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Exhibit 99.07
FIFTH AMENDMENT TO REIMBURSEMENT AGREEMENT
This FIFTH AMENDMENT TO REIMBURSEMENT AGREEMENT (this "Amendment"),
dated as of September 15, 2000, by and among HILTON HOTELS CORPORATION, a
Delaware corporation (the "Company"), DEUTSCHE BANK AG, NEW YORK BRANCH, as
issuer of the Letter of Credit (in such capacity, the "Issuer"); DEUTSCHE BANK
AG, NEW YORK BRANCH AS SUCCESSOR TO DEUTSCHE BANK AG, LOS ANGELES BRANCH, THE
BANK OF NEW YORK, SOCIETE GENERALE, CITICORP USA, INC. (herein collectively, the
"Banks" and individually a "Bank"); and DEUTSCHE BANK AG, NEW YORK BRANCH, as
agent (in such capacity, the "Agent"). Unless otherwise expressly defined
herein, any capitalized term used herein and defined in the Reimbursement
Agreement (as defined below) shall have the meaning assigned to it in the
Reimbursement Agreement.
W I T N E S S E T H :
WHEREAS, the Issuer has issued that certain letter of credit No.
839-53762, dated May 16, 1996 (the "Letter of Credit"), pursuant to that certain
reimbursement agreement, dated as of May 16, 1996, as amended by a First
Amendment to Reimbursement Agreement, dated as of December 17, 1996, as further
amended by a Second Amendment to Reimbursement Agreement, dated as of May 1,
1998, as further amended by that certain Letter Agreement, dated May 10, 1999,
and as further amended by a Third Amendment to Reimbursement Agreement, dated as
of June 30, 1999, and as further amended by a Fourth Amendment to Reimbursement
Agreement, dated as of November 30, 1999 (collectively, the "Original
Reimbursement Agreement"; as amended from time to time, including by this
Agreement, the "Reimbursement Agreement"), by and between the Company, the
Agent, the Issuer and the Banks;
WHEREAS, the Company, the Issuer, the Agent and the Banks each desire
to amend the Original Reimbursement Agreement in the manner and pursuant to the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises made hereunder by the
Company, the Issuer, the Agent and the Banks, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
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1. AMENDMENTS TO REIMBURSEMENT AGREEMENT.
1.1 CONSENTS. The Company, the Issuer, the Agent and each of the
Banks executing this Agreement hereby consent to the following amendments to the
Reimbursement Agreement on the terms and subject to the conditions set forth
herein.
1.2 DEFINITIONS.
1.2.1 ADDITIONAL DEFINED TERM. The following definition is hereby added
to the Reimbursement Agreement:
"Consolidated Net Tangible Assets" means the total assets of the
Company and its Consolidated Subsidiaries, after deducting therefrom (a) all
current liabilities of the Company and its Consolidated Subsidiaries (excluding
(i) the current portion of long term indebtedness, (ii) inter-company
liabilities, and (iii) any liabilities which are by their terms renewable or
extendable at the option of the obligor thereon to a time more than twelve
months from the time as of which the amount thereof is being computed), and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the latest consolidated
balance sheet of the Company prepared in accordance with generally accepted
accounting principles.
1.3 OTHER AMENDMENTS
1.3.1 SECTION 7.07. Section 7.07(i) is hereby deleted in its entirety
and amended in full to read as follows:
"(i) Liens not otherwise permitted by the foregoing clauses of
this Section which secure indebtedness in an aggregate
principal amount which is not in excess of 10% of Consolidated
Net Tangible Assets (determined as of the most recent date for
which Company has delivered its financial statements under
Section 7.01(a) or Section 7.10(b), as applicable), and
encumbering assets which have a value, as determined by the
board of directors of the Company in connection with the
incurrence of each such Lien, which the board of directors of
Company determines is reasonably related to the amount of the
indebtedness secured thereby.
2. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Issuer, the Agent and the Banks as follows:
2.1 AUTHORITY. The Company has all necessary power and has taken all
corporate action necessary to make this Agreement and all other agreements and
instruments executed in connection herewith the legal, valid and binding
obligations they purport to be.
2.2 NO LEGAL OBSTACLE TO AGREEMENT. The execution of this Agreement
has not constituted or resulted in and will not constitute or result in a breach
of any provision of any contract to which the Company is a party, or the
violation of any law, judgment, decree or
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governmental order, rule or regulation applicable to, or result in the creation
under any agreement or instrument of any security interest, lien, charge or
encumbrance upon any of the assets of, the Company, except in favor of the Agent
and the Banks or as permitted by the Reimbursement Agreement. No approval or
authorization of any governmental authority is required to permit the execution,
delivery or performance of this Agreement, or the transactions contemplated
hereby or thereby.
2.3 INCORPORATION OF CERTAIN REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in Article VI of the Reimbursement
Agreement are true and correct in all respects on and as of the date hereof, as
through made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date.
2.4 DEFAULT. Upon this Agreement becoming effective pursuant to
Section 3.1 hereof, no Default or Event of Default has occurred and is
continuing.
3. MISCELLANEOUS.
3.1 EFFECTIVE DATE. This Amendment shall become effective on the date
(the "Fifth Amendment Effective Date") when the Company, the Agent, the Issuer,
each Existing Bank and each New Bank shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered (including
by way of facsimile transmission) the same to the Agent.
3.2 EFFECT OF AGREEMENT ON REIMBURSEMENT. Except as affected hereby,
the Reimbursement Agreement, the other Related Documents and any and all other
agreements, documents, certificates and other instruments executed in connection
therewith, shall remain in full force and effect in accordance with their
respective terms. Except as otherwise provided herein, the Reimbursement
Agreement, the other Related Documents and any and all other agreements,
documents, certificates and other instruments executed in connection therewith,
are in all respects ratified and confirmed, and nothing contained in this
Agreement shall, or shall be construed to, modify, invalidate or otherwise
affect any provision of such agreements, documents, certificates and instruments
or any right of the parties thereto.
3.3 EFFECT OF BREACH OF AGREEMENT. The Company hereby acknowledges
and agrees that a breach of or noncompliance with any of the representations,
warranties, covenants or terms contained herein shall constitute an Event of
Default.
3.4 NO WAIVER OF EVENT OF DEFAULT. The execution of this Agreement by
the Issuer, the Agent and the Banks does not constitute a waiver of any Event of
Default which not exists or which may occur hereafter.
3.5 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together
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constitute one and the same instrument. A complete set of counterparts shall be
lodged with the Company and the Agent.
3.6 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
3.7 REFERENCE. From and after the Fifth Amendment Effective Date, all
references in the Reimbursement Agreement and each of the Related Documents to
the Reimbursement Agreement shall be deemed to be references to the
Reimbursement Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
THE COMPANY
HILTON HOTELS CORPORATION
By________________________________________________
Title: Matthew J. Hart, EVP & CFO
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Attention: Mariel Albrecht
Vice President and Assistant Treasurer
Tel: (310) 205-4331
Fax: (310) 205-7849
THE AGENT
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Agent
By________________________________________________
Title:
By________________________________________________
Title:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: John Quinn
Tel: (212) 250-6120
Fax: (212) 250-2340
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THE ISSUER
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Issuer of the Letter of Credit
By________________________________________________
Title:
By________________________________________________
Title:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Volker Fischer
Trade Finance
Tel: (212) 469-8636
Fax: (212) 469-7880
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THE BANKS
DEUTSCHE BANK AG, NEW YORK BRANCH, AS
SUCCESSOR TO DEUTSCHE BANK AG, LOS
ANGELES BRANCH
By________________________________________________
Title:
By________________________________________________
Title:
Deutsche Bank AG, New York Branch, as Successor to
Deutsche Bank AG, Los Angeles Branch
31 West 52nd Street
New York, New York 10019
Attention: Thomas Foley
Vice President
Tel: (212) 469-8636
Fax: (212) 469-7880
CITICORP USA, INC.
By________________________________________________
Title:
Citicorp USA, Inc.
c/o Salomon Smith Barney
390 Greenwich Street
1st Floor
New York, NY 10013
Attention: Michael Chlopak
Vice President
Tel: (212) 723-5899
Fax: (212) 723-8380
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THE BANK OF NEW YORK
By________________________________________________
Title: Mehrasa Raygani
Assistant Vice President
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, California 90024
Attention: Lisa Brown
Tel: (310) 996-8656
Fax: (310) 996-8667
SOCIETE GENERALE
By________________________________________________
Title:
Societe Generale
2029 Century Park East
Suite 2900
Los Angeles, California 90067
Attention: Alex Kim
Tel: (310) 788-7104
Fax: (310) 551-1537
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