valid title to all material Property reflected
\nin the financial statements described in Section 4.5, other than (i) Property
\nnot required to be conveyed to Borrower under the Mirage Merger Agreement, and
\n(ii) Property subsequently sold or disposed of by Borrower and its Subsidiaries
\nin the ordinary course of business, in each case free and clear of all Liens,<\/p>\n
other than Permitted Encumbrances, and Liens described in Schedule 4.7 or
\n—– —-
\npermitted by Section 6.7.<\/p>\n
4.8 Intangible Assets. Borrower and its Subsidiaries own, or
\n —————–
\npossess the right to use to the extent necessary in their businesses, all
\nmaterial trademarks, trade names, copyrights, patents, patent rights, computer
\nsoftware, licenses and other Intangible Assets that are used in the conduct of
\ntheir businesses, and no such Intangible Asset, to the best knowledge of
\nBorrower and the Co-Borrowers, conflicts with the valid trademark, trade name,
\ncopyright, patent, patent right or Intangible Asset of any other Person to the
\nextent that such conflict constitutes a Material Adverse Effect.<\/p>\n
-56-<\/p>\n
4.9 Public Utility Holding Company Act. Neither Borrower nor any
\n ———————————-
\nof its Subsidiaries is a “holding company”, or a “subsidiary company” of a
\n“holding company”, or an “affiliate” of a “holding company” or of a “subsidiary
\ncompany” of a “holding company”, within the meaning of the Public Utility
\nHolding Company Act of 1935, as amended.<\/p>\n
4.10 Litigation. Except for (a) any matter fully covered as to
\n ———- ——
\nsubject matter and amount (subject to applicable deductibles and retentions) by
\ninsurance as to which the insurance carrier has been notified and has not
\nasserted lack of subject matter coverage or reserved its right to do so, (b) any
\nmatter, or series of related matters, involving a claim against Borrower or any
\nof its Subsidiaries of less than $75,000,000, (c) matters of an administrative
\nnature not involving a claim or charge against Borrower or any of its
\nSubsidiaries and (d) matters set forth in Schedule 4.10, there are no actions,
\nsuits, proceedings or investigations pending as to which Borrower or any of its
\nSubsidiaries have been served or have received notice or, to the best knowledge
\nof Borrower and the Co-Borrowers, threatened against or affecting Borrower or
\nany of its Subsidiaries or any Property of any of them before any Governmental
\nAgency.<\/p>\n
4.11 Binding Obligations. Each of the Loan Documents to which
\n ——————-
\nBorrower or any of its Restricted Subsidiaries is a Party will, when executed
\nand delivered by such Party, constitute the legal, valid and binding obligation
\nof such Party, enforceable against such Party in accordance with its terms,
\nexcept as enforcement may be limited by Debtor Relief Laws, Gaming Laws or
\n——
\nequitable principles relating to the granting of specific performance and other
\nequitable remedies as a matter of judicial discretion.<\/p>\n
4.12 No Default. No event has occurred and is continuing that is a
\n ———-
\nDefault or Event of Default.<\/p>\n
4.13 ERISA.
\n —– <\/p>\n
(a) With respect to each Pension Plan:<\/p>\n
(i) such Pension Plan complies in all material
\n respects with ERISA and any other applicable Laws to the extent that
\n noncompliance could reasonably be expected to have a Material Adverse
\n Effect;<\/p>\n
(ii) such Pension Plan has not incurred any
\n “accumulated funding deficiency” (as defined in Section 302 of ERISA)
\n that could reasonably be expected to have a Material Adverse Effect;<\/p>\n
(iii) no “reportable event” (as defined in Section
\n 4043 of ERISA) has occurred that could reasonably be expected to have
\n a Material Adverse Effect; and<\/p>\n
(iv) neither Borrower nor any of its Subsidiaries
\n has engaged in any non-exempt “prohibited transaction” (as defined in
\n Section 4975 of the Code) that could reasonably be expected to have a
\n Material Adverse Effect.<\/p>\n
-57-<\/p>\n
(b) Neither Borrower nor any of its Subsidiaries has
\n incurred or expects to incur any withdrawal liability to any
\n Multiemployer Plan that could reasonably be expected to have a
\n Material Adverse Effect.<\/p>\n
4.14 Regulations T, U and X; Investment Company Act. The fair market
\n ———————————————-
\nvalue of the assets subject to the Negative Pledge contained in Section 6.7
\n(including the value of the capital stock of Mirage) is more than twice the
\namount of the Outstanding Obligations. No part of the proceeds of any Loan
\nhereunder will be used to purchase or carry, or to extend credit to others for
\nthe purpose of purchasing or carrying, any Margin Stock in violation of
\nRegulations T, U and X. Neither Borrower nor any of its Subsidiaries is or is
\nrequired to be registered as an “investment company” under the Investment
\nCompany Act of 1940.<\/p>\n
4.15 Disclosure. No written statement made by a Senior Officer of
\n ———-
\nBorrower, any Co-Borrower or any Guarantor to the Administrative Agent or any
\nBank in connection with this Agreement, or in connection with any Loan, as of
\nthe date thereof contained any untrue statement of a material fact or omitted a
\nmaterial fact necessary to make the statement made not misleading in light of
\nall the circumstances existing at the date the statement was made.<\/p>\n
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
\n ————-
\nreturns which are required to be filed, and have paid, or made provision for the
\npayment of, all taxes with respect to the periods, Property or transactions
\ncovered by said returns, or pursuant to any assessment received by Borrower or
\nits Subsidiaries, except (a) such taxes, if any, as are being contested in good
\n ——
\nfaith by appropriate proceedings and as to which adequate reserves have been
\nestablished and maintained and (b) immaterial taxes so long as no material
\nProperty of Borrower or any of its Subsidiaries is in jeopardy of being seized,
\nlevied upon or forfeited.<\/p>\n
4.17 Projections. As of the Closing Date, to the best knowledge of
\n ———–
\nBorrower and the Co-Borrowers, the assumptions set forth in the Projections are
\nreasonable and consistent with each other and with all facts known to Borrower
\nand its Subsidiaries, and the Projections are reasonably based on such
\nassumptions. Nothing in this Section shall be construed as a representation or
\ncovenant that the Projections in fact will be achieved. The Creditors
\nacknowledge that the Projections are forward-looking statements and that actual
\nfinancial results for Borrower and its Subsidiaries could differ materially from
\nthose set forth in the Projections.<\/p>\n
4.18 Hazardous Materials. Except as described in Schedule 4.18,
\n ——————-
\n(a) neither Borrower nor any of its Subsidiaries at any time has disposed of,
\ndischarged, released or threatened the release of any Hazardous Materials on,
\nfrom or under the Real Property in violation of any Hazardous Materials Law that
\nwould individually or in the aggregate constitute a Material Adverse Effect, (b)
\nto the best knowledge of Borrower and the Co-Borrowers, no condition exists that
\nviolates any Hazardous Material Law affecting any Real Property except for such
\nviolations that would not individually or in the aggregate have a Material
\nAdverse Effect, (c) no Real Property or any portion thereof is or has been
\nutilized by Borrower or any of its Subsidiaries as a site for the manufacture of
\nany Hazardous Materials and (d) to the extent that any Hazardous Materials are
\nused, generated or stored by Borrower or any of its Subsidiaries on any Real
\nProperty, or transported to or from such Real Property by Borrower or any of its
\nSubsidiaries, such use, generation, storage and transportation are in compliance
\nin all material respects with all Hazardous Materials Laws.<\/p>\n
-58-<\/p>\n
4.19 No Default Under Old Loan Agreement. As of the Closing Date,
\n ———————————–
\nno Default or Event of Default has occurred and remains continuing under the Old
\nLoan Agreement.<\/p>\n
4.20 Mirage Merger Effective. Prior to or concurrently with the
\n ———————–
\nmaking of the initial Advances hereunder on the Closing Date, the transactions
\ncontemplated by the Mirage Merger Agreement shall have been approved by all
\nrelevant Gaming Boards having jurisdiction over such transactions (including
\nwithout limitation those of Nevada, New Jersey, Michigan and Mississippi).
\nSubstantially concurrently with the making of such Advances, Mirage will be
\nacquired by MGMGMR Acquisition, Inc. in accordance with the Mirage Merger
\nAgreement and all applicable Laws. Giving effect to the consummation of the
\nMirage Merger Agreement, the incurrence of the Obligations and the Guaranty, and
\nthe refinancing of the Old Loan Agreement and the Mirage Loan Agreement, on the
\nClosing Date the Borrower and its Restricted Subsidiaries are Solvent.<\/p>\n
-59-<\/p>\n
Article 5
\n AFFIRMATIVE COVENANTS
\n ———————
\n (OTHER THAN INFORMATION AND
\n ————————–
\n REPORTING REQUIREMENTS)
\n ———————- <\/p>\n
So long as any Advance remains unpaid, or any Letter of Credit remains
\noutstanding or any other Obligation remains unpaid, or any portion of the
\nCommitment remains in force, Borrower shall, and shall cause each of its
\nRestricted Subsidiaries to, and each Co-Borrower shall, unless the
\nAdministrative Agent (with the written approval of the Requisite Banks)
\notherwise consents:<\/p>\n
5.1 Preservation of Existence. Preserve and maintain their
\n ————————-
\nrespective existences in the jurisdiction of their formation and all material
\nauthorizations, rights, franchises, privileges, consents, approvals, orders,
\nlicenses, permits, or registrations from any Governmental Agency that are
\nnecessary for the transaction of their respective business except (a) where the
\n ——
\nfailure to so preserve and maintain the existence of any Restricted Subsidiary
\nof Borrower and such authorizations, rights, franchises, privileges, consents,
\napprovals, orders, licenses, permits, or registrations would not constitute a
\nMaterial Adverse Effect and (b) that a merger permitted by Section 6.3 shall not
\nconstitute a violation of this covenant; and qualify and remain qualified to
\ntransact business in each jurisdiction in which such qualification is necessary
\nin view of their respective business or the ownership or leasing of their
\nrespective Properties except where the failure to so qualify or remain qualified
\n ——
\nwould not constitute a Material Adverse Effect.<\/p>\n
5.2 Maintenance of Properties. Maintain, preserve and protect all
\n ————————-
\nof their respective Properties in good order and condition, subject to wear and
\ntear in the ordinary course of business, and not permit any waste of their
\nrespective Properties, except that the failure to maintain, preserve and protect
\n ——
\na particular item of Property that is not of significant value, either
\nintrinsically or to the operations of Borrower and its Restricted Subsidiaries,
\ntaken as a whole, shall not constitute a violation of this covenant.<\/p>\n
5.3 Maintenance of Insurance. Maintain liability, casualty and
\n ————————
\nother insurance (subject to customary deductibles and retentions) with
\nresponsible insurance companies in such amounts and against such risks as is
\ncarried by responsible companies engaged in similar businesses and owning
\nsimilar assets in the general areas in which Borrower and its Restricted
\nSubsidiaries operate.<\/p>\n
5.4 Compliance With Laws. Comply, within the time period, if any,
\n ——————–
\ngiven for such compliance by the relevant Governmental Agency with enforcement
\nauthority, with all Requirements of Law noncompliance with which constitutes a
\nMaterial Adverse Effect, except that Borrower and its Restricted Subsidiaries
\n ——
\nneed not comply with a Requirement of Law then being contested by any of them in
\ngood faith by appropriate proceedings.<\/p>\n
5.5 Inspection Rights. Upon reasonable notice, at any time during
\n —————–
\nregular business hours and as often as reasonably requested (but not so as to
\nmaterially interfere with the business of Borrower or any of its Subsidiaries)
\npermit the Administrative Agent or any Bank, or any authorized employee, agent
\nor representative thereof, to examine, audit and make copies and abstracts from
\nthe records and books of account of, and to visit and inspect the Properties of,
\nBorrower and its Subsidiaries and to discuss the affairs, finances and accounts
\nof Borrower and its <\/p>\n
-60-<\/p>\n
Subsidiaries with any of their officers, managers, key employees or accountants
\nand, upon request, furnish promptly to the Administrative Agent or any Bank true
\ncopies of all financial information made available to the board of directors or
\naudit committee of the board of directors of Borrower.<\/p>\n
5.6 Keeping of Records and Books of Account. Keep adequate records
\n —————————————
\nand books of account reflecting all financial transactions in conformity with
\nGenerally Accepted Accounting Principles, consistently applied, and in material
\nconformity with all applicable requirements of any Governmental Agency having
\nregulatory jurisdiction over Borrower or any of its Subsidiaries.<\/p>\n
5.7 Use of Proceeds. Use the proceeds of Loans (a) on the Closing
\n —————
\nDate, to refinance the outstanding Loans under the Old Loan Agreement, to pay a
\nportion of the consideration payable to the former shareholders of Mirage
\npursuant to the Mirage Merger Agreement, and to refinance the obligations under
\nthe Mirage Loan Agreement, (b) to finance expenses associated with the
\ntransactions contemplated herein and associated with the transactions
\ncontemplated by the Mirage Merger Agreement, (c) to finance design, development
\nand construction expenses associated with Capital Expenditures, Acquisitions and
\nInvestments permitted under Article 6 hereof, and (d) for other general
\ncorporate purposes including the Acquisitions and Investments described herein.<\/p>\n
5.8 New Restricted Subsidiaries. Cause any Person which hereafter
\n —————————
\nbecomes a Restricted Subsidiary of Borrower to promptly (and in the case of
\nMirage and its Subsidiaries, immediately following their acquisition pursuant to
\nthe Mirage Merger Agreement on the Closing Date) execute and deliver to the
\nAdministrative Agent a Guaranty (and, if a Collateral Event has occurred (and no
\nCollateral Release has subsequently occurred), security documents encumbering
\nits Property to the extent required by Sections 2.12 and 6.7).<\/p>\n
5.9 Hazardous Materials Laws. Keep and maintain all Real Property
\n ————————
\nand each portion thereof in compliance in all material respects with all
\napplicable Hazardous Materials Laws and promptly notify the Administrative Agent
\nin writing (attaching a copy of any pertinent written material) of (a) any and
\nall material enforcement, cleanup, removal or other governmental or regulatory
\nactions instituted, completed or threatened in writing by a Governmental Agency
\npursuant to any applicable Hazardous Materials Laws, (b) any and all material
\nclaims made or threatened in writing by any Person against Borrower or its
\nRestricted Subsidiaries relating to damage, contribution, cost recovery,
\ncompensation, loss or injury resulting from any Hazardous Materials and (c)
\ndiscovery by any Senior Officer of Borrower or any Co-Borrower of any material
\noccurrence or condition on Property adjoining or in the vicinity of such Real
\nProperty that could reasonably be expected to cause such Real Property or any
\npart thereof to be subject to any restrictions on the ownership, occupancy,
\ntransferability or use of such Real Property under any applicable Hazardous
\nMaterials Laws.<\/p>\n
-61-<\/p>\n
Article 6
\n NEGATIVE COVENANTS
\n ——————-<\/p>\n
So long as any Advance remains unpaid, or any Letter of Credit remains
\noutstanding or any other Obligation remains unpaid, or any portion of the
\nCommitment remains in force, Borrower shall not, and shall not permit any of its
\nRestricted Subsidiaries to, and each Co-Borrower shall not unless the
\nAdministrative Agent (with the written approval of the Requisite Banks or, if
\nrequired by Section 11.2, of all of the Banks) otherwise consents:<\/p>\n
6.1 Payment of Subordinated Obligations. Pay any principal
\n ———————————–
\n(including sinking fund payments) or any other amount (other than scheduled
\n ——— —– —-
\ninterest payments) with respect to any Subordinated Obligation, or purchase or
\nredeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit
\nany monies, securities or other Property with any trustee or other Person to
\nprovide assurance that the principal or any portion thereof of any Subordinated
\nObligation will be paid when due or otherwise to provide for the defeasance of
\nany Subordinated Obligation provided that:
\n ——– —- <\/p>\n
(a) Borrower may make payments of scheduled interest on any
\n Subordinated Obligation in accordance with the subordination terms thereof;
\n and<\/p>\n
(b) Borrower may redeem Subordinated Obligations held by Persons
\n which are subject to a Disqualification, provided that (i) no Default or
\n ——– —-
\n Event of Default then exists or would result therefrom, and (ii) after
\n giving effect to such redemption, Borrower is in pro forma compliance with
\n the covenants set forth in Sections 6.8 and 6.9.<\/p>\n
6.2 Disposition of Property. Make any Disposition of any Principal
\n ———————–
\nResort Casino Properties, provided that leases and subleases of portions of a
\n ——–
\nPrincipal Resort Casino Property in the ordinary course of business and not
\ninvolving their gaming or lodging operations shall not be considered a
\nDisposition thereof.<\/p>\n
6.3 Mergers. Merge or consolidate with or into any Person, except
\n ——- ——
\n(a) the merger of Mirage and MGMGMR Acquisition, Inc. contemplated by the Mirage
\nMerger Agreement and other mergers and consolidations of a Restricted Subsidiary
\nof Borrower into Borrower or another Restricted Subsidiary of Borrower, (b)
\nmergers and consolidations with a Person to effect a mere change in the State or
\nform of organization of Borrower, (c) mergers with any Person which if acquired
\nby Borrower or its other Restricted Subsidiaries pursuant to Investments
\npermitted hereby, would be Restricted Subsidiaries, provided that the financial
\n ——–
\ncondition of Borrower and its Subsidiaries are not adversely affected thereby
\nand Borrower and its Subsidiaries execute such amendments to the Loan Documents
\nas may be requested by the Administrative Agent to reflect such change, and (d)
\nmergers entered into in compliance with Section 6.3 with persons engaged
\nprimarily in the same or a similar line of business as one or more lines of
\nbusiness engaged in by Borrower and its Subsidiaries, provided that giving pro
\n ——– —-
\nforma effect to such mergers as of the last day of the then most recently ended
\nFiscal Quarter, Borrower is in compliance with Sections 6.8 and 6.9.<\/p>\n
6.4 Hostile Acquisitions. Directly or indirectly use the proceeds
\n ——————–
\nof any Loan in connection with the acquisition of part or all of a voting
\ninterest of five percent <\/p>\n
-62-<\/p>\n
or more in any corporation or other business entity if such acquisition is
\nopposed by the board of directors or management of such corporation or business
\nentity.<\/p>\n
6.5 ERISA. (a) At any time, permit any Pension Plan to (i) engage
\n —–
\nin any non-exempt “prohibited transaction” (as defined in Section 4975 of the
\nCode), (ii) fail to comply with ERISA or any other applicable Laws, (iii) incur
\nany material “accumulated funding deficiency” (as defined in Section 302 of
\nERISA), or (iv) terminate in any manner, which, with respect to each event
\nlisted above, could reasonably be expected to result in a Material Adverse
\nEffect, or (b) withdraw, completely or partially, from any Multiemployer Plan if
\nto do so could reasonably be expected to result in a Material Adverse Effect.<\/p>\n
6.6 Change in Nature of Business. Make any material change in the
\n —————————-
\nnature of the business of Borrower and its Subsidiaries, taken as a whole.<\/p>\n
6.7 Liens and Negative Pledges. Create, incur, assume or suffer to
\n ————————–
\nexist any Lien or Negative Pledge of any nature upon or with respect to any of
\nits Properties, or engage in any sale and leaseback transaction with respect to
\nany of its Properties, whether now owned or hereafter acquired, except:
\n —— <\/p>\n
(a) Permitted Encumbrances;<\/p>\n
(b) Liens and Negative Pledges under the Loan Documents;<\/p>\n
(c) Liens and Negative Pledges existing on the date hereof and
\n disclosed in Schedule 4.7 and any renewals\/extensions or amendments
\n thereof, provided that the obligations secured or benefitted thereby are
\n ——–
\n not increased;<\/p>\n
(d) Liens on Property acquired by Borrower or any of its
\n Restricted Subsidiaries after the Closing Date that are in existence at the
\n time of such acquisition and are not created in contemplation of such
\n acquisition;<\/p>\n
(e) purchase money Liens securing Indebtedness and Capital Lease
\n Obligations in an aggregate principal amount not to exceed $100,000,000
\n (including any refinancings thereof);<\/p>\n
(f) any Lien or Negative Pledge created by an agreement or
\n instrument entered into by Borrower or a Restricted Subsidiary of Borrower
\n in the ordinary course of its business which consists of a restriction on
\n the assignability, transfer or hypothecation of such agreement or
\n instrument; and<\/p>\n
(g) If a Collateral Event occurs (and no Collateral Release has
\n subsequently occurred), equal, ratable and pari passu Liens securing the
\n —- —–
\n MGM Senior Notes, the Obligations and the Indebtedness under the Other Loan
\n Agreements, plus interest, fees, premium, indemnities, expenses and other
\n amounts which are not principal relating or payable with respect to such
\n principal amount, on collateral which is not, as of any date of
\n determination, more extensive than the collateral encumbered by the Loan
\n Documents, and <\/p>\n
-63-<\/p>\n
Negative Pledges which are not more extensive than the Negative Pledge
\n contained in this Section relating to the MGM Senior Notes, and which in
\n any event allow the Liens in favor of the Administrative Agent and the
\n other Creditors contemplated herein;<\/p>\n
(h) If a Collateral Event occurs (and no Collateral Release has
\n subsequently occurred), Liens securing the Mirage Senior Notes, plus
\n interest, fees, premium, indemnities, expenses and other amounts which are
\n not principal relating or payable with respect to such principal amount,
\n (in each case on an equal, ratable and pari passu basis with the MGM Senior
\n —- —–
\n Notes, the Obligations and the Indebtedness under the Other Loan
\n Agreements) on collateral which is not in any event and as of any date of
\n determination, more extensive than the collateral encumbered by the Loan
\n Documents, and Negative Pledges which are not more extensive than the
\n Negative Pledge contained in this Section relating to the Mirage Senior
\n Notes, and which in any event allow the Liens in favor of the
\n Administrative Agent and the other Creditors contemplated herein;<\/p>\n
provided that this Section shall not be effective to prohibit the Liens or
\n——–
\nNegative Pledges with respect to securities issued by any gaming licensee to the
\nextent that appropriate approvals of this covenant have not been obtained under
\napplicable Gaming Laws.<\/p>\n
6.8 Leverage Ratio . Permit the Leverage Ratio, as of any Fiscal
\n ————–
\nQuarter described below to be greater than the ratio set forth below opposite
\nthat Fiscal Quarter (it being understood that this covenant will not apply to
\nthe Fiscal Quarter ending June 30, 2000):<\/p>\n
Fiscal Quarters Ending Maximum Ratio
\n ———————- ————-<\/p>\n
\n\n
\n September 30, 2000 through
\n September 30, 2001 5.25:1.00<\/p>\n December 31, 2001 through
\n September 30, 2002 4.75:1.00<\/p>\n
December 31, 2002 and thereafter 4.50:1.00.
\n<\/c><\/s><\/caption>\n<\/table>\n
-64-<\/p>\n
6.9 Interest Charge Coverage Ratio. Permit the Interest Charge
\n ——————————
\nCoverage Ratio as of the last day of any Fiscal Quarter described below, to be
\nless than the ratio set forth opposite that Fiscal Quarter (it being understood
\nthat this covenant will not apply to the Fiscal Quarter ending June 30, 2000):<\/p>\n
Fiscal Quarters Ending Minimum Ratio
\n ———————- ————-<\/p>\n
\n\n
\n September 30, 2000 2.25:1.00<\/p>\n December 31, 2000 through
\n September 30, 2001 2.50:1.00<\/p>\n
December 31, 2001 through
\n September 30, 2002 2.75:1.00<\/p>\n
December 31, 2002 and thereafter 3.00:1.00.
\n<\/c><\/s><\/caption>\n<\/table>\n
-65-<\/p>\n
Article 7
\n INFORMATION AND REPORTING REQUIREMENTS
\n ————————————–<\/p>\n
7.1 Financial and Business Information. So long as any Advance
\n ———————————-
\nremains unpaid, or any Letter of Credit remains outstanding or any other
\nObligation remains unpaid, or any portion of the Commitment remains in force,
\nBorrower and each Co-Borrower shall, unless the Administrative Agent (with the
\nwritten approval of the Requisite Banks) otherwise consents, at Borrower’s and
\nthe Co-Borrowers’ sole expense, deliver to the Administrative Agent for
\ndistribution by it to the Banks, a sufficient number of copies for all of the
\nBanks of the following:<\/p>\n
(a) As soon as practicable, and in any event within 60 days after
\n the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
\n —– —-
\n Fiscal Year), the consolidated and consolidating balance sheet of Borrower
\n and its Subsidiaries as at the end of such Fiscal Quarter and the
\n consolidated and consolidating statement of operations for such Fiscal
\n Quarter, and its statement of cash flows for the portion of the Fiscal Year
\n ended with such Fiscal Quarter, all in reasonable detail. Such financial
\n statements shall be certified by a Senior Officer of Borrower as fairly
\n presenting the financial condition, results of operations and cash flows of
\n Borrower and its Subsidiaries in accordance with Generally Accepted
\n Accounting Principles (other than footnote disclosures), consistently
\n —– —-
\n applied, as at such date and for such periods, subject only to normal year-
\n end accruals and audit adjustments;<\/p>\n
(b) As soon as practicable, and in any event within 45 days after
\n the end of each Fiscal Quarter, a Pricing Certificate setting forth a
\n preliminary calculation of the Leverage Ratio as of the last day of such
\n Fiscal Quarter, and providing reasonable detail as to the calculation
\n thereof, which calculations shall be based on the preliminary unaudited
\n financial statements of Borrower for such Fiscal Quarter, and as soon as
\n practicable thereafter, in the event of any material variance in the actual
\n calculation of the Leverage Ratio from such preliminary calculation, a
\n revised Pricing Certificate setting forth the actual calculation thereof;<\/p>\n
(c) As soon as practicable, and in any event within 105 days
\n after the end of each Fiscal Year, (i) the consolidated and consolidating
\n balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal
\n Year and the consolidated and consolidating statements of operations,
\n shareholders’ equity and cash flows, in each case of Borrower and its
\n Subsidiaries for such Fiscal Year, in each case as at the end of and for
\n the Fiscal Year, all in reasonable detail. Such financial statements shall
\n be prepared in accordance with Generally Accepted Accounting Principles,
\n consistently applied, and such consolidated balance sheet and consolidated
\n statements shall be accompanied by a report of one of the six largest
\n public accounting firms in the United States of America or other
\n independent public accountants of recognized standing selected by Borrower
\n and reasonably satisfactory to the Requisite Banks, which report shall be
\n prepared in accordance with generally accepted auditing standards as at
\n such date, and shall not be subject to any qualifications or exceptions as
\n to the scope of the audit nor to any other qualification or exception
\n determined by the Requisite Banks in their good faith business judgment to
\n be adverse to the interests of the Banks. Such accountants’ report shall
\n be accompanied by a certificate stating that, in making the examination
\n pursuant to generally accepted auditing standards necessary for the
\n certification of such financial statements <\/p>\n
-66-<\/p>\n
and such report, such accountants have obtained no knowledge of any Default
\n or, if, in the opinion of such accountants, any such Default shall exist,
\n stating the nature and status of such Default, and stating that such
\n accountants have reviewed Borrower’s financial calculations as at the end
\n of such Fiscal Year (which shall accompany such certificate) under Sections
\n 6.8 and 6.9, have read such Sections (including the definitions of all
\n defined terms used therein) and that nothing has come to the attention of
\n such accountants in the course of such examination that would cause them to
\n believe that the same were not calculated by Borrower in the manner
\n prescribed by this Agreement;<\/p>\n
(d) As soon as practicable, and in any event within 45 days after
\n the commencement of each Fiscal Year, a budget and projection by Fiscal
\n Quarter for that Fiscal Year and by Fiscal Year for the next two succeeding
\n Fiscal Years, including for the first such Fiscal Year, projected
\n ———
\n consolidated balance sheets, statements of operations and statements of
\n cash flow and, for the second and third such Fiscal Years, projected
\n consolidated condensed balance sheets and statements of operations and cash
\n flows, of Borrower and its Subsidiaries, all in reasonable detail;<\/p>\n
(e) Promptly after request by the Administrative Agent or any
\n Bank, copies of any detailed audit reports, management letters or
\n recommendations submitted to the board of directors (or the audit committee
\n of the board of directors) of Borrower by independent accountants in
\n connection with the accounts or books of Borrower or any of its
\n Subsidiaries, or any audit of any of them;<\/p>\n
(f) Promptly after the same are available, copies of each annual
\n report, proxy or financial statement or other report or communication sent
\n to the stockholders of Borrower, and copies of all annual, regular,
\n periodic and special reports and registration statements which Borrower may
\n file or be required to file with the Securities and Exchange Commission
\n under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
\n amended, and not otherwise required to be delivered to the Banks pursuant
\n to other provisions of this Section;<\/p>\n
(g) Promptly after request by the Administrative Agent or any
\n Bank, copies of the Nevada “Regulation 6.090 Report” and “6-A Report”;<\/p>\n
(h) Promptly after request by the Administrative Agent or any
\n Bank, copies of any other report or other document that was filed by
\n Borrower or any of its Subsidiaries with any Governmental Agency (other
\n —–
\n than any report regarding Tracinda Corporation or individuals associated
\n —-
\n with Tracinda Corporation, Borrower and its Subsidiaries and their
\n confidential business or financial information);<\/p>\n
(i) As soon as practicable, and in any event within ten Banking
\n Days after a Senior Officer of Borrower or any Co-Borrower becomes aware of
\n the occurrence of any (i) “reportable event” (as such term is defined in
\n Section 4043 of ERISA) or (ii) “prohibited transaction” (as such term is
\n defined in Section 406 of ERISA or Section 4975 of the Code) in connection
\n with any Pension Plan or any trust created thereunder, telephonic notice
\n specifying the nature thereof, and, no more than five Banking Days after
\n such telephonic notice, written <\/p>\n
-67-<\/p>\n
notice again specifying the nature thereof and specifying what action
\n Borrower or any of its Subsidiaries is taking or proposes to take with
\n respect thereto, and, when known, any action taken by the Internal Revenue
\n Service with respect thereto;<\/p>\n
(j) As soon as practicable, and in any event within two Banking
\n Days after a Senior Officer of Borrower or any Co-Borrower becomes aware of
\n the existence of any condition or event which constitutes a Default or
\n Event of Default, telephonic notice specifying the nature and period of
\n existence thereof, and, no more than two Banking Days after such telephonic
\n notice, written notice again specifying the nature and period of existence
\n thereof and specifying what action Borrower or its Subsidiaries are taking
\n or propose to take with respect thereto;<\/p>\n
(k) Promptly upon a Senior Officer of Borrower or any Co-Borrower
\n becoming aware that (i) any Person has commenced a legal proceeding with
\n respect to a claim against Borrower or any of its Subsidiaries that is
\n $5,000,000 or more in excess of the amount thereof that is fully covered by
\n insurance, (ii) any creditor or lessor under a written credit agreement or
\n material lease has asserted a default thereunder on the part of Borrower or
\n any of its Subsidiaries, (iii) any Person has commenced a legal proceeding
\n with respect to a claim against Borrower or any of its Subsidiaries under a
\n contract that is not a credit agreement or material lease in excess of
\n $25,000,000 or which otherwise may reasonably be expected to result in a
\n Material Adverse Effect, (iv) any labor union has notified Borrower of its
\n intent to strike Borrower or any of its Subsidiaries on a date certain and
\n such strike would involve more than 100 employees of Borrower or its
\n Subsidiaries, or (v) any Gaming Board has indicated its intent to consider
\n or act upon a License Revocation or a fine or penalty of $1,000,000 or more
\n with respect to Borrower or any of its Subsidiaries, a written notice
\n describing the pertinent facts relating thereto and what action Borrower or
\n its Subsidiaries are taking or propose to take with respect thereto;<\/p>\n
(l) As soon as practicable, and in any event by the thirtieth day
\n in the next following month, an operating revenue report for the preceding
\n calendar month with respect to each operating casino property of Borrower
\n and its Subsidiaries (including the Australia Companies), segmented for
\n each such casino property and otherwise in a form reasonably acceptable to
\n the Administrative Agent, together with a written narrative statement
\n discussing any significant trends reflected therein signed by a Senior
\n Officer of Borrower;<\/p>\n
(m) Promptly following any Senior Officer of Borrower or any Co-
\n Borrower becoming aware of any change in the credit ratings assigned by
\n Moody’s or S&P to the credit facilities provided hereunder (whether senior
\n secured or senior unsecured) written notice of such change and, if the same
\n will result in a revision to the Debt Rating, a revised Pricing Certificate
\n setting forth the revised Debt Rating; and<\/p>\n
(n) Such other data and information as from time to time may be
\n reasonably requested by the Administrative Agent, any Bank (through the
\n Administrative Agent) or the Requisite Banks.<\/p>\n
-68-<\/p>\n
7.2 Compliance Certificates. So long as any Advance remains
\n ———————–
\nunpaid, or any Letter of Credit remains outstanding or any other Obligation
\nremains unpaid or unperformed, or any portion of the Commitment remains
\noutstanding, Borrower and the Co-Borrowers shall, at their sole expense,
\ndeliver to the Administrative Agent for distribution by it to the Banks
\nconcurrently with the financial statements required pursuant to Sections 7.1(a)
\nand 7.1(c) (other than as to the Fiscal Quarter ending June 30, 2000),
\nCompliance Certificates signed by a Senior Officer of Borrower and each Co-
\nBorrower.<\/p>\n
-69-<\/p>\n
Article 8
\n CONDITIONS
\n ———–<\/p>\n
8.1 Initial Advances on the Closing Date. The obligation of each
\n ————————————
\nBank to make the initial Advance to be made by it on the Closing Date, is
\nsubject to the following conditions precedent, each of which shall be satisfied
\nprior to the making of the initial Advances (unless all of the Banks, in their
\nsole and absolute discretion, shall agree otherwise):<\/p>\n
(a) The Administrative Agent shall have received all of the
\n following, each of which shall be originals unless otherwise specified,
\n each properly executed by a Responsible Official of each party thereto,
\n each dated as of the Closing Date and each in form and substance
\n satisfactory to the Administrative Agent and its legal counsel (unless
\n otherwise specified or, in the case of the date of any of the following,
\n unless the Administrative Agent otherwise agrees or directs):<\/p>\n
(1) at least one executed counterpart of this Agreement, together
\n with arrangements satisfactory to the Administrative Agent for
\n additional executed counterparts, sufficient in number for
\n distribution to the Banks, Borrower, Atlantic City and Detroit;<\/p>\n
(2) Committed Advance Notes executed by Borrower, Atlantic City
\n and Detroit in favor of each Bank, each in a principal amount equal to
\n that Bank’s Pro Rata Share of $2,000,000,000;<\/p>\n
(3) Competitive Advance Notes executed by Borrower, Atlantic City
\n and Detroit in favor of each Bank, each in a principal amount of
\n $1,000,000,000;<\/p>\n
(4) with respect to Borrower, Atlantic City, Detroit and each
\n Guarantor (including Mirage, New York and their respective
\n Subsidiaries), such documentation as the Administrative Agent may
\n require to establish the due organization, valid existence and good
\n standing of Borrower, Atlantic City, Detroit, and each of the
\n Guarantors, its qualification to engage in business in each material
\n jurisdiction in which it is engaged in business or required to be so
\n qualified, its authority to execute, deliver and perform any Loan
\n Documents to which it is a Party, the identity, authority and capacity
\n of each Responsible Official thereof authorized to act on its behalf,
\n including (if applicable) certified copies of articles of
\n ———
\n incorporation or organization and amendments thereto, bylaws or
\n operating agreements and amendments thereto, certificates of good
\n standing and\/or qualification to engage in business, tax clearance
\n certificates, certificates of corporate or other organizational
\n resolutions, incumbency certificates, Certificates of Responsible
\n Officials, and the like;<\/p>\n
(5) the Swing Line Documents;<\/p>\n
(6) the Guaranty executed by each Guarantor which is a Restricted
\n Subsidiary of MGM immediately prior to the consummation of the
\n transactions contemplated by the Mirage Merger Agreement;<\/p>\n
-70-<\/p>\n
(7) a certificate of insurance issued by Borrower’s insurance
\n carrier or agent;<\/p>\n
(8) the Opinions;<\/p>\n
(9) a Request for Loan in compliance with Article 2;<\/p>\n
(10) a completed Pricing Certificate<\/p>\n
(11) the letter agreement described in Sections 3.3, 3.5 and 3.6;<\/p>\n
(12) such assurances as the Administrative Agent deems
\n appropriate that the relevant Gaming Boards have approved the
\n transactions contemplated by the Loan Documents to the extent that
\n such approval is required by applicable Gaming Laws;<\/p>\n
(13) a Certificate signed by a Senior Officer and attaching
\n thereto the Detroit Operating Agreement and the Mirage Merger
\n Agreement;<\/p>\n
(14) a Certificate signed by a Senior Officer of Borrower and
\n Atlantic City certifying that the conditions specified in Section
\n 8.1(b), (c), (f) and (g) have been satisfied; and<\/p>\n
(15) such other assurances, certificates, documents, consents or
\n opinions as the Administrative Agent reasonably may require.<\/p>\n
(b) The board of directors of Mirage (as heretofore constituted),
\n shall have approved the election of new directors of Mirage nominated by
\n Borrower and shall have approved the transactions contemplated by Mirage
\n Merger Agreement (in a manner which results in such transactions not
\n constituting a “Change in Control” under the Indentures governing the
\n Mirage Senior Notes) and the acquisition of Mirage and its Merger with
\n MGMGMR Acquisition, Inc. contemplated by the Mirage Merger Agreement shall
\n be in a position to substantially concurrently close in accordance with the
\n Mirage Merger Agreement and all applicable Laws, and Borrower and its
\n Subsidiaries shall be in a position to concurrently repay all of the
\n outstanding obligations under the Mirage Loan Agreement.<\/p>\n
(c) Mirage and its Subsidiaries shall be in a position to enter
\n into joinders to the Guaranty immediately following the consummation of the
\n Mirage Merger Agreement in accordance with Section 5.8 (acting through the
\n replacement boards of directors and officers contemplated by the Mirage
\n Merger Agreement);<\/p>\n
(d) The trustees for the holders of the MGM Senior Notes shall
\n have agreed to concurrently release all Liens in the assets of Borrower and
\n its Subsidiaries securing the MGM Senior Notes (or securing any guarantee
\n thereof) under the now existing terms of the related Indentures, without
\n any amendment or consent from the holders thereof, and without any
\n repayment of the MGM Senior Notes, pursuant to arrangements acceptable to
\n the Administrative Agent and its counsel.<\/p>\n
-71-<\/p>\n
(e) The fees payable on the Closing Date pursuant to Article 3
\n shall have been paid.<\/p>\n
(f) The reasonable costs and expenses of the Administrative Agent
\n in connection with the preparation of the Loan Documents payable pursuant
\n to Section 11.3, and invoiced to Borrower prior to the Closing Date, shall
\n have been paid.<\/p>\n
(g) The representations and warranties of Borrower and the Co-
\n Borrowers contained in Article 4 shall be true and correct.<\/p>\n
(h) Borrower, each Co-Borrower and any other Parties shall be in
\n compliance with all the terms and provisions of the Loan Documents, and
\n giving effect to the initial Advance, no Default or Event of Default shall
\n have occurred and be continuing.<\/p>\n
(i) The Other Loan Agreements shall have been executed by all
\n parties thereto, Borrower and the Co-Borrowers shall be in compliance with
\n the terms thereof, and all conditions precedent to the making of loans
\n thereunder shall be concurrently satisfied.<\/p>\n
(j) All legal matters relating to the Loan Documents shall be
\n satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special counsel to
\n the Administrative Agent.<\/p>\n
(k) The Closing Date shall have occurred by the last day upon
\n which the acquisition of Mirage may occur under the Mirage Merger
\n Agreement, but in any event by March 31, 2001.<\/p>\n
(l) The credit facilities hereunder and the MGM Senior Notes
\n shall have received a rating of BBB- (or higher) from S&P and Baa3 (or
\n higher) from Moody’s, in each case on an unsecured basis and such ratings
\n shall be in effect on the Closing Date.<\/p>\n
It is acknowledged that effective upon the Closing Date, the lending commitments
\nof the lenders under the Old Loan Agreement shall be amended and restated hereby
\nand that the lending commitments of the lenders under the Mirage Loan Agreement
\nshall be deemed concurrently terminated.<\/p>\n
8.2 Any Increasing Advance. The obligation of each Bank to make
\n ———————-
\nany Advance, and the obligation of the Issuing Bank to issue a Letter of Credit,
\nwhich would result in an increase in the outstanding principal amount of the
\nOutstanding Obligations, is subject to the following conditions precedent
\n(unless the Requisite Banks, in their sole and absolute discretion, shall agree
\notherwise):<\/p>\n
(a) except (i) for representations and warranties which expressly
\n ——
\n speak as of a particular date or are no longer true and correct as a result
\n of a change which is permitted by this Agreement or (ii) as disclosed by
\n Borrower and the Co-Borrowers and approved in writing by the Requisite
\n Banks, the representations and warranties contained in Article 4 (other
\n —–
\n than Sections 4.4(a), 4.6, 4.10, 4.17 and 4.18 (but only if Borrower and
\n —-
\n its Restricted Subsidiaries are diligently engaged in measures that will
\n result in compliance with all Hazardous Materials Laws)) shall be true and
\n correct on and as of the date of the Advance as though made on that date;<\/p>\n
-72-<\/p>\n
(b) other than matters described in Schedule 4.10 or not required
\n as of the Closing Date to be therein described, there shall not be then
\n pending or threatened any action, suit, proceeding or investigation against
\n or affecting Borrower or any of its Restricted Subsidiaries or any Property
\n of any of them before any Governmental Agency that constitutes a Material
\n Adverse Effect;<\/p>\n
(c) the Administrative Agent shall have timely received a Request
\n for Loan in compliance with Article 2 (or telephonic or other request for
\n Loan referred to in the second sentence of Section 2.1(b), if applicable)
\n or the Issuing Bank shall have received a Request for Letter of Credit, as
\n the case may be, in compliance with Article 2; and<\/p>\n
(d) the Administrative Agent shall have received, in form and
\n substance satisfactory to the Administrative Agent, such other assurances,
\n certificates, documents or consents related to the foregoing as the
\n Administrative Agent or Requisite Banks reasonably may require.<\/p>\n
-73-<\/p>\n
Article 9
\n EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
\n —————————————————- <\/p>\n
9.1 Events of Default. The existence or occurrence of any one or
\n —————–
\nmore of the following events, whatever the reason therefor and under any
\ncircumstances whatsoever, shall constitute an Event of Default so long as such
\nevent is continuous and has not been waived in accordance with Section 11.2:<\/p>\n
(a) Borrower or the Co-Borrowers fail to pay any principal on any
\n of the Notes, or any portion thereof, on the date when due; or<\/p>\n
(b) Borrower or the Co-Borrowers fail to pay any interest on any
\n of the Notes, or any fees under Sections 3.4, 3.5 or 3.6, or any portion
\n thereof, within five Banking Days after the date when due; or fails to pay
\n any other fee or amount payable to the Banks under any Loan Document, or
\n any portion thereof, within five Banking Days after demand therefor; or<\/p>\n
(c) Borrower or the Co-Borrowers fail to comply with any of the
\n covenants contained in Article 6, other than the covenants contained in
\n —– —-
\n Sections 6.5 or 6.6; or<\/p>\n
(d) Borrower or the Co-Borrowers fail to comply with Section
\n 7.1(j) in any respect that is materially adverse to the interests of the
\n Banks; or<\/p>\n
(e) Borrower, any of its Restricted Subsidiaries or any other
\n Party fails to perform or observe any other covenant or agreement (not
\n specified in clause (a), (b), (c), or (d) above) contained in any Loan
\n Document on its part to be performed or observed within (i) ten Banking
\n Days after the giving of notice by the Administrative Agent on behalf of
\n the Requisite Banks of such Default or (ii) if the nature of the covenant
\n or agreement is such that the violation can be cured, thirty Banking Days
\n after the giving of such notice so long as Borrower and the Co-Borrowers
\n diligently pursue in good faith the cure or correction of such violation
\n continuously during such period; or<\/p>\n
(f) Any representation or warranty of Borrower or any of its
\n Restricted Subsidiaries or any other Party made in any Loan Document, or in
\n any certificate or other writing delivered by Borrower or such Restricted
\n Subsidiary or Party pursuant to any Loan Document, proves to have been
\n incorrect when made or reaffirmed in any respect that is materially adverse
\n to the interests of the Banks; or<\/p>\n
(g) Borrower or any of its Subsidiaries (i) fails to pay the
\n principal, or any principal installment, of any present or future
\n Indebtedness of $100,000,000 or more, or any guaranty of present or future
\n Indebtedness of $100,000,000 or more, on its part to be paid, when due (or
\n within any stated grace period), whether at the stated maturity, upon
\n acceleration, by reason of required prepayment or otherwise or (ii) fails
\n to perform or observe any other term, covenant or agreement on its part to
\n be performed or observed, or suffers any event of default to occur, in
\n connection with any present or future Indebtedness of $100,000,000 or <\/p>\n
-74-<\/p>\n
more, or of any guaranty of present or future Indebtedness of $100,000,000
\n or more, if as a result of such failure or sufferance any holder or holders
\n thereof (or an agent or trustee on its or their behalf) has the right to
\n declare such Indebtedness due before the date on which it otherwise would
\n become due or the right to require Borrower or any of its Subsidiaries to
\n redeem or purchase, or offer to redeem or purchase, all or any portion of
\n such Indebtedness; or<\/p>\n
(h) Any event occurs which gives the holder or holders of any
\n Subordinated Obligation (or an agent or trustee on its or their behalf) the
\n right to declare such Subordinated Obligation due before the date on which
\n it otherwise would become due, or the right to require the issuer thereof
\n to redeem or purchase, or offer to redeem or purchase, all or any portion
\n of any Subordinated Obligation; or<\/p>\n
(i) Any Loan Document, at any time after its execution and
\n delivery and for any reason other than the agreement or action (or omission
\n —– —-
\n to act) of the Administrative Agent or any of the Banks or satisfaction in
\n full of all the Obligations ceases to be in full force and effect or is
\n declared by a court of competent jurisdiction to be null and void, invalid
\n or unenforceable in any respect which, in any such event in the reasonable
\n opinion of the Requisite Banks, is materially adverse to the interests of
\n the Banks; or any Party thereto denies in writing that it has any or
\n further liability or obligation under any Loan Document, or purports to
\n revoke, terminate or rescind same; or<\/p>\n
(j) A final judgment against Borrower or any of its Subsidiaries
\n is entered for the payment of money in excess of $25,000,000 and, absent
\n procurement of a stay of execution, such judgment remains unsatisfied for
\n thirty calendar days after the date of entry of judgment, or in any event
\n later than five days prior to the date of any proposed sale thereunder; or
\n any writ or warrant of attachment or execution or similar process is issued
\n or levied against all or any material part of the Property of any such
\n Person and is not released, vacated or fully bonded within thirty calendar
\n days after its issue or levy; or<\/p>\n
(k) Borrower or any of its Subsidiaries institutes or consents to
\n the institution of any proceeding under a Debtor Relief Law relating to it
\n or to all or any material part of its Property, or is unable or admits in
\n writing its inability to pay its debts as they mature, or makes an
\n assignment for the benefit of creditors; or applies for or consents to the
\n appointment of any receiver, trustee, custodian, conservator, liquidator,
\n rehabilitator or similar officer for it or for all or any material part of
\n its Property; or any receiver, trustee, custodian, conservator, liquidator,
\n rehabilitator or similar officer is appointed without the application or
\n consent of that Person and the appointment continues undischarged or
\n unstayed for ninety calendar days; or any proceeding under a Debtor Relief
\n Law relating to any such Person or to all or any part of its Property is
\n instituted without the consent of that Person and continues undismissed or
\n unstayed for ninety calendar days; or<\/p>\n
(l) The occurrence of an Event of Default (as such term is or may
\n hereafter be specifically defined in any other Loan Document) under any
\n other Loan Document; or<\/p>\n
-75-<\/p>\n
(m) A final unstayed judgment is entered by a court of competent
\n jurisdiction that any Subordinated Obligation is not subordinated in
\n accordance with its terms to the Obligations; or<\/p>\n
(n) Any Pension Plan maintained by Borrower or any of its
\n Restricted Subsidiaries is determined to have a material “accumulated
\n funding deficiency” as that term is defined in Section 302 of ERISA and the
\n result is a Material Adverse Effect or Borrower or any its ERISA Affiliates
\n incurs any withdrawal liability in respect of any Multiemployer Plan which
\n is in an amount in excess of $50,000,000 which withdrawal liability is not
\n paid or otherwise satisfied within thirty days; or<\/p>\n
(o) The occurrence of a License Revocation that continues for
\n seven consecutive calendar days with respect to gaming operations at any
\n gaming facility accounting for ten percent or more of the consolidated
\n total assets or consolidated gross revenues of Borrower and its
\n Subsidiaries.<\/p>\n
9.2 Remedies Upon Event of Default. Without limiting any other
\n ——————————
\nrights or remedies of the Creditors provided for elsewhere in this Agreement, or
\nthe other Loan Documents, or by applicable Law, or in equity, or otherwise:<\/p>\n
(a) Upon the occurrence, and during the continuance, of any Event of
\nDefault other than an Event of Default described in Section 9.1(k):
\n —– —- <\/p>\n
(1) the Commitment to make Advances, the obligation of the
\n Issuing Bank to issue Letters of Credit, the obligation of the Swing
\n Line Bank to make Swing Line Loans and all other obligations of the
\n Creditors and all rights of Borrower, the Co-Borrowers and any other
\n Parties under the Loan Documents shall be suspended without notice to
\n or demand upon Borrower or any Co-Borrower, which are expressly waived
\n by Borrower and the Co-Borrowers, except that all of the Banks or the
\n ——
\n Requisite Banks (as the case may be, in accordance with Section 11.2)
\n may waive an Event of Default or, without waiving, determine, upon
\n terms and conditions satisfactory to the Banks or Requisite Banks, as
\n the case may be, to reinstate the Commitment and such other
\n obligations and rights and make further Advances, and cause the
\n Issuing Bank to issue further Letters of Credit which waiver or
\n determination shall apply equally to, and shall be binding upon, all
\n the Banks;<\/p>\n
(2) the Issuing Bank may, with the approval of the Administrative
\n Agent on behalf of the Requisite Banks, demand immediate payment by
\n Borrower and the Co-Borrowers of an amount equal to the aggregate
\n amount of all outstanding Letters of Credit to be held by the Issuing
\n Bank in an interest-bearing cash collateral account as collateral
\n hereunder; and<\/p>\n
(3) the Requisite Banks may request the Administrative Agent to,
\n and the Administrative Agent thereupon shall, terminate the Commitment
\n and\/or declare all or any part of the unpaid principal of all Notes,
\n all interest accrued and unpaid thereon and all other amounts payable
\n under the Loan Documents to be forthwith due and <\/p>\n
-76-<\/p>\n
payable, whereupon the same shall become and be forthwith due and
\n payable, without protest, presentment, notice of dishonor, demand or
\n further notice of any kind, all of which are expressly waived by
\n Borrower and each Co-Borrower.<\/p>\n
(b) Upon the occurrence, and during the continuance, of any Event
\n of Default described in Section 9.1(k):<\/p>\n
(1) the Commitment to make Advances, the obligation of the
\n Issuing Bank to issue Letters of Credit, the obligation of the Swing
\n Line Bank to make Swing Line Loans and all other obligations of the
\n Creditors and all rights of Borrower, the Co-Borrowers and any other
\n Parties under the Loan Documents shall terminate without notice to or
\n demand upon Borrower or any Co-Borrower, which are expressly waived by
\n Borrower and the Co-Borrowers, except that all of the Banks may waive
\n ——
\n the Event of Default or, without waiving, determine, upon terms and
\n conditions satisfactory to all the Banks, to reinstate the Commitment
\n and such other obligations and rights and make further Advances and to
\n cause the Issuing Bank to issue further Letters of Credit, which
\n determination shall apply equally to, and shall be binding upon, all
\n the Banks;<\/p>\n
(2) an amount equal to the aggregate amount of all outstanding
\n Letters of Credit shall be immediately due and payable to the Issuing
\n Bank without notice to or demand upon Borrower or any Co-Borrower,
\n which are expressly waived by Borrower and the Co-Borrowers, to be
\n held by the Issuing Bank in an interest-bearing cash collateral
\n account as collateral hereunder; and<\/p>\n
(3) the unpaid principal of all Notes, all interest accrued and
\n unpaid thereon and all other amounts payable under the Loan Documents
\n shall be forthwith due and payable, without protest, presentment,
\n notice of dishonor, demand or further notice of any kind, all of which
\n are expressly waived by Borrower and the Co-Borrowers.<\/p>\n
(c) Upon the occurrence, and during the continuance, of any Event
\n of Default, the Creditors, or any of them, without notice to (except as
\n ——
\n expressly provided for in any Loan Document) or demand upon Borrower or any
\n Co-Borrower, which are expressly waived by Borrower and the Co-Borrowers<\/p>\n
(except as to notices expressly provided for in any Loan Document), may
\n ——
\n proceed (but only with the consent of the Requisite Banks) to protect,
\n exercise and enforce their rights and remedies under the Loan Documents
\n against Borrower, the Co-Borrowers and any other Party and such other
\n rights and remedies as are provided by Law or equity.<\/p>\n
(d) The order and manner in which the Creditors’ rights and
\n remedies are to be exercised shall be determined by the Requisite Banks in
\n their sole discretion, and all payments received by the Creditors, or any
\n of them, shall be applied first to the costs and expenses (including
\n reasonable attorneys’ fees and disbursements and the reasonably allocated
\n costs of attorneys employed by any of the Creditors) of the Creditors, and
\n thereafter paid pro rata to the Banks in the same proportions that the
\n aggregate Obligations owed to each Bank under the Loan Documents bear to
\n the aggregate Obligations owed under the Loan Documents to all the <\/p>\n
-77-<\/p>\n
Banks, without priority or preference among the Banks. Regardless of how
\n each Bank may treat payments for the purpose of its own accounting, for the
\n purpose of computing the Obligations hereunder and under the Notes,
\n payments shall be applied first, to the costs and expenses of the
\n —–
\n Creditors, as set forth above, second, to the payment of accrued and unpaid
\n ——
\n interest due under any Loan Documents to and including the date of such
\n application (ratably, and without duplication, according to the accrued and
\n unpaid interest due under each of the Loan Documents), and third, to the
\n —–
\n payment of all other amounts (including principal and fees) then owing to
\n the Creditors under the Loan Documents. Amounts due to a Bank under a
\n Related Swap Agreement shall be considered a principal amount for purposes
\n of the preceding sentence. No application of payments will cure any Event
\n of Default, or prevent acceleration, or continued acceleration, of amounts
\n payable under the Loan Documents, or prevent the exercise, or continued
\n exercise, of rights or remedies of the Banks hereunder or thereunder or at
\n Law or in equity.<\/p>\n
-78-<\/p>\n
Article 10
\n THE ADMINISTRATIVE AGENT
\n ————————<\/p>\n
10.1 Appointment and Authorization. Subject to Section 10.8, each
\n —————————–
\nBank hereby irrevocably appoints and authorizes the Administrative Agent to take
\nsuch action as agent on its behalf and to exercise such powers under the Loan
\nDocuments as are delegated to the Administrative Agent by the terms thereof or
\nare reasonably incidental, as determined by the Administrative Agent, thereto.
\nThis appointment and authorization is intended solely for the purpose of
\nfacilitating the servicing of the Loans and does not constitute appointment of
\nthe Administrative Agent as trustee for any Bank or as representative of any
\nBank for any other purpose and, except as specifically set forth in the Loan
\n ——
\nDocuments to the contrary, the Administrative Agent shall take such action and
\nexercise such powers only in an administrative and ministerial capacity.<\/p>\n
10.2 Administrative Agent and Affiliates. Bank of America (and
\n ———————————–
\neach successor Administrative Agent) has the same rights and powers under the
\nLoan Documents as any other Bank and may exercise the same as though it were not
\nthe Administrative Agent, and the term “Bank” or “Banks” includes Bank of
\nAmerica in its individual capacity. Bank of America (and each successor
\nAdministrative Agent) and its Affiliates may accept deposits from, lend money to
\nand generally engage in any kind of banking, trust or other business with
\nBorrower, any Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary
\nthereof, as if it were not the Administrative Agent and without any duty to
\naccount therefor to the Banks. Bank of America (and each successor
\nAdministrative Agent) need not account to any other Bank for any monies received
\nby it for reimbursement of its costs and expenses as Administrative Agent
\nhereunder, or for any monies received by it in its capacity as a Bank hereunder.
\nThe Administrative Agent shall not be deemed to hold a fiduciary or other
\nspecial relationship with any Bank and no implied covenants, functions,
\nresponsibilities, duties, obligations or liabilities shall be read into this
\nAgreement or otherwise exist against the Administrative Agent.<\/p>\n
10.3 Proportionate Interest in any Collateral. The Administrative
\n —————————————-
\nAgent, on behalf of all the Banks, shall hold in accordance with the Loan
\nDocuments all items of any collateral or interests therein received or held by
\nthe Administrative Agent. Subject to the Administrative Agent’s and the Banks’
\nrights to reimbursement for their costs and expenses hereunder (including
\n ———
\nreasonable attorneys’ fees and disbursements and other professional services and
\nthe reasonably allocated costs of attorneys employed by the Administrative Agent
\nor a Bank) and subject to the application of payments in accordance with Section
\n9.2(d), each Bank shall have an interest in the Banks’ interest in the
\ncollateral or interests therein in the same proportions that the aggregate
\nObligations owed such Bank under the Loan Documents bear to the aggregate
\nObligations owed under the Loan Documents to all the Banks, without priority or
\npreference among the Banks, except that Obligations owed to any Bank under a
\n ——
\nRelated Swap Agreement shall be secured on an equal, ratable and pari passu
\n —- —–
\nbasis with all other Obligations up to an amount equal to the Administrative
\nAgent’s then customary credit risk factor for Swap Agreements times the notional
\namount of Indebtedness covered by such Related Swap Agreement and shall be
\nsecured on a subordinate basis as to amounts in excess of such amount.<\/p>\n
10.4 Banks’ Credit Decisions. Each Bank agrees that it has,
\n ———————–
\nindependently and without reliance upon the Administrative Agent, any other
\nCreditor or the directors, officers, agents, employees or attorneys thereof, and
\ninstead in reliance upon information supplied to it by or on behalf of Borrower<\/p>\n
-79-<\/p>\n
and its Subsidiaries and upon such other information as it has deemed
\nappropriate, made its own independent credit analysis and decision to enter into
\nthis Agreement. Each Bank also agrees that it shall, independently and without
\nreliance upon the Administrative Agent, any other Creditor or the directors,
\nofficers, agents, employees or attorneys thereof, continue to make its own
\nindependent credit analyses and decisions in acting or not acting under the Loan
\nDocuments.<\/p>\n
10.5 Action by Administrative Agent.
\n —————————— <\/p>\n
(a) Absent actual knowledge of the Administrative Agent of the
\n existence of a Default, the Administrative Agent may assume that no Default
\n has occurred and is continuing, unless the Administrative Agent has
\n received notice from Borrower and the Co-Borrowers stating the nature of
\n the Default or has received notice from a Bank stating the nature of the
\n Default and that such Bank considers the Default to have occurred and to be
\n continuing.<\/p>\n
(b) The Administrative Agent has only those obligations under the
\n Loan Documents as are expressly set forth therein.<\/p>\n
(c) Except for any obligation expressly set forth in the Loan
\n ——
\n Documents and as long as the Administrative Agent may assume that no Event
\n of Default has occurred and is continuing, the Administrative Agent may,
\n but shall not be required to, exercise its discretion to act or not act,<\/p>\n
except that the Administrative Agent shall be required to act or not act
\n ——
\n upon the instructions of the Requisite Banks (or of all the Banks, to the
\n extent required by Section 11.2) and those instructions shall be binding
\n upon the Administrative Agent and all the Banks, provided that the
\n ——–
\n Administrative Agent shall not be required to act or not act if to do so
\n would be contrary to any Loan Document or to applicable Law or could
\n result, in the judgment of the Administrative Agent, in a material risk of
\n liability to the Administrative Agent.<\/p>\n
(d) If the Administrative Agent has received a notice specified
\n in clause (a), the Administrative Agent shall immediately give notice
\n thereof to the Banks and shall act or not act upon the instructions of the
\n Requisite Banks (or of all the Banks, to the extent required by Section
\n 11.2), provided that the Administrative Agent shall not be required to act
\n ——–
\n or not act if to do so would be contrary to any Loan Document or to
\n applicable Law or could result, in the judgment of the Administrative
\n Agent, in a material risk of liability to the Administrative Agent, and<\/p>\n
except that if the Requisite Banks (or all the Banks, if required under
\n ——
\n Section 11.2) fail, for five Banking Days after the receipt of notice from
\n the Administrative Agent, to instruct the Administrative Agent, then the
\n Administrative Agent, in its sole discretion, may act or not act as it
\n deems advisable for the protection of the interests of the Banks.<\/p>\n
(e) The Administrative Agent shall have no liability to any Bank
\n for acting, or not acting, as instructed by the Requisite Banks (or all the
\n Banks, if required under Section 11.2), notwithstanding any other provision
\n hereof.<\/p>\n
10.6 Liability of Administrative Agent. Neither the Administrative
\n ———————————
\nAgent nor any of its directors, officers, agents or employees shall be liable
\nfor any action taken or not taken by them <\/p>\n
-80-<\/p>\n
under or in connection with the Loan Documents, except for their own gross
\n ——
\nnegligence or willful misconduct. Without limitation on the foregoing, the
\nAdministrative Agent and its directors, officers, agents and employees:<\/p>\n
(a) May treat the payee of any Note as the holder thereof until
\n the Administrative Agent receives notice of the assignment or transfer
\n thereof, in form satisfactory to the Administrative Agent, signed by the
\n payee, and may treat each Bank as the owner of that Bank’s interest in the
\n Obligations for all purposes of this Agreement until the Administrative
\n Agent receives notice of the assignment or transfer thereof, in form
\n satisfactory to the Administrative Agent, signed by that Bank;<\/p>\n
(b) May consult with legal counsel (including in-house legal
\n ———
\n counsel), accountants (including in-house accountants) and other
\n ———
\n professionals or experts selected by it, or with legal counsel, accountants
\n or other professionals or experts for Borrower and\/or its Subsidiaries or
\n the Banks, and shall not be liable for any action taken or not taken by it
\n in good faith in accordance with any advice of such legal counsel,
\n accountants or other professionals or experts;<\/p>\n
(c) Shall not be responsible to any Bank for any statement,
\n warranty or representation made in any of the Loan Documents or in any
\n notice, certificate, report, request or other statement (written or oral)
\n given or made in connection with any of the Loan Documents;<\/p>\n
(d) Shall have no duty to ask or inquire as to the performance or
\n observance by Borrower or its Subsidiaries of any of the terms, conditions
\n or covenants of any of the Loan Documents or to inspect any collateral or
\n the Property, books or records of Borrower or its Subsidiaries;<\/p>\n
(e) Will not be responsible to any Bank for the due execution,
\n legality, validity, enforceability, genuineness, effectiveness, sufficiency
\n or value of any Loan Document, any other instrument or writing furnished
\n pursuant thereto or in connection therewith, or any collateral;<\/p>\n
(f) Will not incur any liability by acting or not acting in
\n reliance upon any Loan Document, notice, consent, certificate, statement,
\n request or other instrument or writing believed in good faith by it to be
\n genuine and signed or sent by the proper party or parties; and<\/p>\n
(g) Will not incur any liability for any arithmetical error in
\n computing any amount paid or payable by the Borrower or any Subsidiary or
\n Affiliate thereof or paid or payable to or received or receivable from any
\n Bank under any Loan Document, including, principal, interest, commitment
\n ———
\n fees, Advances and other amounts; provided that, promptly upon discovery of
\n ——–
\n such an error in computation, the Administrative Agent, the Banks and (to
\n the extent applicable) Borrower and\/or its Subsidiaries or Affiliates shall
\n make such adjustments as are necessary to correct such error and to restore
\n the parties to the position that they would have occupied had the error not
\n occurred.<\/p>\n
-81-<\/p>\n
10.7 Indemnification. Each Bank shall, ratably in accordance with
\n —————
\nits Pro Rata Share (if the Commitment is then in effect) or in accordance with
\nits proportion of the aggregate Indebtedness then evidenced by the Notes (if the
\nCommitment has then been terminated), indemnify and hold the Administrative
\nAgent and its directors, officers, agents, employees and attorneys harmless
\nagainst any and all liabilities, obligations, losses, damages, penalties,
\nactions, judgments, suits, costs, expenses or disbursements of any kind or
\nnature whatsoever (including, without limitation, attorneys’ fees and
\n ———
\ndisbursements and allocated costs of attorneys employed by the Administrative
\nAgent) that may be imposed on, incurred by or asserted against it or them in
\nsuch capacity in any way relating to or arising out of the Loan Documents (other
\nthan losses incurred by reason of the failure of Borrower and the Co-Borrowers
\nto pay the Indebtedness represented by the Notes) or any action taken or not
\ntaken by it as Administrative Agent thereunder, except such as result from its
\n ——
\nown gross negligence or willful misconduct. Without limitation on the
\nforegoing, each Bank shall reimburse the Administrative Agent upon demand for
\nthat Bank’s Pro Rata Share of any out-of-pocket cost or expense incurred by the
\nAdministrative Agent in connection with the negotiation, preparation, execution,
\ndelivery, amendment, waiver, restructuring, reorganization (including a
\n ———
\nbankruptcy reorganization), enforcement or attempted enforcement of the Loan
\nDocuments, to the extent that Borrower, any Co-Borrower or any other Party is
\nrequired by Section 11.3 to pay that cost or expense but fails to do so upon
\ndemand. Nothing in this Section shall entitle the Administrative Agent to
\nrecover any amount from the Banks if and to the extent that such amount has
\ntheretofore been recovered from Borrower, and Co-Borrower or any other Party.
\nTo the extent that the Administrative Agent is later reimbursed such cost or
\nexpense by Borrower, a Co-Borrower or any other Party, it shall return the
\namounts paid to it by the Banks in respect of such cost or expense.<\/p>\n
10.8 Successor Administrative Agent. The Administrative Agent may,
\n ——————————
\nand at the request of the Requisite Banks shall, resign as Administrative Agent
\nupon thirty days’ notice to the Banks and Borrower. If the Administrative Agent
\nshall resign as Administrative Agent under this Agreement, the Requisite Banks
\nshall appoint from among the Banks a successor Administrative Agent for the
\nBanks, which successor Administrative Agent shall be approved by Borrower (and
\nsuch approval shall not be unreasonably withheld or delayed), provided that, to
\n ——–
\nthe extent required by applicable Gaming Laws, the incumbent Administrative
\nAgent shall remain the collateral agent for the Creditors with respect to any
\ncollateral for which a lienholder must be qualified under such Gaming Laws until
\nthe new Administrative Agent can be so qualified (but the incumbent
\nAdministrative Agent shall be entitled to the indemnities and other protections
\nprovided to the Administrative Agent hereunder in such capacity). If no
\nsuccessor Administrative Agent is appointed prior to the effective date of the
\nresignation of the Administrative Agent, the Administrative Agent may appoint,
\nafter consulting with the Banks and the Borrower, a successor Administrative
\nAgent from among the Banks. Upon the acceptance of its appointment as successor
\nAdministrative Agent hereunder, such successor Administrative Agent shall
\nsucceed to all the rights, powers and duties of the retiring Administrative
\nAgent and the term “Administrative Agent” shall mean such successor
\nAdministrative Agent and the retiring Administrative Agent’s appointment, powers
\nand duties as Administrative Agent shall be terminated. After any retiring
\nAdministrative Agent’s resignation hereunder as Administrative Agent, the
\nprovisions of this Article 10, and Sections 11.3, 11.11 and 11.22, shall inure
\nto its benefit as to any actions taken or omitted to be taken by it while it was
\nAdministrative Agent under this Agreement. If (a) the Administrative Agent has
\nnot been paid its agency fees under Section 3.6 or has not been reimbursed for
\nany expense reimbursable to it under Section 11.3, in either case for a period
\nof at least one year and (b) no successor Administrative Agent has accepted
\nappointment as Administrative Agent <\/p>\n
-82-<\/p>\n
by the date which is thirty days following a retiring Administrative Agent’s
\nnotice of resignation, the retiring Administrative Agent’s resignation shall
\nnevertheless thereupon become effective and the Banks shall perform all of the
\nduties of the Administrative Agent hereunder until such time, if any, as the
\nRequisite Banks appoint a successor Administrative Agent as provided for above.<\/p>\n
10.9 Foreclosure on Collateral. In the event of foreclosure or
\n ————————-
\nenforcement of the Lien created by any of the Loan Documents, title to any
\ncollateral encumbered thereby shall be taken and held by the Administrative
\nAgent (or an Affiliate or designee thereof) pro rata for the benefit of the
\nBanks in accordance with the Obligations outstanding to each of them and shall
\nbe administered in accordance with the standard form of collateral holding
\nparticipation agreement used by the Administrative Agent in comparable
\nsyndicated credit facilities.<\/p>\n
10.10 Intercreditor Arrangements; Attornment Agreements. Provided
\n ————————————————-
\nthat no Default or Event of Default has then occurred, the Administrative Agent
\nis hereby irrevocably authorized by the other Creditors to enter into (a)
\nintercreditor arrangements acceptable to the Administrative Agent with creditors
\n(or a trustee or other representative for such creditors) holding the Mirage
\nSenior Notes, the MGM Senior Notes and the Other Loan Agreements to effectuate
\nthe provisions of Section 6.7 requiring any Liens of the Administrative Agent to
\nbe equal, ratable and pari passu with the creditors holding the Mirage Senior
\n —- —–
\nNotes, the MGM Senior Notes and the Other Loan Agreements, provided that any
\nsuch arrangements shall require the concurrent release of the Liens held by such
\ncreditors if a Collateral Release occurs, and (b) attornment, non-disturbance
\nand estoppel agreements acceptable to the Administrative Agent with lessees of
\ninterests in leases of real property from Borrower and its Restricted
\nSubsidiaries permitted hereby, provided in each case that not less than 5
\n ——–
\nBusiness Days prior to entering into any such arrangement or agreement, the
\nAdministrative Agent shall circulate drafts thereof to the Banks, and the
\nRequisite Banks shall not have objected to the form thereof.<\/p>\n
10.11 No Obligations of Borrower and the Co-Borrowers. Nothing
\n ———————————————–
\ncontained in this Article 10 shall be deemed to impose upon Borrower or any Co-
\nBorrower any obligation in respect of the due and punctual performance by the
\nAdministrative Agent of its obligations to the Banks under any provision of this
\nAgreement, and Borrower and the Co-Borrowers shall have no liability to the
\nAdministrative Agent or any of the Banks in respect of any failure by the
\nAdministrative Agent or any Bank to perform any of its obligations to the
\nCreditors under this Agreement. Without limiting the generality of the
\nforegoing, where any provision of this Agreement relating to the payment of any
\namounts due and owing under the Loan Documents provides that such payments shall
\nbe made by Borrower or the Co-Borrower to the Administrative Agent for the
\naccount of the Banks, Borrower’s and the Co-Borrowers’ obligations to the Banks
\nin respect of such payments shall be deemed to be satisfied upon the making of
\nsuch payments to the Administrative Agent in the manner provided by this
\nAgreement.<\/p>\n
-83-<\/p>\n
Article 11
\n MISCELLANEOUS
\n ————-<\/p>\n
11.1 Cumulative Remedies; No Waiver. The rights, powers,
\n ——————————
\nprivileges and remedies of the Creditors provided herein or in any Note or other
\nLoan Document are cumulative and not exclusive of any right, power, privilege or
\nremedy provided by Law or equity. No failure or delay on the part of the
\nAdministrative Agent or any Bank in exercising any right, power, privilege or
\nremedy may be, or may be deemed to be, a waiver thereof; nor may any single or
\npartial exercise of any right, power, privilege or remedy preclude any other or
\nfurther exercise of the same or any other right, power, privilege or remedy.
\nThe terms and conditions of Article 8 hereof are inserted for the sole benefit
\nof the Creditors; the same may be waived in whole or in part, with or without
\nterms or conditions, in respect of any Loan or Letter of Credit without
\nprejudicing the Administrative Agent’s or the Banks’ rights to assert them in
\nwhole or in part in respect of any other Loan.<\/p>\n
11.2 Amendments; Consents. Each amendment, modification,
\n ——————–
\nsupplement, extension, termination, waiver, approval and consent under this
\nAgreement and the other Loan Documents shall be subject to the terms of all
\napplicable Laws, including Gaming Laws. No amendment, modification, supplement,
\nextension, termination or waiver of any provision of this Agreement or any other
\nLoan Document, no approval or consent thereunder, and no consent to any
\ndeparture by the Borrower, the Co-Borrowers or any other Party therefrom, may in
\nany event be effective unless in writing signed by the Administrative Agent with
\nthe approval of Requisite Banks (and, in the case of any amendment, modification
\nor supplement of or to any Loan Document to which the Borrower or any of its
\nSubsidiaries is a Party, signed by each such Party, and, in the case of any
\namendment, modification or supplement to Article 10, signed by the
\nAdministrative Agent), and then only in the specific instance and for the
\nspecific purpose given; and, without the approval in writing of all the Banks,
\nno amendment, modification, supplement, termination, waiver or consent may be
\neffective:<\/p>\n
(a) To (i) reduce the principal of, or the amount of principal,
\n principal prepayments or the rate of interest payable on, any Note, or (ii)
\n to increase the amount of the Commitment or the Pro Rata Share of any Bank
\n or (iii) to reduce the amount of any commitment fee payable to any Bank, or
\n any other fee or amount payable to any Bank under the Loan Documents or
\n (iv) to waive an Event of Default consisting of the failure of Borrower or
\n the Co-Borrowers to pay when due principal, interest or any facility or
\n other fee;<\/p>\n
(b) To postpone any date fixed for any payment of principal of,
\n prepayment of principal of or any installment of interest on, any Note or
\n any installment of any commitment fee, or to extend the term of the
\n Commitment;<\/p>\n
(c) To permit the term of any Letter of Credit to exceed one year
\n or extend beyond the Maturity Date;<\/p>\n
(d) To release the Guaranty or any material portion of any
\n collateral for the Obligations, provided that if no Default or Event of
\n ——–
\n Default exists, the Administrative Agent may without the consent of any
\n Bank (and shall at the request of Borrower), (i) release its Lien in any
\n personal property financed or leased by the Borrower or its Subsidiaries
\n and granted a <\/p>\n
-84-<\/p>\n
Lien in accordance with Section 6.7(e), (ii) release its Lien in any
\n collateral as otherwise may be expressly provided for in any Loan Document,
\n (iii) release its Lien in the equity securities of, and the Guaranty
\n executed by, any Subsidiary which is the subject of a Disposition permitted
\n under Section 6.2 or which has Property having a value of less than
\n $500,000 as of the date of such release, (iv) subordinate its Lien with
\n respect to any Property which is the subject of a Disposition permitted
\n under Section 6.2, (v) release its Lien in any Property which is the
\n subject of a Distribution not prohibited by this Agreement, and (vi)
\n release all of the Liens under the Loan Documents in a Collateral Release
\n under Section 2.12.<\/p>\n
(e) To amend the provisions of the definitions of “Requisite
\n ———
\n Banks” or “Maturity Date”;
\n —– ————- <\/p>\n
(f) To amend or waive Article 8, Section 6.4 or this Section; or<\/p>\n
(g) To amend any provision of this Agreement that expressly
\n requires the consent or approval of all the Banks.<\/p>\n
Any amendment, modification, supplement, termination, waiver or consent pursuant
\nto this Section shall apply equally to, and shall be binding upon, all of the
\nCreditors.<\/p>\n
11.3 Costs, Expenses and Taxes. Borrower and the Co-Borrowers
\n ————————-
\nshall pay within five Banking Days after demand, accompanied by an invoice
\ntherefor, the reasonable costs and expenses of the Administrative Agent and the
\nLead Arranger in connection with the negotiation, preparation, syndication,
\nexecution and delivery of the Loan Documents and any amendment thereto or waiver
\nthereof. Borrower and the Co-Borrowers shall also pay on demand, accompanied by
\nan invoice therefor, the reasonable costs and expenses of the Creditors in
\nconnection with the refinancing, restructuring, reorganization (including a
\n ———
\nbankruptcy reorganization) and enforcement or attempted enforcement of the Loan
\nDocuments, and any matter related thereto. The foregoing costs and expenses
\nshall include filing fees, recording fees, title insurance fees, appraisal fees,
\nsearch fees, and other out-of-pocket expenses and the reasonable fees and out-
\nof-pocket expenses of any legal counsel (including reasonably allocated costs of
\n ———
\nlegal counsel employed by the Administrative Agent or any Bank), independent
\npublic accountants and other outside experts retained by the Administrative
\nAgent or any Bank, whether or not such costs and expenses are incurred or
\nsuffered by the Administrative Agent or any Bank in connection with or during
\nthe course of any bankruptcy or insolvency proceedings of Borrower or any
\nSubsidiary thereof. Such costs and expenses shall also include, in the case of
\nany amendment or waiver of any Loan Document requested by Borrower or the Co-
\nBorrowers, the administrative costs of the Administrative Agent reasonably
\nattributable thereto. Borrower and the Co-Borrowers shall pay any and all
\ndocumentary and other taxes, excluding (i) taxes imposed on or measured in whole
\n ———
\nor in part by overall net income, gross income or gross receipts and franchise
\ntaxes imposed on any Bank by (A) any jurisdiction (or political subdivision
\nthereof) in which it is organized or maintains its principal office or
\nEurodollar Lending Office or (B) any jurisdiction (or political subdivision
\nthereof) in which it is “doing business”, (ii) any withholding taxes or other
\ntaxes based on gross income imposed by the United States of America that are not
\nattributable to any change in any Law or the interpretation or administration of
\nany Law by any Governmental Agency and (iii) any withholding tax or other taxes
\nbased on gross income imposed by the United States of America for any period
\nwith respect to which it has failed to provide Borrower with the appropriate
\nform or forms <\/p>\n
-85-<\/p>\n
required by Section 11.21, to the extent such forms are then required by
\napplicable Laws, and all costs, expenses, fees and charges payable or determined
\nto be payable in connection with the filing or recording of this Agreement, any
\nother Loan Document or any other instrument or writing to be delivered hereunder
\nor thereunder, or in connection with any transaction pursuant hereto or thereto,
\nand shall reimburse, hold harmless and indemnify on the terms set forth in 11.11
\nthe Creditors from and against any and all loss, liability or legal or other
\nexpense with respect to or resulting from any delay in paying or failure to pay
\nany such tax, cost, expense, fee or charge or that any of them may suffer or
\nincur by reason of the failure of any Party to perform any of its Obligations.
\nAny amount payable to the Administrative Agent or any Bank under this Section
\nshall bear interest from the second Banking Day following the date of demand for
\npayment at the Default Rate.<\/p>\n
11.4 Nature of Banks’ Obligations. The obligations of the Banks
\n —————————-
\nhereunder are several and not joint or joint and several. Nothing contained in
\nthis Agreement or any other Loan Document and no action taken by the Creditors
\nor any of them pursuant hereto or thereto may, or may be deemed to, make the
\nBanks a partnership, an association, a joint venture or other entity, either
\namong themselves or with the Borrower, the Co-Borrowers or any Affiliate of
\nBorrower. Each Bank’s obligation to make any Advance pursuant hereto is several
\nand not joint or joint and several, and in the case of the initial Advance only
\nis conditioned upon the performance by all other Banks of their obligations to
\nmake initial Advances. A default by any Bank will not increase the Pro Rata
\nShare of any other Bank. Any Bank not in default may, if it desires, assume in
\nsuch proportion as the nondefaulting Banks agree the obligations of any Bank in
\ndefault, but is not obligated to do so. The Administrative Agent agrees that it
\nwill use its best efforts either to induce the other Banks to assume the
\nobligations of a Bank in default or to obtain another Bank, reasonably
\nsatisfactory to Borrower and the Co-Borrowers, to replace such a Bank in
\ndefault.<\/p>\n
11.5 Survival of Representations and Warranties. All
\n ——————————————
\nrepresentations and warranties contained herein or in any other Loan Document,
\nor in any certificate or other writing delivered by or on behalf of any one or
\nmore of the Parties to any Loan Document, will survive the making of the Loans
\nhereunder and the execution and delivery of the Notes, and have been or will be
\nrelied upon by the Administrative Agent and each Bank, notwithstanding any
\ninvestigation made by the Administrative Agent or any Bank or on their behalf.<\/p>\n
11.6 Notices. Except as otherwise expressly provided in the Loan
\n ——- ——
\nDocuments, all notices, requests, demands, directions and other communications
\nprovided for hereunder or under any other Loan Document must be in writing and
\nmust be mailed, telegraphed, telecopied, dispatched by commercial courier or
\ndelivered to the appropriate party at the address set forth on the signature
\npages of this Agreement or other applicable Loan Document or, as to any party to
\nany Loan Document, at any other address as may be designated by it in a written
\nnotice sent to all other parties to such Loan Document in accordance with this
\nSection. Borrower and the Co-Borrower expressly agree that the credit
\nfacilities provided hereunder are being provided for the joint convenience of
\nBorrower and its Restricted Subsidiaries, including the Co-Borrowers, and that
\n(despite the joint and several nature of the Obligations), it is expected that
\nBorrower shall administer the Advances and Letters of Credit on behalf of itself
\nand the Co-Borrowers. Accordingly, Borrower and the Co-Borrowers agree that any
\nnotice provided to Borrower hereunder shall be deemed to constitute the same
\nnotice to the Co-Borrowers, without the requirement that separate notices be
\nprovided to the Co-Borrowers. Except as otherwise expressly provided in any Loan
\n ——
\nDocument, if any notice, request, demand, direction or other<\/p>\n
-86-<\/p>\n
communication required or permitted by any Loan Document is given by mail it
\nwill be effective on the earlier of receipt or the fourth Banking Day after
\ndeposit in the United States mail with first class or airmail postage prepaid;
\nif given by telegraph or cable, when delivered to the telegraph company with
\ncharges prepaid; if given by telecopier, when sent; if dispatched by commercial
\ncourier, on the scheduled delivery date; or if given by personal delivery, when
\ndelivered.<\/p>\n
11.7 Execution of Loan Documents. Unless the Administrative Agent
\n —————————
\notherwise specifies with respect to any Loan Document, (a) this Agreement and
\nany other Loan Document may be executed in any number of counterparts and any
\nparty hereto or thereto may execute any counterpart, each of which when executed
\nand delivered will be deemed to be an original and all of which counterparts of
\nthis Agreement or any other Loan Document, as the case may be, when taken
\ntogether will be deemed to be but one and the same instrument and (b) execution
\nof any such counterpart may be evidenced by a telecopier transmission of the
\nsignature of such party followed by prompt transmission of an original
\nsignature. The execution of this Agreement or any other Loan Document by any
\nparty hereto or thereto will not become effective until counterparts hereof or
\nthereof, as the case may be, have been executed by all the parties hereto or
\nthereto.<\/p>\n
11.8 Binding Effect; Assignment.
\n ————————– <\/p>\n
(a) This Agreement and the other Loan Documents to which Borrower
\n and the Co-Borrowers are a Party will be binding upon and inure to the
\n exclusive benefit of Borrower, the Co-Borrowers, the Creditors, and their
\n respective successors and assigns, except that Borrower and the Co-
\n ——
\n Borrowers may not assign their respective rights hereunder or thereunder or
\n any interest herein or therein without the prior written consent of all the
\n Banks. Each Bank represents that it is not acquiring its Notes with a
\n view to the distribution thereof within the meaning of the Securities Act
\n of 1933, as amended (subject to any requirement that disposition of its
\n Notes must be within the control of such Bank). Any Bank may at any time
\n pledge its Notes or any other instrument evidencing its rights as a Bank
\n under this Agreement to a Federal Reserve Bank, but no such pledge shall
\n release that Bank from its obligations hereunder or grant to such Federal
\n Reserve Bank the rights of a Bank hereunder absent foreclosure of such
\n pledge.<\/p>\n
(b) From time to time, each Bank may assign to one or more
\n Eligible Assignees all or any portion of its Pro Rata Share, provided that
\n ——–
\n (i) such Eligible Assignee, if not then a Bank or an Affiliate of the
\n assigning Bank, shall be approved by each of the Administrative Agent and
\n (if no Event of Default then exists) Borrower and the Co-Borrowers (none of
\n which approvals shall be unreasonably withheld or delayed), (ii) such
\n assignment shall be evidenced by an Assignment Agreement, a copy of which
\n shall be furnished to the Administrative Agent as hereinbelow provided,
\n (iii) except in the case of an assignment to an Affiliate of the assigning
\n ——
\n Bank, to another Bank or of the entire remaining Commitment of the
\n assigning Bank, the assignment shall not assign a Pro Rata Share that is
\n less than $5,000,000, (iv) the effective date of any such assignment shall
\n be as specified in the Assignment Agreement, but not earlier than the date
\n which is five Banking Days after the date the Administrative Agent has
\n received the Assignment Agreement, (v) such assignment shall be of a
\n constant and non-varying percentage of the Pro Rata Share of the assigning
\n Bank, and (vi) the assignor Bank shall have paid a $3500 assignment fee to
\n the Administrative Agent. Upon the <\/p>\n
-87-<\/p>\n
effective date of such Assignment Agreement, the Eligible Assignee named
\n therein shall be a Bank for all purposes of this Agreement, with the Pro
\n Rata Share set forth therein and, to the extent of such Pro Rata Share, the
\n assigning Bank shall be released from its further obligations under this
\n Agreement. Borrower and the Co-Borrowers agree that they shall execute and
\n deliver (against delivery by the assigning Bank to Borrower of its
\n Committed Advance Note) to such assignee Bank, a Committed Advance Note
\n evidencing that assignee Bank’s Pro Rata Share and a Competitive Advance
\n Note, and to the assigning Bank, a Committed Advance Note evidencing the
\n remaining balance Pro Rata Share retained by the assigning Bank.<\/p>\n
(c) By executing and delivering a Assignment Agreement, the Eligible
\n Assignee thereunder acknowledges and agrees that: (i) other than the
\n representation and warranty that it is the legal and beneficial owner of
\n the Pro Rata Share being assigned thereby free and clear of any adverse
\n claim, the assigning Bank has made no representation or warranty and
\n assumes no responsibility with respect to any statements, warranties or
\n representations made in or in connection with this Agreement or the
\n execution, legality, validity, enforceability, genuineness or sufficiency
\n of this Agreement or any other Loan Document; (ii) the assigning Bank has
\n made no representation or warranty and assumes no responsibility with
\n respect to the financial condition of Borrower or its Subsidiaries or the
\n performance by Borrower and its Subsidiaries of the Obligations; (iii) it
\n has received a copy of this Agreement, together with copies of the most
\n recent financial statements delivered pursuant to Section 7.1 and such
\n other documents and information as it has deemed appropriate to make its
\n own credit analysis and decision to enter into such Assignment Agreement;
\n (iv) it will, independently and without reliance upon the Administrative
\n Agent or any Bank and based on such documents and information as it shall
\n deem appropriate at the time, continue to make its own credit decisions in
\n taking or not taking action under this Agreement; (v) it appoints and
\n authorizes the Administrative Agent to take such action and to exercise
\n such powers under this Agreement as are delegated to the Administrative
\n Agent by this Agreement; and (vi) it will perform in accordance with their
\n terms all of the obligations which by the terms of this Agreement are
\n required to be performed by it as a Bank.<\/p>\n
(d) The Administrative Agent shall maintain at the Administrative
\n Agent’s Office a copy of each Assignment Agreement delivered to it and a
\n register (the “Register”) of the names and address of each of the Banks and
\n the Pro Rata Share held by each Bank, giving effect to each Assignment
\n Agreement. The Register shall be available during normal business hours
\n for inspection by Borrower, the Co-Borrowers or any Bank upon reasonable
\n prior notice to the Administrative Agent. Borrower, the Co-Borrowers and
\n the Creditors shall deem and treat the Persons listed as Banks in the
\n Register as the holders and owners of the Pro Rata Share listed therein for
\n all purposes hereof, and no assignment or transfer of any such Pro Rata
\n Share shall be effective, in each case unless and until a Assignment
\n Agreement effecting the assignment or transfer thereof shall have been
\n accepted by the Administrative Agent and recorded in the Register as
\n provided above. Prior to such recordation, all amounts owed with respect
\n to the applicable Pro Rata Share shall be owed to the Bank listed in the
\n Register as the owner thereof, and any request, authority or consent of any
\n Person who, at the time of making such request or giving such authority or
\n consent, is listed in the Register as a Bank shall be conclusive and
\n binding on any subsequent holder, assignee or transferee of the
\n corresponding Pro Rata Share.<\/p>\n
-88-<\/p>\n
(e) Each Bank may from time to time grant participations to one
\n or more banks or other financial institutions (including another Bank) in a
\n ———
\n portion of its Pro Rata Share (or in Competitive Advances made by that
\n Bank); provided, however, that (i) such Bank’s obligations under this
\n ——– ——-
\n Agreement shall remain unchanged, (ii) such Bank shall remain solely
\n responsible to the other parties hereto for the performance of such
\n obligations, (iii) the participating banks or other financial institutions
\n shall not be a Bank hereunder for any purpose except, if the participation
\n ——
\n agreement so provides, for the purposes of Sections 3.7, 3.8, 11.11 and
\n 11.22 but only to the extent that the cost of such benefits to Borrower and
\n the Co-Borrowers does not exceed the cost which Borrower and the Co-
\n Borrowers would have incurred in respect of such Bank absent the
\n participation, (iv) Borrower, the Co-Borrowers, the Administrative Agent
\n and the other Banks shall continue to deal solely and directly with such
\n Bank in connection with such Bank’s rights and obligations under this
\n Agreement, (v) the participation interest shall be expressed as a
\n percentage of the granting Bank’s Pro Rata Share as it then exists and
\n shall not restrict an increase in the Commitment, or in the granting Bank’s
\n Pro Rata Share, so long as the amount of the participation interest is not
\n affected thereby, and (vi) the consent of the holder of such participation
\n interest shall not be required for amendments or waivers of provisions of
\n the Loan Documents other than those which (A) extend the Maturity Date or
\n ———-
\n any other date upon which any payment of money is due to the Banks, (B)
\n reduce the rate of interest on the Notes, any fee or any other monetary
\n amount payable to the Banks, (C) reduce the amount of any installment of
\n principal due under the Notes, (D) release the Guaranty, or (E) change the
\n definition of “Requisite Banks.”<\/p>\n
(f) Notwithstanding anything in this Section to the contrary, the
\n rights of the Banks to make assignments of, and grant participations in,
\n their Pro Rata Shares of the Commitment shall be subject to the approval of
\n any Gaming Board, to the extent required by applicable Gaming Laws, and to
\n compliance with applicable securities laws, if any.<\/p>\n
(g) Notwithstanding anything to the contrary contained herein,
\n any Bank (a “Granting Bank”) may grant to one or more SPC’s established or
\n maintained by that Granting Bank the option to provide all or any part of
\n any Loan or Advance that such Granting Bank would otherwise be obligated to
\n make pursuant to Sections 2.1, 2.2, 2.3 or 2.5, provided that (i) nothing
\n herein shall constitute a commitment to make any Loan by any SPC, (ii) if a
\n SPC elects not to exercise such option or otherwise fails to provide all or
\n any part of such Loan, the Granting Bank shall be obligated to make such
\n Loan pursuant to the terms hereof, and (iii) the rights of any such SPC
\n shall be derivative of the rights of the Granting Bank, and each SPC shall
\n be subject to all of the restrictions upon the Granting Bank herein
\n contained. Each SPC shall be conclusively presumed to have made
\n arrangements with its Granting Bank for the exercise of voting and other
\n rights hereunder in a manner which is acceptable to the SPC, and the
\n Administrative Agent, the other Creditors, Borrower, the Co-Borrowers and
\n each other Party shall be entitled to rely upon and deal solely with the
\n Granting Bank with respect to Loans and Advances made by or through its
\n SPC. The making of a Loan by a SPC hereunder shall utilize the Commitment
\n of the Granting Bank (and, if such Loan is a Competitive Advance, shall be
\n deemed to utilize the Commitments of all the Banks) to the same extent, and
\n as if, such Loan were made by the Granting Bank. Each party hereto hereby
\n agrees that no SPC shall be liable for any indemnity or similar payment
\n obligation under this Agreement (all liability for which shall remain with
\n the related Granting Bank). In furtherance of the <\/p>\n
-89-<\/p>\n
foregoing, each party hereto hereby agrees (which agreement shall survive
\n the termination of this Agreement) that, prior to the date that is one year
\n and one day after the payment in full of all outstanding senior
\n indebtedness of any SPC, it will not institute against, or join any other
\n person in instituting against, such SPC any bankruptcy, reorganization,
\n arrangement, insolvency or liquidation proceedings or similar proceedings
\n under the laws of the United States or any State thereof, provided that the
\n ——– —-
\n Granting Bank for each SPC hereby agrees to indemnify, save, and hold
\n harmless each other party hereto for any loss, cost, damage and expense
\n arising out of their inability to institute any such proceeding against its
\n SPC. In addition, notwithstanding anything to the contrary contained in
\n this Section 11.8, any SPC may (i) with notice to, but without the prior
\n written consent of, the Borrower, the Co-Borrowers or the Administrative
\n Agent and without paying any processing fee therefor, assign all or a
\n portion of its interests in any Loans to its Granting Bank or to any
\n financial institutions providing liquidity and\/or credit facilities to or
\n for the account of such SPC to fund the Loans made by such SPC or to
\n support the securities (if any) issued by such SPC to fund such Loans (but
\n nothing contained herein shall be construed in derogation of the obligation
\n of the Granting Bank to make Loans hereunder), provided that neither the
\n ——– —-
\n consent of the SPC or of any such assignee shall be required for amendments
\n or waivers of provisions of the Loan Documents except for those amendments
\n or waivers for which the consent of participants is required under Section
\n 11.8(e)(vi), and (ii) disclose on a confidential basis (in the same manner
\n described in Section 11.14) any non-public information relating to its
\n Loans to any rating agency, commercial paper dealer or provider of a
\n surety, guarantee or credit or liquidity enhancement to such SPC.<\/p>\n
11.9 Right of Setoff. If an Event of Default has occurred and is
\n —————
\ncontinuing, the Administrative Agent or any Bank (but in each case only with the
\nconsent of the Requisite Banks) may exercise its rights under Article 9 of the
\nUniform Commercial Code and other applicable Laws and, to the extent permitted
\nby applicable Laws, apply any funds in any deposit account maintained with it by
\nBorrower, the Co-Borrowers and\/or any of their Property in its possession
\nagainst the Obligations.<\/p>\n
11.10 Sharing of Setoffs. Each Bank severally agrees that if it,
\n ——————
\nthrough the exercise of any right of setoff, banker’s lien or counterclaim
\nagainst Borrower, any Co-Borrower, or otherwise, receives payment of the
\nObligations held by it that is ratably more than any other Bank, through any
\nmeans, receives in payment of the Obligations held by that Bank, then, subject
\nto applicable Laws: (a) the Bank exercising the right of setoff, banker’s lien
\nor counterclaim or otherwise receiving such payment shall purchase, and shall be
\ndeemed to have simultaneously purchased, from the other Bank a participation in
\nthe Obligations held by the other Bank and shall pay to the other Bank a
\npurchase price in an amount so that the share of the Obligations held by each
\nBank after the exercise of the right of setoff, banker’s lien or counterclaim or
\nreceipt of payment shall be in the same proportion that existed prior to the
\nexercise of the right of setoff, banker’s lien or counterclaim or receipt of
\npayment; and (b) such other adjustments and purchases of participations shall be
\nmade from time to time as shall be equitable to ensure that all of the Banks
\nshare any payment obtained in respect of the Obligations ratably in accordance
\nwith each Bank’s share of the Obligations immediately prior to, and without
\ntaking into account, the payment; provided that, if all or any portion of a
\n ——–
\ndisproportionate payment obtained as a result of the exercise of the right of
\nsetoff, banker’s lien, counterclaim or otherwise is thereafter recovered from
\nthe purchasing Bank by Borrower, any Co-Borrower or any Person claiming through
\nor succeeding to the rights of Borrower or a Co-Borrower, the purchase of a
\nparticipation shall be rescinded and the purchase price thereof shall be
\nrestored to the extent of the recovery, but without <\/p>\n
-90-<\/p>\n
interest. Each Bank that purchases a participation in the Obligations pursuant
\nto this Section shall from and after the purchase have the right to give all
\nnotices, requests, demands, directions and other communications under this
\nAgreement with respect to the portion of the Obligations purchased to the same
\nextent as though the purchasing Bank were the original owner of the Obligations
\npurchased. Borrower and each Co-Borrower expressly consents to the foregoing
\narrangements and agrees that any Bank holding a participation in an Obligation
\nso purchased may exercise any and all rights of setoff, banker’s lien or
\ncounterclaim with respect to the participation as fully as if the Bank were the
\noriginal owner of the Obligation purchased.<\/p>\n
11.11 Indemnity by Borrower and the Co-Borrowers. Borrower and
\n ——————————————
\neach Co-Borrower jointly and severally agrees to indemnify, save and hold
\nharmless the Administrative Agent and each Bank and their Affiliates and their
\ndirectors, officers, agents, attorneys and employees (collectively the<\/p>\n
“Indemnitees”) from and against: (a) any and all claims, demands, actions or
\n————
\ncauses of action (except a claim, demand, action, or cause of action for any
\n ——
\namount excluded from the definition of “Taxes” in Section 3.12(d)) if the claim,
\ndemand, action or cause of action arises out of or relates to any act or
\nomission (or alleged act or omission) of Borrower, its Subsidiaries or any of
\ntheir officers, directors or stockholders relating to the Commitment, the use or
\ncontemplated use of proceeds of any Loan, or the relationship of Borrower, the
\nCo-Borrowers and the Banks under this Agreement; (b) any administrative or
\ninvestigative proceeding by any Governmental Agency arising out of or related to
\na claim, demand, action or cause of action described in clause (a) above; and
\n –
\n(c) any and all liabilities, losses, costs or expenses (including reasonable
\n ———
\nattorneys’ fees and the reasonably allocated costs of attorneys employed by any
\nIndemnitee and disbursements of such attorneys and other professional services)
\nthat any Indemnitee suffers or incurs as a result of the assertion of any
\nforegoing claim, demand, action or cause of action; provided that no Indemnitee
\n ——–
\nshall be entitled to indemnification under this Section for any loss caused by
\nits own gross negligence or willful misconduct or for any loss asserted against
\nit by another Indemnitee. If any claim, demand, action or cause of action is
\nasserted against any Indemnitee, such Indemnitee shall promptly notify Borrower
\nand the Co-Borrowers, but the failure to so promptly notify Borrower and the Co-
\nBorrowers shall not affect their obligations under this Section unless such
\nfailure materially prejudices Borrower’s and the Co-Borrowers’ right to
\nparticipate in the contest of such claim, demand, action or cause of action, as
\nhereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
\nand the Co-Borrowers in writing) contest the validity, applicability and amount
\nof such claim, demand, action or cause of action and shall permit Borrower and
\nthe Co-Borrowers to participate in such contest. Any Indemnitee that proposes
\nto settle or compromise any claim or proceeding for which Borrower or any Co-
\nBorrower may be liable for payment of indemnity hereunder shall give Borrower
\nand the Co-Borrowers written notice of the terms of such proposed settlement or
\ncompromise reasonably in advance of settling or compromising such claim or
\nproceeding and shall obtain Borrower’s and each Co-Borrowers prior consent
\n(which shall not be unreasonably withheld or delayed). In connection with any
\nclaim, demand, action or cause of action covered by this Section against more
\nthan one Indemnitee, all such Indemnitees shall be represented by the same legal
\ncounsel (which may be a law firm engaged by the Indemnitees or attorneys
\nemployed by an Indemnitee or a combination of the foregoing) selected by the
\nIndemnitees and reasonably acceptable to Borrower and the Co-Borrowers;<\/p>\n
provided, that if such legal counsel determines in good faith that representing
\n——–
\nall such Indemnitees would or could result in a conflict of interest under Laws
\nor ethical principles applicable to such legal counsel or that a defense or
\ncounterclaim is available to an Indemnitee that is not available to all such
\nIndemnitees, then to the extent reasonably necessary to avoid such a conflict of
\ninterest or to permit unqualified assertion of such a defense or counterclaim,
\neach<\/p>\n
-91-<\/p>\n
Indemnitee shall be entitled to separate representation by legal counsel
\nselected by that Indemnitee and reasonably acceptable to Borrower and the Co-
\nBorrowers, with all such legal counsel using reasonable efforts to avoid
\nunnecessary duplication of effort by counsel for all Indemnitees; and further
\n ——-
\nprovided that the Administrative Agent (as an Indemnitee) shall at all times be
\n——–
\nentitled to representation by separate legal counsel (which may be a law firm or
\nattorneys employed by the Administrative Agent or a combination of the
\nforegoing). Any obligation or liability of Borrower and the Co-Borrowers to any
\nIndemnitee under this Section shall survive the expiration or termination of
\nthis Agreement, the repayment of all Loans, the expiration or termination of all
\nLetters of Credit and the payment and performance of all other Obligations owed
\nto the Banks.<\/p>\n
11.12 Nonliability of the Banks. Borrower and each Co-Borrower
\n ————————-
\nacknowledges and agrees that:<\/p>\n
(a) Any inspections of any Property of Borrower and its
\n Subsidiaries made by or through the Creditors are for purposes of
\n administration of the Loans and Letters of Credit only and Borrower and its
\n Affiliates are not entitled to rely upon the same (whether or not such
\n inspections are at the expense of Borrower or its Subsidiaries);<\/p>\n
(b) By accepting or approving anything required to be observed,
\n performed, fulfilled or given to the Creditors pursuant to the Loan
\n Documents, neither the Administrative Agent nor the Banks shall be deemed
\n to have warranted or represented the sufficiency, legality, effectiveness
\n or legal effect of the same, or of any term, provision or condition
\n thereof, and such acceptance or approval thereof shall not constitute a
\n warranty or representation to anyone with respect thereto by the Creditors;<\/p>\n
(c) The relationship between Borrower and the Co-Borrowers and
\n the Creditors is, and shall at all times remain, solely that of borrowers
\n and lenders; neither the Administrative Agent nor the Banks shall under any
\n circumstance be construed to be partners or joint venturers of Borrower or
\n its Affiliates; neither the Administrative Agent nor the Banks shall under
\n any circumstance be deemed to be in a relationship of confidence or trust
\n or a fiduciary or other “special” relationship with Borrower or its
\n Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates;
\n neither the Administrative Agent nor the Banks undertake or assume any
\n responsibility or duty to Borrower or its Affiliates to select, review,
\n inspect, supervise, pass judgment upon or inform Borrower or its Affiliates
\n of any matter in connection with their Property or the operations of
\n Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely
\n upon their own judgment with respect to such matters; and any review,
\n inspection, supervision, exercise of judgment or supply of information
\n undertaken or assumed by the Creditors in connection with such matters is
\n solely for the protection of the Creditors and neither Borrower, the Co-
\n Borrowers nor any other Person is entitled to rely thereon; and<\/p>\n
(d) The Creditors shall not be responsible or liable to any
\n Person for any loss, damage, liability or claim of any kind relating to
\n injury or death to Persons or damage to Property caused by the actions,
\n inaction or negligence of Borrower and\/or its Affiliates and Borrower and
\n the Co-Borrowers hereby indemnify and hold the Creditors harmless on the
\n terms set forth in Section 11.11 from any such loss, damage, liability or
\n claim.<\/p>\n
-92-<\/p>\n
11.13 No Third Parties Benefitted. This Agreement is made for the
\n —————————
\npurpose of defining and setting forth certain obligations, rights and duties of
\nBorrower, the Co-Borrowers and the Creditors in connection with the Loans, and
\nis made for the sole benefit of Borrower, the Co-Borrowers, the Creditors, and
\nthe Creditors’ successors and assigns. Except as provided in Sections 11.8,
\n ——
\n11.11, and 11.29 no other Person shall have any rights of any nature hereunder
\nor by reason hereof.<\/p>\n
11.14 Confidentiality. Each Bank agrees to hold any confidential
\n —————
\ninformation that it may receive from Borrower and the Co-Borrowers pursuant to
\nthis Agreement in confidence, except for disclosure: (a) to other Banks (or,
\n ——
\nsubject to appropriate confidentiality restrictions, Affiliates of any Bank);
\n(b) to legal counsel and accountants for Borrower and the Co-Borrowers or any
\nBank; (c) to other professional advisors to Borrower and the Co-Borrowers or any
\nBank, provided that the recipient has accepted such information subject to a
\nconfidentiality agreement substantially similar to this Section; (d) to
\nregulatory officials having jurisdiction over that Bank; (e) to any Gaming Board
\nhaving regulatory jurisdiction over Borrower or its Subsidiaries, provided that
\neach Bank agrees to use its best efforts to notify Borrower and the Co-Borrowers
\nof any such disclosure unless prohibited by applicable Laws; (f) as required by
\nLaw or legal process or in connection with any legal proceeding to which that
\nBank and Borrower or any of its Subsidiaries are adverse parties; and (g) to
\nanother financial institution in connection with a disposition or proposed
\ndisposition to that financial institution of all or part of that Bank’s
\ninterests hereunder or a participation interest in its Notes, provided that the
\nrecipient has accepted such information subject to a confidentiality agreement
\nsubstantially similar to this Section. For purposes of the foregoing,
\n“confidential information” shall mean any information respecting Borrower or its
\nSubsidiaries reasonably considered by Borrower to be confidential, other than
\n ———-
\n(i) information previously filed with any Governmental Agency and available to
\nthe public, (ii) information previously published in any public medium from a
\nsource other than, directly or indirectly, that Bank, and (iii) information
\npreviously disclosed by Borrower or its Subsidiaries to any Person not
\nassociated with Borrower without a confidentiality agreement or obligation
\nsubstantially similar to this Section. Nothing in this Section shall be
\nconstrued to create or give rise to any fiduciary duty on the part of the
\nCreditors to Borrower or any other Party.<\/p>\n
11.15 Further Assurances. Borrower and its Subsidiaries shall, at
\n ——————
\ntheir expense and without expense to the Banks or the Administrative Agent, do,
\nexecute and deliver such further acts and documents as the Requisite Banks or
\nthe Administrative Agent from time to time reasonably require for the assuring
\nand confirming unto the Banks or the Administrative Agent of the rights hereby
\ncreated or intended now or hereafter so to be, or for carrying out the intention
\nor facilitating the performance of the terms of any Loan Document.<\/p>\n
11.16 Integration. This Agreement, the other Loan Documents and
\n ———–
\nthe letter agreements referred to in Sections 3.2, 3.3, 3.5 and 3.6, comprise
\nthe complete and integrated agreements of the parties on the subject matter
\nhereof and supersedes all prior agreements, written or oral, on the subject
\nmatter hereof. In the event of any conflict between the provisions of this
\nAgreement and those of any other Loan Document, the provisions of this Agreement
\nshall control and govern; provided that the inclusion of supplemental rights or
\n ——–
\nremedies in favor of the Creditors in any other Loan Document shall not be
\ndeemed a conflict with this Agreement. Each Loan Document was drafted with the
\njoint participation of the respective parties thereto and shall be construed
\nneither against nor in favor of any party, but rather in accordance with the
\nfair meaning thereof.<\/p>\n
-93-<\/p>\n
11.17 Governing Law. Except to the extent otherwise provided
\n ————- ——
\ntherein, each Loan Document shall be governed by, and construed and enforced in
\naccordance with, the local Laws of Nevada.<\/p>\n
11.18 Severability of Provisions. Any provision in any Loan
\n ————————–
\nDocument that is held to be inoperative, unenforceable or invalid as to any
\nparty or in any jurisdiction shall, as to that party or jurisdiction, be
\ninoperative, unenforceable or invalid without affecting the remaining provisions
\nor the operation, enforceability or validity of that provision as to any other
\nparty or in any other jurisdiction, and to this end the provisions of all Loan
\nDocuments are declared to be severable.<\/p>\n
11.19 Headings. Article and Section headings in this Agreement and
\n ——–
\nthe other Loan Documents are included for convenience of reference only and are
\nnot part of this Agreement or the other Loan Documents for any other purpose.<\/p>\n
11.20 Time of the Essence. Time is of the essence of the Loan
\n ——————-
\nDocuments.<\/p>\n
11.21 Foreign Banks and Participants. Each Bank that is
\n ——————————
\nincorporated or otherwise organized under the Laws of a jurisdiction other than
\nthe United States of America or any State thereof or the District of Columbia
\nshall deliver to Borrower (with a copy to the Administrative Agent), within
\ntwenty (20) days after the Closing Date (or after accepting an assignment or
\nreceiving a participation interest herein pursuant to Section 11.8, if
\napplicable) two duly completed copies, signed by a Responsible Official, of
\neither Form 1001 (relating to such Bank and entitling it to a complete exemption
\nfrom withholding on all payments to be made to such Bank by Borrower and the Co-
\nBorrowers pursuant to this Agreement) or Form 4224 (relating to all payments to
\nbe made to such Bank by Borrower and the Co-Borrowers pursuant to this
\nAgreement) of the United States Internal Revenue Service or such other evidence
\n(including, if reasonably necessary, Form W-9), or any successor form(s),
\n ———
\nsatisfactory to Borrower and the Co-Borrowers and the Administrative Agent that
\nno withholding under the federal income tax laws is required with respect to
\nsuch Bank. Thereafter and from time to time, each such Bank shall upon request
\nby Borrower and the Co-Borrowers (a) promptly submit to Borrower and the Co-
\nBorrowers (with a copy to the Administrative Agent), such additional duly
\ncompleted and signed copies of one of such forms (or such successor forms as
\nshall be adopted from time to time by the relevant United States taxing
\nauthorities) as may then be available under then current United States laws and
\nregulations to avoid, or such evidence as is satisfactory to Borrower, the Co-
\nBorrowers and the Administrative Agent of any available exemption from, United
\nStates withholding taxes in respect of all payments to be made to such Bank by
\nBorrower and the Co-Borrowers pursuant to this Agreement and (b) take such steps
\nas shall not be materially disadvantageous to it, in the reasonable judgment of
\nsuch Bank, and as may be reasonably necessary (including the re-designation of
\nits Eurodollar Lending Office, if any) to avoid any requirement of applicable
\nLaws that Borrower and the Co-Borrowers make any deduction or withholding for
\ntaxes from amounts payable to such Bank. In the event that Borrower, the Co-
\nBorrowers or the Administrative Agent become aware that a participation has been
\ngranted pursuant to Section 11.8(e) to a financial institution that is
\nincorporated or otherwise organized under the Laws of a jurisdiction other than
\nthe United States of America, any State thereof or the District of Columbia,
\nthen, upon request made by Borrower, the Co-Borrowers or the Administrative
\nAgent to the Bank which granted such participation, such Bank shall cause such
\nparticipant financial institution to deliver the same documents and information
\nto <\/p>\n
-94-<\/p>\n
Borrower, the Co-Borrowers and the Administrative Agent as would be required
\nunder this Section if such financial institution were a Bank.<\/p>\n
11.22 Hazardous Material Indemnity. Borrower and each Co-Borrower
\n —————————-
\nhereby agrees to indemnify, hold harmless and defend (by counsel reasonably
\nsatisfactory to the Administrative Agent) the Administrative Agent and each of
\nthe Banks (and any successor to a Bank) and their respective directors,
\nofficers, employees and agents from and against any and all claims, losses,
\ndamages, liabilities, fines, penalties, charges, administrative and judicial
\nproceedings and orders, judgments, remedial action requirements, enforcement
\nactions of any kind, and all costs and expenses incurred in connection therewith
\n(including reasonable attorneys’ fees and the reasonably allocated costs of
\n ———
\nattorneys employed by the Administrative Agent or any Bank, and expenses to the
\nextent that the defense of any such action has not been assumed by Borrower and
\nthe Co-Borrowers), arising directly or indirectly out of (i) the presence on,
\nin, under or about any Real Property of any Hazardous Materials, or any releases
\nor discharges of any Hazardous Materials on, under or from any Real Property and
\n(ii) any activity carried on or undertaken on or off any Real Property by
\nBorrower its Subsidiaries or any of their predecessors in title, whether prior
\nto or during the term of this Agreement, and whether by Borrower, its
\nSubsidiaries or any predecessor in title or any employees, agents, contractors
\nor subcontractors of Borrower, its Subsidiaries or any predecessor in title, or
\nany third persons at any time occupying or present on any Real Property (other
\n —–
\nthan a Bank or a representative of a Bank), in connection with the handling,
\n—-
\ntreatment, removal, storage, decontamination, clean-up, transport or disposal of
\nany Hazardous Materials at any time located or present on, in, under or about
\nany Real Property; provided that, anything to the contrary herein
\n ——–
\nnotwithstanding (including Exhibit J), the liability of Detroit shall be limited
\nto that portion of the Obligations which are used, directly or indirectly, to
\nfinance the design, development, construction or operation of the Detroit
\nProject or which are actually borrowed or received by Detroit. The foregoing
\nindemnity shall further apply to any residual contamination on, in, under or
\nabout any Real Property, or affecting any natural resources, and to any
\ncontamination of any Property or natural resources arising in connection with
\nthe generation, use, handling, storage, transport or disposal of any such
\nHazardous Materials, and irrespective of whether any of such activities were or
\nwill be undertaken in accordance with applicable Laws, but the foregoing
\nindemnity shall not apply to Hazardous Materials on any Real Property, the
\npresence of which is caused by the Creditors. Borrower and each Co-Borrower
\nhereby acknowledges and agrees that, notwithstanding any other provision of this
\nAgreement or any of the other Loan Documents to the contrary, the obligations of
\nBorrower and the Co-Borrowers under this Section (and under Sections 4.18 and
\n5.9) shall be unlimited corporate obligations of Borrower and the Co-Borrowers
\nand shall not be secured by any deed of trust or mortgage on any Real Property.
\n —
\nAny obligation or liability of Borrower and the Co-Borrowers to any Indemnitee
\nunder this Section shall survive the expiration or termination of this
\nAgreement, the repayment of all Loans, the expiration or termination of all
\nLetters of Credit and the payment and performance of all other Obligations owed
\nto the Banks.<\/p>\n
11.23 Gaming Boards. The Administrative Agent and each of the
\n ————-
\nBanks agree to cooperate with all Gaming Boards in connection with the
\nadministration of their regulatory jurisdiction over Borrower and its
\nSubsidiaries, including the provision of such documents or other information as
\n ———
\nmay be requested by any such Gaming Board relating to Borrower or any of its
\nSubsidiaries or to the Loan Documents.<\/p>\n
-95-<\/p>\n
11.24 Lien Releases. The Administrative Agent shall release any
\n ————-
\nLien granted to or held by the Administrative Agent on any collateral for the
\nObligations (i) sold, transferred or otherwise disposed of in connection with
\nany transaction not prohibited by the Loan Documents, (ii) constituting Property
\nleased to Borrower or its Subsidiaries under a lease which has expired or been
\nterminated in a transaction not prohibited by the Loan Documents or which will
\nconcurrently expire and which has not been, and is not intended by Borrower or
\nthe relevant Subsidiary to be, renewed or extended, (iii) consisting of an
\ninstrument, if the Indebtedness evidenced by such instrument has been finally
\nrepaid in full, (iv) if approved or consented to by those of the Banks required
\nby Section 11.2, or (v) as otherwise expressly required by the Loan Documents.
\nIf the collateral so released consists of capital stock of a Subsidiary, then
\nthe Administrative Agent shall concurrently also release such Subsidiary from
\nits obligations under the Guaranty. Upon the request of the Administrative
\nAgent, each Bank shall promptly provide written confirmation of the authority of
\nthe Administrative Agent to release such Liens upon any one or more items of
\ncollateral under this Section.<\/p>\n
11.25 Termination; Release of Liens. In addition to any Collateral
\n —————————–
\nRelease as contemplated in Section 2.12 and the release of the Liens heretofore
\nsecuring the Old Loan Agreement, upon (a) the expiration or termination of the
\nCommitment, (b) the full and final payment in Cash of the Loans, all interest
\nand fees with respect thereto, (c) the reimbursement of all draws under Letters
\nof Credit and the payment of all fees with respect thereto, (d) the expiration
\nof all Letters of Credit or the deposit of Cash collateral with the Issuing Bank
\nin the effective face amount thereof, (e) the payment of all amounts then
\ndemanded by any Bank or indemnitee under Sections 3.7, 3.8, 11.11 and 11.22 and
\n(f) the payment of all other amounts then due under the Loan Documents, the
\nAdministrative Agent is hereby authorized by the Banks to, and the
\nAdministrative Agent shall, upon the request of Borrower and the Co-Borrowers,
\nexecute and deliver to Borrower and the Co-Borrowers discharges from further
\ncompliance with the covenants contained in Articles 5, 6, and 7 and releases of
\nthe Liens created by the Loan Documents, and shall return any Property pledged
\nto the Administrative Agent as collateral for the Obligations, notwithstanding
\nthe survival of any provisions of this Agreement herein provided for.<\/p>\n
11.26 Nevada Gaming Collateral. If any Collateral Event occurs, the
\n ————————
\nAdministrative Agent shall, to the extent required by Gaming Laws, retain
\npossession of all pledged collateral consisting of the capital stock of (a)
\nNevada gaming licensees within the State of Nevada at a location designated to
\nthe Nevada State Gaming Control Board, and (b) gaming licensees in other
\njurisdictions at a location in that jurisdiction designated to the Gaming Board
\nof that jurisdiction, if so required by the Gaming Board of that jurisdiction.<\/p>\n
11.27 Removal of a Bank. Borrower and the Co-Borrowers shall have
\n —————–
\nthe right to remove a Bank as a party to this Agreement in accordance with this
\nSection (a) under the circumstances set forth in Sections 2.10, 3.7, 3.8(g) and
\n3.12(d) and (b) if such Bank is the subject of a Disqualification. If Borrower
\nand the Co-Borrowers are entitled to remove a Bank pursuant to this Section
\neither:
\n—— <\/p>\n
(x) Upon notice from Borrower and the Co-Borrowers, the Bank being
\n removed shall execute and deliver a Assignment Agreement covering that
\n Bank’s Pro Rata Share in favor of one or more Eligible Assignees
\n designated by Borrower and the Co-Borrowers (and acceptable to the
\n Administrative Agent, which acceptance shall not be unreasonably
\n delayed or withheld), subject to (i) payment of a purchase price by
\n such <\/p>\n
-96-<\/p>\n
Eligible Assignee equal to all principal and accrued interest, fees
\n and other amounts payable to such Bank under this Agreement through
\n the date of assignment and (ii) the written release of the Issuing
\n Bank and the Swing Line Bank of such Bank’s obligations under Sections
\n 2.5(c) and 2.6(d) or delivery by such Eligible Assignee of such
\n appropriate assurances and indemnities (which may include letters of
\n credit) as such Bank may reasonably require with respect to its
\n participation interest in any Letters of Credit then outstanding or
\n any Swing Line Outstandings; or<\/p>\n
(y) Except in the case of the removal of a Bank pursuant to Section
\n 2.10, Borrower and the Co-Borrowers may reduce the Commitment pursuant
\n to Section 2.8 (and, for this purpose, the numerical requirements of
\n such Section shall not apply) by an amount equal to that Bank’s Pro
\n Rata Share, pay and provide to such Bank the amounts, assurances and
\n indemnities described in subclauses (i) and (ii) of clause (x) above
\n and release such Bank from its Pro Rata Share.<\/p>\n
11.28 Joint and Several. Borrower and each of the Co-Borrowers shall
\n —————–
\nbe obligated for all of the Obligations on a joint and several basis,
\nnotwithstanding which of them may have directly received the proceeds of any
\nparticular Loan or Advance or the benefit of a particular Letter of Credit,<\/p>\n
provided that, anything to the contrary herein notwithstanding (including
\n——–
\nExhibit J), the liability of Detroit shall be limited to that portion of the
\nObligations which are used, directly or indirectly, to finance the design,
\ndevelopment, construction or operation of the Detroit Project or which are
\nactually borrowed or received by Detroit. Borrower and each of the Co-Borrowers
\nacknowledge and agree that, for purposes of the Loan Documents, Borrower, the
\nCo-Borrowers and the Guarantors constitute a single integrated financial
\nenterprise and that each receives a benefit from the availability of credit
\nunder this Agreement. Borrower and the Co-Borrowers each waive all defenses
\narising under the Laws of suretyship, to the extent such Laws are applicable, in
\nconnection with their joint and several obligations under this Agreement.
\nWithout limiting the foregoing, Borrower and each of the Co-Borrowers agree to
\nthe Joint Borrower Provisions set forth in Exhibit J, incorporated by this
\nreference.<\/p>\n
11.29 Non-Involvement of Tracinda. The parties hereto acknowledge
\n —————————
\nthat neither Kirk Kerkorian nor Tracinda Corporation, individually or
\ncollectively, is a party to this Agreement or any of the other Loan Documents
\nexecuted on the Closing Date. Accordingly, the parties hereto hereby agree that
\nin the event (i) there is any alleged breach or default by any Party under this
\nAgreement or any such Loan Document, or (ii) any party hereto has any claim
\narising from or relating to any such Loan Document, no party hereto, nor any
\nparty claiming through it (to the extent permitted by applicable Law), shall
\ncommence any proceedings or otherwise seek to impose any liability whatsoever
\nagainst Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach,
\ndefault or claim.<\/p>\n
11.30 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
\n ——————————–
\nAGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
\nDEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
\nCONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
\nANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
\nTHERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
\nSOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
\nCONSENTS THAT ANY SUCH <\/p>\n
-97-<\/p>\n
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
\nA JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
\nA COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
\nSIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.<\/p>\n
11.31 Purported Oral Amendments. BORROWER AND EACH CO-BORROWER
\n ————————-
\nEXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY
\nBE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
\nSUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2.
\nBORROWER AND EACH CO-BORROWER AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF
\nDEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
\nREPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY BANK THAT DOES NOT COMPLY WITH<\/p>\n
-98-<\/p>\n
SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS
\nAGREEMENT OR THE OTHER LOAN DOCUMENTS.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed as of the date first above written.<\/p>\n
MGM GRAND, INC., a Delaware corporation<\/p>\n
By: \/s\/ Scott Langsner
\n —————————————————–
\n Title: Senior Vice President & Secretary\/Treasurer
\n ————————————————–<\/p>\n
MGM GRAND ATLANTIC CITY, INC., a New Jersey corporation<\/p>\n
By: \/s\/ Scott Langsner
\n —————————————————–
\n Title: Senior Vice President & Secretary\/Treasurer
\n ————————————————–<\/p>\n
MGM GRAND DETROIT, LLC<\/p>\n
By: MGM Grand Detroit, Inc., managing member<\/p>\n
By: \/s\/ Scott Langsner
\n ————————————————–
\n Title: Senior Vice President & Secretary\/Treasurer
\n ———————————————–<\/p>\n
Address for Borrower and each Co-Borrower:<\/p>\n
3799 Las Vegas Boulevard South
\n Las Vegas, Nevada 89109
\n Attn: James J. Murren, President and Chief Financial
\n Officer<\/p>\n
Telecopier: (702) 891-1114
\n Telephone: (702) 891-3344<\/p>\n
With copies to:<\/p>\n
Scott Langsner, Treasurer
\n MGM Grand, Inc.
\n 3799 Las Vegas Boulevard South
\n Las Vegas, Nevada 89109<\/p>\n
Telecopier: (702) 891-1114
\n Telephone: (702) 891-1111<\/p>\n
and<\/p>\n
Gary N. Jacobs, Esq.
\n Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP
\n 2121 Avenue of the Stars, 18th Floor
\n Los Angeles, California 90067<\/p>\n
Telecopier: (310) 556-2920
\n Telephone: (310) 282-6268<\/p>\n
BANK OF AMERICA, N.A., as Administrative Agent and as a
\n Bank<\/p>\n
By:
\n ———————————————–<\/p>\n
By: \/s\/ Kristi Jackson
\n ———————————————–
\n Kristi Jackson, Vice President<\/p>\n
Address for notices:<\/p>\n
Bank of America, N.A.
\n Agency Management Services
\n 555 South Flower Street, 11th Floor
\n Los Angeles, California 90017
\n Attn: Janice Hammond, Vice President<\/p>\n
Telecopier: (213) 228-2299
\n Telephone: (213) 228-9861<\/p>\n
With a copy to:
\n Bank of America, N.A.
\n 555 South Flower Street (LA-5777)
\n Los Angeles, California 90071
\n Attn: William S. Newby, Managing Director
\n Telecopier: (213) 228-3145
\n Telephone: (213) 228-2438<\/p>\n
BANKERS TRUST COMPANY<\/p>\n
By: \/s\/ Laura S. Burwick
\n ——————————————–
\n Name: Laura S. Burwick
\n ——————————————
\n Title: Principal
\n —————————————–<\/p>\n
By:
\n ——————————————–
\n Name:
\n ——————————————
\n Title:
\n —————————————–<\/p>\n
Address for Notices:<\/p>\n
Bankers Trust Company
\n Attention: George Reynolds
\n 130 Liberty Street
\n New York, NY 10006
\n Facsimile: (212) 250-2863
\n Telephone: (212) 699-0743<\/p>\n
CITIBANK, N.A.<\/p>\n
By: \/s\/ Suneet Gupta
\n —————————————–
\n Name: Suneet Gupta
\n —————————————
\n Title: Vice President
\n ————————————–<\/p>\n
Address for Notices:<\/p>\n
Citibank, N.A.
\n Attention: Mark Wilson
\n 399 Park Avenue
\n New York, New York 10043
\n Facsimile: (212) 793-6873
\n Telephone: (212) 559-7241<\/p>\n
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES<\/p>\n
By: \/s\/ Christian Jagenberg
\n —————————————
\n Name: Christian Jagenberg
\n ————————————-
\n Title: SVP and Manager
\n ————————————<\/p>\n
By: \/s\/ Karla Wirth
\n —————————————
\n Name: Karla Wirth
\n ————————————-
\n Title: Assistant Treasurer
\n ————————————<\/p>\n
Address for Notices:<\/p>\n
Commerzbank AG, New York and Grand Cayman Branches
\n Attention: Werner Schmidbauer
\n 633 West Fifth Street
\n Los Angeles, CA 90071
\n Facsimile: (213) 623-0039
\n Telephone: (213) 623-8223<\/p>\n
MERRILL LYNCH CAPITAL CORP.<\/p>\n
By: \/s\/ David Dysenchuk
\n ————————————–
\n Name: David Dysenchuk
\n ————————————
\n Title: Vice President
\n ———————————–<\/p>\n
By: \/s\/ David Dysenchuk
\n ————————————–
\n Name: David Dysenchuk
\n ————————————
\n Title: Vice President
\n ———————————–<\/p>\n
Address for Notices:<\/p>\n
Merrill Lynch Capital Corp.
\n Attention: David Dysenchuk
\n World Financial Center North Tower
\n 250 Vesey Street, 26th Floor
\n New York, NY 10281
\n Facsimile: (212) 449-9143
\n Telephone: (212) 449-5235<\/p>\n
THE BANK OF NOVA SCOTIA<\/p>\n
By: \/s\/ Alan Pendergast
\n ————————————-
\n Name: Alan Pendergast
\n ———————————–
\n Title: Managing Director
\n ———————————-<\/p>\n
Address for Notices:<\/p>\n
The Bank of Nova Scotia
\n Attention: Alan Pendergast
\n 580 California Street
\n San Francisco, CA 94104
\n Facsimile: (415) 397-0791
\n Telephone: (415) 616-4155<\/p>\n
BANK ONE, NA<\/p>\n
By: \/s\/ Kandis A. Jaffrey
\n ————————————-
\n Name: Kandis A. Jaffrey
\n ———————————–
\n Title: Vice President
\n ———————————-<\/p>\n
By: ———–
\n ————————————-
\n Name: ———–
\n ———————————–
\n Title: ———–
\n ———————————-<\/p>\n
Address for Notices:<\/p>\n
Bank One, NA
\n Attention: James Junker
\n 777 S. Figueroa Street, 4th Fl.
\n Los Angeles, CA 90017
\n Facsimile: (213) 683-4999
\n Telephone: (213) 683-4948<\/p>\n
BEAR STEARNS CORPORATE LENDING INC.<\/p>\n
By: \/s\/ Richard L. Metrick
\n ——————————————-
\n Name: Richard L. Metrick
\n —————————————–
\n Title: President
\n —————————————-<\/p>\n
Address for Notices:<\/p>\n
Bear Stearns Corporate Lending Inc.
\n Attention: Keith Barnish
\n 245 Park Avenue
\n New York, NY 10167
\n Facsimile: (212) 272-2000
\n Telephone: (212) 272-6082<\/p>\n
CIBC, INC.<\/p>\n
By: \/s\/ Dean J. Decker
\n ————————————-
\n Name: Dean J. Decker
\n ————————————<\/p>\n
Title: Executive Director
\n CIBC World Markets Corp., AS AGENT<\/p>\n
Address for Notices:<\/p>\n
CIBC, Inc.
\n Attention: Dean J. Decker
\n 350 South Grand Ave., Suite 2600
\n Los Angeles, CA 90071
\n Facsimile: (213) 617-6245
\n Telephone: (213) 346-0157<\/p>\n
SOCIETE GENERALE<\/p>\n
By: \/s\/ Alex Y. Kim
\n —————————————-
\n Name: Alex Y. Kim
\n ————————————–
\n Title: Vice President
\n ————————————-<\/p>\n
Address for Notices:<\/p>\n
Societe Generale
\n Attention: Alex Kim
\n 2029 Century Park East, Suite 2900
\n Los Angeles, CA 90067
\n Facsimile: (310) 551-1537
\n Telephone: (310) 788-7108<\/p>\n
FLEET BANK, N.A.<\/p>\n
By: \/s\/ John T. Harrison
\n —————————————–
\n Name: John T. Harrison
\n —————————————
\n Title: SENIOR VICE PRESIDENT
\n ————————————–<\/p>\n
By:
\n —————————————–
\n Name:
\n —————————————
\n Title:
\n ————————————–<\/p>\n
Address for Notices:<\/p>\n
Fleet Bank, N.A.
\n Attention: John Harrison
\n 1300 Atlantic Avenue
\n Atlantic City, NJ 08401
\n Facsimile: (732) 780-0754
\n Telephone: (732) 294-4300<\/p>\n
COMERICA BANK<\/p>\n
By: \/s\/ Emmanuel M. Skevofilax
\n —————————————–
\n Name: Emmanuel M. Skevofilax
\n —————————————
\n Title: Vice President
\n ————————————–<\/p>\n
By: n\/a
\n —————————————–
\n Name:
\n —————————————
\n Title:
\n ————————————–<\/p>\n
Address for Notices:<\/p>\n
Comerica Bank
\n Attention: Eoin Collins
\n 3980 Howard Hughes Parkway, Suite 350
\n Las Vegas, NV 89109
\n Facsimile: (702) 791-2371
\n Telephone: (702) 791-4802<\/p>\n
MERRILL LYNCH BANK, USA<\/p>\n
By: \/s\/ Peter C. Hagan
\n ———————————-<\/p>\n
Name: PETER C. HAGAN
\n ——————————–<\/p>\n
Title: CHAIRMAN
\n ——————————–<\/p>\n
Address for Notices:<\/p>\n
________________________________<\/p>\n
Facsimile: 609-282-1997
\n Telephone: 609-282-2697<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,7104,7154,7545,8212],"corporate_contracts_industries":[9415,9530],"corporate_contracts_types":[9560,9567],"class_list":["post-41111","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-citigroup-inc","corporate_contracts_companies-comerica-inc","corporate_contracts_companies-fleetboston-financial-corp","corporate_contracts_companies-mgm-mirage-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-travel__lodging","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41111","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41111"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41111"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41111"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41111"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}