EXHIBIT 99
[EXECUTION COPY]
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT,
dated as of November 1, 1999,
among
SUN INTERNATIONAL HOTELS LIMITED,
SUN INTERNATIONAL BAHAMAS LIMITED,
RESORTS INTERNATIONAL HOTEL, INC.
and
SUN INTERNATIONAL NEVADA, INC.,
as the Borrowers and Guarantors,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA
and
SOCIETE GENERALE,
as the Co-Syndication Agents
and the Managing Agents,
BANKERS TRUST COMPANY,
CIBC INC.,
THE ROYAL BANK OF SCOTLAND PLC,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as the Co-Agents,
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent,
the Documentation Agent and
the Collateral Agent.
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms...................................................4
1.2. Use of Defined Terms...........................................35
1.3. Cross-References...............................................35
1.4. Accounting and Financial Determinations........................35
ARTICLE II COMMITMENTS, BORROWING PROCEDURES, NOTES AND LETTERS OF
CREDIT
2.1. Amendment and Restatement; Commitments.........................36
2.1.1. Commitment of Each Lender......................................37
2.1.2. Letter of Credit Commitment....................................37
2.1.3. Lenders Not Permitted or Required to Make Loans................37
2.1.4. Issuers Not Permitted or Required to Issue Letters of Credit...37
2.2. Reduction of Commitment Amount.................................38
2.2.1. Optional.......................................................38
2.2.2. Mandatory......................................................38
2.3. Borrowing Procedure............................................38
2.4. Continuation and Conversion Elections..........................39
2.5. Funding........................................................39
2.6. Issuance Procedures............................................39
2.6.1. Other Lenders'Participation....................................40
2.6.2. Disbursements..................................................40
2.6.3. Reimbursement..................................................41
2.6.4. Deemed Disbursements...........................................41
2.6.5. Nature of Reimbursement Obligations............................42
2.7. Notes..........................................................42
2.8. Register.......................................................43
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments.....................................43
3.2. Interest Provisions............................................44
3.2.1. Rates..........................................................44
3.2.2. Post-Maturity Rates............................................44
3.2.3. Payment Dates..................................................44
3.3. Fees...........................................................45
3.3.1. Commitment Fee.................................................45
3.3.2. Letter of Credit Fee...........................................45
3.3.3. Other Fees.....................................................46
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3.4. Guaranty Provisions............................................46
3.4.1. Guaranty.......................................................46
3.4.2. Acceleration of Guaranty.......................................47
3.4.3. Guaranty Absolute, etc.........................................47
3.4.4. Reinstatement, etc.............................................48
3.4.5. Waiver, etc....................................................48
3.4.6. Postponement of Subrogation, etc...............................48
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.....................................49
4.2. Deposits Unavailable...........................................49
4.3. Increased LIBO Rate Loan Costs, etc............................50
4.4. Funding Losses.................................................50
4.5. Increased Capital Costs........................................51
4.6. Taxes..........................................................51
4.7. Payments, Computations, etc....................................53
4.8. Sharing of Payments............................................53
4.9. Setoff.........................................................54
4.10. Defaulting Lender..............................................55
4.11. Replacement Lender.............................................55
ARTICLE V CONDITIONS TO EFFECTIVENESS
5.1. Effectiveness..................................................56
5.1.1. Resolutions, etc...............................................56
5.1.2. Delivery of this Agreement, Notes..............................57
5.1.3. New Debentures.................................................57
5.1.4. Exchange Approval..............................................57
5.1.5. Endorsement to Title Insurance Policies........................57
5.1.6. Affirmation and Consent........................................58
5.1.7. Opinions of Counsel............................................58
5.1.8. Effective Date Certificate.....................................58
5.1.9. Repayment of Outstanding Loans.................................58
5.1.10. Fees and Expenses..............................................58
5.1.11. Collateral Agreement Supplements...............................59
5.2. All Credit Extensions..........................................59
5.2.1. Compliance with Warranties, No Default, etc....................59
5.2.2. Credit Extension Request.......................................59
5.2.3. Satisfactory Legal Form........................................60
5.2.4. Desert Inn Acquisition.........................................60
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..............................................61
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6.2. Due Authorization, Non-Contravention, etc......................61
6.3. Government Approval, Regulation, etc...........................61
6.4. Validity, etc..................................................62
6.5. Financial Information..........................................62
6.6. No Material Adverse Change.....................................62
6.7. Litigation, Labor Controversies, etc...........................62
6.8. Subsidiaries...................................................63
6.9. Ownership of Properties........................................63
6.10. Taxes..........................................................63
6.11. Pension and Welfare Plans......................................63
6.12. Environmental Warranties.......................................63
6.13. Regulations U and X............................................65
6.14. Accuracy of Information........................................65
6.15. Protection under Security Instruments..........................65
6.16. No Condemnation Proceedings....................................66
6.17. Insurance......................................................66
6.18. Seniority of Obligations, etc..................................66
6.19. Year 2000......................................................66
ARTICLE VII COVENANTS
7.1. Affirmative Covenants..........................................67
7.1.1. Financial Information, Reports, Notices, etc...................67
7.1.2. Compliance with Laws, etc......................................69
7.1.3. Maintenance of Properties......................................69
7.1.4. Insurance......................................................69
7.1.5. Books and Records..............................................71
7.1.6. Environmental Covenant.........................................71
7.1.7. Future Investments in Significant Subsidiaries.................72
7.1.8. Use of Proceeds................................................73
7.1.9. Management Contracts; Omnibus Agreement, Relinquishment
Agreement......................................................73
7.1.10. Priority of Lenders'Liens......................................73
7.1.11. Access to Property.............................................74
7.1.12. Contract Assignments...........................................74
7.1.13. NJCCC Approval.................................................74
7.1.14. Other Amounts..................................................74
7.1.15. Appraisals.....................................................75
7.2. Negative Covenants.............................................75
7.2.1. Business Activities............................................75
7.2.2. Indebtedness...................................................75
7.2.3. Liens..........................................................77
7.2.4. Financial Condition............................................78
7.2.5. Investments....................................................80
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7.2.6. Restricted Payments, etc.......................................81
7.2.7. Capital Expenditures, etc......................................81
7.2.8. Transactions with Affiliates...................................82
7.2.9. Restrictive Agreements, etc....................................82
7.2.10. Consolidation, Merger, etc.....................................83
7.2.11. Asset Dispositions, etc........................................83
7.2.12. Modification of Certain Agreements.............................84
7.2.13. Modification of Subordinated Debt Documents....................85
7.2.14. Rate Protection Agreements.....................................85
7.2.15. Assets/Revenues in Other than Significant Subsidiaries.........85
ARTICLE VIII EVENTS OF DEFAULT
8.1. Listing of Events of Default...................................85
8.1.1. Non-Payment of Obligations.....................................85
8.1.2. Breach of Warranty.............................................86
8.1.3. Non-Performance of Certain Covenants and Obligations...........86
8.1.4. Non-Performance of Other Covenants and Obligations.............86
8.1.5. Default on Other Indebtedness..................................86
8.1.6. Judgments......................................................86
8.1.7. Pension Plans..................................................87
8.1.8. Change in Control..............................................87
8.1.9. Bankruptcy, Insolvency, etc....................................87
8.1.10. Impairment of Security, etc....................................88
8.1.11. Amendments to, or Termination of, Certain Agreements...........88
8.1.12. Loss of Bahamian Approvals.....................................88
8.1.13. Loss or Revocation of Casino License...........................88
8.1.14. Loss of Property; Change in Management.........................88
8.1.15. Failure of Subordination.......................................88
8.1.16. Redemption.....................................................89
8.2. Action if Bankruptcy...........................................89
8.3. Action if Other Event of Default...............................89
ARTICLE IX THE CO-SYNDICATION AGENTS,ADMINISTRATIVE
AGENT,COLLATERAL AGENTAND MANAGING AGENTS
9.1. Actions........................................................90
9.2. Funding Reliance, etc..........................................90
9.3. Exculpation....................................................91
9.4. Successor......................................................91
9.5. Loans by Agents................................................93
9.6. Credit Decisions...............................................93
9.7. Copies, etc....................................................93
9.8. Administrative Agent Independent Rights........................93
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9.9. The Syndication Agents.........................................94
ARTICLE X MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.......................................94
10.2. Notices........................................................95
10.3. Payment of Costs and Expenses..................................95
10.4. Indemnification................................................96
10.5. Survival.......................................................97
10.6. Severability...................................................97
10.7. Headings.......................................................97
10.8. Execution in Counterparts, Effectiveness, etc..................97
10.9. Governing Law; Entire Agreement................................97
10.10. Successors and Assigns.........................................98
10.11. Sale and Transfer of Loans and Note; Participations in Loans
and Note.......................................................98
10.11.1. Assignments....................................................98
10.11.2. Participations.................................................100
10.12. Other Transactions.............................................100
10.13. Forum Selection and Consent to Jurisdiction....................101
10.14. Waiver of Jury Trial...........................................102
10.15. Judgment Currency..............................................102
10.16. Confidentiality................................................102
10.17. Schedules......................................................103
10.18. Replacement of Lenders.........................................103
10.19. Release of Non-Significant Subsidiaries........................104
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SCHEDULE I - Percentages; Information
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Borrower Effective Date Certificate
EXHIBIT F - Form of Compliance Certificate
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THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of
November 1, 1999, is among SUN INTERNATIONAL HOTELS LIMITED, a corporation
organized under the laws of The Commonwealth of the Bahamas ("SIHL"), SUN
INTERNATIONAL BAHAMAS LIMITED, a corporation organized under the laws of The
Commonwealth of the Bahamas ("SIBL"), RESORTS INTERNATIONAL HOTEL, INC., a
corporation organized under the laws of the State of New Jersey ("RIH"), and SUN
INTERNATIONAL NEVADA, INC., a corporation organized under the laws of the State
of Delaware ("SINI"; SINI, RIH, SIHL and SIBL are each individually referred to
as a "BORROWER" and collectively referred to as the "BORROWERS"), the Existing
Lenders, the New Lenders and any other financial institutions following the
Effective Date as are or may become parties hereto (the Existing Lenders, the
New Lenders and such other financial institutions collectively referred to as
the "LENDERS"), THE BANK OF NOVA SCOTIA ("SCOTIABANK") and SOCIETE GENERALE
("SG"), as the co-syndication agents and the managing agents (collectively, in
such capacities, the "CO-SYNDICATION AGENTS" and the "MANAGING AGENTS",
respectively) for the Lenders, and Scotiabank, as the administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT"), the documentation agent (in such
capacity, the "DOCUMENTATION AGENT") and the collateral agent (in such capacity,
the "COLLATERAL AGENT").
W I T N E S S E T H:
WHEREAS, the Borrowers are engaged directly and through their various
Subsidiaries in the business of, among other things, owning and operating hotel
and casino properties and other activities in the resort and gaming industry;
WHEREAS, pursuant to the facility agreement, dated as of May 3, 1994 (as
amended (including the amendments described below), supplemented, amended and
restated or otherwise modified prior to November 1, 1996, the "INITIAL CREDIT
AGREEMENT"), among SIBL, SIHL (as pledgor), certain Subsidiaries of SIBL parties
thereto (as guarantors), certain financial institutions from time to time
parties thereto as managers and banks (the "INITIAL LENDERS") and Scotiabank as
lead manager and as agent, the Initial Lenders made extensions of credit to SIBL
on the terms set forth therein;
WHEREAS, by an amendment to the Initial Credit Agreement, dated December
27, 1994, made between the same parties as were parties to the Initial Credit
Agreement, the Initial Lenders agreed to increase the facility granted to SIBL
from $75,000,000 to $80,000,000 (the "LOAN FACILITY"), and certain terms and
provisions of the Initial Credit Agreement were amended as therein contained;
WHEREAS, by a further amendment to the Initial Credit Agreement, dated
March 8, 1996, made between the same parties as were parties to the Initial
Credit Agreement, certain terms and provisions of the Initial Credit Agreement
were further amended whereby, among other things, the Loan Facility would be
made available to SIBL as a revolving loan facility upon the terms and
conditions therein contained;
WHEREAS, the Initial Credit Agreement was amended and restated in its
entirety by an Amended and Restated Revolving Credit Agreement, dated as of
November 1, 1996 (as amended, supplemented, amended and restated or otherwise
modified prior to August 12, 1997, the "AMENDED CREDIT AGREEMENT"), among SIBL,
SIHL, certain Subsidiaries of SIBL parties thereto (as guarantors), the
financial institutions (including the Initial Lenders) parties thereto (the
"AMENDED CREDIT AGREEMENT LENDERS"), Scotiabank and The Royal Bank of Scotland
plc, as managing agents, and Scotiabank as administrative agent and collateral
agent;
WHEREAS, the Amended Credit Agreement was amended and restated in its
entirety by a Second Amended and Restated Revolving Credit Agreement, dated as
of August 12, 1997 (as amended (including the amendments described below),
supplemented, amended and restated or otherwise modified prior to the Effective
Date, the "EXISTING CREDIT AGREEMENT"), among SIBL, SIHL, RIH, the financial
institutions (including the Amended Credit Agreement Lenders) parties thereto
(the "EXISTING LENDERS"), Scotiabank and SG, as co-syndication agents and
managing agents, and Scotiabank as administrative agent, documentation agent and
collateral agent;
WHEREAS, by an amendment to the Existing Credit Agreement, dated March 16,
1998, made between the same parties as were parties to the Existing Credit
Agreement, certain terms and provisions of the Existing Credit Agreement were
amended;
WHEREAS, by a further amendment to the Existing Credit Agreement, dated
August 27, 1999, made between the same parties as were parties to the Existing
Credit Agreement, certain terms and provisions of the Existing Credit Agreement
were amended;
WHEREAS, the Borrowers have requested that the Existing Credit Agreement
be amended and restated in its entirety to become effective and binding on the
Borrowers pursuant to the terms of this Agreement, and the Lenders (including
the Existing Lenders) have agreed (subject to the terms of this Agreement) to
amend and restate the Existing Credit Agreement in its entirety to read as set
forth in this Agreement, and it has been agreed by the parties to the Existing
Credit Agreement that the commitments which the Existing Lenders have agreed to
extend to the applicable Borrowers under the Existing Credit Agreement shall be
extended or advanced to the Borrowers upon the amended and restated terms and
conditions contained in this Agreement with the intent that the terms of this
Agreement shall supersede the terms of the Existing Credit Agreement, the
Amended Credit Agreement and the Initial Agreement (each of which shall
hereafter have no further effect upon the parties thereto, other than for
accrued fees and expenses, and indemnification provisions, accrued and owing
under the terms of the Existing Credit Agreement, the Amended Credit Agreement
or the Initial Credit Agreement on or prior to
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the date hereof or arising (in the case of an indemnification) under the terms
of the Existing Credit Agreement, the Amended Credit Agreement or the Initial
Credit Agreement); PROVIDED that any Rate Protection Agreements with any one or
more Existing Lenders (or their respective Affiliates) shall continue unamended
and in full force and effect;
WHEREAS, in connection with amending and restating the Existing Credit
Agreement, the Borrowers desire to obtain, on the terms and conditions set forth
below, Commitments from the Lenders pursuant to which
(a) Loans in a maximum aggregate principal amount, together with all
Letter of Credit Outstandings at any one time outstanding, not to exceed
the then existing Commitment Amount will be made to the Borrowers from
time to time prior to the Commitment Termination Date; and
(b) an Issuer will, at the request of a Borrower, issue Letters of
Credit for the account of a Borrower or a Guarantor (and the Lenders will
participate in such Letters of Credit) from time to time prior to the
Commitment Termination Date in a maximum aggregate Stated Amount at any
one time outstanding not to exceed the then existing Letter of Credit
Commitment Amount (PROVIDED that the aggregate outstanding principal
amount of Loans and Letter of Credit Outstandings at any time shall not
exceed the then existing Commitment Amount);
WHEREAS, subject to the terms of this Agreement and the other Loan
Documents, the Existing Lenders have agreed to continue and, in some cases,
increase, their Commitments under this Agreement and, in addition to the
Existing Lenders, other financial institutions (collectively referred to as the
"NEW LENDERS") will, on the Effective Date, become parties to this Agreement and
have agreed to have all of the rights, and be subject to the obligations
(including their respective Commitments as in effect from time to time), of a
Lender;
WHEREAS, the Existing Lenders, the New Lenders and the Issuers are
willing, on the terms and subject to the conditions hereinafter set forth
(including ARTICLE V), to amend and restate the Existing Credit Agreement in its
entirety pursuant to the terms of this Agreement, and on and subsequent to the
Effective Date, the Lenders and the Issuers are willing to extend such
Commitments and make such Loans to the Borrowers and issue (or participate in)
such Letters of Credit for the account of the Borrowers and the Guarantors;
WHEREAS, pursuant to the terms of this Agreement, the proceeds of
(a) Loans will be applied (i) for the general corporate and working
capital purposes of the Borrowers and the Guarantors, (ii) to finance a
portion of the construction costs of the Atlantis Phase III, (iii) to
finance the Desert Inn Acquisition, and (iv) to make Permitted Investments
by the Borrowers or the Guarantors, as more fully described below; and
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(b) Letters of Credit will be issued for the account of the
Borrowers and the Guarantors for the general corporate purposes of such
Persons; and
WHEREAS, as an inducement to the Existing Lenders, the New Lenders and the
Issuers amending and restating the Existing Credit Agreement and entering into
this Agreement, and the Lenders and the Issuers extending their Commitments to
make Credit Extensions, the Borrowers and the other Guarantors are required to
execute and deliver this Agreement and certain other Loan Documents, guaranty
the Obligations of the Borrowers and perform their respective obligations
hereunder and under the Loan Documents;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to SECTION 9.4.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"AFFIRMATION AND CONSENT" means the Affirmation and Consent executed and
delivered pursuant to SECTION 5.1.6.
"AGENTS" means, collectively, the Administrative Agent, the Managing
Agents, the Documentation Agent, the Collateral Agent and the Co-Syndication
Agents.
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"AGREEMENT" means, on any date, this Third Amended and Restated Revolving
Credit Agreement as originally in effect on the Effective Date and as thereafter
from time to time amended, supplemented, amended and restated, or otherwise
modified and in effect on such date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for Dollar
loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to SIHL
and the Lenders of changes in the Alternate Base Rate.
"AMENDED CREDIT AGREEMENT" is defined in the FIFTH RECITAL.
"AMENDED CREDIT AGREEMENT LENDERS" is defined in the FIFTH RECITAL.
"APPLICABLE BASE RATE MARGIN" means, with respect to any Base Rate Loan on
any date, the per annum percentage set forth below opposite the Senior Funded
Debt to Consolidated EBITDA Ratio indicated in the Compliance Certificate most
recently delivered pursuant to this Agreement:
Senior Funded Debt to Applicable Base
Consolidated EBITDA Ratio Rate Margin
------------------------- ----------------
Greater than 3.0:1 1.625%
Greater than 2.5:1 but less than
or equal to 3.0:1 1.375%
Greater than 2.25:1 but less than
or equal to 2.50:1 1.000%
Less than or equal to 2.25:1 0.750%
The Senior Funded Debt to Consolidated EBITDA Ratio used to compute the
Applicable Base Rate Margin shall, subject to the next sentence, be the Senior
Funded Debt to Consolidated EBITDA Ratio set forth in the Compliance Certificate
most recently delivered by SIHL to the Administrative Agent; changes in the
Applicable Base Rate Margin resulting from a change in
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the Senior Funded Debt to Consolidated EBITDA Ratio shall become effective upon
delivery by SIHL to the Administrative Agent of a new Compliance Certificate
pursuant to CLAUSE (c) of SECTION 7.1.1. If SIHL shall fail to deliver a
Compliance Certificate within 60 days after the end of any Fiscal Quarter as
required pursuant to CLAUSE (c) of SECTION 7.1.1, the Applicable Base Rate
Margin from and including the 61st day after the end of such Fiscal Quarter to
but not including the date SIHL delivers to the Administrative Agent a
Compliance Certificate shall conclusively equal 1.625% per annum.
"APPLICABLE COMMITMENT FEE" means the per annum percentage set forth below
opposite the Senior Funded Debt to Consolidated EBITDA Ratio indicated in the
Compliance Certificate most recently delivered pursuant to this Agreement:
Senior Funded Debt to Applicable
Consolidated EBITDA Ratio Commitment Fee
------------------------- ---------------
Greater than 2.5:1 .500%
Greater than 2.25:1 but less than
or equal to 2.50:1 .4375%
Less than or equal to 2.25:1 .375%
The Senior Funded Debt to Consolidated EBITDA Ratio used to compute the
Applicable Commitment Fee shall, subject to the next sentence, be the Senior
Funded Debt to Consolidated EBITDA Ratio set forth in the Compliance Certificate
most recently delivered by SIHL to the Administrative Agent; changes in the
Applicable Commitment Fee resulting from a change in the Senior Funded Debt to
Consolidated EBITDA Ratio shall become effective upon delivery by SIHL to the
Administrative Agent of a new Compliance Certificate pursuant to CLAUSE (c) of
SECTION 7.1.1. If SIHL shall fail to deliver a Compliance Certificate within 60
days after the end of any Fiscal Quarter as required pursuant to CLAUSE (c) of
SECTION 7.1.1, the Applicable Commitment Fee from and including the 61st day
after the end of such Fiscal Quarter to but not including the date SIHL delivers
to the Administrative Agent a Compliance Certificate shall conclusively equal
.500% per annum.
"APPLICABLE LIBO RATE MARGIN" means, with respect to any LIBO Rate Loan on
any date, the per annum percentage set forth below opposite the Senior Funded
Debt to Consolidated EBITDA Ratio indicated in the Compliance Certificate most
recently delivered pursuant to this Agreement; PROVIDED, HOWEVER, that the
Applicable LIBO Rate Margin set forth below shall be increased by 0.375% for the
entire amount of a Fiscal Quarter which immediately succeeds any Fiscal Quarter
in which the Total Debt to Consolidated EBITDA Ratio indicated in such
Compliance Certificate exceeded 4.5:1.
Senior Funded Debt to Applicable LIBO
Consolidated Ebitda Ratio Rate Margin
------------------------- ----------------
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Greater than 3.0:1 2.25%
Greater than 2.5:1 but less than
or equal to 3.0:1 2.00%
Greater than 2.25:1 but less than
or equal to 2.5:1 1.75%
Less than or equal to 2.25:1 1.50%
The Senior Funded Debt to Consolidated EBITDA Ratio used to compute the
Applicable LIBO Rate Margin shall, subject to the next sentence, be the Senior
Funded Debt to Consolidated EBITDA Ratio set forth in the Compliance Certificate
most recently delivered by SIHL to the Administrative Agent; changes in the
Applicable LIBO Rate Margin resulting from a change in the Senior Funded Debt to
Consolidated EBITDA Ratio shall become effective upon delivery by SIHL to the
Administrative Agent of a new Compliance Certificate pursuant to CLAUSE (c) of
SECTION 7.1.1. If SIHL shall fail to deliver a Compliance Certificate within 60
days after the end of any Fiscal Quarter as required pursuant to CLAUSE (c) of
SECTION 7.1.1, the Applicable LIBO Rate Margin from and including the 61st day
after the end of such Fiscal Quarter to but not including the date SIHL delivers
to the Administrative Agent a Compliance Certificate shall conclusively equal
2.25% (or 2.625%, if the incremental margin of 0.375% was then being applied in
respect of the immediately preceding Fiscal Quarter) per annum.
"APPRAISAL" means an appraisal which (i) shall be prepared by an MAI
certified appraiser, (ii) shall comply with the appraisal standards set forth in
FIRREA, (iii) shall be prepared in accordance with the UNIFORM STANDARDS OF
PROFESSIONAL APPRAISAL PRACTICE as promulgated by The Appraisal Foundation and
the STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE and CODE OF ETHICS of the
Appraisal Institute, and (iv) shall otherwise be in form and substance
reasonably satisfactory to the Administrative Agent in all material respects.
"ARCHITECT'S AGREEMENTS" means the material agreements pursuant to which
the architect of record has agreed with SIHL or any of its Subsidiaries to
provide services in connection with any Significant Project.
"ASSET SALE OFFER AMOUNT" has the meaning set forth in the Existing
Indenture as in effect on August 12, 1997.
"ASSIGNEE LENDER" is defined in SECTION 10.11.1.
"ATLANTIS" means the approximately 2,300-room resort and casino located on
Paradise Island, The Bahamas.
"ATLANTIS PHASE III" means the approximately 700-room hotel to be built by
one of the Borrowers or one of the Guarantors on Paradise Island, The Bahamas.
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"AUTHORIZED OFFICER" means, relative to any Obligor, those of its officers
whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to SECTION 5.1.1.
"BAHAMAS PROPERTY" means all the real property, improvements, fixtures and
personal property now or hereafter owned by SIHL or any of its Subsidiaries
(including approximately 180 acres of undeveloped real property, three hotels, a
casino and an 18 hole golf course) located on Paradise Island, The Bahamas.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWER" and "BORROWERS" are defined in the PREAMBLE.
"BORROWER EFFECTIVE DATE CERTIFICATE" means the certificate executed and
delivered by the Borrowers pursuant to SECTION 5.1.8, substantially in the form
of EXHIBIT E hereto.
"BORROWER SECURITY AGREEMENT" means the Security Agreement, dated as of
August 12, 1997, executed and delivered by the Borrowers pursuant to the terms
of the Existing Credit Agreement, as amended, supplemented, restated or
otherwise modified from time to time.
"BORROWING" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by all Lenders on the same Business
Day and pursuant to the same Borrowing Request in accordance with SECTION 2.1.
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorized Officer of a Borrower, substantially in the form of EXHIBIT B-1
hereto.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York or London, England; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day on which dealings in Dollars are carried on in
the London interbank market.
"CALEDONIA" means Caledonia Investments Plc., an English corporation.
"CAPITAL EXPENDITURES" means, for any period, the sum of the aggregate
amount of all expenditures (including under leasing and similar arrangements) of
any Person for fixed or
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capital assets made during such period which, in accordance with GAAP, would be
classified as capital expenditures.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations of any
Person under any leasing or similar arrangement which, in accordance with GAAP,
would be classified as capitalized leases, and, for purposes of this Agreement
and each other Loan Document, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated A-1 by Standard & Poor's Corporation
or P-1 by Xxxxx'x Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) demand or time deposits maintained with, or any certificate of
deposit or bankers acceptance maturing not more than one year after such
time which is issued by, either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in CLAUSE
(c)(i)) which
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of CLAUSES (a) through (c);
and
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(ii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation
of such Lender (or other commercial banking institution) thereunder.
"CASINO LICENSES" means, collectively, all licenses that are required to
be granted by any applicable federal, state, local, tribal or other regulatory
body, gaming board or other agency that has jurisdiction over (i) the Mohegan
Sun Casino (PROVIDED, that this definition, as it relates to the Mohegan Sun
Casino, shall not apply to the terms of this Agreement following December 31,
1999), (ii) any casino now or hereafter located on Paradise Island, The Bahamas,
(iii) the Resorts Casino Hotel, (iv) from and subsequent to the date that the
Desert Inn Acquisition is consummated, the Desert Inn, and (v) any other casinos
otherwise owned or operated by SIHL or any of its Significant Subsidiaries that
are singly or in the aggregate of equal or greater importance to the ongoing
operations of SIHL and its Significant Subsidiaries as those casinos specified
in CLAUSES (I), (II), (III) and (if and when applicable), (IV) above.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE IN CONTROL" means
(a) the failure of WLG, Caledonia or KIL to control and have the
power to vote individually or in aggregate, directly or indirectly, at
least 30% of all of the outstanding shares of all classes of voting stock
of SIHL (on a fully diluted basis); or
(b) any "person" or "group" (as such terms are used in Rule 13d-5
under the Exchange Act, and Sections 13(d) and 14(d) of the Exchange Act)
of persons (other than WLG, Caledonia, KIL or other Persons approved by
SIIL) becomes, directly or indirectly, in a single transaction or in a
related series of transactions by way of merger, consolidation, or other
business combination or otherwise, the "beneficial owner" (as such term is
used in Rule 13d-3 of the Exchange Act) of more than 19% of the
outstanding shares of all classes of voting stock of SIHL (on a fully
diluted basis); or
(c) during any period of 24 consecutive months, individuals who at
the beginning of such period constituted the Board of Directors of SIHL
(together with any new directors whose election to such Board or whose
nomination for election by the stockholders of SIHL was approved by WLG,
Caledonia or KIL or a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of SIHL then
in office; or
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(d) the failure of SIHL to directly own, free and clear of all Liens
(other than Liens in favor of the Secured Parties) 100% of the issued and
outstanding shares of capital stock of SIBL, on a fully-diluted basis; or
(e) the failure of SIHL to own, directly or indirectly through
wholly-owned Subsidiaries, free and clear of all Liens (other than Liens
in favor of Secured Parties), 100% of the issued and outstanding shares of
capital stock of RIH and at least 80% of SINI (or such greater percentage
of SINI, to the extent any shares of capital stock of SINI have not been
issued to Starwood or its Affiliates pursuant to the terms of the Starwood
Agreements which have previously been agreed to by the Managing Agents),
in each case on a fully diluted basis.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL AGENT" means The Bank of Nova Scotia, in its capacity as
collateral agent for the Secured Parties, and each other Person as shall have
subsequently been appointed as a successor collateral agent for the Secured
Parties.
"COLLATERAL DOCUMENTS" means each Pledge Agreement, each Security
Agreement, each Mortgage, each Debenture and each other agreement delivered by
an Obligor which grants to the Collateral Agent or any Secured Party a security
interest in or Lien on any property (real or personal) of such Obligor.
"COMMITMENT" means, as the context may require, a Lender's Loan Commitment
or an Issuer's (or a Lender's) Letter of Credit Commitment.
"COMMITMENT AMOUNT" means, on any date, $625,000,000, as such amount may
be reduced from time to time pursuant to SECTION 2.2.
"COMMITMENT TERMINATION DATE" means the earliest to occur of
(a) August 12, 2002;
(b) the date on which the Commitment Amount is terminated in full or
reduced to zero pursuant to SECTION 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (b) or (c), the Commitments
shall terminate automatically and without further action.
"COMMITMENT TERMINATION EVENT" means the earliest to occur of
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(a) the occurrence of any Event of Default described in CLAUSES
(a) through (d) of SECTION 8.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans to be due and payable
pursuant to SECTION 8.3, or
(ii) in the absence of such declaration, the giving of notice
by the Administrative Agent, acting at the direction of the Required
Lenders, to SIHL that the Commitments have been terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and executed
by an Authorized Officer of SIHL, substantially in the form of EXHIBIT F hereto,
as amended, supplemented, amended and restated or otherwise modified from time
to time, together with such changes thereto as the Administrative Agent may from
time to time reasonably request for the purpose of monitoring SIHL's compliance
with the financial covenants contained herein.
"CONNECTICUT MANAGEMENT AGREEMENT" means the Amended and Restated Gaming
Facility Agreement, dated as of August 30, 1995, between TCA and Mohegan Tribe
of Indians in Connecticut, as superseded by the Relinquishment Agreement.
"CONSOLIDATED EBITDA" means, at the end of any Fiscal Quarter, the
aggregate amount of the sum of the items set forth in CLAUSES (a) through (e)
(inclusive) below for SIHL and its Subsidiaries for (except as set forth in the
proviso below), such Fiscal Quarter plus the three immediately preceding Fiscal
Quarters:
(a) Net Income,
PLUS
(b) the amount deducted, in determining Net Income, representing
amortization,
PLUS
(c) the amount deducted, in determining Net Income, of all income
taxes (whether paid or deferred) of SIHL and its Subsidiaries,
PLUS
(d) the amount deducted, in determining Net Income, of Interest
Expense,
PLUS
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(e) the amount deducted, in determining Net Income, representing
depreciation of assets,
PLUS
(f) the amount deducted, in determining Net Income, categorized as
pre-opening expenses in accordance with GAAP;
PROVIDED, HOWEVER, that (i) PRO FORMA effect shall be given to the Net Income of
the Desert Inn for the Fiscal Quarter in which the Desert Inn Acquisition is
consummated and each of the three immediately preceding Fiscal Quarters as if
the Desert Inn Acquisition had been consummated at the beginning of the period
for which Consolidated EBITDA is being calculated and (ii) the Net Income
generated by the SIBL Group that will be included in CLAUSE (a) for
(A) the first Fiscal Quarter of the 1999 Fiscal Year shall equal the
sum of (x) 50% of Net Income of the SIBL Group for such Fiscal Quarter
PLUS (y) an amount equal to the remaining 50% of such Net Income of the
SIBL Group divided by the Historical Percentage that corresponds to such
first Fiscal Quarter, the result of which is then multiplied by 75%;
(B) the first and second Fiscal Quarters of the 1999 Fiscal Year
shall equal the sum of (x) 50% of Net Income of the SIBL Group for such
Fiscal Quarters PLUS (y) an amount equal to the remaining 50% of such Net
Income of the SIBL Group for such Fiscal Quarters, divided by the sum of
the Historical Percentages that correspond to such two Fiscal Quarters,
the result of which is then multiplied by 80%; and
(C) the first, second and third Fiscal Quarters of the 1999 Fiscal
Year shall equal the sum of (x) 50% of Net Income of the SIBL Group for
such Fiscal Quarters PLUS (y) an amount equal to the remaining 50% of such
Net Income of the SIBL Group for such Fiscal Quarters, divided by the sum
of the Historical Percentages that correspond to such three Fiscal
Quarters, the result of which is then multiplied by 85%.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, at the close of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter and
each of the three immediately preceding Fiscal Quarters of:
(a) Consolidated EBITDA (for all such Fiscal Quarters)
and
(b) the sum (for all such Fiscal Quarters) of Interest Expense
(which, for purposes of this clause only, shall include capitalized
interest).
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"CONSOLIDATED NET WORTH" means, on any date of determination, the Net
Worth of SIHL and its Subsidiaries on such date.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable (i) by direct or indirect agreement, contingent or otherwise, to provide
funds for payment, to supply funds to, or otherwise to invest in, a debtor, (ii)
to otherwise assure a creditor against loss for Indebtedness of any other Person
(other than by endorsements of instruments in the course of collection), or
(iii) for the payment of dividends or other distributions upon the shares of any
other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of a Borrower,
substantially in the form of EXHIBIT C hereto.
"CONTRACTS" means all material contracts of SIHL or its Subsidiaries with
general construction contractors for or in connection with the construction of
any Significant Project or, if any such general construction contractor is a
Borrower or an Affiliate of a Borrower, such material contracts delivered in
connection with a Significant Project as the Administrative Agent may request.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with any Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"CORE ASSETS" means (i) the Ocean Club on Paradise Island, The Bahamas,
the Atlantis and the Atlantis Phase III, and the real property upon which the
Ocean Club, the Atlantis and the Atlantis Phase III are (or will be) located,
(ii) the real property upon which the Holiday Inn Pirate's Cove Hotel was
located (and any current or future improvements thereon), (iii) the Resorts
Casino Hotel and the real property upon which it is located, (iv) following the
Desert Inn Acquisition, the Desert Inn Property (other than the golf course
located thereon), and (v) to the extent that any improvements have been made by
SIHL or any of its Subsidiaries on such real property, the real property
comprising the former site of the Chalfonte Hotel in New Jersey.
"CO-SYNDICATION AGENTS" is defined in the PREAMBLE.
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender; or
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(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any existing Letter of Credit, by an Issuer and
participation in such Letter of Credit by the Lenders pursuant to the
terms of this Agreement.
"CREDIT EXTENSION REQUEST" means, as the context may require, any
Borrowing Request or Issuance Request.
"DEBENTURES" means, collectively, the Original Debentures, the
Supplemental Debentures, the Existing Credit Agreement Debentures and the New
Debentures.
"DEBT" means, without duplication, (i) the aggregate outstanding principal
and stated amount of all Indebtedness of SIHL and its Subsidiaries of the nature
referred to in CLAUSES (a), (b), (c), (e) and (f) of the definition of
"Indebtedness" and (ii) any Contingent Liabilities of SIHL and its Subsidiaries
in respect of any types of the Indebtedness described in CLAUSE (i) above.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DEFAULTING LENDER" means
(a) any Lender that fails in its obligation to fund any Loan
pursuant to SECTION 2.1 or participate in any Letter of Credit
Outstandings pursuant to the terms of this Agreement and such failure
continues for three consecutive Business Days; PROVIDED that the refusal
of a Lender to make a Loan because it in good faith asserts that a
Borrower has failed to satisfy a condition precedent to borrowing
contained in ARTICLE V shall not result in such Lender becoming a
"Defaulting Lender";
(b) any Lender as to which any event of the type described in
SECTION 8.1.9 occurs (with all references in such Section to "SIHL" or
"such Person" instead being to such Lender);
(c) any Lender as to which any governmental authority (including the
Office of Thrift Supervision, the Federal Deposit Insurance Company, the
Office of the Comptroller of Currency or the Federal Reserve Board)
directly or indirectly seizes, takes possession of or undertakes,
authorizes, or orders similar action with respect to, or authorizes, or
orders the liquidation, dissolution, winding up, sale, transfer or other
disposition of, or takes steps or institutes proceedings or otherwise
proceeds to liquidate, dissolve, wind up, sell, transfer or otherwise
dispose of, such Lender or all or any part of such Lender's property or
appoints or authorizes or orders the appointment of a receiver,
liquidator, sequestrator, trustee, custodian, conservator or other officer
or entity having similar powers over such Lender or over all or any part
of such Lender's property.
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"DEFINITIVE DOCUMENTS" is defined in the Starwood Agreements.
"DESERT INN" means the Desert Inn Resort and Casino located in Las Vegas,
Nevada.
"DESERT INN ACQUISITION" means the acquisition by SINI of the assets of
the Desert Inn and other property described in, and made in accordance with, the
terms of the Desert Inn Purchase Agreement.
"DESERT INN PROPERTY" means the Desert Inn and the other property
purchased pursuant to the Desert Inn Purchase Agreement, in each case other than
the Excluded Desert Inn Property.
"DESERT INN PURCHASE AGREEMENT" means, that certain Asset and Land
Purchase Agreement, dated as of May 17, 1999, among Sheraton Desert Inn
Corporation, a Nevada corporation, Starwood, Sheraton Gaming Corporation, a
Nevada corporation, SIHL and SINI, as amended or otherwise modified in
accordance with SECTION 7.2.12.
"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
Schedule I to the Existing Credit Agreement, as it may be amended, supplemented
or otherwise modified from time to time by SIHL with the written consent of the
Required Lenders.
"DISPOSITION" (or similar words such as "Dispose", and any derivation
thereof) is defined in SECTION 7.2.11.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such Lender
designated as such on Schedule I hereto or designated in the Lender Assignment
Agreement or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
"EFFECTIVE DATE" means the date this Agreement becomes effective pursuant
to SECTION 10.8.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended.
"EXCLUDED DESERT INN PROPERTY" means the approximately six acres of real
property and any improvements thereon located on the north perimeter of the golf
course which is being purchased pursuant to the Desert Inn Purchase Agreement.
"EXISTING CREDIT AGREEMENT" is defined in the SIXTH RECITAL.
"EXISTING CREDIT AGREEMENT DEBENTURES" means the debentures, dated as of
August 12, 1997, executed by each owner of the Bahamas Property constituting
real property pursuant to the Existing Credit Agreement, as amended,
supplemented, consolidated, spread, severed, partially released, partially
reconveyed, restated and otherwise modified from time to time.
"EXISTING INDENTURE" means the Indenture, dated as of March 10, 1997,
among SIHL and SINA (as issuers), certain Subsidiaries of SIHL from time to time
parties thereto (as guarantors) and The Bank of New York, as trustee.
"EXISTING LENDERS" is defined in the SIXTH RECITAL.
"EXISTING SUBORDINATED NOTES" means the 9% Senior Subordinated Notes due
2007 executed and delivered by SIHL and SINA evidencing the Subordinated Debt
issued pursuant to the Existing Indenture.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by Scotiabank from three federal funds brokers of recognized
standing selected by it.
"FEE LETTERS" means, collectively, the confidential letter agreements by
and among the Borrowers (or any one of them) and any Lender entering into a fee
arrangement with such Person.
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"FISCAL QUARTER" means any quarter, ending on March 31, June 30, September
30 or December 31 of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (E.G. the "1999 Fiscal Year") refer to the Fiscal Year
ending on the December 31 occurring during such calendar year.
"FOREIGN PLEDGE AGREEMENT" means any supplemental pledge agreement
governed by the laws of a jurisdiction other than a State of the United States
executed and delivered by SIHL or any of its Subsidiaries pursuant to the terms
of this Agreement or the Existing Credit Agreement, in form and substance
satisfactory to the Administrative Agent, as may be necessary or desirable under
the laws of organization or incorporation of a Subsidiary or Person in which an
equity or similar interest is to be pledged to the Administrative Agent pursuant
to the terms of SECTION 7.1.7, to further protect or perfect the Lien on and
security interest in any collateral being pledged pursuant to a Pledge
Agreement.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"GOVERNMENTAL AUTHORITY" means The Commonwealth of The Bahamas, the United
States of America, any state, local or municipal entity located within the
foregoing, and (in each case), any political subdivision thereof and any agency,
department, commission, board, bureau or instrumentality of any of the foregoing
or any quasi-governmental authority, now existing or hereafter created, having
jurisdiction over the Bahamas Property, the real property in the State of New
Jersey that is subject to a Mortgage, any Borrower, any Obligor or any Lender
Party.
"GUARANTOR" means collectively, each Borrower and each Significant
Subsidiary; PROVIDED, HOWEVER, that, without limiting the generality of the
foregoing, each Subsidiary of SIHL that is required to be a guarantor of
Subordinated Debt shall be or become a Guarantor hereunder.
"GUARANTY" means the Subsidiary Guaranty, dated as of November 1, 1996 (as
supplemented by each Guaranty Supplement from time to time hereafter or
concurrently executed and delivered), executed and delivered by an Authorized
Officer of each Guarantor, as amended, supplemented, restated or otherwise
modified from time to time.
"GUARANTY SUPPLEMENT" means each Guaranty Supplement executed and
delivered by an Authorized Officer of a Guarantor pursuant to this Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
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"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material, all as amended or hereafter
amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities
of such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HISTORICAL PERCENTAGE" means, for any particular Fiscal Quarter following
Substantial Completion, the amount set forth opposite such Fiscal Quarter:
first Fiscal Quarter
of a Fiscal Year: 0.35
second Fiscal Quarter
of a Fiscal Year: 0.26
third Fiscal Quarter
of a Fiscal Year: 0.19
fourth Fiscal Quarter
of a Fiscal Year: 0.20.
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"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
such Obligor to be in default of any of its obligations under SECTION
7.2.4.
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit (including the Letters of Credit), whether
or not drawn, and banker's acceptances issued for the account of such
Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of such
Person as of the date at which Indebtedness is to be determined (other
than current liabilities of a nature other than the current portion of
Indebtedness of the type described in CLAUSE (A), (B) or (C) of this
definition);
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or
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being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse; and
(g) all Contingent Liabilities of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INITIAL CREDIT AGREEMENT" is defined in the SECOND RECITAL.
"INITIAL LENDERS" is defined in the SECOND RECITAL.
"INSTRUMENTS" means any contract, agreement, indenture, mortgage,
financing statement, document or writing (whether by formal agreement, letter or
otherwise) under which any obligation is evidenced, assumed or undertaken, or
any Lien (or right or interest therein) is granted or perfected.
"INTERCREDITOR AGREEMENT" means the Amended and Restated Intercreditor and
Collateral Agency Agreement, dated as of August 12, 1997, as amended,
supplemented, restated or otherwise modified from time to time.
"INTEREST EXPENSE" means, for any period, the aggregate amount of interest
expense of SIHL and its Subsidiaries for such period which, in accordance with
GAAP, would be included on the consolidated financial statements of such SIHL,
including the portion of any rent paid on Capitalized Lease Liabilities which is
allocable to interest expense in accordance with GAAP. Any such interest expense
which is subject to a Hedging Obligation will be calculated on the net effect of
any payments made by the other party to such Hedging Obligation.
"INTEREST PERIOD" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTION 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as a
Borrower may select in its relevant notice pursuant to SECTION 2.3 or 2.4;
PROVIDED, HOWEVER, that
(a) the Borrowers shall not be permitted to select Interest Periods
to be in effect at any one time which have expiration dates occurring on
more than five different dates;
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(b) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall
end on the Business Day next preceding such numerically corresponding
day); and
(c) no Interest Period may end later than the Stated Maturity Date.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"ISSUANCE REQUEST" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of a Borrower, substantially in the form of
EXHIBIT B-2 hereto.
"ISSUER" means Scotiabank or SG, as applicable, in its capacity as the
issuer of the Letters of Credit, as requested from time to time by a Borrower.
"ISSUERS" means, collectively, Scotiabank and SG in their capacity as
issuers of Letters of Credit.
"KIL" means Kersaf Investments Limited, a South African corporation.
"LEGAL REQUIREMENTS" with respect to any Person or property, means all
laws, statutes, codes, acts, ordinances, permits, licenses, authorizations,
directions and requirements of all Governmental Authorities, departments,
commissions, boards, courts, authorities, agencies, officials and officers, and
any material deed restrictions or other requirements of record, applicable to
such Person or such property, or any portion thereof or interest therein or any
use or condition of such property or any portion thereof or interest therein
(including those relating to zoning, planning, subdivision, building, safety,
health, use, environmental quality and other similar matters).
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"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT D hereto.
"LENDER PARTIES" means, collectively, each Agent, each Issuer and each
Lender (and including, for purposes of the Rate Protection Agreements, any
Affiliate of any Lender that is a counterparty to such Rate Protection
Agreement), and their respective successors, transferees and assigns.
"LENDERS" is defined in the PREAMBLE.
"LETTER OF CREDIT" is defined in SECTION 2.1.2.
"LETTER OF CREDIT COMMITMENT" means as to either Issuer, such Issuer's
obligation to issue Letters of Credit pursuant to SECTION 2.1.2 and, with
respect to each Lender, the obligations of such Lender to participate in such
Letters of Credit pursuant to SECTION 2.6.1.
"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum amount
of $30,000,000 (or, if less, the then existing Commitment Amount).
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
PLUS
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to Scotiabank's LIBOR Office (or, if
Scotiabank is not the Administrative Agent, first class banks in London) in the
eurodollar interbank market as at or about 11:00 a.m. London, England time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of Scotiabank's LIBO Rate Loan (or, if Scotiabank shall not then be
making any LIBO Rate Loans, an amount approximately equal to the amount of the
LIBO Rate Loan being made by the Lender then making the largest such LIBO Rate
Loan) and for a period approximately equal to such Interest Period.
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"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/32 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
------------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such on Schedule I hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to SIHL and the Administrative Agent, whether or not
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise) or
charge against or interest in property to secure payment of a debt or
performance of an obligation.
"LOAN" is defined in SECTION 2.1.1.
"LOAN COMMITMENT" means, relative to any Lender, such Lender's obligation
to make Loans pursuant to SECTION 2.1.1.
"LOAN DOCUMENT" means this Agreement, the Notes, the Letters of Credit,
each Collateral Document, each Guaranty, each Borrowing Request, each Issuance
Request, each Fee Letter,
-24-
each Rate Protection Agreement, the SIHL Contract Assignment Agreement and each
other agreement, document or instrument delivered in connection herewith or
therewith.
"LOAN FACILITY" is defined in the THIRD RECITAL.
"MANAGEMENT CONTRACTS" means, collectively, each management or similar
agreement (including the Omnibus Agreement) pursuant to which SIHL or any
Subsidiary of SIHL is paid fees in connection with the Mohegan Sun Casino.
"MANAGING AGENTS" is defined in the PREAMBLE.
"MOHEGAN SUN CASINO" means the hotel and casino located in Montville,
Connecticut, U.S.A.
"MORTGAGE" means each mortgage, deed of trust or agreement executed and
delivered by a Borrower or any other Obligor in favor of the Administrative
Agent for the benefit of the Secured Parties pursuant to the requirements of
this Agreement or the Existing Credit Agreement, in each case as amended,
supplemented, restated or otherwise modified.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"NET EQUITY PROCEEDS" means with respect to the sale or issuance by SIHL
to any Person (other than any sale or issuance limited to only WLG, Caledonia or
KIL or any of their Affiliates) of any stock or other equity interests, warrants
or options or the exercise of any such warrants or options in respect thereof,
the EXCESS of:
(a) the gross proceeds received by SIHL from such sale, issuance
or exercise
OVER
(b) all underwriting, broker and out-of-pocket fees and expenses
paid by SIHL to other than an Affiliate of SIHL in connection therewith.
"NET INCOME" means, for any period, the aggregate of all amounts
(exclusive of (i) extraordinary gains and extraordinary losses and (ii) gains or
losses from the sale of assets not made in the ordinary course of business (it
being agreed that the sale of residential lots and/or homes on Paradise Island
shall be deemed to be in the ordinary course of business of SIHL and its
Subsidiaries)) which, in accordance with GAAP, would be included as net income
on the most recently available consolidated financial statements of SIHL for
such period; PROVIDED that Net Income shall not include (i) any non-cash
interest income until such amounts are received by SIHL or its Subsidiaries in
cash, and (ii) the net income of any Person, other than a Subsidiary, in which
SIHL or any of its Subsidiaries has an interest, except that the amount of any
dividends or distributions actually paid in cash to SIHL or any of its
Subsidiaries during such period shall be
-25-
included in Net Income (even if the amount of such cash dividends or
distributions received exceed SIHL's allocated portion of such Person's earnings
under GAAP).
"NET WORTH" at any time means the excess of total assets of SIHL and its
Subsidiaries at such time over total liabilities of SIHL and its Subsidiaries at
such time, in each case as determined on a consolidated basis in accordance with
GAAP.
"NEW DEBENTURES" means the debentures, dated as of the date hereof,
executed by each owner of the Bahamas Property constituting real property
pursuant to this Agreement, as amended, supplemented, consolidated, spread,
severed, partially released, partially reconveyed, restated and otherwise
modified from time to time.
"NJCCC" means the New Jersey Casino Control Commission and any successor
authority which regulates the operations of casinos in the State of New Jersey.
"NJCCC APPROVAL" means the approval by NJCCC pursuant to N.J.A.C.
19:43-4.3 of RIH's ability to increase its debt obligations in accordance
with the terms of this Agreement.
"NEW LENDERS" is defined in the ELEVENTH RECITAL.
"1999 AMOUNT" is defined in the DEFINITION of "Restricted Payment
Amount".
"NOTE" means a promissory note of a Borrower payable to any Lender, in the
form of EXHIBIT A hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate Indebtedness of
such Borrower to such Lender resulting from outstanding Loans, and also means
all other promissory notes accepted from time to time in substitution therefor
or renewal thereof.
"OBLIGATIONS" means all present or future obligations (monetary or
otherwise, absolute or contingent) of the Borrowers and each other Obligor
arising under or in connection with this Agreement, the Notes, the Letters of
Credit, and each other Loan Document, and Hedging Obligations under a Rate
Protection Agreement owed to a Lender or an Affiliate thereof (or a Person that
was a Lender or an Affiliate of a Lender at the time the applicable Rate
Protection Agreement was entered into), unless the Lender, such Affiliate (or
other Person) otherwise agrees.
"OBLIGOR" means the Borrowers, the Guarantors or any other Significant
Subsidiaries of SIHL obligated under any Loan Document.
"OCEAN CLUB" means the Ocean Club located on Paradise Island, The Bahamas.
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"OMNIBUS AGREEMENT" means the Omnibus Financing Agreement, dated as of
September 21, 1995, between TCA and SIHL as amended by an amendment, dated as of
October 19, 1996.
"OMNIBUS TERMINATION AGREEMENT" means the Omnibus Termination Agreement,
dated March 18, 1999, among SIHL and the other parties thereto.
"ORDINARY SHARES" means the ordinary shares of common stock of SIHL, par
value $0.001 per share.
"ORGANIC DOCUMENT" means, as applicable and relative to any Obligor, its
certificate of incorporation, its by-laws, its certificate of partnership, its
partnership agreement, and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of capital stock.
"ORIGINAL DEBENTURES" means, collectively, (i) the Debenture, dated July
18, 1994, from SIBL to The Bank of Nova Scotia, The Royal Bank of Scotland plc,
ABSA Bank Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited, (ii)
the Debenture And Legal Mortgage, dated July 18, 1994, from Paradise Island
Limited to The Bank of Nova Scotia, The Royal Bank of Scotland plc, ABSA Bank
Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited, (iii) the
Debenture And Legal Mortgage, dated July 18, 1994, from Island Hotel Company
Limited to The Bank of Nova Scotia, The Royal Bank of Scotland plc, ABSA Bank
Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited, (iv) the
Debenture And Legal Mortgage, dated July 18, 1994, from Paradise Beach Inn
Limited to The Bank of Nova Scotia, The Royal Bank of Scotland plc, ABSA Bank
Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited, and (v) the
Debenture, dated July 18, 1994, from Paradise Enterprise Limited, a corporation
organized under the laws of The Commonwealth of The Bahamas to The Bank of Nova
Scotia, The Royal Bank of Scotland plc, ABSA Bank Limited, NEDCOR Bank Limited
and Xxxxx Xxxxxxxxx & Co. Limited.
"PARTICIPANT" is defined in SECTION 10.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which any Borrower or
any corporation, trade or business that is, along with any Borrower, a member of
a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
-27-
"PERCENTAGE" means, relative to any Lender, the percentage set forth on
Schedule I hereto (which Percentages give effect to the inclusion of a Lender on
the Effective Date that was not an Existing Lender) or set forth in the Lender
Assignment Agreement, as such percentage may be adjusted from time to time
pursuant to (a) Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to SECTION 10.11 or (b) SECTION 4.10.
"PERMITTED ENCUMBRANCES" means the exceptions to title (i) to the Bahamas
Property that are listed in Schedule B of the title insurance policy issued as
of August 12, 1997 on behalf of the Managing Agents by the Title Insurer of such
property, (ii) in the case of real property in New Jersey on which a Mortgage
was delivered to the Administrative Agent, to such real property listed on the
title insurance policy issued by the Title Insurer of such property, and (iii)
in the case of the Desert Inn Property, to such real property listed on the
title insurance policy to be issued by the Title Insurer of such property, but
only to the extent agreed to by the Managing Agents.
"PERMITTED INVESTMENT" means Investments in or acquisitions of the
capital stock of, or partnership and/or other ownership interests in, a Person
engaged in the hotel, resort and/or gaming industry, and/or the acquisition of
parcels of real property or assets that can be used in the hotel, resort and/or
gaming industry.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PLEDGE AGREEMENT" means, as the context may require, the SIHL Pledge
Agreement, the SIBL Pledge Agreement and each Subsidiary Pledge Agreement.
"QUARTERLY PAYMENT DATE" means the last day of each February, May, August,
and November or, if any such day is not a Business Day, the next succeeding
Business Day.
"RATE PROTECTION AGREEMENT" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by SIHL or any of its Subsidiaries
under which the counterparty to such agreement is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate of a
Lender.
"REFINANCING WC FACILITY" is defined in CLAUSE (i) of SECTION 7.2.2.
"REGISTER" is defined in SECTION 2.8.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"RELEASE" means a "release", as such term is defined in CERCLA.
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"RELINQUISHMENT AGREEMENT" means the Relinquishment Agreement, dated
February 7, 1998, between the Mohegan Tribal Gaming Authority and TCA.
"REQUIRED LENDERS" means, at any time, Lenders holding at least 51% of the
then aggregate outstanding principal amount of the Loans then held by the
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 51% of the Commitments.
"RESORTS CASINO HOTEL" means the Resorts Casino Hotel located in
Atlantic City, New Jersey, U.S.A.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as in effect from time to
time.
"RESTRICTED PAYMENT" means, with respect to SIHL and the Subsidiaries,
(i) the declaration, payment or making of any dividend or
distribution (in cash, property or obligations) on any shares of any class
of capital stock (now or hereafter outstanding) of SIHL or on any
warrants, options or other rights with respect to any shares of any class
of capital stock (now or hereafter outstanding) of SIHL (other than
dividends or distributions payable in its common stock or warrants to
purchase its common stock or splitups or reclassifications of its stock
into additional or other shares of its common stock); or
(ii) the application by SIHL or any Subsidiary of any of its funds,
property or assets to the purchase, redemption, sinking fund or other
retirement of, or the purchase or making by any Subsidiary of any deposit
in respect of, or the redemption by such Subsidiary of any shares of any
class of capital stock (now or hereafter outstanding) of SIHL, or any
warrants, options or other rights with respect to any shares of any class
of capital stock (now or hereafter outstanding) of SIHL.
"RESTRICTED PAYMENT AMOUNT" means a maximum aggregate amount in each
Fiscal Year not to exceed 30% of Net Income (including after giving effect to
the payment of any taxes) for the immediately preceding Fiscal Year; provided,
HOWEVER, that (a) during the period from (and including) September 1, 1999 to
(and including) December 31, 1999, SIHL may make Restricted Payments in an
amount not to exceed $35,000,000 (the "1999 AMOUNT"), and (b) during the 2000
Fiscal Year, the Restricted Payment Amount shall equal the greater of (i) the
1999 Amount (less the aggregate amount of Restricted Payments made during the
1999 Fiscal Year) and (ii) 30% of Net Income (including after giving effect to
the payment of any taxes) for the 1999 Fiscal Year.
"RIH" is defined in the PREAMBLE.
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"S&P" means Standard & Poor's Ratings Services.
"SCOTIABANK" is defined in the PREAMBLE.
"SECURED OBLIGATIONS" means (without duplication), collectively,
(i) the Obligations; and
(ii) all amounts arising under or in connection with the
Supplemental Financing owing to a Secured Party.
"SECURED PARTIES" means, collectively, (i) the Lender Parties, (ii) the
financial institution (or institutions) from time to time providing the
Supplemental Financing and (iii) each Person that is a counterparty to one or
more Rate Protection Agreements, if such Person is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate of a
Lender.
"SECURITY AGREEMENT" means, as the context may require, the Borrower
Security Agreement and the Subsidiary Security Agreement.
"SENIOR FUNDED DEBT" means, with respect to SIHL and its Subsidiaries as
of any time, Debt outstanding at such time less the amount of Subordinated Debt
then outstanding.
"SENIOR FUNDED DEBT TO CONSOLIDATED EBITDA RATIO" means, as of the last
day of any Fiscal Quarter, the ratio of
(a) Senior Funded Debt outstanding on the last day of such Fiscal
Quarter
TO
(b) Consolidated EBITDA.
"SG" is defined in the PREAMBLE.
"SIBL GROUP" means, collectively SIBL and each of its Subsidiaries
existing on August 12, 1997, and Sun International Representation, Inc., a
Florida corporation and each of its Subsidiaries existing on August 12, 1997.
"SIBL PLEDGE AGREEMENT" means the Pledge Agreement, dated as of November
1, 1996, executed and delivered by SIBL, as supplemented and modified pursuant
to the Acknowledgment and Supplement to SIBL Pledge Agreement, dated as of
August 12, 1997, and as further amended, supplemented, restated or otherwise
modified from time to time.
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"SIGNIFICANT PROJECT" means any construction or renovation project on real
or personal property owned or leased by any Borrower or Guarantor the cost of
completion of which is expected to equal or exceed, or actually equals or
exceeds, $100,000,000.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, Sun
International Development Limited and any Subsidiary of SIHL that, together with
its Subsidiaries, (i) for the most recent Fiscal Quarter of SIHL accounted for
(or, in the case of any Subsidiary that is acquired following the Effective
Date, would have accounted for) more than 5% of the consolidated revenues of
SIHL and its Subsidiaries during such Fiscal Quarter or (ii) as of the end of
the most recent Fiscal Quarter of SIHL was the owner of (or, in the case of any
Subsidiary that is acquired following the Effective Date, would have been the
owner of) more than 5% of the consolidated assets of SIHL and its Subsidiaries
at the end of such Fiscal Quarter, all as set forth on the most recently
available consolidated financial statements of SIHL for such Fiscal Quarter.
"SIHL" is defined in the PREAMBLE.
"SIHL CONTRACT ASSIGNMENT AGREEMENT" means the Amended and Restated
Obligor Contract Assignment Agreement, dated as of August 12, 1997, delivered by
SIHL, as amended, supplemented, restated or otherwise modified from time to
time.
"SIHL PLEDGE AGREEMENT" means the Amended and Restated Pledge Agreement
dated as of November 1, 1996, executed and delivered by SIHL, as supplemented
and modified pursuant to the Acknowledgment and Supplement to Amended and
Restated SIHL Pledge Agreement, dated as of August 12, 1997, and as further
amended, supplemented, restated or otherwise modified from time to time.
"SIIL" means Sun International Investments Limited, a corporation
organized under the laws of the British Virgin Islands.
"SINA" means Sun International North America, Inc., a Delaware
corporation.
"SINI" is defined in the PREAMBLE.
"STARWOOD" means Starwood Hotels and Resorts Worldwide, Inc., a Maryland
corporation, and its successors.
"STARWOOD AGREEMENTS" means, collectively, the letter agreement, dated May
17, 1999, between SIHL and Starwood and, if and when executed and delivered, the
Definitive Documents referred to in such letter agreement.
"STATED AMOUNT" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
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"STATED EXPIRY DATE" is defined in SECTION 2.6.
"STATED MATURITY DATE" means August 12, 2002.
"SUBORDINATED DEBT" means (i) the Existing Subordinated Notes and (ii) all
other unsecured subordinated Indebtedness of SIHL or a wholly-owned Subsidiary
for money borrowed which is incurred under the terms of any Subordinated Note
Indenture and evidenced by Subordinated Notes and which matures on a date that
is at least one year after the Stated Maturity Date.
"SUBORDINATED DEBT ISSUER" means SINA, SIHL and (if and when applicable),
each other Guarantor that may after the date hereof incur or issue any
Subordinated Debt.
"SUBORDINATED NOTEHOLDER" means, at any time, any holder of a
Subordinated Note.
"SUBORDINATED NOTE INDENTURE" means, collectively, (i) the Existing
Indenture and (ii) each other Indenture, note purchase agreement or other
agreement evidencing the terms or agreements relating to Subordinated Debt, if
any, to be executed and delivered by SIHL or a wholly-owned Subsidiary in
connection with the incurrence by SIHL or a wholly-owned Subsidiary of
Subordinated Debt in form and substance (including as to schedules, covenants,
defaults, remedies, subordination provisions and the absence of amortization)
reasonably agreed to by the Required Lenders, as each such Subordinated Note
Indenture may be amended, supplemented, amended and restated or otherwise
modified in accordance with the terms of SECTION 7.2.13.
"SUBORDINATED NOTES" means, collectively, (i) the Existing Subordinated
Notes and (ii) any other Subordinated Notes, if any, in form and substance
reasonably satisfactory to the Required Lenders, to be issued by SIHL or a
wholly-owned Subsidiary pursuant to a Subordinated Note Indenture as such
Subordinated Notes may be amended, supplemented or otherwise modified from time
to time in accordance with SECTION 7.2.13.
"SUBORDINATION AGREEMENT" means a Subordination Agreement executed and
delivered to the Administrative Agent pursuant to CLAUSE (b) of SECTION 7.2.2 by
a Borrower and any Subsidiary of SIHL that makes a loan to a Borrower,
substantially in the form of Exhibit J to the Existing Credit Agreement.
"SUBORDINATION PROVISIONS" is defined in SECTION 8.1.14.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other entity (whether now or hereafter acquired or existing) of
which more than 50% of the outstanding capital stock, partnership interests or
similar interests having ordinary voting power (irrespective of whether at the
time capital stock or interests of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly
-32-
or indirectly owned by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"SUBSIDIARY PLEDGE AGREEMENT" means, collectively, each other Pledge
Agreement executed and delivered by any Subsidiary of SIHL (other than RIH, SIBL
and SINI) pursuant to SECTION 7.1.7, substantially in the form of Exhibit F-3 to
the Existing Credit Agreement, as amended, supplemented, restated or otherwise
modified from time to time.
"SUBSIDIARY SECURITY AGREEMENT" means the Security Agreement, dated as of
August 12, 1997, executed and delivered by each Significant Subsidiary of SIHL
(other than RIH, SIBL and SINI) pursuant to the terms of the Existing Credit
Agreement, as amended, supplemented, restated or otherwise modified from time to
time.
"SUN COVE" means, Sun Cove Ltd., a Connecticut corporation.
"SUPPLEMENTAL DEBENTURES" means, collectively, (i) the Supplemental
Debenture, dated December 27, 1994, from SIBL to The Bank of Nova Scotia,
recorded in The Commonwealth of The Bahamas in Book 6399 at pages 326 to 331,
(ii) the Supplemental Debenture And Further Charge, dated December 27, 1994,
from Paradise Island Limited to The Bank of Nova Scotia, recorded in The
Commonwealth of The Bahamas in Book 6399 at pages 289 to 325, (iii) the
Supplemental Debenture And Further Charge, dated December 27, 1994, from Island
Hotel Company Limited to The Bank of Nova Scotia, recorded in The Commonwealth
of The Bahamas in Book 6399 at pages 340 to 349, (iv) the Supplemental Debenture
And Further Charge, dated December 27, 1994, from Paradise Beach Inn Limited to
The Bank of Nova Scotia, recorded in The Commonwealth of The Bahamas in Book
6399 at pages 332 to 339, (v) the Supplemental Debenture, dated December 27,
1994, from Paradise Enterprises Limited to The Bank of Nova Scotia, recorded in
The Commonwealth of The Bahamas in Book 6399 at pages 282 to 288, (vi) the
Supplemental Debenture, dated March 8, 1996, issued by SIBL in favor of The Bank
of Nova Scotia, The Royal Bank of Scotland PLC, ABSA Bank Limited, NEDCOR Bank
Limited and Xxxxx Xxxxxxxxx & Co. Limited, (vii) the Supplemental Debenture And
Further Charge, dated March 8, 1996, issued by Paradise Island Limited in favor
of The Bank of Nova Scotia, The Royal Bank of Scotland PLC, ABSA Bank Limited,
NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited, (viii) the Supplemental
Debenture And Further Charge, dated March 8, 1996, issued by Island Hotel
Company Limited in favor of The Bank of Nova Scotia, The Royal Bank of Scotland
PLC, ABSA Bank Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited,
(ix) the Supplemental Debenture And Further Charge, dated March 8, 1996, issued
by Paradise Beach Inn Limited in favor of The Bank of Nova Scotia, The Royal
Bank of Scotland PLC, ABSA Bank Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx
& Co. Limited, (x) the Supplemental Debenture, dated March 8, 1996, issued by
Paradise Enterprises Limited in favor of The Bank of Nova Scotia, The Royal Bank
of Scotland PLC, ABSA Bank Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx &
Co. Limited, (xi) the Supplemental Debenture, dated November 1, 1996, issued by
SIBL in favor of The Bank of Nova Scotia, The Royal Bank of Scotland PLC, ABSA
Bank Limited, NEDCOR Bank Limited and
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Xxxxx Xxxxxxxxx & Xx. Xxxxxxx, (xii) the Supplemental Debenture And Further
Charge, dated November 1, 1996, issued by Paradise Island Limited in favor of
The Bank of Nova Scotia, The Royal Bank of Scotland PLC, ABSA Bank Limited,
NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited, (xiii) the Supplemental
Debenture And Further Charge, dated November 1, 1996, issued by Island Hotel
Company Limited in favor of The Bank of Nova Scotia, The Royal Bank of Scotland
PLC, ABSA Bank Limited, NEDCOR Bank Limited and Xxxxx Xxxxxxxxx & Co. Limited,
(xiv) the Supplemental Debenture And Further Charge, dated November 1, 1996,
issued by Paradise Beach Inn Limited in favor of The Bank of Nova Scotia, The
Royal Bank of Scotland PLC, ABSA Bank Limited, NEDCOR Bank Limited and Xxxxx
Xxxxxxxxx & Co. Limited, and (xv) the Supplemental Debenture, dated November 1,
1996, issued by Paradise Enterprises Limited in favor of The Bank of Nova
Scotia, The Royal Bank of Scotland PLC, ABSA Bank Limited, NEDCOR Bank Limited
and Xxxxx Xxxxxxxxx & Co. Limited.
"SUPPLEMENTAL FINANCING" is defined in CLAUSE (i) of SECTION 7.2.2.
"TAXES" is defined in SECTION 4.6.
"TCA" means Trading Cove Associates, a Connecticut general partnership.
"TCA PARTNERSHIP AGREEMENT" means the Amended and Restated Partnership
Agreement, made as of August 29, 1995, among Sun Cove, RJH Development Corp., a
New York corporation, Leisure Resort Technology, Inc., a Connecticut
corporation, Xxxxxx Suites, Inc., a Michigan corporation and LMW Investments,
Inc., a Connecticut corporation, as amended by the first amendment thereto
effective as of November 8, 1996 and as thereafter amended from time to time in
accordance with the terms of this Agreement.
"TITLE INSURER" means any Person that issues a title insurance policy on
any real property on which a Mortgage or a Debenture is placed.
"TOTAL DEBT TO CONSOLIDATED EBITDA RATIO" means, as of the last day of
any Fiscal Quarter, the ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
TO
(b) Consolidated EBITDA.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
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"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"WC FACILITY" means the credit facility existing on the Effective Date
between SIBL and The Bank of Nova Scotia, as amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with its terms.
"WELFARE PLAN" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
"WHOLLY-OWNED SUBSIDIARY" of any Person means any corporation,
partnership, association or other business entity of which 100% of the total
voting power of shares of stock, partnership interests or other equity interest
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, general partners, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the other wholly-owned Subsidiaries of such Person or a combination thereof.
"WLG" means World Leisure Group Limited, a British Virgin Islands
corporation.
SECTION I.2. USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each Note,
Borrowing Request, Issuance Request, Continuation/Conversion Notice, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION I.3. CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION I.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under SECTION 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those U.S. generally accepted accounting principles ("GAAP")
applied in the preparation of the financial statements referred to in SECTION
6.5. If any preparation in the financial statements referred to in SECTION 6.5
or SECTION 7.1.1 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) result in a change in any results,
amounts, calculations, ratios, standards or terms found in this Agreement from
those which would be derived or be applicable absent such changes, SIHL may
reflect such changes in the financial statements required to be delivered
pursuant to SECTION 7.1.1, but
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calculations of financial covenants shall be made without giving effect to any
such changes. Upon the request of SIHL or any Lender the parties hereto agree to
enter into negotiations in order to amend the financial covenants and other
terms of this Agreement if there occur any changes in GAAP that have a material
effect on the financial statements of the SIHL, so as to equitably reflect such
changes with the desired result that the criteria for evaluating SIHL's
financial condition and such other terms shall be the same in all material
respects after such changes as if the changes had not been made.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION II.1. AMENDMENT AND RESTATEMENT; COMMITMENTS. The Borrowers
(subject to the terms of this Agreement) and the Lenders (including the Existing
Lenders), the Managing Agents, the Co-Syndication Agents, the Administration
Agent and the Issuers hereby agree that the Existing Credit Agreement is hereby
amended and restated in its entirety to become effective and binding on the
Borrowers and the Lenders (including the Existing Lenders), the Managing Agents,
the Co-Syndication Agents, the Administration Agent and the Issuers pursuant to
the terms of this Agreement, and the Existing Credit Agreement is hereby amended
and restated in its entirety to read as set forth in this Agreement; and the
commitments which the Existing Lenders have agreed to extend to the Borrowers
under the Existing Credit Agreement shall be extended or advanced to the
Borrowers upon the amended and restated terms and conditions contained in this
Agreement with the intent that the terms of this Agreement shall supersede the
terms of the Existing Credit Agreement, the Amended Credit Agreement and the
Initial Credit Agreement (each of which shall hereafter have no further effect
upon the parties thereto, other than for accrued fees and expenses, and
indemnification provisions, accrued and owing under the terms of the Existing
Credit Agreement, the Amended Credit Agreement or the Initial Credit Agreement
on or prior to the date hereof or arising (in the case of an indemnification)
under the terms of the Existing Credit Agreement, the Amended Credit Agreement
or the Initial Credit Agreement); PROVIDED that any Rate Protection Agreements
with any one or more Existing Lenders (or their respective Affiliates) shall
continue unamended and in full force and effect. In furtherance of the
foregoing, on the terms and subject to the conditions of this Agreement
(including ARTICLE V),
(a) each Lender severally agrees to make Loans pursuant to the
Commitments described in SECTION 2.1.1; and
(b) each Issuer agrees that it will issue Letters of Credit pursuant
to SECTION 2.1.2, and each Lender severally agrees that it will
participate in such Letters of Credit in accordance with SECTION 2.6.1.
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SECTION II.1.1. COMMITMENT OF EACH LENDER. From time to time on any
Business Day occurring prior to the Commitment Termination Date, each Lender
will, subject to the terms of this Agreement, make loans (relative to such
Lender, and of any type, its "LOANS") to a Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing requested by such Borrower
to be made on such day. The commitment of each Lender described in this SECTION
2.1.1 is herein referred to as its "COMMITMENT". On the terms and subject to the
conditions hereof, the Borrowers may from time to time borrow, prepay and
reborrow Loans; PROVIDED, HOWEVER, that notwithstanding any provision in this
Agreement to the contrary,
(a) the Lenders and Issuers shall not be obligated to make Credit
Extensions to SIHL in an aggregate amount in excess of $10,000,000;
(b) unless consented to by the Required Lenders, the maximum
aggregate amount of Credit Extensions that may be outstanding prior to the
consummation of the Desert Inn Acquisition shall be $475,000,000; and
(c) until receipt by RIH of the NJCCC Approval, the maximum
aggregate amount of Credit Extensions that may be made to RIH shall be
$375,000,000.
SECTION II.1.2. LETTER OF CREDIT COMMITMENT. From time to time on any
Business Day occurring prior to the Commitment Termination Date, the Issuers
will, subject to the terms of this Agreement,
(a) issue one or more letters of credit (a "LETTER OF CREDIT") for
the account of a Borrower or a Guarantor in the Stated Amount requested by
SIHL on such day; or
(b) extend the Stated Expiry Date of an existing Letter of Credit
previously issued hereunder to a date not later than the earlier of (x)
the Commitment Termination Date and (y) one year from the date of such
extension.
SECTION II.1.3. LENDERS NOT PERMITTED OR REQUIRED TO MAKE LOANS. No Lender
shall be permitted or required to make any Loan if, after giving effect thereto,
such Lender's Percentage of all Loans and Letter of Credit Outstandings would
exceed such Lender's Percentage of the Commitment Amount or if the aggregate
outstanding principal amount of all Loans and Letter of Credit Outstandings
(a) of all Lenders would exceed the Commitment Amount; or
(b) to a particular Borrower would exceed the maximum aggregate
amount of Credit Extensions set forth in SECTION 2.1.1 that can be
extended to such Borrower.
SECTION II.1.4. ISSUERS NOT PERMITTED OR REQUIRED TO ISSUE LETTERS OF
CREDIT. Neither Issuer shall be permitted or required to issue any Letter of
Credit if, after giving effect thereto,
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(a) the aggregate amount of all Letter of Credit Outstandings would
exceed the Letter of Credit Commitment Amount;
(b) the sum of the aggregate amount of all Letter of Credit
Outstandings plus the aggregate principal amount of all Loans then
outstanding would exceed the Commitment Amount then in effect; or
(c) the provisions of SECTION 2.1.1 would not be complied with.
SECTION II.2. REDUCTION OF COMMITMENT AMOUNT. The Commitment Amount
is subject to reduction from time to time pursuant to this SECTION 2.2.
SECTION II.2.1. OPTIONAL. SIHL may, from time to time on any Business Day,
voluntarily reduce the Commitment Amount and such voluntary Commitment
reductions shall be binding on all Borrowers; PROVIDED, HOWEVER, that all such
reductions shall require at least three Business Days' prior notice to the
Administrative Agent and be permanent, and any partial reduction of the
Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral
multiple of $1,000,000.
SECTION II.2.2. MANDATORY. The Commitment Amount shall be mandatorily
and automatically reduced
(a) on August 12, 2001, in an aggregate amount equal to
$125,000,000, to be applied pro rata with respect to each Lender's
Commitment; and
(b) on the date that is 300 days following the occurrence of an
Asset Sale, by the amount of the Net Cash Proceeds (as such terms are
defined in the Existing Indenture) that would be required to be applied
as the Asset Sale Offer Amount under the terms of the Existing
Indenture.
SECTION II.3. BORROWING PROCEDURE. By delivering a Borrowing Request to
the Administrative Agent on or before 12:00 noon, New York time, on a Business
Day, a Borrower may from time to time irrevocably request, on not less than two,
in the case of Base Rate Loans, or three, in the case of LIBO Rate Loans, nor
(in either case), more than five Business Days' notice, that a Borrowing be made
in a minimum amount of $5,000,000 and an integral multiple of $1,000,000, or in
the unused amount of the Commitments. On the terms and subject to the conditions
of this Agreement, each Borrowing shall be comprised of the type of Loans, and
shall be made on the Business Day, specified in such Borrowing Request. On or
before 11:00 a.m., New York time, on such Business Day each Lender shall deposit
with the Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the
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Administrative Agent shall make such funds available to the applicable Borrower
by wire transfer of immediately available funds on the same Business Day to the
accounts the applicable Borrower shall have specified in its Borrowing Request.
No Lender's obligation to make any Loan shall be affected by any other Lender's
failure to make any Loan.
SECTION II.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m., New York time, on a Business Day, a Borrower may from time to time
irrevocably elect, on not less than three nor more than five Business Days'
notice that all, or any portion in an aggregate minimum amount of $5,000,000 and
an integral multiple of $1,000,000, of any Loans made to it be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate
Loans, be converted into a Base Rate Loan or continued as a LIBO Rate Loan (in
the absence of delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); PROVIDED, HOWEVER, that
(i) each such conversion or continuation shall be made pro rata among the
applicable outstanding Loans of all Lenders, and (ii) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, LIBO Rate Loans when any Event of Default has occurred and is continuing.
SECTION II.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; PROVIDED,
HOWEVER, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrowers, to repay
such LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, each
Borrower and each Lender hereby consents and agrees that, for purposes of any
determination to be made for purposes of SECTION 4.1, 4.2, 4.3 or 4.4, it shall
be conclusively assumed that each Lender elected to fund all LIBO Rate Loans by
purchasing Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION II.6. ISSUANCE PROCEDURES. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York City time, on a
Business Day, SIHL may, from time to time irrevocably request, on not less than
three Business Days' notice, in the case of an initial issuance of a Letter of
Credit, and not less than three Business Days' notice prior to the existing
Stated Expiry Date (or, if a Letter of Credit has an automatic extension
provision, at least five Business Days' notice prior to the date that such
Letter of Credit will, by its terms, be extended or, if earlier, the date on
which a notice from an Issuer is required to be delivered to the beneficiary of
the Letter of Credit informing the beneficiary that the Letter of Credit will
not be extended) in the case of a request for the extension of the Stated Expiry
Date of a Letter of Credit, that either Issuer issue, or extend the Stated
Expiry Date of, as the case may be, a Letter of Credit in such form as may be
requested by SIHL and approved by such Issuer, solely for the
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purposes described in SECTION 7.1.9. Each Letter of Credit shall by its terms be
stated to expire on a date (its "STATED EXPIRY DATE") no later than the earlier
to occur of (i) the Commitment Termination Date or (ii) one year from the date
of its issuance. Each Issuer will make available to the beneficiary thereof the
original of each Letter of Credit which it issues hereunder.
SECTION II.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each
Letter of Credit issued by an Issuer pursuant hereto, and without further
action, each Lender shall be deemed to have irrevocably purchased, to the extent
of its Percentage, a participation interest in such Letter of Credit (including
the Contingent Liability and any Reimbursement Obligation with respect thereto),
and such Lender shall, to the extent of its Percentage, be responsible for
reimbursing promptly (and in any event within three Business Days following the
Disbursement Date) the applicable Issuer for Reimbursement Obligations arising
under the Letter of Credit issued by such Issuer which have not been reimbursed
by the Borrowers in accordance with SECTION 2.6.3. In addition, such Lender
shall, to the extent of its Percentage, be entitled to receive (i) a ratable
portion of the Letter of Credit fees payable pursuant to SECTION 3.3.2 with
respect to each Letter of Credit (other than the issuance fees payable to an
Issuer with respect to such Letter of Credit pursuant to the last sentence of
SECTION 3.3.2) and (ii) from the date that such Lender has reimbursed an Issuer
in accordance with the first sentence of this Section, (A) the interest payable
pursuant to SECTION 2.6.2 and, if applicable, (B) the interest payable pursuant
to SECTION 3.2.2 with respect to any Reimbursement Obligation not paid when due.
To the extent that any Lender has reimbursed an Issuer for a Disbursement as
required by this Section, such Lender shall be entitled to receive its ratable
portion of any amounts subsequently received (from a Borrower or otherwise) in
respect of such Disbursement.
SECTION II.6.2. DISBURSEMENTS. Each Issuer will notify SIHL and the
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by such Issuer, together with notice of the date (the
"DISBURSEMENT DATE") such payment shall be made (each such payment, a
"DISBURSEMENT"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 11:00 a.m., New
York City time, on the first Business Day following the Disbursement Date, the
Borrowers will (or any one of them) reimburse the Administrative Agent, for the
account of the applicable Issuer, for all amounts which such Issuer has
disbursed under such Letter of Credit, together with interest thereon at a rate
per annum equal to the rate then in effect for Base Rate Loans (with the then
Applicable Base Rate Margin for Loans accruing on such amount) for the period
from the Disbursement Date through the date of such reimbursement. Without
limiting in any way the foregoing and notwithstanding anything to the contrary
contained herein or in any separate application for any Letter of Credit, each
Borrower hereby acknowledges and agrees that it shall be jointly and severally
obligated to reimburse the applicable Issuer upon each Disbursement of a Letter
of Credit (including Letters of Credit issued for the account of the other
Borrowers or a Guarantor), and each Borrower shall be deemed to be the obligor
for purposes of each such Letter of Credit issued hereunder (whether the account
party on such Letter of Credit is such Borrower or a Guarantor).
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SECTION II.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT
OBLIGATION") of each Borrower under SECTION 2.6.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrowers to reimburse an Issuer, each Lender's obligation under SECTION
2.6.1 to reimburse such Issuer, shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to
payment which any Borrower, any Obligor or such Lender, as the case may be, may
have or have had against such Issuer or any such Lender, including any defense
based upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit (if, in such Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
PROVIDED, HOWEVER, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of any Borrower or
such Lender, as the case may be, to commence any proceeding against the
applicable Issuer for any wrongful Disbursement made by such Issuer under a
Letter of Credit as a result of acts or omissions constituting gross negligence
or wilful misconduct on the part of such Issuer.
SECTION II.6.4. DEEMED DISBURSEMENTS. Upon the occurrence and during
the continuation of any Default of the type described in SECTION 8.1.9 or,
with notice from the Administrative Agent, upon the occurrence and during the
continuation of any other Event of Default,
(a an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding hereunder
shall, without demand upon or notice to any Borrower, be deemed to have
been paid or disbursed by the applicable Issuer under such Letters of
Credit (notwithstanding that such amount may not in fact have been so paid
or disbursed); and
(b upon notification by the Administrative Agent to the Borrowers of
their obligations under this Section, the Borrowers shall be immediately
obligated to reimburse the applicable Issuer for the amount deemed to have
been so paid or disbursed by such Issuer.
Any amounts so payable by the Borrowers pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
pursuant to a cash collateral agreement in form and substance satisfactory to
the Administrative Agent for the Obligations in connection with the Letters of
Credit issued by the Issuers. At such time when the Defaults or Events of
Default giving rise to the deemed disbursements hereunder shall have been cured
or waived, the Administrative Agent shall return to SIHL all amounts then on
deposit with the Administrative Agent pursuant to this Section which have not
been applied to the partial satisfaction of such Obligations.
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SECTION II.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. Each Borrower, each
other Obligor and, to the extent set forth in SECTION 2.6.1, each Lender shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. Neither Issuer (except to the extent of its own gross
negligence or wilful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) the failure of the beneficiary of a Letter of Credit to comply
fully with conditions required in order to demand payment under a Letter
of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuers or any Lender. In furtherance and
extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in connection with such Letter
of Credit in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon each Borrower and each other Obligor and each
such Lender, and shall not put such Issuer under any resulting liability to any
Borrower, any Obligor or any such Lender, as the case may be.
SECTION II.7. NOTES. Each Borrower agrees that, upon the request to the
Administrative Agent by any Lender, each such Borrower will execute and deliver
to such Lender a Note payable to the order of such Lender in a maximum principal
amount equal to the amount of Credit Extensions that can be made to a particular
Borrower, which shall, in the aggregate, equal such Lender's Percentage of the
original Commitment Amount. Each Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid attached
to such Lender's Note (or on any continuation of such grid), which notations, if
made, shall evidence, INTER ALIA, the date of, the outstanding principal of, and
the interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be conclusive and binding on the Borrowers absent manifest
error; PROVIDED, HOWEVER, that the
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failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of any Borrower or any other Obligor.
SECTION II.8. REGISTER. Each Borrower hereby designates the Administrative
Agent to serve as such Borrower's agent, solely for the purpose of this SECTION
2.8, to maintain a register (the "REGISTER") on which the Administrative Agent
will record each Lender's Commitment, the Loans made by each Lender and each
repayment in respect of the principal amount of the Loans of each Lender and
annexed to which the Administrative Agent shall retain a copy of each Assignment
and Assumption Agreement delivered to the Administrative Agent pursuant to
SECTION 10.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect any Borrower's obligation in respect of such
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders
shall treat each Person in whose name a Loan (and, as provided in SECTION 2.7,
the Note evidencing such Loan, if any) is registered as the owner thereof for
all purposes of this Agreement, notwithstanding notice or any provision herein
to the contrary.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. REPAYMENTS AND PREPAYMENTS. Each Borrower shall repay in
full the unpaid principal amount of its Loans upon the Stated Maturity Date.
Prior thereto, the Borrowers may (or shall, as applicable), make the repayments
and prepayments set forth below.
(a) Each Borrower may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any of its Loans, and such Borrower may select whether such
prepayment shall be allocated to the Base Rate Loans, LIBO Rate Loans or
both (and the amounts so allocated to each); PROVIDED, HOWEVER, that
(i) any such prepayment shall be made PRO RATA among Loans of
the same type and, if applicable, having the same Interest Period of
all Lenders;
(ii) no such prepayment of any LIBO Rate Loan may be made
on any day other than the last day of the Interest Period for
such Loan;
(iii) all such voluntary prepayments shall require at least
one but no more than five Business Days' prior written notice to
the Administrative Agent; and
(iv) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000.
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(b) The Borrowers shall, on each date when any reduction in the
Commitment Amount shall become effective, including pursuant to SECTION
2.2, make a mandatory prepayment of the Loans made to it, and if required
deliver cash collateral for Letter of Credit Outstandings, equal to the
excess, if any, of the aggregate outstanding principal amount of all Loans
and Letter of Credit Outstandings over the Commitment Amount as so reduced
and, as so reduced, applicable to such Borrower.
(c) The Borrowers shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to SECTION 8.2 or SECTION 8.3,
repay all of their Loans, unless, pursuant to SECTION 8.3, only a portion
of all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.4. No voluntary
prepayment of principal of any Loans shall cause a reduction in the Commitment
Amount.
SECTION III.2. INTEREST PROVISIONS. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
SECTION 3.2.
SECTION III.2.1. RATES. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, a Borrower may elect
that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Base Rate Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable LIBO Rate
Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION III.2.2. POST-MATURITY RATES. After the date any principal amount
of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of a Borrower
shall have become due and payable, such Borrower shall pay, but only to the
extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Alternate Base Rate plus the highest
Applicable Base Rate Margin then listed within such definition plus a margin of
2%.
SECTION III.2.3. PAYMENT DATES. Interest accrued on each Loan shall
be payable, without duplication:
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(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months,
on the third month anniversary of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable
pursuant to CLAUSE (C), on the date of such conversion; and
(f) on that portion of any Loans the maturity of which is
accelerated pursuant to SECTION 8.2 or SECTION 8.3, immediately upon
such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION III.3. FEES. SIHL agrees to pay the fees set forth in this
SECTION 3.3. All such fees shall be non-refundable.
SECTION III.3.1. COMMITMENT FEE. SIHL agrees to pay to the Administrative
Agent for the account of each Lender for the period (including any portion
thereof when its Commitment is suspended by reason of any Borrower's inability
to satisfy any condition of ARTICLE V) commencing on the Effective Date and
continuing through the Commitment Termination Date, a commitment fee at the rate
of the Applicable Commitment Fee Rate per annum, in each case on such Lender's
Percentage of the average daily unused portion of the Commitment Amount (net of
Letter of Credit Outstandings). Such commitment fees shall be payable by SIHL,
in arrears on each Quarterly Payment Date, commencing with the first such day
following the Effective Date, and on the Commitment Termination Date.
SECTION III.3.2. LETTER OF CREDIT FEE. SIHL agrees to pay to the
Administrative Agent, for the PRO RATA account of the Issuers and each other
Lender, a Letter of Credit fee in an amount equal to the then Applicable LIBO
Rate Margin, multiplied by the average daily undrawn Stated Amount of all
Letters of Credit outstanding during the applicable period, with such fees being
payable quarterly in arrears on each Quarterly Payment Date. SIHL further agrees
to pay to the applicable Issuer an issuance fee in an amount equal to the higher
of (i) $100 (as such amount
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may be increased from time to time in accordance with such Issuer's standard
charges for such services) and (ii) 1/4 of 1% per annum of the Stated Amount of
the Letter of Credit issued by such Issuer thereof, with such fees being payable
quarterly in arrears on each Quarterly Payment Date.
SECTION III.3.3. OTHER FEES. The Borrowers agree to pay to each
Lender for its own account the non-refundable fees in the amounts and on the
dates set forth in such Lender's Fee Letter.
SECTION III.4. GUARANTY PROVISIONS. Each Borrower hereby jointly and
severally irrevocably guarantees the payment of all Obligations as set forth
in this SECTION 3.4.
SECTION III.4.1. GUARANTY. Each Borrower hereby absolutely,
unconditionally and irrevocably jointly and severally
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the other Borrowers and each other
Obligor, whether for principal, interest, fees, expenses or otherwise
(including all such amounts which would become due but for the operation
of the automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. ss. 362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. ss. 502(b) and ss.
506(b)); and
(b) indemnifies and holds harmless each Lender Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Lender Party or such
holder, as the case may be, in enforcing any rights under SECTION 3.4;
PROVIDED that in the case of the guaranty of a Borrower of the Obligations of
other than its direct or indirect Subsidiaries, such guaranty shall be limited
to the maximum amount that can be guaranteed without rendering such guaranty
unenforceable under fraudulent conveyance or similar laws; PROVIDED, FURTHER,
that, until RIH receives NJCCC Approval, the maximum amount of RIH's guaranty
obligations with respect to Credit Extensions shall be limited to $375,000,000.
RIH acknowledges that the amount of the Obligations outstanding from time to
time may exceed the amount of its liability hereunder. RIH agrees that no
payments made by or on behalf of any Borrower or Guarantor or any other Person,
or application of proceeds from the Collateral (as defined in the Collateral
Documents), any action or proceeding or any set-off at any time or from time to
time in reduction of or in payment of the Obligations shall be deemed to reduce,
modify, release or otherwise affect the liability of RIH hereunder, and RIH
shall, notwithstanding any such payments, application, action or set-off, remain
liable for the Obligations up to the maximum liability of the Guarantors
hereunder until the Obligations are paid in full and the Commitment hereunder is
terminated. This guaranty and the provisions of this SECTION 3.4 constitutes a
guaranty of payment when due and not of collection, and each Borrower
specifically
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agrees that it shall not be necessary or required that any Lender Party exercise
any right, assert any claim or demand or enforce any remedy whatsoever against
the Borrowers or any other Obligor (or any other Person) before or as a
condition to the obligations of such Borrower hereunder. Each Borrower
acknowledges and agrees that it shall be jointly and severally liable for the
Obligations arising under Letters of Credit issued for Subsidiaries of SIHL,
notwithstanding that such Borrower is not the account party of any particular
Letter of Credit.
SECTION III.4.2. ACCELERATION OF GUARANTY. Each Borrower agrees that, in
the event of a Default of the type set forth in SECTION 8.1.9 and if such event
shall occur at a time when any of the Obligations of the other Borrowers and
each other Obligor may not then be due and payable, such Borrower will pay to
the Administrative Agent for the account of the Lender Parties forthwith the
full amount which would be payable hereunder by such Borrower or Obligor if all
such Obligations were then due and payable.
SECTION III.4.3. GUARANTY ABSOLUTE, ETC. SECTION 3.4 shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the Borrowers
and each other Obligor have been paid in full, all obligations of each Borrower
hereunder shall have been paid in full and all Commitments shall have
terminated. Each Borrower guarantees that the Obligations of the other Borrowers
and each other Obligor will be paid strictly in accordance with the terms of
this Agreement and each other Loan Document under which they arise, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Lender Party with respect
thereto. The liability of each Borrower under SECTION 3.4 shall be absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement or any other Loan Document;
(b) the failure of any Lender Party
(i) to assert any claim or demand or to enforce any right or
remedy against any other Borrower, any other Obligor or any other
Person (including any other guarantor) under SECTION 3.4 of this
Agreement, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of any
other Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the other Borrowers or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of any other Borrower or any other Obligor;
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(d) any reduction, limitation, impairment or termination of the
Obligations of any other Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Borrower hereby waives
any right to or claim of) any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, the Obligations of any other
Borrower, any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement or
any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Lender Party
or any holder of any Note securing any of the Obligations of any other
Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any other
Borrower, any other Obligor, any surety or any guarantor.
SECTION III.4.4. REINSTATEMENT, ETC. Each Borrower agrees that SECTION 3.4
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Lender Party or any holder of any Note, upon
the insolvency, bankruptcy or reorganization of any other Borrower, any other
Obligor or otherwise, all as though such payment had not been made.
SECTION III.4.5. WAIVER, ETC. Each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of any other Borrower or any other Obligor and SECTION 3.4 and any
requirement that any Lender Party or any holder of any Note protect, secure,
perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against any other Borrower, any
other Obligor or any other Person (including any other guarantor) or entity or
any collateral securing the Obligations of any other Borrower or any other
Obligor, as the case may be.
SECTION III.4.6. POSTPONEMENT OF SUBROGATION, ETC. No Borrower will
exercise any rights which it may acquire by way of rights of subrogation under
SECTION 3.4, by any payment made hereunder or otherwise, until the prior
payment, in full and in cash, of all Obligations of the Borrowers and each other
Obligor. Any amount paid to any Borrower on account of any such subrogation
rights prior to the payment in full of all Obligations of the Borrowers and each
other Obligor shall be held in trust for the benefit of the Lender Parties and
shall immediately be paid to the Administrative Agent and credited and applied
against the
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Obligations of the Borrowers and each other Obligor, whether matured or
unmatured, in accordance with the terms hereof; PROVIDED, HOWEVER, that if
(a) any Borrower has made payment to the Lender Parties and each
holder of a Note of all or any part of the Obligations of any other
Borrower or any other Obligor; and
(b) all Obligations have been paid in full and all Commitments
have been permanently terminated,
each Lender Party agrees that, at such Borrower's request, the Administrative
Agent, on behalf of the Lender Parties, will execute and deliver to such
Borrower appropriate documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to such Borrower of
an interest in the Obligations of such other Borrower and each other Obligor
resulting from such payment by the Borrower paying any such amount. In
furtherance of the foregoing, for so long as any Obligations or Commitments
remain outstanding, each Borrower shall refrain from taking any action or
commencing any proceeding against the other Borrowers or any other Obligor (or
its successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in the respect of payments made under the
provisions of SECTION 3.4 to any Lender Party.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION IV.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, so long as such Lender shall then be taking the same
action with respect to all other similar loans it may have outstanding to other
borrowers, upon notice thereof to the Borrowers and the Lenders, be conclusive
and binding on the Borrowers) that the introduction of or any change in or in
the interpretation of any law makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender to make,
continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan,
the obligations of all Lenders to make, continue, maintain or convert any such
Loans shall, upon such determination, forthwith be suspended until such Lender
shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all LIBO Rate Loans shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION IV.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall
have determined that
(a) dollar deposits in the relevant amount and for the relevant
Interest Period are not available to Scotiabank in its relevant market;
or
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(b) by reason of circumstances affecting Scotiabank's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans,
then, so long as the Administrative Agent shall then be taking the same action
with respect to all other similar loans it may have outstanding to other
borrowers, upon notice from the Administrative Agent to the Borrowers and the
Lenders, the obligations of all Lenders under SECTION 2.3 and SECTION 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans
shall forthwith be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION IV.3. INCREASED LIBO RATE LOAN COSTS, ETC. Provided that each
Lender requesting reimbursement under this SECTION 4.3 is then taking the same
action with respect to all other similar loans it has outstanding to other
borrowers of a class similar to the Borrowers (including as to the aggregate
amount of credit extensions made to such other borrowers), the Borrowers agree
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans, including any increased costs or reduced returns
caused by the imposition of any reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
required by any central bank, regulator or other governmental authority
(including the Bank of England) having authority over any Lender, in each case
to the extent not already specifically addressed by the provisions of the
definition of "LIBOR Reserve Percentage", except as to any increased cost or
reduced amount that results from the imposition of Taxes (liability for which is
determined pursuant to SECTION 4.6). The Lender requesting reimbursement under
this Section shall promptly notify the Administrative Agent and SIHL in writing
of the occurrence of any such event, such notice to state, in reasonable detail,
the reasons therefor and the additional amount required fully to compensate such
Lender for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrowers directly to such Lender within five days of its
receipt of such notice, and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrowers. Any Lender claiming any amounts
payable pursuant to this Section shall use its commercially reasonable efforts
to change its applicable lending office with respect to some or all of its LIBO
Rate Loans if the making of such change would avoid the need for or reduce the
amount of any such additional amounts that would thereafter accrue, so long as
such Lender will not incur any costs that the Borrowers will not agree to
reimburse to such Lender and such change is not inconsistent with such Lender's
internal policies.
SECTION IV.4. FUNDING LOSSES. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal
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amount of any Loan as, or to convert any portion of the principal amount of any
Loan into, a LIBO Rate Loan) as a result of,
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
SECTION 3.1 or otherwise, including all such loss or expense arising as
a result of the provisions of SECTION 4.11;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to SIHL (with a copy to the
Administrative Agent), the Borrowers shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers.
SECTION IV.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitment or the Loans made, or the Letters of Credit issued
or participated in, by such Lender is reduced to a level below that which such
Lender or such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case so long as such Lender shall then
be taking the same action with respect to all other similar loans it may have
outstanding to other borrowers, upon notice from time to time by such Lender to
the Borrowers, the Borrowers shall immediately pay directly to such Lender
additional amounts sufficient to compensate such Lender or such controlling
Person for such reduction in rate of return. A statement of such Lender as to
any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrowers. In determining such amount, such Lender may use any
reasonable method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
SECTION IV.6. TAXES. (a) All payments by SIHL, each other Borrower or any
other Guarantor of principal of, and interest on, the Loans and all other
amounts payable hereunder shall be made free and clear of and without deduction
for any present or future income, excise, stamp or franchise taxes and other
taxes, fees, duties, withholdings or other charges of any nature
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whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by any Lender's net income or receipts (such
non-excluded items being called "TAXES"). In the event that any withholding or
deduction from any payment to be made by SIHL, each other Borrower or any other
Guarantor hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then SIHL, such Guarantor or such Borrower
(as applicable) will
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and each of SIHL, each other Borrower and each other Guarantor will
(without duplication) promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had such Taxes not been asserted.
(b) If either SIHL, any other Borrower or any other Guarantor fails to pay
any Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of the respective Lenders, the required
receipts or other required documentary evidence, SIHL, each other Guarantor and
each other Borrower shall jointly and severally indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this SECTION 4.6, a
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by SIHL, such Guarantor and such
Borrower.
(c) Each Lender that is not organized under the laws of the United States
or a State thereof shall, not later than the first payment of interest or other
amounts hereunder to such Lender, deliver to each Borrower and the
Administrative Agent two duly completed copies of Internal Revenue Service Form
W-8BEN or Form W-8ECI (or in the case of either, a successor form) claiming
complete exemption from U.S. Federal withholding tax on payments of interest
hereunder; PROVIDED, HOWEVER, that in the case of a Lender that is not legally
entitled to deliver either such Form (or successor form) as of the date of the
first payment of interest or other
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amounts hereunder to such Lender, such Lender shall deliver written notice of
its inability to provide any such form on such date and no such Lender shall be
obligated to deliver any such Form (or successor form) earlier than the date of
the first payment of interest or other amounts hereunder next following the date
as of which such Lender becomes legally entitled to deliver either such Form or
successor form. Each such Lender shall further deliver two duly completed copies
of either such Form (or successor form) prior to the expiration of the most
recently delivered Form. By the delivery of either such Form (or successor
form), such Lender shall be deemed to have represented that it is entitled to
receive payments of interest hereunder without the imposition of U.S. Federal
withholding tax.
(d) In addition, any Lender claiming any indemnity payment or additional
amount payable pursuant to this Section shall use commercially reasonable
efforts to file any certificate or document reasonably requested by SIHL or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amount which may thereafter accrue and such
filing or change is not, in the sole determination of such Lender, inconsistent
with that Lender's internal policies.
SECTION IV.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by SIHL, each other Borrower and each other Guarantor
pursuant to this Agreement or any other Loan Document shall be made by SIHL,
such Guarantor and such Borrower (without duplication) to the Administrative
Agent for the PRO RATA account of the Lenders entitled to receive such payment.
All such payments required to be made to the Administrative Agent shall be made,
without setoff, recoupment, deduction, counterclaim or other defense, not later
than 12:00 noon, New York time, on the date due, in same day or immediately
available funds, to such account as the Administrative Agent shall specify from
time to time by notice to the Borrowers. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding
Business Day and such extension of time shall be included in computing interest
and fees, if any, in connection with such extension. The Administrative Agent
shall promptly remit in same day funds to each Lender its share, if any, of such
payments received by the Administrative Agent for the account of such Lender.
All interest and fees shall be computed on the basis of the actual number of
days (including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of 360
days (or, in the case of interest on a Base Rate Loan, 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as otherwise
required by CLAUSE (b) or (c) of the definition of the term "Interest Period")
be made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with such
payment.
SECTION IV.8. SHARING OF PAYMENTS. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligation (other than
pursuant to the terms of SECTIONS 4.3, 4.4, 4.5
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and 4.6) in excess of its PRO RATA share of payments then or therewith obtained
by all Lenders, such Lender shall purchase from the other Lenders such
participations in Credit Extensions made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
TO
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each of SIHL, each other Borrower and
each other Guarantor agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including pursuant to SECTION 4.9) with
respect to such participation as fully as if such Lender were the direct
creditor of SIHL, such Borrower or such Guarantor in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION IV.9. SETOFF. Each Lender shall, upon the occurrence of any Event
of Default described in CLAUSES (a) through (d) of SECTION 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) each of SIHL, each other Borrower and each other Guarantor hereby
grants to each Lender a continuing security interest in, any and all balances,
credits, deposits, accounts or money of each of SIHL, such Guarantor and such
Borrower then or thereafter maintained with such Lender; PROVIDED, HOWEVER, that
any such appropriation and application shall be subject to the provisions of
SECTION 4.8. Each Lender agrees promptly to notify SIHL, such Guarantor or such
Borrower and the Administrative Agent after any such setoff and application made
by such Lender; PROVIDED, HOWEVER, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
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SECTION IV.10. DEFAULTING LENDER. (a) Upon any Lender becoming a
Defaulting Lender, (i) the Administrative Agent shall endeavor to promptly
notify each other Lender of the amount owed or potentially owed, as the case may
be, by such Defaulting Lender and (ii) the Commitment Amount shall be reduced by
an amount equal to the unutilized portion of such Defaulting Lender's Percentage
thereof then in effect (the "UNUTILIZED PORTION"); PROVIDED, HOWEVER, that, with
the prior written consent of the Managing Agents, SIHL may request a
non-defaulting Lender to, whereupon such non-defaulting Lender may (in its sole
discretion and without the consent of any other Lender), by promptly notifying
SIHL and the Administrative Agent, increase its Commitment in an amount equal to
the Unutilized Portion, in which case, upon receipt by SIHL and the
Administrative Agent of such notice, (x) the Commitment of such non-defaulting
Lender shall be so increased and (y) the amount of the Commitment Amount then in
effect shall be equal to the amount of the Commitment Amount in effect
immediately prior to the time such Defaulting Lender became a Defaulting Lender
and (iii) the Percentage of such Defaulting Lender shall be reduced to zero.
(b) No Defaulting Lender shall be entitled to receive any fees accrued on
and after the date such Lender became a Defaulting Lender.
(c) Notwithstanding anything contained herein to the contrary, no
Defaulting Lender shall be entitled to receive any payments hereunder on account
of any Loans or Notes until all amounts that are due and payable with respect to
any Loans as to which such Defaulting Lender is not a Lender or a participant
shall have been paid in full.
(d) Nothing in this Section shall be deemed to release any Defaulting
Lender from fulfilling its obligations under this Agreement or otherwise or to
prejudice the rights which SIHL, the Borrowers or any other Lender or the
Administrative Agent may have against any such Defaulting Lender.
SECTION IV.11. REPLACEMENT LENDER. In the event that SIHL, any other
Borrower or any other Guarantor becomes obligated to pay any additional material
amounts to any Lender pursuant to SECTION 4.3 or 4.5 (which amounts are
generally not due or payable to all Lenders generally under such Sections) or
such Lender is not able to make LIBO Rate Loans pursuant to SECTION 4.1, as a
result of any event or condition described in any of such Sections, or any
Lender is subject to a withholding tax for which it seeks a gross up pursuant to
SECTION 4.6, then, unless such Lender has removed or cured the conditions
creating the cause of such obligation to pay such additional amounts or agrees
(in the case of Taxes) not to require any Obligor to pay such gross up amount
under SECTION 4.6, SIHL may designate one or more substitute lenders (or
lenders) (and such Lender agrees to be replaced by such substitute lender upon
and in accordance with the terms set forth in this Section) reasonably
acceptable to the Managing Agents (such lender or lenders each called a
"REPLACEMENT LENDER") to have assigned to it pursuant to SECTION 10.11.1, and to
purchase, such Lender's rights and obligations with respect to its entire Loans
and Commitment hereunder, without recourse to or warranty by, or expense to,
such Lender for a purchase price equal to the outstanding principal amount
payable to such Lender
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with respect to its Loans and Commitment hereunder, plus any accrued and unpaid
interest and accrued and unpaid fees in respect of such Lender's Loans and
Commitment owing to such Lender. SIHL agrees that, so long as the Borrowers are
not then obligated to pay any gross up for Taxes under a Loan Document to the
Managing Agents, it will first designate the Managing Agents as the Replacement
Lenders in the case of another Lender that has required the Borrowers (or any
Obligor) to pay any gross up for Taxes under a Loan Document and the Managing
Agents shall have the right (but be under no obligation) to have assigned to
them an equal amount of the Loans and Commitments (and corresponding rights and
obligations) of the Lender being replaced; PROVIDED that if one of the Managing
Agents declines to have such Loans and Commitments assigned to it as described
above, then the other Managing Agent shall have the right (but be under no
obligation) to have all or any portion of the Loans and Commitments (and
corresponding rights and obligations) of the Lender being replaced to be
assigned to it. Upon any assignment and purchase by the Replacement Lender and
payment of all other amounts owing to the Lender being replaced hereunder
(including under SECTION 4.6), and the payment to the Administrative Agent of
the processing fee due to it under SECTION 10.11.1, such Lender shall no longer
be a party hereto or have any rights or obligations hereunder, and the
Replacement Lender shall succeed to the rights and obligations of such Lender
with respect to its Loans and Commitment hereunder; PROVIDED that the rights of
such replaced Lender pursuant to SECTIONS 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and
the rights and obligations of such Lender pursuant to ARTICLE IX and SECTIONS
10.3 and 10.4, shall survive any assignment described in this Section.
ARTICLE V
CONDITIONS TO EFFECTIVENESS
SECTION V.1. EFFECTIVENESS. The effectiveness of this Agreement shall
be subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this SECTION 5.1.
SECTION V.1.1. RESOLUTIONS, ETC. The Administrative Agent shall have
received from each Obligor a certificate, dated the date hereof, of its
Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Loan
Document executed by it;
upon which certificate each Lender Party may conclusively rely until it shall
have received a further certificate of the Secretary or Assistant Secretary of
such Obligor canceling or amending such prior certificate.
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SECTION V.1.2. DELIVERY OF THIS AGREEMENT, NOTES. The Administrative Agent
shall have received (x) duly executed counterparts of this Agreement delivered
by each Borrower and each Lender and (y) for the account of each Lender
requesting Notes pursuant to SECTION 2.7, its Notes duly executed and delivered
by each Borrower.
SECTION V.1.3. NEW DEBENTURES. The Administrative Agent shall have
received (a) counterparts of the New Debentures, each duly executed by an
Authorized Officer of the owner of the property covered thereby, (b) evidence of
the completion (or satisfactory arrangements for the completion) of all
recordings and filings of the New Debentures as may be necessary or, in the
reasonable opinion of the Managing Agents, desirable effectively to create a
valid first mortgage Lien (or, in the case of personal property, floating charge
Lien) against the properties purported to be covered thereby in the full amount
of the aggregate principal amount of all Credit Extensions which may at any time
be outstanding, subject only to the Permitted Encumbrances, and (c) such other
approvals, opinions or documents as the Managing Agents may reasonably request
with respect to the New Debentures.
SECTION V.1.4. EXCHANGE APPROVAL. The Administrative Agent shall have
received a copy of a letter from The Central Bank of The Bahamas to SIBL, SIHL
and the other Guarantors organized under the laws of The Commonwealth of The
Bahamas, in a form satisfactory to the Managing Agents, confirming that it is
aware of this Agreement and the Pledge Agreements and undertaking to make
available to SIBL, SIHL and such Guarantors such foreign exchange as may be
necessary to enable SIBL, SIHL and such Guarantors to fulfill their payment
obligations under this Agreement in Dollars and to pledge the collateral under
the Pledge Agreements and Debentures.
SECTION V.1.5. ENDORSEMENT TO TITLE INSURANCE POLICIES. The Administrative
Agent shall have received endorsements, dated as of the date hereof, duly issued
by the Title Insurer which issued the mortgagee's title insurance policies on
the Existing Credit Agreement Debentures, amending the mortgagee's title
insurance policy on the Existing Credit Agreement Debentures, insuring that the
Debentures constitute valid first Liens against the properties purported to be
covered thereby, free and clear of all defects and encumbrances other than the
Permitted Encumbrances, and otherwise in form and substance, and in amounts,
reasonably satisfactory to the Managing Agents and their counsel. Each
mortgagee's title insurance policy on the Debentures shall also include, to the
extent available, a comprehensive endorsement, variable rate endorsement, access
and utilities endorsements, a mechanic's lien endorsement, a zoning endorsement
and such other endorsements as the Managing Agents shall request. All premiums,
title examination, surveys, departmental violations, judgment and Uniform
Commercial Code search charges (as applicable) and other charges and fees shall
have been paid in full or provided for in a manner satisfactory to the
applicable Title Insurer and the Managing Agents, and the Managing Agents shall
have received satisfactory evidence of such payment or provision.
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SECTION V.1.6. AFFIRMATION AND CONSENT. The Administrative Agent shall
have received an Affirmation and Consent, dated as of the date hereof and duly
executed and delivered by each Obligor, in form and substance satisfactory to
the Administrative Agent.
SECTION V.1.7. OPINIONS OF COUNSEL. The Administrative Agent shall
have received opinions, dated the date hereof and addressed to the
Administrative Agent and all Lenders, from
(a) Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation, New York
and Connecticut counsel to the Obligors, in form and substance
satisfactory to the Managing Agents;
(b) Xxxxxxx Xxxxx, General Counsel to SIHL and counsel to the other
Obligors, in form and substance satisfactory to the Managing Agents;
(c) Xxxxx X. Xxxxx & Company, Bahamian counsel to certain Obligors,
in form and substance satisfactory to the Managing Agents;
(d) Kozlov, Seaton, Xxxxxxxx, Xxxxxx & Xxxxxxxxx, New Jersey counsel
to certain Obligors, in form and substance satisfactory to the Managing
Agents; and
(e) Xxxxxxx Xxxxxx, Nevada counsel to certain Obligors, in form and
substance satisfactory to the Managing Agents.
SECTION V.1.8. EFFECTIVE DATE CERTIFICATE. The Administrative Agent shall
have received, with counterparts for each Lender, the Borrower Effective Date
Certificate, dated the date hereof and duly executed and delivered by an
Authorized Officer of each Borrower, in which certificate each Borrower shall,
among other things, agree and acknowledge that the statements made therein shall
be deemed to be true and correct representations and warranties of such Person,
made as of such date (and under this Agreement), and, at the time such
certificate is delivered, such statements shall in fact be true and correct. All
documents and agreements required to be appended to the Borrower Effective Date
Certificate shall be in form and substance satisfactory to the Administrative
Agent.
SECTION V.1.9. REPAYMENT OF OUTSTANDING LOANS. The Administrative Agent
shall have received satisfactory evidence of the payment in full of the loans
outstanding under the Existing Credit Agreement, together with all accrued
interest thereon and other amounts due and payable with respect thereto, for
ratable distribution to the Existing Lenders.
SECTION V.1.10. FEES AND EXPENSES. The Lenders and the Agents shall have
received all fees and expenses required to be paid by SIHL and its Subsidiaries
on or before the Effective Date.
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SECTION V.1.11. COLLATERAL AGREEMENT SUPPLEMENTS. The Administrative
Agent shall have received executed counterparts of
(a) a supplement to the SINA Subsidiary Pledge Agreement, dated as
of the date hereof and duly executed and delivered by an Authorized
Officer of SINA, in form and substance satisfactory to the Administrative
Agent, pursuant to which SINA shall pledge the capital stock of SINI; and
(b) a supplement to the Borrower Security Agreement, dated as of the
date hereof and duly executed and delivered by an Authorized Officer of
SINI, in form and substance satisfactory to the Administrative Agent,
together with acknowledgment copies of properly filed Uniform Commercial
Code financing statements (Form UCC-1) or such other evidence of filing as
may be acceptable to the Administrative Agent in order to perfect the
security interest of the Collateral Agent pursuant to the Borrower
Security Agreement.
SECTION V.2. ALL CREDIT EXTENSIONS. The obligation of each Lender to fund
any Loan or either Issuer to issue any Letter of Credit on the occasion of any
Credit Extension shall be subject to the satisfaction of each of the conditions
precedent set forth in SECTIONS 5.2.1, 5.2.2 and 5.2.3. The obligation of each
Lender to fund any Loan or either Issuer to issue any Letter of Credit which (i)
will cause the aggregate outstanding principal amount of all Loans and Letter of
Credit Outstandings to exceed $475,000,000 for the first time since the
Effective Date shall be subject to the satisfaction of the additional conditions
precedent set forth in SECTION 5.2.4.
SECTION V.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in SECTION 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct
(a) the representations and warranties set forth in ARTICLE VI and
in the other Loan Documents shall be true and correct in all material
respects with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date); and
(b) no Default shall have then occurred and be continuing, and
neither SIHL nor any Subsidiary is in material violation of any law or
governmental regulation or court order or decree.
SECTION V.2.2. CREDIT EXTENSION REQUEST. The Administrative Agent shall
have received a Borrowing Request if Loans are being requested, or an Issuance
Request if a Letter of Credit is being requested or extended. Each of the
delivery of a Borrowing Request or Issuance
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Request and the acceptance by the applicable Borrower of the proceeds of such
Credit Extension shall constitute a representation and warranty by the relevant
Borrower that on the date of such Credit Extension (both immediately before and
after giving effect to such Credit Extension and the application of the proceeds
thereof) the statements made in SECTION 5.2.1 are true and correct in all
material respects.
SECTION V.2.3. SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant hereto by or on behalf of SIHL or any of its Subsidiaries or
any other Obligors shall be reasonably satisfactory in form and substance to the
Managing Agents and their counsel; the Managing Agents and their counsel shall
have received all information, approvals, opinions, documents or instruments as
such Agent or its counsel may reasonably request.
SECTION V.2.4. DESERT INN ACQUISITION. In accordance with the last
sentence of SECTION 5.2, the Administrative Agent shall be satisfied that the
following conditions have been met:
(a) the proceeds of such Credit Extension will be used as a portion
of the purchase price consideration for the consummation of the Desert Inn
Acquisition, which shall occur on the date such Credit Extension is made;
(b) the Administrative Agent shall have received a Mortgage (or, if
applicable, a supplement to an existing Mortgage) in connection with the
Desert Inn and other real property (and improvements thereon) that
constitutes Desert Inn Property held by an Obligor (PROVIDED, that the
Borrowers agree that the Desert Inn, the capital stock of Desert Inn
Improvement Co., the golf course being purchased pursuant to the Desert
Inn Purchase Agreement and the approximately 30 acre undeveloped real
estate adjacent to the Desert Inn being purchased pursuant to the Desert
Inn Purchase Agreement shall (unless otherwise agreed to by the Managing
Agents) always be owned by SINI), together with all title deeds necessary
to evidence such Obligor's good and valid title to the real property that
is the subject of such Mortgage and all related environmental surveys and
reports reasonably requested by the Managing Agents demonstrating
compliance with SECTION 7.1.6, and the Administrative Agent shall be
satisfied that (x) satisfactory arrangements have been made for the
completion of all recordings and filings of such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable effectively to create a valid, perfected first priority Lien
against the real property covered thereby, and (z) all premiums, title
examination, surveys, departmental violations, judgment and Uniform
Commercial Code search charges (as applicable) and other charges and fees
shall have been paid in full or provided for in a manner satisfactory to
the applicable Title Insurer and the Managing Agents; and
(c) the provisions of SECTION 7.1.7 with respect to the Desert Inn
Property have been complied with.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuers and the Agents to enter into
this Agreement and to make Credit Extensions hereunder, each of the Borrowers
represents and warrants unto the Agents, the Issuers and each Lender as set
forth in this ARTICLE VI.
SECTION VI.1. ORGANIZATION, ETC. Each of SIHL and the Obligors is a
corporation or partnership validly organized and existing and in good standing
under the laws of the State or jurisdiction of its incorporation or
organization, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification (except where the failure to so qualify would not
reasonably be expected to have a material adverse effect on the financial
condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole), and has full power and authority and holds all
requisite governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement and each other Loan Document to
which it is a party and to own and hold under lease its property and to conduct
its business substantially as currently conducted by it.
SECTION VI.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each of the Borrowers of this Agreement and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it are within such Borrower's and each such other Person's
corporate or partnership powers (as applicable), have been duly authorized by
all necessary corporate or partnership action, and do not
(a) contravene such Borrower's or other Person's Organic
Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting any Borrower
or any such other Person; or
(c) result in, or require the creation or imposition of, any Lien on
any of any Borrower's or any such other Person's properties, other than
pursuant to a Loan Document.
SECTION VI.3. GOVERNMENT APPROVAL, REGULATION, ETC. Except for those that
have been duly obtained or made and are in full force and effect, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Borrowers or any other Obligor
of this Agreement or any other Loan Document to which it is a party. Neither
SIHL nor any of its Subsidiaries is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a
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"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION VI.4. VALIDITY, ETC. This Agreement constitutes, and each other
Loan Document executed by a Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms; and each Loan Document
executed pursuant hereto by each other Obligor will, on the due execution and
delivery thereof by such Obligor, be the legal, valid and binding obligation of
such Obligor enforceable in accordance with its terms.
SECTION VI.5. FINANCIAL INFORMATION. The consolidated balance sheet of
SIHL and its Subsidiaries as at December 31, 1998, and the related consolidated
statements of earnings and cash flow of SIHL and its Subsidiaries, have been
prepared in accordance with GAAP consistently applied, and present fairly the
consolidated financial condition of the corporations covered thereby as at the
dates thereof and the results of their operations for the periods then ended.
SECTION VI.6. NO MATERIAL ADVERSE CHANGE. Since December 31, 1998, there
has been no material adverse change in the financial condition, operations,
assets, business or properties of SIHL and its Subsidiaries, taken as a whole.
SECTION VI.7. LITIGATION, LABOR CONTROVERSIES, ETC. Except as
disclosed in ITEM 6.7 ("Litigation") of the Disclosure Schedule,
(i) no labor controversy, litigation, arbitration or governmental
investigation or proceeding is pending or, to the knowledge of any
Borrower, threatened, against SIHL or any of its Subsidiaries which would
reasonably be expected to materially adversely affect the financial
condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole, or which purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document;
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to CLAUSE (a) which would reasonably be expected to
materially adversely affect the businesses, operations, assets, revenues
or properties of SIHL and its Subsidiaries, taken as a whole; and
(iii) no judgments or orders for the payment of money in excess of
$5,000,000, individually or in the aggregate (to the extent not covered by
insurance (other than self-insurance) from a carrier not contesting its
obligations to make payment under the applicable insurance policy), has
been rendered against SIHL or any of its Subsidiaries that is organized
under the laws of The Commonwealth of The Bahamas.
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SECTION VI.8. SUBSIDIARIES. SIHL does not have any Subsidiaries,
except those Subsidiaries
(a) which are identified in ITEM 6.8(a) ("Existing
Subsidiaries") of the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance with
SECTION 7.2.5 or 7.2.10.
Significant Subsidiaries as of August 12, 1997 are identified with an
asterisk on ITEM 6.8(a) of the Disclosure Schedule. Each Subsidiary as well as
each Borrower that is executing a Pledge Agreement or a supplement to a Pledge
Agreement is listed on ITEM 6.8(b) of the Disclosure Schedule.
SECTION VI.9. OWNERSHIP OF PROPERTIES. SIHL and each of its Significant
Subsidiaries owns good and valid title to all of its material properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like) except as permitted
pursuant to SECTION 7.2.3.
SECTION VI.10. TAXES. SIHL and each of its Significant Subsidiaries has
filed all material tax returns and reports required by law to have been filed by
it and has paid or will pay when due all material taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION VI.11. PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, and since such date and prior to the date of any Credit
Extension hereunder, no steps have been taken to terminate any Pension Plan, and
no contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a Lien under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension Plan which might
result in the incurrence by SIHL or any member of its Controlled Group of any
material liability, fine or penalty. Except as disclosed in ITEM 6.11 ("Employee
Benefit Plans") of the Disclosure Schedule, neither SIHL nor any member of its
Controlled Group has any material contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
SECTION VI.12. ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM
6.12 ("Environmental Matters") of the Disclosure Schedule:
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(a) all facilities and property (including underlying groundwater)
owned or leased by SIHL or any of its Subsidiaries have been, and continue
to be, owned or leased by SIHL and its Subsidiaries in material compliance
with all Environmental Laws;
(b) there are no pending and, to the knowledge of any Borrower, (i)
there are no threatened and (ii) have been no past,
(i) claims, complaints, notices or requests for information
received by SIHL or any of its Subsidiaries with respect to any
alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to SIHL or any of its
Subsidiaries regarding potential material liability under any
Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or, to the knowledge of any Borrower, previously
owned or leased by SIHL or any of its Subsidiaries that, singly or in the
aggregate, have, or would reasonably be expected to have, a material
adverse effect on the financial condition, operations, assets, business or
properties of SIHL and its Subsidiaries, taken as a whole;
(d) SIHL and its Subsidiaries have been issued and are in material
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters which are necessary for
their businesses;
(e) no property now or previously owned or leased by SIHL or any of
its Subsidiaries is listed or proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or, to the
knowledge of any Borrower, previously owned or leased by SIHL or any of
its Subsidiaries that, singly or in the aggregate, have, or would
reasonably be expected to have, a material adverse effect on the financial
condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole;
(g) neither SIHL nor any Subsidiary of SIHL has directly transported
or directly arranged for the transportation of any Hazardous Material to
any location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state
list or which is the subject of federal, state or local enforcement
actions or other investigations which would reasonably be expected to lead
to material claims against SIHL or such Subsidiary thereof for any
remedial work, damage to natural resources or personal injury, including
claims under CERCLA;
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(h) to the knowledge of the Borrowers, there are no polychlorinated
biphenyls or friable asbestos present at any property now or previously
owned or leased by SIHL or any Subsidiary of SIHL that, singly or in the
aggregate, have, or would reasonably be expected to have, a material
adverse effect on the financial condition, operations, assets, business or
properties of SIHL and its Subsidiaries, taken as a whole; and
(i) to the knowledge of the Borrowers, no conditions exist at, on or
under any property now or previously owned or leased by SIHL or any of its
Subsidiaries which, with the passage of time, or the giving of notice or
both, would reasonably be expected to give rise to any material liability
under any Environmental Law.
SECTION VI.13. REGULATIONS U AND X. None of the Borrowers is engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Credit Extensions will be used to purchase
or carry margin stock or for a purpose which violates, or would be inconsistent
with, F.R.S. Board Regulation U or X. Terms for which meanings are provided in
F.R.S. Board Regulation U or X or any regulations substituted therefor, as from
time to time in effect, are used in this Section with such meanings.
SECTION VI.14. ACCURACY OF INFORMATION. All factual information furnished
by or on behalf of SIHL or its Subsidiaries in writing to the Managing Agents or
any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby and all other such factual information hereafter
furnished by or on behalf of SIHL or its Subsidiaries to the Managing Agents or
any Lender pursuant to the terms of this Agreement will be true and accurate in
every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by the
Administrative Agent and such Lender, and such information is not, or shall not
be, as the case may be, incomplete by omitting to state any material fact
necessary to make such information not misleading. Insofar as any of the factual
information described above includes assumptions, estimates, projections or
opinions, no representation or warranty is made herein with respect thereto;
PROVIDED, HOWEVER, that to the extent any such assumptions, estimates,
projections or opinions are based on factual matters, SIHL or its Subsidiaries
has reviewed such factual matters and nothing has come to its attention in the
context of such review which would lead it to believe that such factual matters
were not or are not true and correct in all material respects or that such
factual matters omit to state any material fact necessary to make such
assumptions, estimates, projections or opinions not misleading in any material
respect.
SECTION VI.15. PROTECTION UNDER SECURITY INSTRUMENTS. The Debentures,
together with the financing statements (if any) filed with respect thereto,
constitutes a valid, first mortgage lien on, and (where applicable), a valid
perfected floating lien on and security interest in, the property subject
thereto, subject only to Permitted Encumbrances and Liens permitted on such
property by SECTION 7.2.3. The Mortgage covering the real property owned in fee
by SINA or any of its Subsidiaries in the State of New Jersey and (if
applicable, following the consummation of the
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Desert Inn Acquisition) the Mortgage covering the Desert Inn Property owned by
SINI and its Subsidiaries, together with the financing statements filed in each
case with respect thereto constitutes a valid, first mortgage Lien on and
security interest in the property subject thereto, subject only to Permitted
Encumbrances and Liens permitted on such property by SECTION 7.2.3.
SECTION VI.16. NO CONDEMNATION PROCEEDINGS. There is no action, suit or
proceeding (including any proceeding in condemnation or eminent domain or under
any Environmental Law) pending or, to the knowledge of any Borrower or any other
Guarantor, threatened which adversely affects the title to, or the use,
operation or value of, the hotel and casino operations that are subject to the
Debentures.
SECTION VI.17. INSURANCE. SIHL or its Subsidiaries have obtained or caused
to be obtained insurance coverage covering the Bahamas Property and the property
located in the State of New Jersey that is subject to a Mortgage which meets in
all respects the requirements of this Agreement, and such coverage is in full
force and effect.
SECTION VI.18. SENIORITY OF OBLIGATIONS, ETC. Each Subordinated Debt
Issuer has (or will have) the power and authority to incur the Indebtedness (if
any) evidenced by the Subordinated Notes as provided for under each Subordinated
Note Indenture and has (or will have) duly authorized, executed and delivered
each Subordinated Note Indenture, as applicable. Each Subordinated Debt Issuer
has (or will have) issued, pursuant to due authorization, the Subordinated Notes
under each Subordinated Note Indenture. Once executed and delivered by a
Subordinated Debt Issuer, each Subordinated Note Indenture will constitute the
legal, valid and binding obligation of such Subordinated Debt Issuer enforceable
against such Subordinated Debt Issuer in accordance with its terms. The
Subordination Provisions of the Subordinated Notes and contained in each
Subordinated Note Indenture will be enforceable against the holders of the
Subordinated Notes by the holder of any "Senior Indebtedness", "Senior Debt" or
similar term referring to the Obligations, as applicable in such Subordinated
Note Indenture, which has not effectively waived the benefits thereof. All
monetary Obligations, including those to pay principal of and interest
(including post-petition interest, whether or not permitted as a claim under
applicable law) on the Loans and Reimbursement Obligations, and fees and
expenses in connection therewith, constitute (or will constitute) "Senior
Indebtedness", "Senior Debt" or similar term referring to the Obligations, as
applicable in such Subordinated Note Indenture, and all such Obligations are (or
will be) entitled to the benefits of the subordination created by such
Subordinated Note Indenture. SIHL and each of its Subsidiaries acknowledges that
each Lender Party is entering into this Agreement, and is extending its
Commitments, in reliance upon the Subordination Provisions of (or to be
contained in) each Subordinated Note Indenture, the Subordinated Notes and this
Section.
SECTION VI.19. YEAR 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Obligors' computer
systems and (ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which Obligors' systems interface) and the
testing of all such systems and
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equipment, as so reprogrammed, will be completed in all material respects by
December 31, 1999. The cost to the Obligors of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the Obligors
(including reprogramming errors and the failure of other systems or equipment)
will not result in any Default or cause a material adverse effect on the
financial condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole.
ARTICLE VII
COVENANTS
SECTION VII.1. AFFIRMATIVE COVENANTS. Each of the Borrowers agrees with
the Agents, the Issuers and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in full, each of the
Borrowers will perform the obligations set forth in this SECTION 7.1.
SECTION VII.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. SIHL will
furnish, or will cause to be furnished, to each Lender, the Issuer and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of
SIHL, consolidated balance sheets of SIHL and its Subsidiaries, RIH and
its Subsidiaries and the SIBL Group (as applicable) as of the end of such
Fiscal Quarter and consolidated statements of earnings and cash flow of
SIHL and its Subsidiaries, RIH and its Subsidiaries and the SIBL Group (as
applicable), in each case for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such Fiscal Quarter, certified by the chief financial Authorized
Officer of SIHL;
(b) as soon as available and in any event within 105 days after the
end of each Fiscal Year of SIHL, a copy of the annual audit report for
such Fiscal Year for SIHL and its Subsidiaries, including therein a
consolidated balance sheet of SIHL and its Subsidiaries as of the end of
such Fiscal Year and consolidated statements of earnings and cash flow of
SIHL and its Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification) by Xxxxxx Xxxxxxxx LLP or other
independent public accountants acceptable to the Required Lenders,
together with a certificate from such accountants containing a computation
of, and showing compliance with, each of the financial ratios and
restrictions contained in SECTION 7.2.4;
(c) as soon as available and in any event within 60 days after the
end of each Fiscal Quarter, a Compliance Certificate, executed by the
chief financial Authorized Officer of SIHL, (i) showing compliance with
the financial covenants set forth in SECTION
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7.2.4, (ii) showing the amount of Capital Expenditures that were made
during such Fiscal Quarter, and (iii) certifying as to the absence of any
Default;
(d) as soon as possible and in any event within three days after the
occurrence of each Default, a statement of the chief financial Authorized
Officer of SIHL setting forth details of such Default and the action which
SIHL has taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within three days after (x)
the occurrence of any adverse development with respect to any litigation,
action, proceeding, or labor controversy described in SECTION 6.7 or (y)
the commencement of any labor controversy, litigation, action, proceeding
of the type described in SECTION 6.7, notice thereof and copies of all
documentation relating thereto;
(f) promptly after the sending or filing thereof, copies of all
reports which SIHL sends to any of its securityholders, and all reports
and registration statements which SIHL or any of its Subsidiaries files
with the Securities and Exchange Commission or any national securities
exchange;
(g) immediately upon becoming aware of the institution of any steps
by any Borrower or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan which
could result in the requirement that any Borrower furnish a bond or other
security to the PBGC or such Pension Plan, or the occurrence of any event
with respect to any Pension Plan which could result in the incurrence by
any Borrower of any material liability, fine or penalty, or any material
increase in the contingent liability of any Borrower with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies of all
documentation relating thereto;
(h) promptly following any amendment, waiver or other modification
made prior to January 1, 2000 to the Connecticut Management Agreement or
any Management Contract, or delivery of any notice of default or
termination of the Relinquishment Agreement or (if delivered on or
subsequent to the Effective Date) of the Connecticut Management Agreement
or any Management Contract, a copy of such amendment, waiver, modification
and notice;
(i) promptly following the delivery or receipt, as the case may be,
of any written notice or communication pursuant to or in connection with
any Subordinated Note Indenture or any of the Subordinated Notes, a copy
of such notice or communication; and
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(j) such other information respecting the condition or operations,
financial or otherwise, of SIHL or any of its Subsidiaries as either
Issuer or any Lender through the Administrative Agent may from time to
time reasonably request.
SECTION VII.1.2. COMPLIANCE WITH LAWS, ETC. Each Borrower will, and will
cause each of their respective Subsidiaries to, comply in all material respects
with all applicable laws, rules, regulations and orders, such compliance to
include (without limitation):
(a) in the case of SIHL and its Significant Subsidiaries, the
maintenance and preservation of its corporate existence (except as
otherwise permitted by this Agreement) and qualification as a foreign
corporation; and
(b) the payment, before the same becomes delinquent, of all material
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION VII.1.3. MAINTENANCE OF PROPERTIES. Each Borrower will, and will
cause each of their respective Significant Subsidiaries to, maintain, preserve,
protect and keep its properties in reasonably good repair, working order and
condition, and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless SIHL determines in good faith that the continued maintenance
of any of their respective properties (other than the Core Assets) is no longer
economically desirable.
SECTION VII.1.4. INSURANCE. (a) Each Borrower will, and will cause each of
their respective Significant Subsidiaries to, maintain or cause to be maintained
with responsible insurance companies insurance with respect to its properties
and business against such casualties and contingencies and of such types and in
such amounts as is customary in the case of similar businesses, and will, upon
request of the Administrative Agent, furnish to the Lender Parties at reasonable
intervals a certificate of an Authorized Officer of SIHL setting forth the
nature and extent of all insurance maintained by SIHL and its Significant
Subsidiaries in accordance with this Section.
(b) In addition, without limiting the foregoing, SIBL shall (and cause
members of the SIBL Group to) comply with the following requirements:
SIBL will, and will cause its Subsidiaries to, maintain (for so long
as such property is subject to a lien in favor of the Secured Parties)
insurance noting the Collateral Agent's interest as joint loss payee with
SIBL (or such Subsidiary) on behalf of the Secured Parties (to the extent
of their interest) against loss or damage by fire, hurricane, flood,
windstorm, tempest, seawave, earthquake, riot, civil commotion, aircraft
and articles dropped therefrom to the full value thereof (not subject to
average) all
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buildings and the contents thereof, structures and erections situate upon
any freehold or leasehold property of SIBL and its Subsidiaries (both
while under construction and after completion), and in particular shall
maintain with respect thereto:
(i) "All Risks" insurance on the buildings situate thereon in
an amount not less than the replacement building value;
(ii) "All Risks" insurance on all inventory, furnishings,
fittings and equipment situate thereon or in transit thereto; and
(iii) "All Risks" public liability third party insurance in an
amount as is usual for companies carrying on a similar business;
and shall keep the Bahamas Property and all buildings and contents thereof
and structures and erections so insured with an insurer approved by the
Managing Agents. Such insurance insuring the collateral in which the
Lender Parties have a security interest shall include clauses in form
satisfactory to the Administrative Agent to
(iv) ensure payment of any loss to the Collateral Agent (for
the benefit of the Secured Parties), notwithstanding
(A) the occupation or use of the Bahamas Property for
purposes more hazardous than permitted by the terms of any
such policy, or
(B) any exercise of the power of sale or any foreclosure
or other action or proceeding taken by any Agent, any Issuer
or the Lenders pursuant to any provision of this Agreement,
the Debentures or any other Instrument executed pursuant
hereto;
(v) ensure that no breach or violation of any term of or any
warranty declaration or condition contained in such policy of
insurance by SIHL or any of its Subsidiaries or any other assured
will invalidate or render unenforceable such policy or any provision
thereof as regards the Secured Parties;
(vi) provide that the insurers will agree to hold harmless and
waive rights of recourse against the Secured Parties and their
respective officers, directors, employees and agents;
(vii) provide that the insurers will waive any right of
subrogation against the Secured Parties;
(viii) provide that the Secured Parties shall not be liable
for any premiums in respect thereof and that the insurers shall not
exercise any right of set-off or
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counterclaim in respect of unpaid premiums or otherwise against the
interests of the Secured Parties; and
(ix) ensure that the relevant insurer undertakes to advise the
Secured Parties promptly after acquiring knowledge:
(A) of any cancellation of the insurance, at least 30
days (10 days in the case of non-payment of premiums with
respect to insurance maintained by RIH) before such
cancellation is due to take effect;
(B) of any alteration in or termination of or expiry of
the insurance, at least 30 days before such alteration,
termination or expiry is due to take effect;
(C) of any delay or failure to pay any premium or to
renew the insurance, at least 30 days prior to the date of
renewal thereof; and
(D) of any act or omission or any event of which the
insurer has knowledge and which might invalidate or render
unenforceable (as between SIHL, such Subsidiary and such
insurer) in whole or in part such insurance.
SECTION VII.1.5. BOOKS AND RECORDS. Each Borrower will, and will cause
each of their respective Significant Subsidiaries to, keep books and records
which accurately reflect all of their respective business affairs and
transactions and permit the Managing Agents, the Issuers and each Lender or any
of their respective representatives, at reasonable times and intervals, to visit
all of its offices, to discuss its financial matters with its officers and
independent public accountant (and each Borrower hereby authorizes such
independent public accountant to discuss its and such Subsidiaries' financial
matters with each Lender or its representatives whether or not any
representative of any Borrower or such Subsidiary is present) and to examine any
of its books or other corporate records. Following the occurrence of an Event of
Default, SIHL shall pay any fees of such independent public accountant incurred
in connection with either Managing Agent's, either Issuer's or any Lender's
exercise of its rights pursuant to this Section.
SECTION VII.1.6. ENVIRONMENTAL COVENANT. Each Borrower will, and will
cause each of their respective Subsidiaries to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws;
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(b) immediately notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this SECTION 7.1.6.
SECTION VII.1.7. FUTURE INVESTMENTS IN SIGNIFICANT SUBSIDIARIES. To
the extent permitted by this Agreement,
(a) upon SIHL or any Guarantor directly or indirectly acquiring
additional capital stock of or other equity interests in any Person that
constituted a Pledged Share Issuer (as defined in a Pledge Agreement); or
(b) upon SIHL or any other Subsidiary directly or indirectly
acquiring or otherwise having a Significant Subsidiary (including if a
non-Significant Subsidiary becomes a Significant Subsidiary) following the
Effective Date; or
(c) upon SIHL or any of its Subsidiaries making an Investment in a
Person directly or indirectly with the proceeds of any Loans that have
been advanced to SIHL by SIBL, RIH or SINI;
SIHL shall notify the Administrative Agent of such acquisition, and shall cause
any Significant Subsidiary acquired or designated after the Effective Date to
execute and deliver a Security Agreement and, if such Person owns any real
property with a fair market value in excess of $5,000,000, a Mortgage (or, if
applicable, a supplement to an existing Mortgage), and any other instruments,
documents or filings reasonably requested by the Administrative Agent to perfect
its security interest in the collateral described in such Security Agreement and
such Mortgage, and SIHL and each other Obligor shall, pursuant to a Pledge
Agreement (as supplemented, if necessary, by a Foreign Pledge Agreement), pledge
to the Administrative Agent, for its benefit and that of the Secured Parties,
(i) in the case of CLAUSES (a) and (b) above, all of the additional or
outstanding capital stock or equity interests so acquired within 30 days of
acquisition or (ii) in the case of CLAUSE (c) above, the promissory note, duly
endorsed in favor of the Administrative Agent (if such Investment is by way of a
loan or advance) or the capital stock, equity or other ownership interest (if
such Investment is in the form of other than a loan or advance), in each case
made or issued by SIHL and each Significant Subsidiary that is in the chain of
ownership in connection with such Investment, and, in the case of CLAUSES (a),
(b) and (if applicable) (c) above, also deliver to the Administrative Agent
undated stock powers for such certificates, executed in blank (or, if any such
shares of capital stock or equity interests are uncertificated, confirmation and
evidence satisfactory to the Administrative Agent that the security interest in
such uncertificated securities or equity interests has been transferred to and
perfected by the Administrative Agent, for the benefit of the Issuers and the
Lenders, in accordance with Article 8 and Article 9 of the U.C.C. or any other
analogous local law which may be applicable), and to the
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extent any Subsidiary designated as a Significant Subsidiary is not already a
party to a Guaranty, such Significant Subsidiary shall execute and deliver to
the Administrative Agent a Guaranty Supplement together with, if requested by
the Administrative Agent, such opinions of legal counsel for the Obligors from
counsel reasonably satisfactory to the Administrative Agent relating thereto,
which legal opinions shall be in form and substance reasonably satisfactory to
the Administrative Agent. Without limiting the foregoing requirements, SIHL
agrees that it will cause each Subsidiary that is required to deliver a guaranty
of any Subordinated Debt to also execute and deliver a Guaranty Supplement to
the Administrative Agent prior to or contemporaneously delivering a guaranty of
Subordinated Debt. The Lenders acknowledge and agree that SINI shall not be
required to provide a Mortgage and comply with the other terms of this Section
with respect to the Excluded Desert Inn Property until the six-month anniversary
of the date of the consummation of the Desert Inn Acquisition, and then only to
the extent that the Excluded Desert Inn Property has not (on or prior to such
date) been Disposed of pursuant to SECTION 7.2.11.
SECTION VII.1.8. USE OF PROCEEDS. The Borrowers shall apply the proceeds
of each Credit Extension in accordance with the THIRTEENTH RECITAL; without
limiting the foregoing, no proceeds of any Loan will be used to acquire any
equity security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934 or any "margin stock", as defined in F.R.S.
Board Regulation U. Furthermore, each Borrower agrees that if the proceeds of
any Credit Extension will be used in connection with the Desert Inn Acquisition,
such Credit Extension shall initially be made to SINI.
SECTION VII.1.9. MANAGEMENT CONTRACTS; OMNIBUS AGREEMENT, RELINQUISHMENT
AGREEMENT. At all times prior to January 1, 2000, SIHL shall cause the amounts
payable to it under the Omnibus Agreement and to it or its Subsidiaries under
each Management Contract to be payable (i) in the case of the Omnibus Agreement,
to only SIHL and/or (upon no less than 10 Business Days' prior written notice to
the Administrative Agent) one or more Guarantors, and (ii) in the case of each
Management Contract, to SIHL or a Guarantor, and (in each case) upon any
Guarantor being entitled to receive any such payments, each such Guarantor shall
(to the extent it has not already done so), execute and deliver to the
Administrative Agent, for the benefit of the Secured Parties, a Security
Agreement together with executed copies of Uniform Commercial Code financing
statements (Form UCC-1) under the laws of the applicable state, and any
analogous filings required by jurisdictions outside of the United States, in
each case naming SIHL or such Guarantor as a debtor and the Administrative Agent
as the secured party, or such other similar instruments or documents as may be
necessary or, in the opinion of the Administrative Agent, desirable to perfect
the security interest of the Administrative Agent pursuant to the applicable
Security Agreement in such Person's rights under the Management Contract or the
Omnibus Agreement.
SECTION VII.1.10. PRIORITY OF LENDERS' LIENS. Each Borrower will, and will
cause their Subsidiaries to, do all things necessary to ensure that at all times
the claims of the Secured Parties against the Obligors under this Agreement and
the other Loan Documents that provide for
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Collateral Documents are prior to and superior to the claims of all other
creditors, except as expressly permitted in this Agreement.
SECTION VII.1.11. ACCESS TO PROPERTY. Each Borrower shall permit the
Managing Agents and their agents, consultants, employees and representatives
access to inspect its material properties upon giving reasonable notice (except
during the continuance of an Event of Default when no notice shall be required).
SECTION VII.1.12. CONTRACT ASSIGNMENTS. Each Borrower will, and will cause
their Subsidiaries to, execute and deliver an assignment with respect to all
Contracts and Architect's Agreements, pursuant to which all right, title and
interest of SIHL or the relevant Subsidiary in, to, under and in respect of the
Contracts and Architect's Agreements shall be assigned to the Administrative
Agent, for the benefit of the Secured Parties, together with the consent of each
applicable counterparty thereto and the agreement of such counterparty to
perform its Contract or Architect's Agreement in accordance with its terms for
the benefit of the Administrative Agent, for the benefit of the Secured Parties,
which consents and agreements shall be in writing, in form and substance
satisfactory to the Administrative Agent.
SECTION VII.1.13. NJCCC APPROVAL. Within 30 days following receipt by RIH
of NJCCC Approval, RIH shall deliver to the Administrative Agent (a)
counterparts of amendments to the existing Mortgages, each duly executed by an
Authorized Officer of RIH, which amendments shall increase the amount of the
existing Mortgages to an amount equal to the aggregate principal amount of all
Credit Extensions which may at any time be outstanding and otherwise
satisfactory in form and substance to the Managing Agents and their counsel, (b)
evidence of the completion (or satisfactory arrangements for the completion) of
all recordings and filings of the mortgage amendments as may be necessary or, in
the reasonable opinion of the Managing Agents, desirable effectively to insure a
valid first mortgage Lien against the properties purported to be covered
thereby, subject only to the Permitted Encumbrances, (c) such other approvals,
opinions or documents as the Managing Agents may reasonably request with respect
to such amendments, (d) endorsements duly issued by the Title Insurer which
issued the mortgagee's title insurance policies on the existing Mortgages,
amending the existing mortgagee's title insurance policies to amounts reasonably
satisfactory to the Managing Agents and their counsel, which title insurance
policies shall include, to the extent available, a comprehensive endorsement,
variable rate endorsement, access and utilities endorsements, a mechanic's lien
endorsement, a zoning endorsement and such other endorsements as the Managing
Agents shall request, and (e) evidence that all premiums, title examination,
surveys, departmental violations, judgment and Uniform Commercial Code search
charges (as applicable) and other charges and fees shall have been paid in full
or provided for in a manner satisfactory to the applicable Title Insurer and the
Managing Agents.
SECTION VII.1.14. OTHER AMOUNTS. SIHL shall maintain deposits in a
collateral account with the Administrative Agent in an amount reasonably
requested from time to time by, and on terms and conditions satisfactory to, the
Administrative Agent sufficient to pay any duties
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that may become due with respect to the Loan Documents, which amount may be
applied by the Administrative Agent to the payment of such duties at any time
after the occurrence and during the continuance of an Event of Default.
SECTION VII.1.15. APPRAISALS. Upon the written request of any Lender
acting pursuant to Legal Requirements, each of the Borrowers agree that the
Administrative Agent may, at the expense of the Borrowers, commission an
Appraisal of any property (a) to which such Borrower holds legal title and (b)
which is encumbered by any Mortgage or Debenture, or any amendment, restatement,
or modification thereof.
SECTION VII.2. NEGATIVE COVENANTS. Each of the Borrowers agrees with the
Administrative Agent, the Managing Agents, the Issuers and each Lender that,
until all Commitments have terminated and all Obligations have been paid and
performed in full, each of the Borrowers will perform the obligations set forth
in this SECTION 7.2.
SECTION VII.2.1. BUSINESS ACTIVITIES. SIHL will not, and will not permit
any of its Subsidiaries to, engage in any business activity, except those
described in the FIRST RECITAL, the development and sale of time sharing and
resort home properties, and (in each case), such activities as may be incidental
or related thereto.
SECTION VII.2.2. INDEBTEDNESS. SIHL will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than, without
duplication, the following:
(a) Indebtedness of the Borrowers and the Guarantors in respect
of the Credit Extensions and other Obligations;
(b) unsecured Indebtedness of a Borrower owing to a Subsidiary of
SIHL (including another Borrower), but only if such Borrower and such
Subsidiary have executed and delivered to the Administrative Agent a
Subordination Agreement and such Indebtedness shall be evidenced by a note
(which shall, unless the Administrative Agent shall otherwise agree, be in
the form of Exhibit A to a Pledge Agreement and shall, pursuant to a
Pledge Agreement, be pledged to the Administrative Agent for its benefit
and that of the Secured Parties);
(c) Indebtedness existing as of August 12, 1997 which is identified
in ITEM 7.2.2(C) ("Ongoing Indebtedness") of the Disclosure Schedule;
(d) Indebtedness which is incurred by SIHL or any of its
Subsidiaries to a vendor of any assets permitted to be acquired pursuant
to SECTION 7.2.7 to finance its acquisition of such assets;
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(e) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, but excluding
Indebtedness of the types set forth in CLAUSES (a), (b) and (c) of the
definition of Indebtedness or Contingent Liabilities in respect of such
types of Indebtedness);
(f) Indebtedness in respect of Capitalized Lease Liabilities to the
extent permitted in SECTION 7.2.7;
(g) Indebtedness of Guarantors (other than a Borrower) owing to a
Borrower; PROVIDED that such Indebtedness shall not result in such
Borrower being treated as a conduit entity within the meaning of U.S.
Treasury regulations section 1.881-3(a)(2)(ii)(B)(2)(iii) and which shall
be evidenced by a note (which shall, unless the Administrative Agent shall
otherwise agree, be in the form of Exhibit A to the applicable Borrower
Pledge Agreement and which, in the case of Indebtedness of RIH to such
Borrower, unless the failure so to provide would not result in any
Borrower being treated as a conduit entity within the meaning of U.S.
Treasury regulations Section 1.881-3(a)(2)(ii)(B)(2)(iii) shall provide
for aggregate payments of interest that equal or exceed the aggregate
payments of interest that are required to be made hereunder in respect of
an equivalent principal amount of Loans) and shall, pursuant to a Borrower
Pledge Agreement, be pledged to the Administrative Agent for its benefit
and that of the Secured Parties;
(h) Indebtedness of a Guarantor (other than a Borrower) owing to
another Guarantor (other than a Borrower); PROVIDED that such Indebtedness
shall not result in such Guarantor being treated as a conduit entity
within the meaning of U.S. Treasury regulations section
1.881-3(a)(2)(ii)(B)(2)(iii) and which shall be evidenced by a note (which
shall, unless the Administrative Agent shall otherwise agree, be in the
form of Exhibit A to the Subsidiary Pledge Agreement) and shall, pursuant
to a Subsidiary Pledge Agreement, be pledged to the Administrative Agent
for its benefit and that of the Secured Parties;
(i) Indebtedness of SIBL pursuant to (i) the WC Facility or (ii) any
other revolving credit facility entered into by SIBL to refinance the WC
Facility (with such revolving credit facility being referred to as the
"REFINANCING WC FACILITY", and the WC Facility and the Refinancing WC
Facility being collectively referred to as the "SUPPLEMENTAL FINANCING")
and, in the case of the Refinancing WC Facility, on terms and conditions
satisfactory to the Managing Agents), in each case for purposes of
providing working capital funds to SIBL in a principal amount not to
exceed $15,000,000; PROVIDED that prior to incurring Supplemental
Financing, the lenders of the Supplemental Financing (or an agent acting
on behalf of such lenders) shall have executed and delivered to the
Administrative Agent the Intercreditor Agreement;
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(j) unsecured Subordinated Debt of SIHL or its wholly-owned
Subsidiaries;
(k) Indebtedness of a Subsidiary (other than a Guarantor) owing to
another Subsidiary that is not a Guarantor;
(l) Indebtedness of SIHL or its Subsidiaries in the form of
Contingent Liabilities of the obligations of third parties; and
(m) other unsecured Indebtedness of SIHL and its Subsidiaries not to
exceed $15,000,000;
PROVIDED, HOWEVER, that no Indebtedness otherwise permitted by CLAUSE (d) or
CLAUSES (f) through (and including) (m) shall be permitted if, either before or
after giving effect to the incurrence of such Indebtedness, any Default under
SECTION 7.2.4 has occurred and is then continuing or, on a PRO FORMA basis,
would result therefrom.
SECTION VII.2.3. LIENS. SIHL will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations granted pursuant to
any Loan Document and Permitted Encumbrances;
(b) Liens in favor of Secured Parties on the same collateral that
secures the Obligations to secure Indebtedness permitted pursuant to
CLAUSE (i) of SECTION 7.2.2, which Liens may rank PARI PASSU with the
Lender Parties' Lien on the same collateral on terms satisfactory to the
Managing Agents, but only if such Secured Parties have executed and
delivered the Intercreditor Agreement;
(c) Liens described in ITEM 7.2.3(c) ("Existing Liens") of the
Disclosure Schedule granted prior to August 12, 1997 to secure payment of
Indebtedness of the type permitted and described in CLAUSE (c) of SECTION
7.2.2;
(d) Liens granted to secure payment of Indebtedness of the type
permitted and described in CLAUSES (d) or (f) of SECTION 7.2.2 and
covering only those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
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(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(g) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies;
(i) Liens granted by SIHL or any of its Subsidiaries to other than
Subordinated Noteholders (or trustees or representatives of Subordinated
Noteholders) to secure other than Subordinated Debt, consisting of a
security interest in cash, Cash Equivalent Investments and/or marketable
securities to secure obligations of SIHL or such Subsidiaries which are
incurred pursuant to CLAUSE (l) of SECTION 7.2.2; PROVIDED that, the
Secured Parties hereby agree that the Lien in such cash, Cash Equivalent
Investments and/or marketable securities created by the Loan Documents
shall be automatically subordinated to any Lien permitted under this
clause in respect of the Indebtedness incurred under CLAUSE (l) of SECTION
7.2.2; and
(j) Liens on deposits or similar payments made in connection with
Investments permitted by SECTION 7.2.5 or the acquisition of assets
permitted by the terms of this Agreement; PROVIDED, that the maximum
aggregate amount of such deposits or similar payments shall not exceed
$20,000,000.
SECTION VII.2.4. FINANCIAL CONDITION. SIHL will not permit:
(a) the Consolidated Interest Coverage Ratio as of the end of
any Fiscal Quarter to be less than 3.00:1;
(b) Consolidated Net Worth at any time to be less than an amount
equal to the sum of (i) $802,110,000, PLUS (ii) 75% of Net Income of SIHL
and its Subsidiaries for each of the preceding full Fiscal Quarters
occurring since September 30, 1999 (without deduction for losses), PLUS
(iii) 100% of Net Equity Proceeds (if any) received by SIHL during each of
the preceding full Fiscal Quarters occurring since September 30, 1999.
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(c) the Total Debt to Consolidated EBITDA Ratio at any time during
any period set forth below to be greater than the ratio set forth opposite
such period in column I (PROVIDED that until the Desert Inn Acquisition
has been consummated, the ratios set forth in column II shall apply):
Total Debt
Period to Consolidated EBITDA Ratio
------ -----------------------------
I II
-- ---
Effective Date through
June 30, 2000 4.00:1 4.00:1
July 1, 2000 through
December 31, 2000 4.75:1 4.50:1
January 1, 2001 through
June 30, 2001 4.25:1 4.00:1
July 1, 2001 through
December 31, 2001 3.75:1 3.50:1
January 1, 2002 and thereafter 3.25:1 3.25:1
(d) the Senior Funded Debt to Consolidated EBITDA Ratio any time
during any period set forth below to be greater than the ratio set forth
opposite such period in column I (PROVIDED that until the Desert Inn
Acquisition has been consummated, the ratios set forth in column II shall
apply):
Senior Funded Debt
Period to Consolidated EBITDA Ratio
------ -----------------------------
I II
-- ---
Effective Date through
December 31, 1999 3.00:1 3.00:1
January 1, 2000 through
March 31, 2000 2.75:1 2.75:1
April 1, 2000 though
June 30, 2000 2.50:1 2.50:1
July 1, 2000 through
December 31, 2000 3.00:1 2.75:1
January 1, 2001 through
June 30, 2001 2.75:1 2.50:1
July 1, 2001 through
December 31, 2001 2.50:1 2.25:1
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January 1, 2002 and thereafter 2.25:1 2.25:1
The parties hereto hereby acknowledge and agree that the Compliance Certificate
to be delivered for the Fiscal Quarter ended September 30, 1999 shall include
calculations determined by, and shall otherwise be prepared in accordance with,
the terms of the Existing Credit Agreement.
SECTION VII.2.5. INVESTMENTS. SIHL will not, and will not permit any
of its Subsidiaries to, make, incur, assume or suffer to exist any Investment
in any other Person, except (without duplication):
(a) Investments existing on August 12, 1997 and identified in ITEM
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments permitted as Indebtedness pursuant to CLAUSE (b),
CLAUSE (g), CLAUSE (h) and CLAUSE (k) of SECTION 7.2.2;
(d) in the ordinary course of business, Investments by SIHL in the
Guarantors, or by any Guarantor in any other Guarantor, by way of
contributions to or purchases of capital to the extent that all capital
stock of other equity interests evidencing such Investments are pledged to
the Administrative Agent for the benefit of the Secured Parties pursuant
to SECTION 7.1.7;
(e) Investments made with Net Equity Proceeds by SIHL in an amount
equal to the amount of such Net Equity Proceeds in a venture (or in a
Person engaged in a venture) of the type permitted by SECTION 7.2.1,
whether or not such Investment is in a Subsidiary of SIHL, or, after
giving effect to such Investment, the Person in which such Investment is
made becomes a Subsidiary of SIHL; and
(f) subject to SECTION 7.2.1, other Investments;
PROVIDED, HOWEVER, that
(g) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
(h) no Investment otherwise permitted by CLAUSE (f) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Default of the type set forth in
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CLAUSES (a) through (d) of SECTION 8.1.9 or any other Event of Default
shall have occurred and be continuing or would result therefrom; and
(i) notwithstanding anything to the contrary contained herein, an
Investment or other acquisition of all or any portion of the capital stock
or other equity interest in any Person permitted in this Section may be
pursued or made only if such Investment or acquisition is not opposed by
the board of directors (or equivalent managerial body) of such Person
prior to the expenditure of any funds in connection therewith.
SECTION VII.2.6. RESTRICTED PAYMENTS, ETC. SIHL will not, and will
not permit any of the Subsidiaries to,
(a) declare or make a Restricted Payment, or make any deposit for
any Restricted Payment; PROVIDED, that notwithstanding the foregoing, SIHL
shall be permitted to declare or make a Restricted Payment if (x) both
before and after giving effect to the such Restricted Payment, no Default
has occurred and is continuing or would result therefrom, (y) SIHL shall
have delivered a Compliance Certificate to the Administrative Agent
certifying to that effect and evidencing, on a PRO FORMA basis after
giving effect to such Restricted Payment, compliance with each of the
covenants set forth in SECTION 7.2.4, and (z) the aggregate amount of all
Restricted Payments made in any Fiscal Year when aggregated with the
principal amount of, and accrued interest (and premium, if any) on any
Subordinated Notes redeemed, purchased or defeased in accordance with
CLAUSE (b)(ii), shall not exceed the Restricted Payment Amount;
(b) (i) make any payment or prepayment of principal of, or interest
on, any Subordinated Notes (A) on any day other than, in the case of
interest only, the stated scheduled date for such payment of interest set
forth in the applicable Subordinated Notes or in the applicable
Subordinated Note Indenture, or (B) which would violate the terms of this
Agreement or the Subordination Provisions of such Subordinated Note
Indenture; or (ii) redeem, purchase or defease any Subordinated Notes
provided, that notwithstanding the foregoing, SIHL shall be permitted in
each Fiscal Year to pay, prepay, purchase, redeem or defease Subordinated
Notes but only to the extent that the principal amount so paid, prepaid,
purchased, redeemed or defeased, when aggregated with the amount of
Restricted Payments paid under CLAUSE (a), does not exceed the Restricted
Payment Amount; and
(c) make any deposit for any of the foregoing purposes in excess of
the amounts permitted by CLAUSE (a) or (b).
SECTION VII.2.7. CAPITAL EXPENDITURES, ETC. SIHL will not, and will
not permit any of its Subsidiaries to, make or commit to make
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(a) Capital Expenditures in connection with the maintenance of
existing assets or to acquire fixed assets to replace other fixed assets
no longer useful in the business of SIHL and its Subsidiaries which in any
Fiscal Year aggregate in excess of the amount set forth below opposite
such Fiscal Year:
1999 $40,000,000
2000 $45,000,000
2001 $45,000,000
2002 $45,000,000;
PROVIDED, HOWEVER, that (i) to the extent the amount of Capital
Expenditures permitted to be made in any Fiscal Year pursuant to the table
set forth above without giving effect to this CLAUSE (i) (the "BASE
AMOUNT") exceeds the aggregate amount of Capital Expenditures actually
made during such Fiscal Year, such excess amount may be carried forward to
(but only to) the next succeeding Fiscal Year (any such amount to be
certified by SIHL to the Administrative Agent in the Compliance
Certificate delivered for the last Fiscal Quarter of such Fiscal Year, and
any such amount carried forward to a succeeding Fiscal Year shall be
deemed to be used prior to SIHL and its Subsidiaries using the Base Amount
for such succeeding Fiscal Year, without giving effect to such
carry-forward); and
(b) Capital Expenditures made as part of a pre-development program
on the approximately 30-acre parcel of real property adjacent to the
Desert Inn in an aggregate amount since the Effective Date in excess of
$50,000,000.
The Lenders acknowledge and agree that, except as to the limitations set forth
above, SIHL and its Subsidiaries shall be permitted to make other Capital
Expenditures.
SECTION VII.2.8. TRANSACTIONS WITH AFFILIATES. SIHL will not, and will not
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist any arrangement or contract with any of its other Affiliates unless such
arrangement or contract is fair and equitable to SIHL or such Subsidiary and is
an arrangement or contract of the kind which would be entered into by a prudent
Person in the position of SIHL or such Subsidiary with a Person which is not one
of its Affiliates.
SECTION VII.2.9. RESTRICTIVE AGREEMENTS, ETC. SIHL will not, and will not
permit any of its Significant Subsidiaries to, enter into any agreement
(excluding (i) this Agreement and any other Loan Document, (ii) in the case of
CLAUSE (a)(i) below, (x) any agreement governing any Indebtedness permitted by
CLAUSES (d) or (f) of SECTION 7.2.2 as to the assets financed with the proceeds
of such Indebtedness and (y) Indebtedness permitted by CLAUSE (i) of SECTION
7.2.2 and (iii) in the case of CLAUSE (a) below, as required under applicable
laws binding on SINA and its Subsidiaries) prohibiting
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(a) the (i) creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or (ii)
ability of SIHL or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of SIHL or any of its Significant Subsidiaries to
make any payments, directly or indirectly, to any Borrower by way of
dividends, advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or other
returns on Investments, or the ability of any such Significant Subsidiary
to make any payment, directly or indirectly, to any Borrower.
SECTION VII.2.10. CONSOLIDATION, MERGER, ETC. SIHL will not, and will not
permit any of its Significant Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other Person, or purchase or
otherwise acquire all of the capital stock or all or substantially all of the
assets of any Person (or of any division thereof) except
(a) any wholly-owned Subsidiary that is a Guarantor (other than
SIBL, RIH or SINI) may liquidate or dissolve voluntarily into, and may
merge with and into, SIHL or any other wholly-owned Guarantor, and the
assets or stock of any wholly-owned Subsidiary that is a Guarantor (other
than SIBL, RIH or SINI) may be purchased or otherwise acquired by SIHL or
any other wholly-owned Subsidiary that is a Guarantor;
(b) so long as no Default of the type set forth in CLAUSES (a)
through (d) of SECTION 8.1.9 or any other Event of Default has occurred
and is continuing or would occur as a result of, and after giving effect
thereto, SIHL or any of its Subsidiaries may purchase all or substantially
all of the assets or all of the capital stock of any Person if permitted
(without duplication) by SECTION 7.2.7 to be made as a Capital Expenditure
or if permitted as an Investment pursuant to CLAUSES (e) or (f) of SECTION
7.2.5; and
(c) any Subsidiary that is not a Guarantor nor a Significant
Subsidiary may liquidate or dissolve voluntarily into, and may merge with
and into, any other Subsidiary, a Guarantor or any other Person.
SECTION VII.2.11. ASSET DISPOSITIONS, ETC. SIHL will not, and will not
permit any of its Subsidiaries to sell, transfer, lease, contribute or otherwise
convey, or grant options, warrants or other rights (collectively referred to as
a "DISPOSITION"), with respect to, any assets of SIHL or any Subsidiary
(including accounts receivable and capital stock of Subsidiaries) to any Person,
unless
(a) such Disposition is (i) in the ordinary course of its business
(it being agreed that, other than the subdivision and sale of real
property and improvements in each case in and around the Ocean Club and
the golf course located on Paradise Island, The Bahamas, the sale of real
property is not, for purposes of this Agreement or any other
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Loan Document, in the "ordinary course of business") or (ii) permitted by
SECTION 7.2.10; or
(b) such Disposition is of the Excluded Desert Inn Property in
connection with a timeshare joint venture agreement with Starwood or its
Affiliates pursuant to the terms set forth in Exhibit 10.6(b)-1 of the
Desert Inn Purchase Agreement;
(c) such Disposition is the issuance of up to 20% of the capital
stock of SINI to Starwood or its Affiliates pursuant to the terms of the
Starwood Agreements, which Starwood Agreements shall be in form and
substance and containing terms satisfactory to the Managing Agents; or
(d) in addition to CLAUSES (a), (b) and (c), other Dispositions;
PROVIDED, that the fair market value of the assets that are the subject of
the Disposition (i) in any single transaction or series of transactions
does not exceed $30,000,000 in any given Fiscal Year and (ii) after giving
effect to all such Dispositions, does not exceed $75,000,000 in the
aggregate over the term of this Agreement, and any such Disposition is in
an arm's-length transaction and made for fair market value, and at least
50% of the consideration received is in cash, with all non-cash
consideration being evidenced by a note in form and substance satisfactory
to the Administrative Agent, which note shall be pledged to the
Administrative Agent under a Pledge Agreement and the Administrative Agent
shall be satisfied that it has a first priority, perfected Lien on and
security interest in such note.
Notwithstanding anything in this Agreement or in any Loan Document to the
contrary, (i) the Borrowers will not, and will not permit any of their
Subsidiaries to, permit a Disposition of any Core Assets (or any interest
therein), and (ii) a Disposition of any real property contiguous to Core Assets
(or upon which Core Assets are situated) shall only be permitted on terms that
do not contain any restrictions, agreements or covenants that will interfere in
any material adverse respect with access to or the operations of any Core
Assets. Upon a Disposition permitted by this Section the Lien in favor of the
Secured Parties upon the assets so sold, transferred, leased, contributed or
conveyed shall automatically terminate and be released.
SECTION VII.2.12. MODIFICATION OF CERTAIN AGREEMENTS. SIHL will not, and
will not permit any of its Subsidiaries to, agree to or, in the case of the
Relinquishment Agreement, vote in favor of, any material amendment or other
modification to the Relinquishment Agreement, the Omnibus Termination Agreement
or the Desert Inn Purchase Agreement, or (to the extent not restricted by law)
permit the Relinquishment Agreement, the Omnibus Termination Agreement or the
Desert Inn Purchase Agreement to be materially amended without, in the case of
the Relinquishment Agreement and the Omnibus Termination Agreement, the prior
written consent of the Required Lenders, or, in the case of the Desert Inn
Purchase Agreement, the prior written consent of the Managing Agents, which may
be withheld in the sole discretion of the Required Lenders or the Managing
Agents, as applicable; it being acknowledged and agreed by the parties hereto
that any amendment or other modification which would have the effect of (i)
reducing any
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fees paid to SIHL or any Subsidiary under the Relinquishment Agreement, (ii)
shortening the term of the Relinquishment Agreement or (iii) allowing the fees
or other amounts payable under the Relinquishment Agreement to be paid to any
Person or Persons other than TCA, SIHL or a Guarantor, shall, in each case, be
deemed to be material.
SECTION VII.2.13. MODIFICATION OF SUBORDINATED DEBT DOCUMENTS. Without the
prior written consent of the Required Lenders, SIHL will not, and will not
permit any of its Subsidiaries to, consent to any amendment, supplement or other
modification of any of the terms or provisions contained in, or applicable to,
any Subordinated Debt (including any Subordinated Note Indenture or any of the
Subordinated Notes), or any guarantees delivered in connection with any
Subordinated Debt (collectively, the "RESTRICTED AGREEMENTS"), or make any
payment in order to obtain an amendment thereof or change thereto, if the effect
of such amendment, supplement, modification or change is to (i) increase the
principal amount of, or increase the interest rate on, or add or increase any
fee with respect to such Subordinated Debt or any such Restricted Agreement,
advance any dates upon which payments of principal or interest are due thereon
or change any of the covenants with respect thereto in a manner which is more
restrictive to SIHL or any of its Subsidiaries or (ii) change any event of
default or condition to an event of default with respect thereto, change the
redemption, prepayment or defeasance provisions thereof or change the
Subordination Provisions thereof.
SECTION VII.2.14. RATE PROTECTION AGREEMENTS. SIHL will not, and will not
permit any of its Subsidiaries to, enter into any Rate Protection Agreements
with an aggregate notional principal amount of Indebtedness in excess of
$500,000,000, or if less, the Commitment Amount that is available to be drawn or
borrowed under the terms of this Agreement.
SECTION VII.2.15. ASSETS/REVENUES IN OTHER THAN SIGNIFICANT SUBSIDIARIES.
SIHL will not permit more than (i) 15% of the consolidated revenues of SIHL and
its Subsidiaries during any Fiscal Quarter or (ii) 15% of the consolidated
assets of SIHL and its Subsidiaries at the end of any Fiscal Quarter, to be
generated or owned by other than SIHL or Significant Subsidiaries that are
Guarantors.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. LISTING OF EVENTS OF DEFAULT. Each of the following
events or occurrences described in this SECTION 8.1 shall constitute an
"EVENT OF DEFAULT".
SECTION VIII.1.1. NON-PAYMENT OF OBLIGATIONS. Any Borrower shall default
(i) in the payment or prepayment when due of any principal on any Credit
Extension or repayment of any Reimbursement Obligation, or (ii) in the payment
when due of any interest on any Credit Extension or any commitment fee (and such
default shall continue unremedied for a period of
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three Business Days), or (iii) in the payment of any other Obligation (and such
default shall continue unremedied for a period of 15 days following the
submission of an invoice to the relevant Borrower and SIHL in respect of such
other Obligation).
SECTION VIII.1.2. BREACH OF WARRANTY. The representations and warranties
of SIHL or any other Obligor made or deemed to be made hereunder or in any other
Loan Document executed by it or any other writing or certificate furnished by or
on behalf of any Obligor to the Administrative Agent, either Issuer or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to ARTICLE V)
is or shall be incorrect when made in any material respect.
SECTION VIII.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS AND Obligations.
Any Borrower shall default in the due performance and observance of any of its
obligations under SECTION 7.2 or SECTIONS 7.1.1, 7.1.4, 7.1.6 or 7.1.7.
SECTION VIII.1.4. NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 15 days after notice
thereof shall have been given to the relevant Obligor and SIHL by the
Administrative Agent.
SECTION VIII.1.5. DEFAULT ON OTHER INDEBTEDNESS. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in SECTION 8.1.1) of SIHL or any Significant Subsidiary having a
principal amount, individually or in the aggregate, in excess of $7,500,000, or
a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness of SIHL or any Significant
Subsidiary which results in the acceleration of the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness of SIHL
or any Significant Subsidiary, or any trustee or agent for such holders, to
cause such Indebtedness to become due and payable prior to its expressed
maturity.
SECTION VIII.1.6. JUDGMENTS. Any judgment or order for the payment of
money in excess of $7,500,000 (to the extent not covered by insurance (other
than self-insurance)) shall be rendered against SIHL or any Significant
Subsidiary and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
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SECTION VIII.1.7. PENSION PLANS. Any of the following events shall
occur with respect to any Pension Plan
(a) the institution of any steps by any Borrower, any member of
their respective Controlled Group or any other Person to terminate a
Pension Plan if, as a result of such termination, such Borrower or any
such member could be required to make a contribution to such Pension Plan,
or would reasonably expect to incur a liability or obligation to such
Pension Plan, in excess of $5,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION VIII.1.8. CHANGE IN CONTROL. Any Change in Control shall
occur.
SECTION VIII.1.9. BANKRUPTCY, INSOLVENCY, ETC. SIHL or any of its
Significant Subsidiaries or any Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for such Person or any
property of any thereof, or make a general assignment for the benefit of
creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Person or for a substantial part
of the property of any thereof, and such trustee, receiver, sequestrator
or other custodian shall not be discharged within 60 days, provided that
each such Person hereby expressly authorizes the Administrative Agent,
each Issuer and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend their
rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of any such Person, and, if any such
case or proceeding is not commenced by such Person, such case or
proceeding shall be consented to or acquiesced in by such Person or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that each such Person hereby expressly authorizes
the Administrative Agent, each Issuer and each Lender to appear in any
court conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
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(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION VIII.1.10. IMPAIRMENT OF SECURITY, ETC. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; SIHL or any
other Obligor or any other party shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or enforceability; or any
Lien securing any Obligation shall, in whole or in part, cease to be a perfected
first priority Lien, subject only to those exceptions expressly permitted by
such Loan Document.
SECTION VIII.1.11. AMENDMENTS TO, OR TERMINATION OF, CERTAIN Agreements.
The TCA Partnership Agreement, the Relinquishment Agreement or the Omnibus
Termination Agreement shall, in whole or in part, be amended, supplemented,
modified, terminated, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any party thereto, in each case if the
effect of such amendment, supplement, modification, termination or other action,
is materially adverse to the financial condition, operations, assets, business
or properties of SIHL and its Subsidiaries, taken as a whole.
SECTION VIII.1.12. LOSS OF BAHAMIAN APPROVALS. The approval of the
Exchange Control of The Central Bank of The Commonwealth of The Bahamas with
respect to this Agreement or the Notes delivered by SIBL or SIHL, and the
undertaking to make available to SIBL or SIHL and the other Obligors such
foreign exchange as may be necessary to enable SIBL or SIHL and the other
Obligors to fulfill their payment obligations in Dollars, ceases to be in full
force and effect and SIBL or SIHL shall fail to renew the same within 30 days or
alternative arrangements shall not have been made by SIBL or SIHL for payment of
the Obligations in Dollars.
SECTION VIII.1.13. LOSS OR REVOCATION OF CASINO LICENSE. Any Casino
License is revoked, suspended, rescinded, denied or not renewed when required in
accordance with its terms and as a result the casino or casinos governed thereby
are not able to operate for a period of 14 or more days.
SECTION VIII.1.14. LOSS OF PROPERTY; CHANGE IN MANAGEMENT. SIBL or any of
the Obligors or any material part of the revenues or assets of SIBL, the
Obligors or the Bahamas Property (as the case may be) is seized, nationalized,
expropriated or compulsorily purchased or any applicable authority resolves to
make an order for such seizure, nationalization, expropriation or compulsory
purchase or the management of SIBL or any Obligor is wholly or partially
displaced or its authority in the conduct of its business is wholly or partially
curtailed and such action would reasonably be expected to have a material
adverse effect on the financial condition, operations, assets, business or
properties of SIHL and its Subsidiaries, taken as a whole.
SECTION VIII.1.15. FAILURE OF SUBORDINATION. The subordination provisions
relating to any Subordinated Note Indenture or contained in any Subordinated
Notes (the "SUBORDINATION
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PROVISIONS") shall fail to be enforceable by the Lender Parties (which have not
effectively waived the benefits thereof) in accordance with the terms thereof,
or the principal or interest on any Loan, Reimbursement Obligation or other
monetary Obligations shall fail to constitute Senior Indebtedness, "Senior Debt"
or the same (or any other similar) term used to define the monetary Obligations;
or any Subordinated Debt Issuer (or guarantor of any Subordinated Debt) shall,
directly or indirectly, disavow or contest in any manner (i) the effectiveness,
validity or enforceability of any of the Subordination Provisions, or (ii) that
any of such Subordination Provisions exist for the benefit of the Lender
Parties.
SECTION VIII.1.16. REDEMPTION. Any judgment shall be entered in favor of a
Subordinated Noteholder rescinding the Subordination Provisions of any
Subordinated Debt or any event shall occur which, under the terms of or any
other agreement or Subordinated Note Indenture, as the case may be, shall
require any Subordinated Debt Issuer to purchase, redeem or otherwise acquire or
offer to purchase, redeem or otherwise acquire all or any portion of the
principal amount of any such Subordinated Debt prior to its final stated
maturity date (other than as a result of the conversion of such Subordinated
Debt into the equity of SIHL without the requirement of any monetary
consideration being paid by or on behalf of SIHL).
SECTION VIII.2. ACTION IF BANKRUPTCY. If any Event of Default described in
CLAUSES (a) through (d) of SECTION 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION VIII.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in CLAUSES (a) through (d) of SECTION
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrowers declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE IX
THE CO-SYNDICATION AGENTS,
ADMINISTRATIVE AGENT,
COLLATERAL AGENT
AND MANAGING AGENTS
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SECTION IX.1. ACTIONS. Each Lender and Issuer hereby appoints Scotiabank
and SG as the Managing Agents. Each Lender and Issuer hereby appoints (i)
Scotiabank as its Administrative Agent under and for purposes of this Agreement
and each other Loan Document, and as Collateral Agent under and for all purposes
of the Intercreditor Agreement and (ii) Scotiabank and SG as the Managing Agents
under and for purposes of this Agreement and each other Loan Document. Each
Lender and Issuer authorizes the Administrative Agent, the Collateral Agent and
the Managing Agents to act on behalf of such Issuer or Lender under this
Agreement and each other Loan Document as Administrative Agent or Managing Agent
(as applicable) and under the Intercreditor Agreement as Collateral Agent and,
in the absence of other written instructions from the Required Lenders received
from time to time by the Administrative Agent, Collateral Agent or Managing
Agents (with respect to which the Administrative Agent, each Managing Agent or
the Collateral Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of such
Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender and Issuer hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the Administrative
Agent, each Managing Agent and Collateral Agent, PRO RATA according to such
Lender's Percentage, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, such
Agent in any way relating to or arising out of this Agreement and any other Loan
Document or the Intercreditor Agreement, including reasonable attorneys' fees,
and as to which such Agent is not reimbursed by an Obligor; PROVIDED, HOWEVER,
that no Lender or Issuer shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from such Agent's gross negligence or wilful misconduct. Neither
the Administrative Agent, either Managing Agent nor the Collateral Agent shall
be required to take, or omit to take, any action hereunder, under the Notes or
under any other Loan Document or (in the case of the Collateral Agent) under the
Intercreditor Agreement, or to prosecute or defend any suit in respect of this
Agreement or any other Loan Document or the Intercreditor Agreement, unless it
is indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent, either Managing Agent or the Collateral Agent shall be or
become, in such Agent's determination, inadequate, such Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
SECTION IX.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender severally and
each Borrower jointly and
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severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the applicable Borrower
to the date such amount is repaid to the Administrative Agent, at the interest
rate applicable at the time to Loans comprising such Borrowing.
SECTION IX.3. EXCULPATION. Neither the Managing Agents, the Collateral
Agent or the Administrative Agent nor any of their respective directors,
officers, employees or agents shall be liable to any Secured Party for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document or under the Intercreditor Agreement, or in connection herewith or
therewith, except for its own wilful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document or the Intercreditor Agreement, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents or the Intercreditor Agreement, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by any Obligor of its obligations
hereunder or under any other Loan Document or under the Intercreditor Agreement.
Any such inquiry which may be made by the Collateral Agent or the Administrative
Agent shall not obligate it to make any further inquiry or to take any action.
The Administrative Agent and the Collateral Agent shall each be entitled to rely
upon advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which such Agent believes to be genuine and to
have been presented by a proper Person.
SECTION IX.4. SUCCESSOR. Each Managing Agent may resign upon the terms set
forth in CLAUSE (a). The Administrative Agent may resign upon the terms set
forth in CLAUSE (b). The Collateral Agent may resign in accordance with the
terms of the Intercreditor Agreement.
(a) Each Managing Agent may resign at any time upon at least 60
days' notice to the Borrowers and all Lenders. If a Managing Agent at any
time shall resign, the Required Lenders may appoint another Lender as a
successor Managing Agent which, with the prior written consent of SIHL,
not to be unreasonably withheld or delayed, shall thereupon become a
Managing Agent hereunder. If no successor Managing Agent shall have been
so appointed by the Required Lenders, and shall have accepted such
appointment, within 60 days after the retiring Managing Agent's giving
notice of resignation, then the retiring Managing Agent may, on behalf of
the Lenders and with the consent of SIHL (not to be unreasonably
withheld), appoint a successor Managing Agent, which shall be one of the
Lenders. In furtherance of the foregoing, upon the announcement that any
Managing Agent will resign in its capacity as a Managing Agent, each of
SIHL and the Lenders agree to use their best efforts to promptly appoint
another Managing Agent. If no successor Managing Agent shall have been so
appointed and shall have accepted such appointment, then the remaining
Managing Agent shall be vested with the right to make the decisions that
are otherwise required to be made by the Managing Agents under this
Agreement and each Loan Document. If at any time there is
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no Managing Agent, then the Required Lenders shall be vested with the
right to make any decisions that are otherwise required to be made by the
Managing Agents under this Agreement and each Loan Document. Upon the
acceptance of any appointment as a Managing Agent hereunder, such
successor Managing Agent shall be entitled to receive from the retiring
Managing Agent such documents of transfer and assignment as such successor
Managing Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the
retiring Managing Agent, and the retiring Managing Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Managing Agent's resignation hereunder as a Managing Agent, the
provisions of
(i) this ARTICLE IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was a Managing
Agent under this Agreement; and
(ii) SECTION 10.3 and SECTION 10.4 shall continue to inure to
its benefit.
(b) The Administrative Agent may resign as such at any time upon at
least 60 days' prior notice to SIHL and all Lenders. If the Administrative
Agent at any time shall resign, the Required Lenders may appoint another
Lender as a successor Administrative Agent which, with the prior written
consent of SIHL, not to be unreasonably withheld or delayed, shall
thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the U.S. (or
any State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder, such successor Administrative Agent shall be entitled to
receive from the retiring Administrative Agent such documents of transfer
and assignment as such successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative
Agent's resignation hereunder as the Administrative Agent, the provisions
of
(i) this ARTICLE IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(ii) SECTION 10.3 and SECTION 10.4 shall continue to inure to
its benefit.
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SECTION IX.5. LOANS BY AGENTS. Each of Scotiabank and SG shall have the
same rights and powers with respect to (x) the Credit Extensions made by either
of them or any of their respective Affiliates, and (y) the Notes held by either
of them or any of their respective Affiliates as any other Lender and may
exercise the same as if it were not an Agent, as applicable. Each of Scotiabank
and SG and their respective Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with any Borrower or any Subsidiary
or Affiliate of SIHL as if Scotiabank and SG were not an Agent hereunder,
including providing the Supplemental Financing and being a counterparty to a
Rate Protection Agreement.
SECTION IX.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of the Administrative Agent, the Collateral Agent, each Managing
Agent and each other Lender, and based on such Lender's review of the financial
information of the Borrowers, this Agreement, the other Loan Documents and the
Intercreditor Agreement (the terms and provisions of which being satisfactory to
such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its
Commitment. Each Lender also acknowledges that it will, independently of the
Administrative Agent, the Collateral Agent, each Managing Agent and each other
Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions as
to exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document and under the
Intercreditor Agreement.
SECTION IX.7. COPIES, ETC. The Administrative Agent and the Collateral
Agent (in the case of the Intercreditor Agreement) shall give prompt notice to
each Lender of each notice or request required or permitted to be given to such
Agent by any Borrower pursuant to the terms of this Agreement or the
Intercreditor Agreement (as applicable) unless concurrently delivered to the
Lenders by a Borrower. The Administrative Agent and the Collateral Agent (in the
case of the Intercreditor Agreement) will distribute to each Lender each
document or instrument received for its account and copies of all other
communications received by the Administrative Agent and the Collateral Agent (in
the case of the Intercreditor Agreement) from each Borrower for distribution to
the Lenders by such Agent in accordance with the terms of this Agreement or the
Intercreditor Agreement (as applicable).
SECTION IX.8. ADMINISTRATIVE AGENT INDEPENDENT RIGHTS. Each of the parties
hereto hereby agrees that (i) the Administrative Agent will be a joint and
several creditor of each and every Obligation of each Borrower and the Obligors
under the Credit Agreement and each other Loan Document, (ii) subject to the
provisions hereof, the Administrative Agent shall have its own independent right
to demand performance by a Borrower and each other Obligor of the Obligations
under this Agreement and each other Loan Document and (iii) any payments made
directly to the Administrative Agent in respect of the Obligations shall have
been deemed to have been made by such Borrower or such other Obligor for the
benefit of the Lender Parties.
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SECTION IX.9. THE SYNDICATION AGENTS. Notwithstanding anything else to the
contrary contained in this Agreement or any other Loan Document, neither
Co-Syndication Agent, in such capacity, shall have any rights, duties or
responsibilities under this Agreement or any other Loan Document, or any
fiduciary relationship with any Secured Party, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any Loan Document or otherwise exist against either
Co-Syndication Agent in such capacity.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; PROVIDED, however, that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders shall be effective unless consented to by each
Lender;
(b) modify this SECTION 10.1, decrease the percentage contained in
the definition of "Required Lenders", increase the Commitment Amount by
more than $175,000,000, release (i) all or substantially all collateral
security or (ii) a Guarantor from its obligations under a Guaranty or
under SECTION 3.4, except as otherwise specifically provided in any Loan
Document, or extend the Commitment Termination Date shall be made without
the consent of each Lender (it being agreed that no consent need be
obtained in the case of the release of collateral in accordance with
SECTION 7.2.11);
(c) increase the aggregate amount of Credit Extensions required to
be made by or participated in by a Lender, reduce any fees described in
ARTICLE III payable to a Lender, extend the due date for, or reduce the
amount of, any scheduled repayment or prepayment of principal of or
interest on any Loan (or reduce the principal amount of or rate of
interest on any Loan) of a Lender shall be made without the consent of
such adversely affected Lender;
(d) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit; or
(e) affect adversely the interests, rights or obligations of any
Agent in its capacity as an Agent or any Issuer in its capacity as an
Issuer shall be made without consent of such Agent or such Issuer, as the
case may be.
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No failure or delay on the part of any Lender Party in exercising any power or
right under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Borrower or any other Obligor in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Lender under this Agreement or any
other Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION X.2. NOTICES. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by facsimile and addressed, delivered or transmitted to such party at its
address or facsimile number set forth below its signature hereto or set forth in
the Lender Assignment Agreement or at such other address or facsimile number as
may be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when received.
SECTION X.3. PAYMENT OF COSTS AND EXPENSES. The Borrowers jointly and
severally agree to pay on demand all expenses of the Managing Agents (including
reasonable out-of-pocket expenses incurred by the Managing Agents in connection
with the reasonable fees and out-of-pocket expenses of counsel to the Managing
Agents and of local counsel, if any, who may be retained by counsel to the
Managing Agents) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of any Collateral
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements and modifications to any thereof
and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the terms
hereof or of any Collateral Document or any other Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save the
Managing Agents, the Issuers and the Lenders harmless from all liability for,
any stamp or other taxes which may be payable in connection with the execution
or delivery of this Agreement, the Credit Extensions
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hereunder, or the issuance of the Notes or any other Loan Documents. The
Borrowers also jointly and severally agree to reimburse the Administrative
Agent, each Issuer and each Lender upon demand for all reasonable out-of-pocket
expenses (including attorneys' fees and legal expenses) incurred by the
Administrative Agent, such Issuer or such Lender in connection with (x) the
negotiation of any restructuring or "work-out", whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
SECTION X.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitment,
the Borrowers hereby jointly and severally indemnify, exonerate and hold each of
the Agents, the Issuers and each Lender and each of their respective officers,
directors, employees and agents (collectively, the "INDEMNIFIED PARTIES") free
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "INDEMNIFIED LIABILITIES"),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties, so long as the same
shall not have constituted a breach thereof by such Indemnified Party
(including any action brought by or on behalf of any Borrower as the
result of any determination by the Required Lenders pursuant to ARTICLE V
not to fund any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by SIHL or any of its Subsidiaries of
all or any portion of the stock or assets of any Person, whether or not
such Agent, such Issuer or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by SIHL or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by SIHL or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, SIHL or
such Subsidiary,
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except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers jointly and
severally hereby agree to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION X.5. SURVIVAL. The obligations of the Borrowers under SECTIONS
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
SECTION 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by each Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION X.6. SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION X.7. HEADINGS. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION X.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be executed by each Borrower and the Agents and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when (i) counterparts hereof
executed on behalf of the Borrowers, each Issuer, the Agents and each Lender (or
notice thereof satisfactory to the Administrative Agent) shall have been
received by the Administrative Agent and notice thereof shall have been given by
the Administrative Agent to SIHL and each Lender, (ii) the conditions precedent
set forth in SECTION 5.1 shall have been satisfied or waived in full, and (iii)
the Administrative Agent (or, in the case of amounts payable under the Fee
Letters, the applicable Lender) shall have received for its own account, or for
the account of such Lender, as the case may be, all fees, costs and expenses due
and payable pursuant to SECTIONS 3.3 and 10.3, if then invoiced.
SECTION X.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE FOREIGN PLEDGE AGREEMENTS, THE
MORTGAGES AND THE DEBENTURES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement and
the other Loan Documents (including the Fee Letters) constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and thereof and supersede any prior agreements,
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written or oral, with respect thereto. In the event of any conflict between the
terms and conditions of this Agreement and the terms and conditions of any
Debentures or the Mortgages the terms and conditions of this Agreement shall
prevail.
SECTION X.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that:
(a) neither any Borrower nor any other Obligor may assign or
transfer its rights or obligations hereunder without the prior written
consent of all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to SECTION 10.11.
SECTION X.11. SALE AND TRANSFER OF LOANS AND NOTE; PARTICIPATIONS IN LOANS
AND NOTE. Each Lender may assign, or sell participations in, its Loans, Letters
of Credit participations and Commitment to one or more other Persons in
accordance with this SECTION 10.11.
SECTION X.11.1. ASSIGNMENTS. Any Lender,
(a) with the written consents of the Borrowers, the Issuers and the
Administrative Agent (which consents shall not be unreasonably delayed or
withheld and, with respect to the consent of the Borrowers, shall not be
required if an Event of Default has occurred and is continuing) may at any
time assign and delegate to one or more commercial banks or other
financial institutions; and
(b) with notice to the Borrowers, the Issuers and the Administrative
Agent, but without the consent of the Borrowers, the Issuers or the
Administrative Agent, may assign and delegate to any of its Affiliates
but in each case only to a Person that is exempt from qualification under
N.J.S.A. 5:12-85 (each such Person to whom such assignment and delegation is to
be made, being hereinafter referred to as an "ASSIGNEE LENDER"), all or any
fraction of such Lender's total Loans, Letters of Credit Outstanding and
Commitments (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans, Loan Commitment, Letter
of Credit Commitment and participation in the Letters of Credit issued hereunder
(and shall be of a constant (and not a varying) Percentage of its Commitment to
lend to each Borrower) in a minimum aggregate amount of $5,000,000 (or the then
remaining amount of such Lender's Loans, participating interests in Letter of
Credit Outstandings and Commitments); PROVIDED, HOWEVER, (i) that in the case of
partial assignments of a Lender's Loans, participating interests in Letter of
Credit Outstandings and Commitments after giving effect to any such assignment
such Lender shall have Loans, participating interests in Letters of Credit
Outstandings and Commitments in an aggregate amount of at least $5,000,000, (ii)
any assignment by a Lender to
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any of its Affiliates shall not be subject to the terms of this SECTION 10.11.1
and may be made free and clear of any restriction, PROVIDED that, in the case of
any assignment to an Affiliate, the Obligors shall not be required to pay any
amount under SECTIONS 4.3, 4.4, 4.5 or 4.6 that is greater than the amount which
it would have been required to pay had no assignment to an Affiliate been made,
(iii) any such Assignee Lender will comply, if applicable, with the provisions
contained in SECTION 4.6 and (iv) each Obligor and the Agents shall be entitled
to continue to deal solely and directly with such Lender in connection with the
interests so assigned and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to SIHL, the Issuers and the
Administrative Agent by such Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to SIHL
and the Administrative Agent a Lender Assignment Agreement, accepted by
the Issuers and the Administrative Agent and the Administrative Agent
shall have registered such assignment and delegation in the Register; and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent and the Issuers accept
such Lender Assignment Agreement and such assignment and delegation is
registered in the Register, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it and assumed by the Assignee Lender in
connection with such Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Loan Documents. Within five Business
Days after its receipt of notice that the Administrative Agent and the Issuers
have received an executed Lender Assignment Agreement, the Borrowers shall, upon
the request of the Assignee Lender pursuant to SECTION 2.7, execute and deliver
to the Administrative Agent (for delivery to the relevant Assignee Lender) new
Notes evidencing such Assignee Lender's assigned Loans and Commitment and, if
the assignor Lender has retained Loans and a Commitment hereunder and requested
a Note pursuant to SECTION 2.7, replacement Notes in the principal amount of the
Loans and Commitment retained by the assignor Lender hereunder (such Notes to be
in exchange for, but not in payment of, those Notes, if any, then held by such
assignor Lender). Each such Note shall be dated the date of the predecessor (and
corresponding) Note. The assignor Lender shall xxxx each predecessor Note
"exchanged" and deliver it to SIHL. Accrued interest on that part of any
predecessor Note evidenced by a new Note, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on that part of
any predecessor Note evidenced by a replacement Note shall be paid to the
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assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,000. Any attempted assignment and delegation not made in accordance
with this SECTION 10.11.1 shall be null and void. Notwithstanding anything to
the contrary set forth above, any Lender may (without requesting the consent of
any Borrower or the Administrative Agent) pledge its Loans to a Federal Reserve
Bank in support of borrowings made by such Lender from such Federal Reserve
Bank.
SECTION X.11.2. PARTICIPATIONS. Any Lender may at any time sell to one or
more commercial banks or other financial institutions (each of such commercial
banks and other financial institutions being herein called a "PARTICIPANT")
participating interests in any of the Loans, Loan Commitment, Letter of Credit
Commitment and Letter of Credit Outstandings participated in by it, or other
interests of such Lender hereunder; PROVIDED, HOWEVER, that
(a) no participation contemplated in this SECTION 10.11 shall
relieve such Lender from its Commitment or its other obligations hereunder
or under any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitment and such other obligations;
(c) each Obligor and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, and no Lender shall take or refrain from taking any action
hereunder or under any other Loan Document upon the instruction or in
accordance with the direction of any Participant except that such Lender
may agree with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in CLAUSE
(B) or (C) of SECTION 10.1; and
(e) no Obligor shall be required to pay any amount under SECTION
4.3, 4.4, 4.5, or 4.6 that is greater than the amount which it would have
been required to pay had no participating interest been sold.
Each Obligor acknowledges and agrees that each Participant, for purposes of
SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION X.12. OTHER TRANSACTIONS. Nothing contained herein shall preclude
any Agent, any Issuer or any other Lender from engaging in any transaction, in
addition to those
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contemplated by this Agreement or any other Loan Document, with SIHL or any of
its Affiliates in which SIHL or such Affiliate is not restricted hereby from
engaging with any other Person.
SECTION X.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, ANY ISSUER, THE LENDERS, OR
THE OBLIGORS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF NEW YORK, COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH BORROWER HEREBY IRREVOCABLY APPOINTS CT
CORPORATION SYSTEMS (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT
0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, XXXXXX XXXXXX, AS ITS AGENT TO RECEIVE,
ON SUCH PERSON'S BEHALF AND ON BEHALF OF SUCH PERSON'S PROPERTY, SERVICE OF
COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING
A COPY OF SUCH PROCESS TO SUCH PERSON IN CARE OF THE PROCESS AGENT AT THE
PROCESS AGENT'S ABOVE ADDRESS, AND EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES
AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT SUCH
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER
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THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION X.14. WAIVER OF JURY TRIAL. EACH AGENT, EACH ISSUER, THE LENDERS,
EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUERS, THE LENDERS OR THE
BORROWERS. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUERS, AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION X.15. JUDGMENT CURRENCY. The Obligations of each Borrower and each
other Obligor in respect of any sum due to any Lender or the Administrative
Agent hereunder, under the Notes or under or in respect of any other Loan
Document shall, notwithstanding any judgment in a currency (the "JUDGMENT
CURRENCY") other than the currency in which such sum was originally denominated
(the "ORIGINAL CURRENCY"), be discharged only to the extent that on the Business
Day following receipt by such Lender or the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, such Lender or the
Administrative Agent, in accordance with normal banking procedures, purchases
the Original Currency with the Judgment Currency. If the amount of Original
Currency so purchased is less than the sum originally due to such Lender or the
Administrative Agent, each Borrower agrees as a separate obligation and
notwithstanding any such judgment, to indemnify each Lender and the
Administrative Agent, as the case may be, against such loss, and if the amount
of Original Currency so purchased exceeds the sum originally due to such Lender
and the Administrative Agent, as the case may be, each Lender and the
Administrative Agent agree to remit any excess to the applicable Obligor.
SECTION X.16. CONFIDENTIALITY. The Lenders shall hold all non-public
information obtained pursuant to the requirements of or in connection with this
Agreement which has been identified as such by SIHL in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event, subject to
SECTIONS 10.11.1 and 10.11.2, may make disclosure (i) to commercial banks or
other financial institutions in connection with the contemplated transfer of all
or any part of their assignment of their Loans and Commitment or participation
therein so long as a
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similar confidentiality undertaking enforceable by such Lender, the
Administrative Agent and SIHL are theretofore obtained by the Lender, (ii) to
their examiners, Subsidiaries, outside auditors, counsel and other professional
advisors in connection with this Agreement and (iii) as required or requested by
any governmental authority or representative thereof or pursuant to legal
process; PROVIDED that, unless specifically prohibited by applicable law or
court order, each Lender shall endeavor to notify SIHL of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information; and PROVIDED, FURTHER, that in no event shall
any Lender be obligated or required to return any materials furnished by any
Obligor.
SECTION X.17. SCHEDULES. The information set forth in the Schedules
(including the Disclosure Schedule) to this Agreement is qualified in its
entirety by reference to the specific provisions of this Agreement and is not
intended to constitute, and shall not be construed as constituting,
representations or warranties of the party to which such Schedules relate except
as and to the extent provided in this Agreement. Inclusion of information in the
Schedules shall not be construed as an admission that such information is
material for purposes of the specific provisions of this Agreement to which such
information relates. Information included in the Schedules that is not required
to be so included under the specific provisions of this Agreement shall be
deemed to be included for information purposes only and information of a similar
nature need not be included elsewhere, at the discretion of the party providing
such information. Any information disclosed by a party in any Schedule shall be
deemed to be disclosed in all the Schedules of such party and for all purposes
under this Agreement to the extent the specific provisions of this Agreement
require such disclosure.
SECTION X.18. REPLACEMENT OF LENDERS. In the event that S&P, Xxxxx'x or
Xxxxxxxx'x BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders
that are insurance companies (or Best's Insurance Reports, if such insurance
company is not rated by Insurance Watch Ratings Service)) shall downgrade the
long-term certificate of deposit rating or long-term senior unsecured debt
rating of such Lender, and the resulting rating shall be below BBB-, Baa3 or C
(or BB, in the case of Lender that is an insurance company (or B, in the case of
an insurance company not rated by InsuranceWatch Ratings Service)), then each
Issuer and SIHL shall have the right, but not the obligation, upon notice to
such Lender and the Administrative Agent, to replace such Lender with an
Assignee Lender in accordance with and subject to the restrictions contained in
SECTION 10.11.1, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
SECTION 10.11.1) all its interests, rights and obligations in respect of its
Commitments, outstanding Loans and participating interest in Letter of Credit
Outstanding under this Agreement to such Assignee Lender; PROVIDED, HOWEVER,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any governmental authority, (ii) such Assignee Lender shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of payment on
the Loans made, and Letters of Credit participated in, by such Lender hereunder
and all other amounts accrued for such Lender's
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account or owed to it hereunder and (iii) SIHL and the Issuers agree that the
certificate of deposit rating and long-term senior unsecured debt rating of each
Lender that is a signatory to this Agreement on the Effective Date (or, if no
such rating is available, the "individual" rating by IBCA Limited (and, if
neither rating is available for such original Lender, then such rating of the
parent holding company of such Lender)) is acceptable, and following the
Effective Date such Lender shall be subject to this Section only if the
applicable rating is downgraded below that in effect on the Effective Date.
SECTION X.19. RELEASE OF NON-SIGNIFICANT SUBSIDIARIES. The parties hereto
acknowledge and agree that (a) each Subsidiary listed on ITEM 10.19(A)
("Released Guarantors") of the Disclosure Schedule shall be released from its
obligations under the Subsidiary Guaranty and any Liens previously granted by
such Released Grantors to secure payment and performance of the Obligations
shall be released and (b) the Pledged Shares of each of Subsidiary listed on
ITEM 10.19(B) ("Released Pledged Share Issuers") of the Disclosure Schedule
shall be released from the Lien of a Pledge Agreement, in each case based upon
the Borrowers' representation that such parties are not Significant
Subsidiaries. Each Lender hereby authorizes the Collateral Agent to take all
actions and execute all documents necessary to evidence such releases.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
SUN INTERNATIONAL BAHAMAS LIMITED
By:_______________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxx
SUN INTERNATIONAL HOTELS LIMITED
By:_____________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxx
RESORTS INTERNATIONAL HOTEL, INC.
By:______________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
SUN INTERNATIONAL NEVADA, INC.
By:___________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
THE BANK OF NOVA SCOTIA,
as Administrative Agent, as a
Managing Agent, as an Issuer and
as a Lender
By:________________________________
Title:
SOCIETE GENERALE, as a Managing Agent, as
an Issuer and as a Lender
By:________________________________
Title:
BANKERS TRUST COMPANY,
as a Co-Agent
By:________________________________
Title:
CIBC INC.,
as a Co-Agent
By:________________________________
Title:
THE ROYAL BANK OF SCOTLAND PLC,
as a Co-Agent
By:________________________________
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Co-Agent
By:_____________________________________
Title:
THE ROYAL BANK OF SCOTLAND PLC
By:____________________________
Title:
NEDCOR BANK LIMITED
By:____________________________
Title:
By:____________________________
Title:
ABSA BANK LIMITED
By:____________________________
Title:
By:____________________________
Title:
STANDARD BANK LONDON, LIMITED
By:____________________________
Title:
By:____________________________
Title:
SUMMIT BANK
By:____________________________
Title:
FLEET BANK, N.A.
By:____________________________
Title:
BANKERS TRUST COMPANY
By:____________________________
Title:
BEAR XXXXXXX CORPORATE LENDING INC.
By:________________________________
Title:
CIBC INC.
By:____________________________
Title:
XXXXX FARGO BANK, NATIONAL
By:____________________________
Title:
ABN AMRO BANK N.V.
By:____________________________
Title:
CITY NATIONAL BANK OF FLORIDA
By:____________________________
Title:
SCHEDULE I
PERCENTAGES AND ADMINISTRATIVE INFORMATION
------------------------------------------
--------------------------------------------------------------------------------------------
REVOLVING LOAN
LENDER NAME: COMMITMENT DOMESTIC OFFICE: LIBOR OFFICE:
PERCENTAGES:
--------------------------------------------------------------------------------------------
The Bank of Nova 10.784% One Liberty Plaza Xxx Xxxxxxx Xxxxx
Xxxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxx Xxxxxxx Attn: Xxxx Xxxxxxx
--------------------------------------------------------------------------------------------
Societe Generale 10.784% 0000 Xxxxxxx Xxxx Xxxx 0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
--------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. 2.400% 000 X. XxXxxxx Xxxxxx 208 X. XxXxxxx Street
Suite 1500 Suite 1500
Chicago, IL 60604 Xxxxxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Loan Attn: Loan
Administration Administration
--------------------------------------------------------------------------------------------
ABSA Bank Limited, 7.200% 52-54 Gracechurch 00-00 Xxxxxxxxxxx Xxxxxx
Xxxxxx Branch Street London, EC3V 0LD
Xxxxxx, XX0X 0XX Xxxxxxx
Xxxxxxx Facsimile No.:
Facsimile No.: 011-44-171-528-6036
011-44-171-528-6036 Attn: Xxxxx Xxxxx
Attn: Xxxxx Xxxxx
--------------------------------------------------------------------------------------------
Bankers Trust Company 9.344% 000 Xxxxxxx Xxxxxx 130 Liberty Street
MS 2252 MS 2142
--------------------------------------------------------------------------------------------
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxxxxxx
--------------------------------------------------------------------------------------------
Bear Xxxxxxx 4.000% Bear Xxxxxxx & Co. Inc. Bear Xxxxxxx & Co. Inc.
Corporate Lending Inc. 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxxxx Xxxxxxxxxx Attn: Xxxxxx Xxxxxxxxxx
--------------------------------------------------------------------------------------------
CIBC Inc. 9.344% CIBC World Markets CIBC World Markets
Two Paces Ferry Road Two Paces Ferry Road
2727 Paces Ferry Road 0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 30339 Xxxxxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
--------------------------------------------------------------------------------------------
City National Bank of 3.200% 00 Xxxx Xxxxxxx Xxxxxx 00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
--------------------------------------------------------------------------------------------
Fleet Bank, N.A. 8.000% 0000 Xxxxx 0 Xxxxx Xxxxx Xxxxxxxx &
Xxxxxxxx, XX 00000 Atlantic Avenue
Facsimile No.: Xxxxxxxx Xxxx, XX 00000
(000) 000-0000 Facsimile No.:
Attn: Xxxx Xxxxxxxx/ (000) 000-0000
Xxx Xxxxxxxxxx Attn: Xxxx XxXxxxxx
--------------------------------------------------------------------------------------------
Nedcor Bank Limited 8.000% Nedbank House Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxx 00 Xxxxxxxx Xxxx
Xxxxxx, XX0X 0XX Xxxxxx, XX0X 0XX
Xxxxxxx Xxxxxxx
Facsimile No.: Facsimile No.:
011-44-171-621-9304 011-44-171-621-9304
Attn: Xxxxxx Garden Attn: Xxxxxx Garden
--------------------------------------------------------------------------------------------
The Royal Bank of 9.600% Waterhouse Square Currency Advances
Scotland plc 138-142 Holborn 0-00 Xxxxx Xxxxx Xxxxxx
--------------------------------------------------------------------------------------------
London ED1N 0XX Xxxxxx XX0X 0XX
Xxxxxxx Xxxxxxx
Facsimile No.: Facsimile No.:
011-44-171-427-9971 011-44-171-220-7370
Attn: Xxxx Xxxxxxx Attn: Xxxxx Xxxxx
--------------------------------------------------------------------------------------------
Standard Bank London, 4.800% Xxxxxx Bridge House Xxxxxx Bridge House
Limited 00 Xxxxxxx Xxxx 00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX Xxxxxx XX0X 0XX
Xxxxxxx Xxxxxxx
Facsimile No.: Facsimile No.:
011-44-171-815-4243 011-44-171-815-4243
Attn: Corporate Attn: Corporate Banking
Banking Dept. Dept.
--------------------------------------------------------------------------------------------
Summit Bank 3.200% 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Facsimile No.: Facsimile No.:
(000) 000-0000 (000) 000-0000
Attn: Xxxxxx Xxxxx Attn: Xxxxxx Xxxxx
--------------------------------------------------------------------------------------------
Xxxxx Fargo Bank, 9.344% Commercial Banking Commercial Banking Loan
National Association Xxxxxx Xxxxxx
Xxx Xxxx Xxxxx Xxxxxx 000 0xx Xxxxxx
Xxxxx 000 Xxx Xxxxxxxxx, XX 00000
Xxxx, XX 00000 Facsimile No.:
Facsimile No.: (000) 000-0000
(000) 000-0000 Attn: Xxxxx Xxxx
Attn: Xxxx Xxxxxxx
--------------------------------------------------------------------------------------------
